Petition for Writ of Certiorari — Saylor v. Saylor

oa" Supreme Court, U.S.

r.\ FILED

Oy 677 0Cl 171997

OFFICE OF THE CLERK

No.

in the

Supreme Court of the United States

October Term, 1997

RANDY SAYLOR, SR., suing individually and DEBBIE

SAYLOR, suing individually and as Next Friend of RANDY

SAYLOR, JR., an

infant,

Petitioners,

VS.

SAM B. SAYLOR, JIM ROARK, and WILLIAM-A. LEE,

Respondents,

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

William D. Stark, Jr.

PO Box 878

Barbourville, KY 40906

Telephone: (606) 546-8014

D. Randall Jewell

Millward & Jewell

PO Drawer 670

Barbourville, KY 40906

Telephone: (606) 546-9714

By: William D. Stark, Jr.

Counsel of Record

and D. Randall Jewell

i

QUESTION PRESENTED

Are a state public school teacher and other school offi-

cials entitled to claim and receive qualified immunity or ex-

oneration for their acts and conduct under federal civil rights

law, if such individuals admit that they knowingly violated

the published policy and regulations of the school system

by acting or causing the corporal punishment of a pupil in

violation of such policy, and if such individuals admit that

excessive force was used for such punishment with result-

ing injury to such pupil?

i

PARTIES TO THE PROCEEDING

A list of all parties to this proceeding is contained in the

caption to this case.

TABLE OF CONTENTS

Page

CRAIN FUORI ogo cic eass crea lcesisioneiasseasoen

PUTTS 0 Ba FN ans assicicrerce interns esionnensinens ii

TORRE CE CORI hisicctccsnkicccmandicane niente il

TERS OF CI ii ciate aunties: iii

CSET TH inccschscnseccesawiecteecanb eas ealecatidegnccsicing 1

SHERRIE CF URI OIG oo. cascracsiciccnatiscitntesinntstunipesiscnbicins 1

Constitutional and Statutory Provisions Involved ............. 1

Seer Teme CE URN CI ooo cccnsccsessseiccnis sasccccrevgeesasenvocs 2

Existence of Jurisdiction Below ..............ccccessseeeeseeseeeeeees 6

Reasons for Granting the Writ ................ccccsssscecssssseseeees 7

COPIORINIONY conniciiccdiccsickect ee eee re 12

iti

TABLE OF CITATIONS

. Page

CASES CITED:

Franklin v. Auycoch, ..95 F.2d 1253 (6th C. 1986).......... 10

Garcia v. Meira, 817 F. 2d 650 (10th C. 1987), Cert. den.

A CN Fis ischckcydcchacresancedscascsavncecensencieisiononis 9

Hall v. Tawney, 621 F.2d 607 (4th C. 1980) ...........ccccecceeee 9

Ingraham v. Wright, 430 U.S. 651 (1977) ......cceccccceseeees 8,9

Kendall v. Board of Ed. of Memphis City, 627 F.2d 1(6th C.

PI iri inked u cis acpi eave is vab uhadbiohandoceabeabambnaicaiecons 10

Metzger v. Osbeck, 841 F.2d 518 (3rd C. 1988) .............. g

PB. v. Koch, 96 F.3d 1298 (9th C. 1996) 0.0.0... ..22.cccceeseeees 9

Spruyette v. Walters, 753 F.2d 498 (6th C. 1985), Cert. den.

A et BE ia srichirs cov pnesicssniamcdanserceubanvehiorsmblearsus 8

Webb v. Mc Cullough, 828 F.2d 1151 (6th C. 1987)......... 9

Wise v. Pea Ridge School District, 855 F.2d 560 (8th C.

ME iid Si on pc hdoiindannnencspennietebbesnvspcnbnixastdigtancckas 3

Wood v. Ostrander, 879 F.2d 583 (9th C. 1989) Cert. den.

A ie WU NE oc ssssiosncsenctadvode Guckcesvedwbsnucnosesreobeess 9

STATUTES CITED:

MN EN, OI Bi icciocsnsesdunaasivapeacedsecadsesinancuevacticiosas 1

BRE I SIE EE veccicidchedeneinivanciestecascessecccesevsavespnane 1

UNITED STATES CONSTITUTION CITED:

i su cet canioiossiosemesatvensanre 1

POUTIROTIT) PITIOIIGIION 0... scccccescesnccesnescanscsssncecsconsscenccons 1

APPENDIX

Appendix A - Opinion of the United States Court of Appeals

for the Sixth Circuit, filed July 22, 1997.00.00... A-1

Appendix B - Letter from the Clerk of the United States Court

of Appeals for the Sixth Circuit dated July 22, 1997... B-1

Appendix C - Opinion and Order of the United States Dis-

trict Court for the Eastern District of Kentucky dated De-

I OR, ID sei leskdh csc tnseresvsuicdyscunsadsiovnoboncevenivess C-1

i)

1

The Petitioners, Randy Saylor, Jr., Randy Saylor and

Debbie Saylor respectfully request that a writ of certiorari

be issued to review the judgment of the United States Court

of Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit will be reported in 118 F.3d 507 (1997), and

is reproduced hereto as Appendix A. The opinion of the

United States District Court of the Eastern District of Ken-

tucky is not reported but is reproduced hereto as Appendix

C.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for

the Sixth Circuit was entered on the date of July 22, 1997

pursuant to letter from the Clerk of such Court dated as of

July 22, 1997 and reproduced hereto as Appendix B.

The jurisdiction of this Court is invoked under 28 U.S.C.

Sec. 1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides in relevant part: “No person shall ...be deprived of

life, liberty, or property without due process of law. . .”

The Fourteenth Amendment to the United States Con-

stitution provides in relevant part: “. . . nor shall any state

deprive any person of life, liberty, or property, without due

process of law. . .”

42 U.S.C. Sec. 1983 provides in relevant part: “Every

person who, under color of any statute, ordinance, regula-

tion, custom, or usage, or any State. . . subject or causes to

be subjected, any citizen of the United States ...to the dep-

rivation of any rights, privileges, or immunities secured by

2

the Constitution and laws, shall be liable to the party injuredin

an action at law, suit in equity, or other proper proceeding

for redress. . .”

STATEMENT OF THE CASE

The Petitioners are Randy Saylor, Jr., and his parents,

who filed this suit when he was a juvenile. He is now an

adult, but will be referred to herein as “Randy”. This case

deals with the situation which occurred initially on the date

of December 12, 1990, when Randy was a student in the

Eighth grade at the Wallins Elementary School. This school

was a part of the system of the Harlan County Board of

Education. The Respondents are respectively, the princi-

pal, vice principal, and the mathematics teacher of the

school.

The written opinion and decision of the Sixth Circuit Court

of Appeals is appended hereto as Appendix A. This opinion

is comprehensive and contains a full discussion of the facts

and issues presented in this litiation. It submitted, however,

that the following factors should be noted for a full compre-

hension of the position of the Petitioners in this matter.

There existed a Code of Conduct, or regulations, adopted

by the Harlan County Board of Education as of the date of

this incident. This Code of Conduct regulated the opera-

tions of the school system as to pupils and the staff of each

school. This Code of Conduct provided for two forms of pun-

ishment if an offense was committed by a pupil in the school.

These forms of punishment were either suspension or cor-

poral punishment. The regulations provided that corporal

punishment could not be used if the parents did not consent

to such and informed the administration of such desire. Sus-

pension was used in lieu of corporal punishment. In this

situation, the pupil was dismissed from the school and could

not return until the parenis met with the school officials and

resolved the disciplinary problem. After such, the pupil could

return to the school.

The facts herein are that Randy did engage in a fight in

the mathematics classroom on the subject date when the

teacher was not in the room. This fight was with another

boy due to a prior dispute. The vice-principal came by the

classroom and stopped such. He took both boys to his of-

fice, and discussed corporal punishment with the youths.

Randy was not paddled initially as he had protested this

form of punishment due to the desires of his parents. His

parents had withdrawn the consent for corporal punishment

due to an incident the prior year. Randy was then suspended

formally by the vice principal and was advised to call his

mother from the office so that she could come and remove

him from the school. Randy could not reach his mother on

the phone at first and remained in the office to make the call

to his mother.

The mathematics teacher had been in the office and

had discussed the paddling situation with Randy. He was

aware of the facior that Randy had explained he could not

be paddled and that he was suspended by the vice princi-

pal. The teacher had left to give a test to the class, and had

later returned to the office. He saw Randy there, and at-

tempted to secure his consent to be paddied. Randy con-

tends that he was advised that he could not take the test

due to the suspension and that he may fail the Eighth grade.

The teacher then left the office. After the class, the teacher

returned to the office and again discussed the situation with

Randy. At this point, Randy consented to be paddled.

The principal of the school became involved in this mat-

ter prior to the third meeting with the teacher and Randy. He

had seen Randy in the office and discussed the situation

with him, and was advised that Randy did not wish to be

paddled due to circumstances. The principal acknowledged

in the case that he was aware that Randy’s parents had

withdrawn consent for corporal punishment due to a prior

4

incident. He further advised that he believed the pupil could

not retract the restrictions of the parents in such matters.

The principal later permitted the paddling of Randy, how-

ever, when he was asked by the teacher to witness such

after Randy consented to the paddling.

Prior to the paddling, the teacher advised Randy and

the principal that he was going to bust Randy’s butt. The

principal admonished the teacher to administer discipline,

and offered to do the paddling. The teacher rejected the

offer, and gave Randy three blows. At this point, Randy

was crying and in obvious distress. The phone rang and the

principal answered such and returned. He advised that the

paddling was over, but the teacher stated that he had two

more blows, and did so. The teacher then left the office and

the principal comforted Randy and took him to the restroom

to compose himself. Randy later went to take the mathemat-

ics test with the teacher, but he could not take it due to his

emotional state. He attended the other classes at school

and went home on the bus at the end of the school day.

The aftermath of this incident involves the consensus

that the teacher used excessive force in administering the

punishment. Randy was examined later by a physician. He

was not severely injured due to the paddling. His buttocks

were substantially bruised and he suffered emotional dis-

tress from the incident. In particular, Randy became afraid

of the teacher and did not desire to attend his classes any

further. He did not return to school immediately after the

paddling and after the Christmas vacation. After he did re-

turn, Randy first stayed in the office during the mathematics

class. His parents later protested this situation in a meeting

with the school board in mid-January, 1991. After such,

Randy was placed into a remedial mathematics class. He

received individual instruction from the teacher in this class

for the reminder of the school year. He did graduate from

the Eighth grade.

5

The parents of Randy became involved in this matter

after he came home from school, and as they became aware

of his condition. His parents first met with the principal of

the school the next day. They desired that the teacher be

reprimanded and punished in some manner for his acts.

This meeting did not resolve their concerns. No action was

taken with regard to the teacher. The parents later met with

the school board in January, 1991 to correct the factor that

Randy was not receiving mathematics instruction, and to

have the teacher punished in some manner. This meeting

did not result in a solution which was satisfactory to the

parents. No action was taken as to the teacher by the board.

The teacher is the son of a retired superintendent of the

school system. The parents believed that this was a factor

in this matter, and concluded that the school board would

take no action to satisfy their desires in this matter.

The parents later met with the county officials over the

corporal punishment of their son. The parents went to the

grand jury and secured an indictment of the teacher over

the incident. The father of the teacher then went to Randy's

father and requested that he dismiss the indictment. Randy’s

father was advised that if he did not do so, the school offi-

cials would secure negative conduct reports from the teach-

ers of Randy at the school, and place such into his school

file. Randy’s father refused to dismiss the indictment of the

teacher. The vice principal of the school later went to Randy's

teachers and secured negative conduct reports and placed

such into his file. At a later point, the teacher and the princi-

pal went before the grand jury. The grand jury then dismissed

the indictment of the teacher. This litigation is the result of

these events.

All parties have acknowledged that the force used to

perform the corporal punishment as to Randy was exces-

sive. It appears undisputed that Randy did suffer some in-

jury due to this punishment, but the injury was not severe.

6

The paddling occurred in the presence of the principal of

the school. He did not stop such when Randy was in obvi-

ous distress after the third blow of the paddle. Moreover,

the principal permitted the paddling initially, even though he

was aware that the parents did not wish that their son be

paddied under the school regulations. No explanation has

been provided by any Respondent in this case as to why

Randy's rights under the regulations were not observed in

this matter. The only reason, which is disputed, is that the

teacher contends that Randy’s father at some point gave

him permission to use corporal punishment in the event

Randy misbehaved in his classroom.

This case is otherwise unique in that the paddling oc-

curred after Randy had been disciplined by his suspension

from the school. His only reason for being at the school

_was that his mother could not be reached to remove him

from the school. At the initial meeting with the vice principal

and the teacher, Randy had been punished under the regu-

lations by a suspension from the school. However, the

teacher met with him on two subsequent occasions to se-

cure his consent to be paddled, until Randy did relent and

agree to the corporal punishment. As to the principal, he

had previously met with Randy and was aware of the situa-

tion and that Randy had rejected the paddling. The princi-

pal further knew that the parents did not wish Randy to be

paddled and that he had been suspended under the school

system's Code of Conduct. In the light of these factors, no

explanation has been provided by the Respondents as to

what legitimate school purpose had been served by the treat-

ment of Randy under the circumstances presented in this

case.

EXISTENCE OF JURISDICTION BELOW

This litigation was commenced by a Complaint filed in

the United States District Court for the Eastern District of

7

Kentucky on the date of December 12, 1991. The basis for

the Complaint and claims of the Petitioners were the First

and Eighth Amendments to the United States Constitution

and 42 U.S.C. Sec. 1983. The United States District Court

later ruled that the First and Eighth Amendments were not

applicable to this case, but did rule that under the pleadings

filed herein, the Fifth and Fourteenth Amendments to be

enforced under 42 U.S.C. Sec. 1983 were the proper basis

for this action. The United States District Court denied the

Motion for Summary Judgment for qualified immunity by the

Respondents by its opinion and Order dated as of Decem-

ber 29, 1994. This Court did grant the Respondents an in-

terlocutory appeal under 28 U.S.C. Sec. 1291 by its Order

dated as of January 18, 1995.

REASONS FOR GRANTING THE WRIT

The Petitioners submit that this Court should examine

this case as it involves material questions concerning the

rights of school children which exist as matters of federal

law. A review of the case decisions on this subject appear

to provide differing postures on this topic. In this case, the

Sixth Circuit Court of Appeals made a full analysis of this

matter and determined that a dismissal of the claims of the

Petioners was justified under the facts and law in this inter-

locutory appeal. In particular, the Court determined that the

principal and vice pincipal did not commit any legal viola-

tion in this matter as to Randy. In contrast, the Court did

review the role of the teacher in this case, and questioned

his conduct in this matter. The decision, however, provides

that this Respondent is entitled to qualified immunity for his

acts as the federal case law at the time did not alert him to

the factor that the use of excessive force would violate the

rights of the Petitioner in this matter. With due respect to

the Court of Appeals, the Petitioners disagree with both

conclusions for the reasons herein stated, and urge that

8

this Court review this decision.

The Petitioners contend that this case involves two vio-

lations of the liberty interest of this pupil by the Respon-

dents. The force used by the teacher to conduct the pad-

dling was admittedly excessive and caused injury to Randy.

This event was witnessed by the principal who permitted

such to occur and continue even though he was aware that

Randy was in distress. The Petitioners otherwise note that

this treatment of Randy was arbitrary and improper as it was

done in violation of the Code of Conduct which had been

adopted by the school board of the school system. The cor-

poral punishment was additionally improper as Randy had

been suspended from the school under the regulations. As

such, the physical punishment was unnecessary and arbi-

trary and served no educational purpose at the time. As a

final matter, the context of the decision of the Court of Ap-

peals infers that a youth has the capacity to waive his rights

under school policy guidelines with regard to the forms of

punishment provided for misbehavior in the regulations, and

if so, the adult actors are entitled to qualified immunity for

their conduct. The Petitioners urge that these Respondents

did violate the established rights of Randy by their acts and

conduct in this incident, and that they are not entitled to quali-

fied immunity under the circumstances presented in this

matter.

This Court decided the case of Ingraham v. Wright, 430

U.S. 651 (1977) and provided the basic federal law on this

subject. In this case, this Court analyzed the subject of cor-

poral punishment in public schools and determined that such

was not unlawful per se as a means of maintaining disci-

pline as it was not a cruel and unusual punishment or a

violation of the due process rights of pupils. This ruling is, in

effect, that corporal punishment is not a cognizable federal

law violation if the actions taken by the school officials are

reasonable and done for the legitimate purposes of schoo!

——————————E——OO

9

administration. This decision does not provide school offi-

cials with an unrestricted right to violate the personal secu-

rity of pupils in schools. Corporal punishment which is done

in an unreasonable manner, or for improper motives will be

regarded as a substantive due process violation of the pupil

under the Fourteenth Amendment.

Petitioners contend herein that the corporal punishment

of Randy was unreasonable as it was done with excessive

force. This factor has been admitted by the Respondents in

the context of this case. The federal case law at the time

provided that the use of such force was an unreasonable

intrusion of personal security of a pupil under the Ingraham

case decision. See: PB. v. Koch, 96 F. 3d 1298 (9th C. 1996);

Wood v. Ostrander, 879 F.2d 583 (9th C.1989), cert. den.

498 U.S. 938 (1990); Wise v. Pea Ridge School District,

855 F.2d 560 8th C.1988); Metzger v. Osbeck, 841 F.2d

518 (3rd C. 1988); Webb v. McCullough, 828 F.2d 1151 (6th

C. 1987); Garcia v. Miera, 817 F.2d 650 (10th C. 1987), cert.

den. 485 U.S.959 (1988); Hall v. Tawney, 621 F.2d 607 (4th

C.1980). in the instant case, the teacher announced his in-

tention to ‘bust his butt’ and did so in the paddling. The prin-

cipal observed this situation and did not intervene or stop

this treatment. As both Respondentsadmitted that the force

used in this incident was excessive, it is submitted that nei-

ther of them are entitled to qualified immunity for their con-

duct in this matter.

The actions of the Respondents herein were arbitrary

and unreasonable as there was no need to inflict corporal

punishment on Randy as this form of punishment had been

selected under the school system’s Code of Conduct. Each

Respondent admitted that they were aware of the provi-

sions of the code. With the exception of the teacher, it was

admitted that the others knew that Randy's parents had re-

jected corporal punishment for him. The teacher did not

express his position in this matter until this litigation began.

10

In any event, Randy had expressed this position to each

Respondent while he was in the school office. He was ac-

cordingly suspended initially due to his protests under the

provisions of the Code of Conduct. By its terms, this code

was adopted, in part, to protect the constitutional and legal

rights of the pupils in the school system.

In its decision on this matter, the District Court found

that the Code of Conduct of this school system did exist for

all purposes at the time of this incident. It further determined

that the Respondents knowingly violated the such code by

ignoring its restrictions and paddling Randy under the cir-

cumstances. As the violations did occur, and as the Peti-

tioner was injured as a result of such, the Fifth and Four-

teenth Amendment liberty interest for personal security was

violated under the existent law. See: Franklin v. Auycock,

795 F.2d 1253 (6th C. 1986); Spruyette v. Walters, 753 F.2d

498 (6th C. 1985), cert. den. 477 U.S. 1054 (1986); Kendall

v. Board of Ed. of Memphis City, 627 F.2d 1 (6th C.1980).

Under all of the above factors, the Petitioners contend that

the Respondents were not entitled to qualitied immunity. As

this code did exist for some purpose related to the adminis-

tration of the school system, it is suggested that the provi-

sion of this code should be regarded as more than a matter

of semantics. The concept of qualified immunity should not

be expanded in matters of this nature to exonerate school

officials and to permit them to act as they wish. If the pupils

and their parents are expected to comply with these regula-

tions, then it appears proper to expect the same from the

school officials.

The Petitioners otherwise note that under the Code of

Conduct, there was no need to use force in this situation

due to the suspension of Randy which was provided in the

first meeting with the vice principal and the teacher. This

suspension was a disciplinary measure which was provided

by the vice principal in the school for the misconduct of

11

Randy. This form of punishment is provided for in the code,

and under such, Randy could not attend classes and was

required to leave the school. He was advised to contact his

mother by phone and to have her remove him from the

school. He was present in the office during this period as he

could not reach his mother on the telephone for this pur-

pose. In effect, there was no need to paddle Randy for his

conduct as he had been punished by the suspension and

the school officials were aware of this factor.

The corporal punishment of Randy, under the above cir-

cumstances, was arbitrary and did not serve any disciplin-

ary purpose due to the factor of his suspension. No Re-

spondent has yet explained in the course of this litigation

the reason for the corporal punishment in the light of the

prior suspension of the Petitioner. The purpose of school

discipline had been maintained due to the suspension. In

this regard, there was no need for the corporal punishment

as a means of enforcing discipline in the school. Under the

aforestated authorities, the Petitioners contend that the lib-

erty interest of Randy was violated by the Respondents with-

out any proper reason or motive. The Respondents like-

wise cannot claim qualified immunity for their conduct un-

der the facts and legal authorities, and they should not have

been exonerated for such conduct in this situation.

The final factor of concem relates to the content of the

decision of the Court of Appeals and its footnote on the

matter concerning the choice that Randy made for the pad-

dling in lieu of the suspension. Randy would not have been

present in the office for the subsequent discussions with

the teacher to accept the paddling if he could have reached

his mother to come and get him from the school after sus-

pension. The situation presented is the factor that he was

contacted on more than one occasion to accept the pad-

dling while he remained in the office for the above purpose.

As he was technically removed from the school at the time

12

due to the suspension, there would be no need for any adult

educator to discuss this matter with him for any reason.

Nevertheless, the teacher met with Randy until he consented

to accept the corporal punishment.

This consent had some influence upon the Court of Ap-

peals in its decision. This ruling deals with the premise that

Randy made a choice in this matter to accept the corporal

punishment in lieu of the suspension. The inference is made

that this decision is a waiver of the youth to challenge the

conduct of the adults in this situation, and may be a basis

for qualified immunity under federal standards. It is submit-

ted that this premise is incorrect if the adult conduct herein

can be equated with the choice of a youth for such pur-

poses. If this case can stand as authority for such a pos-

ture, this Court should examine such carefully under the

concept of qualified immunity.

CONCLUSION

This case is not a challenge to corporal punishment as

a means of discipline in public schools. It is contended, how-

ever, that qualified immunity should not be used as a means

of exoneration of public school officials who have admitted

that they acted improperly in a situation. For the reasons

herein stated, the Petitioners request that this Petition be

granted by this Court.

Respectfully, Submitted,

William D. Stark, Jr.

A-1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1997 FED App. 0220P (6th Cir.)

File Name: 97a0220p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RANDY SAYLOR, SR., suing

individually, and DEBBIE SAYLOR,

suing individually and as next

friend of RANDY SAYLOR, JR., No. 95-5319

an infant, ‘4

Plaintiffs-Appellees,

v.

BOARD OF EDUCATION OF

HARLAN COUNTY, KENTUCKY,

Defendant,

SAM B. SAYLOR, JIM ROARK,

and WILLIAM A. LEE,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Kentucky at London.

No. 91-00280--William O. Bertelsman, Chief District Judge.

Argued: January 22, 1996

Decided and Filed: July 22, 1997

A-2

Before: CONTIE, NELSON, and BATCHELDER, Circuit

Judges.

COUNSEL

ARGUED: Durenda. L. Lawson, MILLWARD &

JEWELL, Barbourville, Kentucky, for Appellee. Winter

R. Huff, LAW OFFICES OF JOHN G. PRATHER,

Somerset, Kentucky, for Appellant. ON BRIEF: William

D. Stark, Jr., Barbourville, Kentucky, for Appellee.

Winter R. Huff, LAW OFFICES OF JOHN G.

PRATHER, Somerset, Kentucky, for. Appellant.

OPINION

DAVID A. NELSON, Circuit Judge. A fourteen-year-

old schoolboy, Randy Saylor, Jr., got into a wild fight with

a classmate in a public school in Harlan County, Kentucky.

Their teacher, Sam Saylor, punished each of them b

administering five licks with a paddle. The paddling left

the boys with bruised buttocks.

Young Saylor and his parents brought a federal civil

rights action alleging, among other things, a violation of

substantive due process rights guaranteed by the United

States Constitution. The defendants (who include the

teacher and the school’s principal and assistant principal)

ultimately asserted qualified immunity and other defenses

in a motion for summary judgment. The district court

denied the request for qualified immunity, and this

interlocutory appeal followed.

Upon de novo review of the record, and treating all

genuine issues of fact as having been resolved in favor of

the plaintiffs, we conclude that judgment ought to have

been entered in favor of the individual defendants on the

A-3

basis of qualified immunity. The denial of such immunity

will be reversed.

I

Randy Saylor, Jr., was born at Harlan Appalachian

Hospital on September 11, 1976. He attended Wailins

Elementary School, in Harlan County, from kindergarten

through eighth grade. A younger sister followed him

in school.

Resort to corporal punishment was not unknown at

Wallins, and a number of the teachers kept paddles in their

rooms. Prior to the incident out of which this lawsuit

arose, according to the boy’s deposition testimony, Randy

had been spanked by five different teachers (but never by

defendant Saylor) beginning as early as the fourth grade.

When Randy was in the seventh grade, a teacher named

Henry Howard paddled him-on the back of the legs hard

enough to leave bruises. Upset at this, Randy’s parents

told the principal, defendant William Lee, that henceforth

they did not want the school to administer corporal

punishment to either of their children. (A “Code of

Conduct” for the Harlan County schools provided that

parents who objected to corporal punishment could so

notify the proper school official upon enrollment of the

student.) Mr. Lee subsequently testified at his deposition

that he told all the teachers they were not to spank Randy

Saylor.

When Randy entered the eighth grade in the fall of 1990,

his mother testified, defendant Jim Roark, the assistant

principal, was toid that the Saylors didn’t want their kids

whipped in school. Randy’s father, similarly, testified that

he told both Roark and Lee at the beginning of the school

year that he did not want corporal punishment used on his

Kids at Wallins. Neither Mr. Saylor nor Mrs. Saylor had

occasion to convey this message directly to defendant Sam

A-4

Saylor, ' Randy’s eighth grade mathematics and history

teacher. Sam Saylor had been told by Mr. Lee during the

prior school year, however, that Randy’s parents did not

want him spanked at school.

A few weeks after Randy started the eighth grade, as the

testimony of several witnesses established, Sam Saylor

telephoned one of Randy’s parents to report a problem with

the boy’s classroom behavior. Randy and his father met

with Sam Saylor-at the school the following day. In the

course of the meeting, Sam Saylor testified, Randy’s father

told the teacher, in haec verba, “that if he [young Randy]

gives you any more problem .. . I’m telling you to bust

his ass.” The father added, Sam Saylor said, that “if that

don’t do any good . . . you call me and [looking at the

boy] I'll take you in front of that class and take my damned

belt off and wear your ass out in front of that class.” This

conversation was reported to Assistant Principal Roark the

next day, according to Sam Saylor, and Principal Lee

testified that Sam Saylor likewise told him in October that

Randy’s father had given Sam permission to spank the boy.

Randy Saylor, Sr., testified that when his son

misbehaved at home, he (the father) would whip him with

a belt or a switch. In response to a general question by

counsel for the defendants, however, Mr. Saylor denied

ever having told Sam Saylor that it was all right for the

latter to administer corporal punishment. The father

subsequently volunteered that

“I have told them people, all of them, if you have any

problems with my kids whatsoever in this school, you

are to contact me or their mother. If I’m not here that

"Saylor is a common name in Harlan County. Sam Saylor and

Randy Saylor, Sr., had known one another all their lives, but they were

not aware of any blood relationship. Contrary to speculation offered

by the district court at oral argument on the summary judgment motion,

there had been no animosity between the two men prior to the paddling.

“I thought Sam was a pretty good fellow,” Randy Saylor, Sr., testified.

A-5

day, [’ll miss work the next day to be here. If they

need whipped, Ill whip them in front of you.”

Young Randy testified that he remembered his father

telling Sam Saylor, “Well, if he gives you any more

problems, call me and I’ll take care of him.” The boy was

not directly asked if he remembered his father telling the

teacher to “bust his ass” if young Randy gave the teacher

any more problems — nor was this question posed by

counsel for either side during the father’s deposition.

On December 12, 1990, as young Randy later told it,

Randy was challenged to fight by a classmate, Brian

Turner. Randy was big for his age 2 — much bigger

than Brian — but this seems to have been no deterrent as

far as Brian was concerned.

The trouble started in Mr. Howard’s science class,

according to Randy’s testimony, when Randy felt

something on his shoulder. He thought it was a paper wad

thrown by Brian Turner, who was sitting a few seats

behind him. Randy threw a paper wad at Bnan,

whereupon the latter, “cussing and carrying on,” said he

wanted to fight. Randy asked him to name the time, and

Brian proposed the next break. (As both boys presumably

knew, the Code of Conduct expressly prohibited fighting on

school property. In this connection the Code said that “any

student who finds himself/herself the victim of harassment

should notify a teacher or principal.”)

When the bell rang at the end of the period, the boys

went on to Mr. Saylor’s room for their mathematics class.

The class was scheduled to begin at 12:45 p.m., but Mr.

Saylor was late in getting back from a sixth grade class he

had volunteered to teach several days a week during his

2 At a deposition conducted in February of 1993, when Randy

16 years old, Randy testified that he weighed 240 pounds and

6°3” in height. At the time of the fight, he estimated, he had

about 5°10° tall and had weighed 180 pounds.

+e

A-6

lunch hour. The sixth grade class was on another floor of

the building.*

When Randy arrived at Mr. Saylor’s room, according to

Randy’s testimony, Brian proposed getting the fight over

with then and there. Randy, unfortunately, agreed. Brian

swung first, hitting Randy in the face with his fist hard

enough to leave a bruise. The boys fought for a time

Standing up, and Randy then wrestled Brian to the floor.

Suggesting that they needed to stop fighting before Mr.

Saylor arrived, Randy let Brian up. The latter came at him

again, however, so Randy hit him with a plastic garbage

can, scattering garbage everywhere. Then Randy hit Brian

in the face with a small plastic water bucket, after which

Randy started throwing yardsticks. Brian still wanted to

fight, so Randy — “getting mad,” in his words —

picked up a folding metal chair with which he intended to

hit the smaller boy. Other students got the chair away,

whereupon Randy picked up a second chair. He testified

that he was going at Brian with the chair when the assistant

principal, Mr. Roark, came to the door and screamed at the

combatants to get to his office. Randy threw the chair

down and left the classroom.

When the boys got to the office, Randy testified, Mr.

Roark told them that Mr. Saylor was going to be very

angry and would expect them to be paddled; that fighting

was against the rules; and that the boys had to apologize to

one another. Sam Saylor arrived at the office at about this

point and was filled in on the fight.

Mr. Saylor may or may not have been angry — Randy

testified that “he was kind of angry acting” — but the

prediction as to paddling proved accurate. Mr. Saylor told

the boys that each of them would get five licks (the

The plaintiffs’ attommeys have suggested that Mr. Saylor might have

been late because he was checking on an automatic car wash he owned

nearby. The record contains no evidence indicating that Mr. Saylor

was not where he said he was, however.

ee

A-7

maximum permitted under school policy), and he asked

Mr. Roark for the latter’s paddle. *

In Roark’s presence, but with Randy waiting outside the

office, Saylor paddled Brian five times. Asked whether

they were a licks or hard licks,” Mr. Roark said they

were “good licks,” licks that Roark thought were

“appropriate.” Brian was not required to lower his

trousers during or after the punishment, but school officials

perry the next day that the boy’s buttocks had been

ruised.

As for Randy, he initially told Roark and Saylor that he

did not want to be paddled. ® Mr. Saylor responded that

the boy would not be allowed back in the classroom unless

he took his discipline. Randy again said that he wasn’t

getting paddled, and Mr. Saylor suggested to him that he

speak with his mother on the telephone. Randy attempted

to do so, bui was unable to reach her.

Mr. Saylor returned to his classroom with Brian, but Mr.

Roark continued to talk with Randy, urging him to take the

paddling. (Roark testified that eats Randy’s parents

had never told him directly they were lifting their

prohibition against Randy’s being spanked at school, he had

understood from Sam Saylor that the boy’s father had lifted

the prohibition in October. In speaking with Roark, Lee

and Sam Saylor after the fight and before the paddling,

Randy himself does not appear to have said a word about

his parents’ current stance on corporal punishment.)

“According to Principal Lee, Sam Saylor was one of the teachers

who did not keep a paddle in his room. Randy testified to the contrary.

Be that as it may, Mr. Lee testified without contradiction that “Mr.

Saylor probably spanked less than anybody in that school just about

Sit is clear that both boys had the option of not accepting this form

of punishment. Principal Lee testified that under school policy the

student had to agree before corporal punishment would be

administered.

A-8

Randy still refused the | gone a so Mr. Roark gave him

a standard-form letter of suspension. Where the words

“Dates of Suspension” were printed on the form, Roark

wrote “Parents to school.” Mr. Roark explained at his

deposition that this meant Randy was to bring his parents

to school and would be suspended unless the problem were

resolved with the parents.

Sam Saylor came back to the office at some “em and

told Randy that the other students in the math class were

being given a test; that Randy’s absence was unexcused;

and that he would receive a zero if he missed the test.

Randy testified that he was also told he would have to

repeat the eighth grade; Sam Saylor denied having made

the latter statement, and Mr. Roark testified that he did not

recall anything of the sort having been said.

After returning again to his classroom, Mr. Saylor was

summoned to the office to take a phone call. Mr. Roark

had left on other business by this time, but Randy was still

at the office. On seeing Mr. Saylor, Randy asked if it

were too late for him to take the paddling. It wasn’t, and

Mr. Saylor told Randy to find Mr. Lee or Mr. Roark.

(The Code of Conduct provided that “[a] teacher or

principal must administer corporal punishment in the

presence of a second school official.”)

Randy went into Mr. Lee’s office and informed the

principal that he had decided to take the spanking. After

finishing a report he was working on, Mr. Lee went to talk

with Mr. Saylor.

When Lee found Saylor; according to the latter’s

testimony, Saylor asked him “do you want to watch me

bust Randy’s butt.” After correcting his language, Lee

inquired if Saylor wanied him (Lee) to take care of it.

Saylor’s response, according to Lee, was, “no... I

spanked the other boy and it wouldn’t be fair if I don’t

spank him.” Randy testified that Saylor responded, “No,

this one’s mine. . . .” Randy and both his parents further

testified that they did not have any reason to believe that

A-9

the spanking was for anything other than fighting in the

classroom.

Randy, Mr. Lee and Mr. Saylor went into Mr. Roark’s

office, where the paddle was again taken out of the desk.

Randy testified that it was an older paddle, perhaps two

and a half or three inches wide and fourteen or fifteen

inches long.® Randy kept his trousers on, as Brian had

done, and Mr. Saylor paddled him three times before being

interrupted by the ringing of a telephone. The third blow

was so hard, Randy testified, “it’s just like it knocked the

breath out of me.”

The telephone call was for Mr. Lee, who took it in an

adjoining office. Mr. Lee had thought the boy was to

receive only three licks, he testified, so when he got back

from the call he said something to Randy indicating that the

punishment was over. Mr. Saylor, however, expiained that

there were to be five licks in all. Although Randy said that

he didn’t want to take any more, according to his

testimony, Mr. Saylor then administered the final two

licks. The first three had been “fairly hard,” in Mr. Lee’s

opinion, but Lee thought that the last ones were “easy.”

Mr. Lee further testified that Mr. Saylor’s attitude was

“normal” at the time of the spanking, that Saylor did not

seem upset, and that he did not show any hostility.

Randy had started to cry during the spanking, but he

composed himself afterwards and went back to class with

Mr. Saylor to take the test. The boy wrote only a little,

and then told Mr. Saylor that he had forgotten to Study the

night before and was still shaken up about the paddling.

“According to Randy, Mr. Roark’s paddle was longer and narrower

than the newer paddles the teachers were supposed to use. Mr. Roark

testified that there were two paddle “molds,” one for primary grades

and one for junior high; the junior high model was a little larger in

size. Paddies were often stolen, it appears, and the particular paddle

used on Randy could not be found when the boy’s father asked for it

the following January.

A-10

Mr. Saylor told him he could study at home that evening

and take the test the next day.

Randy attended the final class of the day and then rode

home on the school bus, reaching home around 3:10 in the

afternoon. He told his mother about the spanking and

showed her his bottom, which was bruised and swollen.

(A photograph taken-that evening shows a large red area on

the right haunch. A smaller and somewhat fainter bruise

is visible on the left side.) Mrs. Saylor took Randy to a

hospital emergency room, where he was examined but not

treated. In retrospect (a phrase we suppose preferable to

the more obvious one) the defendants acknowledge that the

force used in administering the paddling was excessive.

Randy’s father, when he arrived home after work and

saw the bruises, got “real mad,” as he later testified.

Taking out his 12-gauge shotgun and some shells, he put

them in his car and drove to the Wallins school with his

family. A baseball game was in progress, and Mr. Saylor

asked if anyone had seen Sam Saylor or Bill Lee. No one

had, apparently, and neither man could be found at his

residence. The Saylors returned home, and Mr. Saylor put

up his gun.

Mr. and Mrs. Saylor went to the school the next day and

made their displeasure known verbally. 7 Randy’s father

told Lee, Roark and Sam Saylor that they all knew they

were not to use corporal punishment on the boy. The

father expressed outrage, moreover, that his son should

have been punished for defending himself in a fight —

something Randy had been taught at home that he should

do.

Tat a school board meeting the following month, Mr. Saylor was

complimented on the way he and Mrs. Saylor had handled the matter.

“I know some other people,” an unidentified speaker said, “that’d been

so mad they'd have went up there and killed.” Others expressed their

appreciation as well, one remarking that “it shows some class to come

down here and take care of it this way instead of going wild.”

A-11

Randy’s father went before a Harlan County grand jury

in January, and the grand jury indicted Sam Saylor on an

assault charge. The teacher then requested and received an

Opportunity to testify before the grand jury himself. After

hearing what he had to say, and after hearing from Mr.

Lee as well, the grand jury issued a final report

recommending that the indictment be quashed. The report

said that although Randy’s injuries “exceed what would

have been reasonable and may very well have been

negligently inflicted,” the grand jury was now satisfied that

the actions of the teacher in disciplining the boy did not

amount to criminal conduct. In conformity with the grand

jury’s recommendation, the indictment was subsequently

quashed.

Randy may have been the last student to be paddled at

the Wallins school, at least for a while. Mr. Lee testified

that he told his staff there would be no more spankings in

the school — and the state board of education, according

tu the newspapers, banned corporal punishment throughout

Kentucky for most of the 1991-92 school year.

I]

Although the final report of the grand jury had hinted

that the Saylors might wish to bring a state law negligence

action, they elected instead to seek monetary damages in

federal court under 42 U.S.C. § 1983 for what was

characterized in the complaint as “a cruel and unusual

punishment and the brutal, malicious, and excessive

infliction of pain and suffering, and a violation . . . of the

substantive due process and equal protection rights of this

Plaintiff as such are guaranteed and provided under the

Constitution and laws of the United States.”* Pendent state

law claims were also asserted, along with claims for

declaratory and injunctive relief.

"The equal protection claim has not been pressed in the briefs we

have seen, and we assume it has been abandoned.

A-12

Pursuant to Rule 12(b)(6), Fed. R. Civ. P., the

defendants moved to dismiss the complaint for failure to

State a claim upon which relief could be granted. Citing

Ingraham v. Wright, 430 U.S. 651 (1977), the district

court dismissed the portion of the complaint that alleged a

violation of the Cruel and Unusual Punishment Clause of

the Eighth Amendment. In all other respects the motion to

dismiss was denied.

After discovery proceedings, the defendants moved for

summary judgment on the remaining claims. The summary

judgment motion — which raised a defense of qualified

immunity, among other things — was denied, except as

to a First Amendment issue not relevant here. The district

court subsequently granted an extension of time to let the

individual defendants take an interlocutory appeal from the

denial of qualified immunity. The court declined a request

for findings that would have let the defendant board of

education have an immediate appeal under 28 U.S.C.

§ 1292(b).

ill

As stated by the Supreme Court in Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982), government officials

“performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct

does not violate clearly established [federal] statutory or

constitutional rights of which a reasonable person would

have known.” Although the central issue in many qualified

immunity cases is whether a particular constitutional nght

was “clearly established” at the time of the alleged

violation — see, e.g., Walton v. City of Southfield, 995

F.2d 1331, 1335- 36 (th Cir. 1993), and the cases there

cited — there is a threshold question that sometimes

proves dispositive. The threshold question is whether a

constitutional or statutory violation has occurred at all. See

Siegert v. Gilley, 500 U.S. 226, 232 (1991); Purisch v.

Tennessee Technological Inst., 76 F.3d 1414, 1423 (6th

Cir. 1996); Turner v. Scott, re, (im Cr.

1997). We turn to this question now.

4

:

'

A-13

A

It seems clear to us that the plaintiffs cannot show that

either the principal of the school, Mr. Lee, or the assistant

principal, Mr. Roark, violated anyone’s constitutional

rights. The record contains nothing to contradict the

evidence that both men had been told by Sam Saylor in

October that Randy’s father had authorized the school to

use corporal punishment — and there is no basis on which

a jury could be permitted to find that the principal and

assistant principal lacked a good faith belief that the

parents’ instructions not to paddle Randy had been

withdrawn. Against this background, the caselaw leaves no

room for doubt that Mr. Lee and Mr. Roark acted within

the limits set by the Constitution when they allowed

Randy’s teacher to paddle him for fighting in the

classroom.

As the district court correctly observed in dismissing the

plaintiffs’ cruel and unusual punishment claim, “[t}he

Supreme Court has unequivocally stated that the Eighth

Amendment is inapplicable to situations where public

school teachers or administrators impose disciplinary

corporal punishment. Ingraham v. Wright, 430 U.S. 651,

671 (1977).” Because the grant of certiorari in Ingraham

v. Wright was “limited to the questions of cruel and

unusual punishment and procedural due process,” id. at

659, the Supreme Court had “no occasion [in Ingraham]

. to decide whether or under what circumstances

corporal punishment of a public school child may give rise

to an independent federal cause of action to vindicate

substantive rights under the Due Process Clause.” /d. at

679 n.47.? The courts of appeals are not of one mind on

“In Brown v. Johnson, 710 F. Supp. 183 (E.D. Ky. 1989), a

decision by the same district court that decided the case at bar, the

court held that school officials did not violate the substantive due

process rights of a nine-year-old schoolgirl by paddling her seven times

with sufficient force to bruise her buttocks severely. In noting that the

bruises did not “shock the conscience” of the court — a test

A-14

the substantive due process question, but we know of no

circuit where the precedents indicate that the conduct of

Principal Lee and Assistant Principal Roark could be held

unconstitutional.

The Fifth Circuit, which issued the en banc decision

reviewed by the Supreme Court in /ngraham, takes the

view that where state law provides “adequate post-

punishment remedies to deter unjustified or excessive

punishment and to redress that which may nevertheless

occur, the student receives all the process that is

constitutionally due.” Woodard v. Los Fresnos

Independent School District, 732 F.2d 1243, 1245 (Sth Cir.

1984). *° Corporal punishment of a public s school child, as

the Fifth Circuit sees it, simply does not “give rise to an

independent cause of action to vindicate substantive rights

under the due process clause . ” Jd., citing Ingraham

v. Wright, 525 F.2d 909, 916 (Sth Cir. '1976) (en banc),

aff'd on other grounds, 430 U.S. 651 (1977). As the Fifth

Circuit said in Ingraham,

“We think it a misuse of our judicial power to

determine, for example, whether a teacher has acted

arbitrarily in paddling a particular child for certain

behavior or whether in a particular instance of

sometimes used for resolving substantive due process questions — the

court repeatedly suggested that in Jngraham v. Wright “the Supreme

Court found that a severe beating [20 licks with a paddle) and the

resulting hematoma [which required the plaintiff to miss 11 days of

school] did not shock its conscience.” Brown, 710 F. Supp. at 186.

We believe that the result reached in Brown was correct, but the Brown

court's reading of Ingraham v. Wright seems incorrect; the Supreme

Court did not address the “conscience shocking” question in /ngraham.

"Onder Kentucky law it is well established that a teacher may be

held liable for damages resulting from negligence or deliberate

wrongdoing in administering unreasonable or excessive corporal

punishment. See Carr v. Wright, 423 S.W.2d 521 (Ky. App. 1968).

If such punishment is administered maliciously, criminal sanctions may

be imposed.

ees

A-15

misconduct five licks would have been a more

appropriate punishment than ten licks. We note again

the possibility of a civil or criminal action in state

court against a teacher who has excessively punished

a child.” Jd. at 917 (footnote omitted).

See also Cunningham v. Beavers, 858 F.2d 269, 271 (Sth

Cir. 1988), cert. denied, 489 U.S. 1067 (1989) (no

substantive due process claim was stated where a teacher

and school principal punished girls five and six years old

for “snickering,” the punishment having consisted of five

swats with a wooden paddle and the girls’ buttocks having

been bruised to an extent that led a local child welfare

office to state “the situation clearly constituted child

abuse”).

In Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980) — a

decision that our unpublished opinions in Archey v. Hyche,

1991 WL 100586, at *2 (6th Cir.), and Darden v. Watkins,

1988 WL 40083, at *3 (6th Cir.), both characterized as

“seminal” — the Fourth Circuit took a somewhat

different view. Citing Baker v. Owen, 395 F. Supp. 294

(M.D.N.C.) (three-judge court), afd, 423 U.S. 907

(1975), where it was held that a parent’s constitutional

right to control the means of disciplining her child was

outweighed by the right of teachers and school officials to

employ reasonable corporal punishment in the exercise of

their own professional judgment, the Fourth Circuit held

that the parents of a child who had been paddled at school

against the parents’ explicit instructions could not show that

their constitutional rights as parents had been violated, even

though the paddling was alleged to have been “severe” and

not “reasonable.” Hail, 621 F.2d at 610. The Hail court

went on to hold, however, that it was error to dismiss,

under Rule 12(6)(6), a substantive due process claim

asserted by the child herself.

The Hail court emphasized that “fijn the context of

disciplinary corporal punishment in the public schools . . .

[a] substantive due process claim is quite different than a

Claim of assault and battery under state tort law.” /d. at

A-16

613. Substantive due process decisions cannot turn on

whether ten licks as opposed to five licks would be

excessive, for example; substantive due process, the court

indicated, is concerned with violations of bodily security of

an altogether different order of magnitude. Id.

Nonetheless, said the court, some tortious school

punishments may be “so brutal, demeaning and harmful,”

so “literally outrageous,” as to violate the student’s

Fourteenth Amendment rights — and in this connection,

Hall declared, . {

“the substantive due process inquiry ... st be

whether the force applied caused injury so severe, was

sO disproportionate to the need presented, and was so

inspired by malice or sadism rather than a merely

careless or unwise excess of zeal that it amounted to a

brutal and inhumane abuse of official power literally

shocking to the conscience.” /d.

The foregoing passage was quoted by our court with

approval in Webb v. McCullough, 828 F.2d 1151, 1158

(6th Cir. 1987). Webb is not directly in point here,

because it involved a battery that was in no way

“disciplinary” — and we stressed the importance of

distinguishing the type of battery at issue in Webb from the

disciplinary blows inflicted as punishment in Jngraham.

There was no indication in the Webb record that “the blows

arose other than in anger or from malice.”"* Jd. at 1158.

In the case at bar, by contrast to Webb, the punishment was

administered in school, before an appropriate witness, with

consent (at least initially) from the student, and for a

purpose that was unquestionably disciplinary. (As we have

seen, all three of the plaintiffs in this case acknowledged at

their depositions that they had no reason to believe that the

spanking was for anything other than the classroom fight.)

We take it, nonetheless, that the substantive due process

ba Pl this respect Webb bears some resemblance to P.B. v. Koch, 96

F.3d 1298 (9th Cir. 1996).

aaa iltilaiiiiil

A-17

inquiry prescribed in Hall and quoted in Webb is the

appropriate inquiry to make in the case now before us.

In denying the motion to dismiss the Saylors’ substantive

due process claim under Rule 12(b)(6), the district court

observed that although the complaint alleged reasons for

the paddling that may have been constitutionally

impermissible, “[t]he physical punishment itself was

disciplinary, and does not shock this court’s conscience.”

We agree.

The record developed after denial of the 12(b)(6) motion

may well reflect carelessness or an unwise excess of zeal

on Sam Saylor’s part, but we have no hesitancy in saying

that, as a matter of law, the bruises caused by the five licks

of the paddle on Randy Saylor’s fully clothed buttocks were

not “so severe . . . sO disproportionate to the need

presented, and. . . so inspired by malice or sadism... .

that {the paddling] amounted to a brutal and inhumane

abuse of official power literally shocking to the

conscience.” Our conclusion on this matter is consistent

with the conclusions we reached in Archey (no substantive

due process violation where a fifth grader suffered severe

bruises on being paddled five times for humming in the

boys’ bathroom) and in Darden (no substantive due process

violation where a fourth grader who had allegedly failed to

do his homework received two or three licks with a paddle

and was found by an emergency room physician to have

been bruised over a three-to four-inch area of the fleshy

part of his left buttock). '*

"2 The plaintiffs argue on appeal that the paddling could not have

been administered as punishment for the fight, and was thus necessarily

impermissible, because Randy had already been punished by being

suspended. The school officials viewed suspension as a harsher

punishment, however, and assuming that the suspension had really

started — a point that is in dispute — it is perfectly clear that the

suspension was to be revoked if Randy took the paddling. Randy went

back to class after the paddling, it will be recalled, and he would not

have done so had he been under suspension.

A-18

It does not necessarily follow from what has been said so

far that there was no violation of anyone’s constitutional

rights by Sam Saylor, as opposed to Messrs. Lee and

Roark. There is a genuine issue of fact as to whether

Randy’s father authorized Sam Saylor to administer

corporal punishment. If the father did not do so — and

we must assume, for present purposes, that he did not —

Sam Saylor violated the regulations codified in the Harlan

County Schools Code of Conduct by spanking Randy

against the parents’ express wishes. Although, as discussed

above, the spanking per se did not constitute a due process

violation, it is arguable that the presumed violation of the

regulations did. See Franklin v. Aycock, 795 F.2d 1253,

1260 (6th Cir. 1986), and Spruytte v. Walters, 753 F.2d

498, 506-07 (6th Cir. 1985), cert. denied, 474 U.S. 1054

(1986), prison inmate cases cited by the district court in

support of the proposition that the Code of Conduct gave

rise to a constitutionally protected liberty interest. *

Assuming, for purposes of analysis, that Sam Saylor did

violate young Randy’s constitutional rights — and perhaps

those of his parents as well — we are not persuaded that

the rights in question were so clearly established as

constitutional rights that a reasonable teacher in Mr.

Saylor’s position would have had to realize that a violation

of the Code of Conduct would violate the United States

Constitution as well.

For a constitutional right to be clearly established, as this

court has repeatedly noted, “the law must be clear in

"SHewitt v. Helms, 459 U.S. 460 (1983), on which Franklin and

Spruytie relied in large measure, endorsed a methodology that has now

been repudiated in the prison context. See Sandin v. Conner, 115 S.Ct.

2293 (1995). Arbitrary corporal punishment in public schools

agers other constitutional considerations, however, see id. at 2300-

and Sandin does not rule out the possibility that corporal

rae Me of a school child may be “arbitrary,” in a constitutional

sense, if administered in clear violation of school regulations.

NT

A-19

regard to the official’s particular actions in the particular

situation.” Long v. Norris, 929 F.2d 1111, 1114 (6th

Cir.), cert. denied, 502 U.S. 863 (1991); Walton, 995 F.2d

at 1335. “Thus, the particular conduct of the official must

fall clearly within the area protected by the constitutional

right, such that a reasonable official would have known that

his or her conduct violated the constitutional right.”

Walton, 995 F.2d at 1336, citing Long, 929 F.2d at 1115.

“For qualified immunity to be surrendered, pre-existing

law must dictate, that is, truly compel (not just suggest or

allow or raise a question about), the conclusion for every

like-situated, reasonable government agent that what

defendant is doing violates federal law in the

circumstances.” Lassiter v. Alabama A&M Univ. , Bd. of

Trustees, 28 F.3d 1146, 1150 (11th Cir, 1994) (en banc)

(emphasis in original).

We are aware of no pre-existing law “dictat[ing]” the

conclusion that a disciplinary paddling administered by a

school teacher in violation of school regulations would ipso

facto violate federal constitutional law. And _ this

conclusion was squarely rejected in Woodard, where the

plaintiff, a schoolgirl! who was paddled for using abusive

language, argued that an assistant principal’s violation of

the school’s parental consent regulation constituted a

substantive due process violation. 732 F.2d at 1245. The

Fifth Circuit dismissed the girl’s argument as simply

“semantic.” Jd. at 1246. Notwithstanding the assistant

principal’s clear violation of the parental consent

regulation, the court held, the paddling “presents neither

arbitrary and capricious state action nor inhumane and

shocking abuse of official power.” /d.

If the United States Court of Appeals for the Fifth

Circuit is unable to equate a regulatory violation with a

constitutional violation in this factual context, we are at a

loss to see how an eighth-grade school teacher could be

expected to do so. If Sam Saylor knew that the parental

prohibition against spanking Randy Saylor was still in

force, Sam obviously knew that he was violating the Code

of Conduct by administering the paddling. He also knew,

A-20

no doubt, that he was exposing himself to an action in the

Kentucky courts. Perhaps he knew that he was running a

risk of more direct action by an irate parent. That Sam

Saylor had to have known that he was also violating the

United States Constitution, however, is a proposition we

cannot accept.

The order of the district court denying qualified

immunity is REVERSED, and the case is REMANDED

with instructions to enter judgment in favor of each of the

individual defendants. '

B-1

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 538

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

LEONARD GREEN TELEPHONE

CLERK (513) 564-7000

July 22, 1997

William D. Stark, Jr.

Durenda L. Lawson

Winter R. Huff

Susan C. Lawson

Re: Case No. 95-5319

Randy Saylor, Sr., et. al. v. Board of Education

of Harlan County, Kentucky, et. al.

District Court No. 91-00280

Dear Counsel:

The court today announced its decision in the above-

styled case.

A copy of the court’s opinion is enclosed and a judg-

ment in conformity with the opinion has been entered today

as required by Rule 36, Federal Rules of Appellate Proce-

dure.

Yours very truly,

Leonard Green, Clerk

By. Linda K. Martin

Deputy Clerk

Enclosure

swh

C-1

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

AT COVINGTON

CIVIL ACTION NO. 91-280

RANDY SAYLOR, SR., ET AL PLAINTIFFS

VS. OPINION & ORDER

HARLAN COUNTY BOARD OF

EDUCATION, ET AL. DEFENDANTS

1. INTRODUCTION

Plaintiffs, Randy Saylor, Sr. and Debbie Saylor, filed the

instant action on behalf of their minor son, Randy Saylor, Jr.

(hereafter “Randy”), pursuant to 42 U.S.C. 1983, alleging

that Defendants, Samuel Saylor, Jimmy Roark, William Lee

and the Harlan County Board of Education, violated rights

guaranteed by the first, Eighth and Fourteenth Amendments

in imposing discipline on Randy.' This matter is before the

Court on Defendants’ renewed motion for summary judg-

ment. (Doc. No. 64). Oral argument was held on the motion

on November 4, 1994, in Lexington, Kentucky. For the rea-

sons set forth below, Defendants’ motion (Doc. #64) be, and

it is, granted in part and denied in part.

ll. FACTUAL BACKGROUND

In December, 1990, Randy was an eighth grade student

1 In an order dated January 6, 1992, Judge Hood dismissed the Eighth

Amendment claim on the basis that under Ingraham v. Wright, 430 u.S. 651,

657 (1977), the Eighth Amendment does not apply to disciplinary corporal

punishment in the schools.

C-2

at Wallins Elementary School in Harlan County. On Decem-

ber 12, 1990, Randy was involved in an altercation with

another student while waiting for math class to begin. Jimmy

Roark, the school's vice principal, broke up the fight and

took both boys to the principal's office. When the teacher,

Defendant Saylor, learned of the fight, he went to the

principal's office. He informed the boys that they would be

paddled for fighting. Randy objected to the punishment.

Randy was told that he could either take the paddling or be

suspended from school. Randy initially preferred suspen-

sion.

Randy was sent to another part of the principal's office

and unsuccessfully attempted to call his parents while Saylor

paddied the other boy. Randy claims that, thereafter, Saylor,

Roark, and Principal William Lee, coerced him into accept-

ing the punishment. Randy claims that he was told that a

math test was being given and that he would receive a “0”

on the test. In addition, Saylor allegedly stated that there

was a possibility that the suspension would result in Randy

having to repeat the eighth grade. Randy eventually told

Saylor that he would agree to be paddled.

At the time that Randy agreed to accept the punishment,

Saylor was aione in the principal's office. School board policy

required that all paddlings be witnessed by a second school

Official. Therefore, Saylor sought out Principal Lee to see if

Lee would watch him “bust Randy’s butt.” Subsequently,

Saylor struck Randy five times with a wooden paddle. Randy

claims that by the third blow, he was in obvious pain and

requested that the paddling be discontinued. Although De-

fendants dispute that Randy requested Saylor to stop after

he was struck the third time, it is undisputed that by that

time, Randy was in tears or near tears.

The paddling resulted in severe bruising of Randy's but-

tocks. All parties agree that the blows that were inflicted were

hard. Lee acknowledged that bruising was excessive and,

C-3

in hindsight, the paddling was beyond the punishment nor-

mally inflicted. Randy claims that Saylor acted with an im-

proper motive and maliciously in imposing the discipline.

Plaintiffs argue that Saylor struck Randy much harder than

necessary in retaliation for Randy objecting to the imposi-

tion of punishment. In addition, Plaintiffs argue that Saylor

inflicted unnecessary punishment in order to be able to con-

tinue an independent business during school hours, a ven-

ture he was allegedly pursuing at the time the fight occurred

when he should have been in class.

The Code of Conduct for the Harlan County School Sys-

tem permits coproral punishment. Parents are informed, how-

ever, that they have the right to object to the use of corporal

punishment on their children. Plaintiffs claim that they noti-

fied Lee and Roark during the 1989/90 school year, after

Randy was bruised from a paddling, that they would no longer

consent to corporal punishment. The parties dispute whether

the prohibition against the use of corporal punishment was

ever lifted by Randy’s parents.

The day after the paddling incident, Plaintiffs accompa-

nied Randy to school to complain about the use of corporal

punishment and the severeity of the discipline. Plaintiffs in-

formed Lee that they refused to have their son receive class-

room instruction from Saylor and requested that alternative

arrangements be made. On January 9, 1991, Plaintiffs at-

tended a meeting of the Harlan County Board of Education

to protest the discipline and to object to the lack of class-

room instruction Randy was receiving. The Board members

concluded that the paddling was excessive and that if, as

Palintiffs allege, they had voiced their objection to the use of

corporal punishment, Defendants had violated school board

policies.

lil. ANALYSIS

1. Improper Motivation In inflicting Punishment.

Plaintiffs argue that Saylor acted with malice in inflicting the

corporal punishment in this case. In order to establish a substan-

tive due process violation, Plaintiffs must show that the punish-

C-4

ment was “arbitrary, capricious, or wholly unrelated to the

legitimate goal of maintaining an atmosphere conducive to

learning.” . Sch. Dist., 732

F.2nd 1243, 1246 (5th Cir. 1984). The inquiry must be

whether “the force applied cause injury SO severe, was so

disproportionate to the need presented, and was inspired

by malice or sadism . . . that it amounted to a brutal and

inhumane abuse of official power literally shocking to the

conscience.” Webb v. McCullough, 828 F.2d 1151, 1158 (6th

Cir. 1987).

There is no dispute that Saylor asked Lee if Lee wanted

to watch him “bust Randy’s butt.” There is also no dispute

that the blows that were inflicted were hard enough to bring

Randy to tears, but that the paddling was not stopped. Lee

Stated that he had never seen Saylor bring a child to tears

during a paddling on any other occasion. Furthermore, all

Defendants agree that the bruising that resulted was ex-

cessive and that the punishment was greater than normally

inflicted. Saylor, in fact, stated that he was shocked when

he saw Randy's bruises. The members of the school board

considered the paddling excessive. On the basis of the

record, there remains an issue of material fact regarding

whether Saylor acted with malice and an improper motivate

in inflicting corporal punishment. Defendants’ motion for

summary judgment on this issue is, therefore, denied.

2. The Code of Conduct Gives Rise To A Liberty In-

terest.

The parties do not dispute the fact that it would be a

violation of school board policy to inflict corporal punish-

ment on a student after a parent exercised his right to pro-

hibit such punishment, even if the student consented to the

discipline. The issue, therefore, is whether the policy pro-

mulgated by the school district gives rise to a liberty interest

protected by the Fourteenth Amendment.

C-5

A state may create a protected liberty interest through

the enactment of statutes, rules, regulations or policies.

Franklin v. Aycock, 795 F.2d 1253, 1260 (6th cir. 1986). “[A]

state creates a protected liberty interest by placing substan-

tive limitations on official discretion.” Spruytte v. Walters, 753

F.2d 498, 507 (6th Cir. 1985), cert. denied, 474 U.S. 1954

(1985) (quoting Olim v. Wakinekona, 461 U.S. 238, 249

(1983)). In determining whether a rule or regulation gives

rise to a liberty interest, courts focus on the mandatory na-

ture of the language in the rule or regulation at issue. In

Washington v. Starke, 855 F.2d 346 (6th Cir. 1988), the court

stated: “The mandatory nature of the regulation is the key,

as a plaintiff ‘must have a legitimate claim of entitlement to

the interest, not simply a unilateral expectation of it.” Id. at

349 (citation omitted) (emphasis in original).

The corporal punishment policy adopted by the school

board was mandatory. The policy withdrew all discretion from

schooi officials in deciding whether to impose corporal pun-

ishment once a parent followed appropriate procedures in

objecting to the punishment. Thus, assuming that Plaintiffs

can establish that they withheld consent, the violation of the

policy states a valid claim for a violation of due process.

3. The Individual Defendants Are Not entitled to Quali-

fied immunity.

Defendants contend that even assuming that Plaintiffs’

claims give rise to a cause of action under substantive due

process, Defendants are, nonetheless, entitled to qualified

immunity. The Court disagrees.

In circumstances in which a plaintiff establishes that a

regulation gives rise to a liberty interest, the courts employ

the general standard of “clearly established statutory or con-

Stitutional rights of which a reasonable person would have

known” in determining whether an official is entitled to quali-

fied immunity. Spruytte v. Walters, 753 F.2d at 510 (quoting

Harlow v.

C-6

Fitzgerald, 457 U.S. 800, 818 (1982).? The plaintiff has the

burden of demonstrating that any official in the defendant's

position would have understood they were under an affir-

mative duty to refrain from committing the conduct of which

the plaintiff complains. Walton v. City of Southfield, 995 F.2d

1331, 1341 (6th Cir. 1993).

At the time of the actions complained of in this case, the

law was Clearly established that a failure to follow internal

rules and regulations could give rise to a substantive due

process violation. Washington, 855 F.2d at 349: Franklin,

795 F.2d at 1260; Spruytte, 753 F.2d at 507. Defendants

concede that if Plaintiffs did not withdraw their prohibition

against use of corporal punishment, Defendants were obli-

gated to refrain from imposing corporal punishment. Thus,

a reasonable official would have realized that he should re-

frain from inflicting corporal punishment and, therefore, De-

fendants are not entitled to qualified immunity on Plaintiffs’

claim that they violated school board policy.

4. The School Board can Be Held Liable For Miscon-

duct of Its Officials.

The school board contends that it is entitled to summary

* The precendent in the Sixth Circuit that addresses immunity in light of

internal policies or regulations has arisen in the criminal or police brutality

contexts. Courts, however, have frequently incorporated police brutality stan-

dards into their substantive due process analysis in the corporal punishment

context. See, e.g., Webb, 828 F.2d at 1158 (quoting Hall v. Tawney, 621 F.2d

607 (4th Cir. 1980)).

* The fact that Roark was not present at the time the punishment was

inflicted does not entitle him to immunity. It is undisputed that he encouraged

Randy to accept the paddling. Liability can be imposed on a supervisor who,

at least implicitly, authorized, approved or knowingly acquiesced in the un-

constitutional conduct of a subordinate. Walton, 955 F.2d at 1341; see also

Norris v. Davis, 826 F. Supp. 212, 217 (W. D. Ky. 1993) (supervisory officials

can be held liable if they encourage or participate in misconduct).

C-7

judgment because a municipality or body of local govern-

ment cannot be held liable for the misconduct of its officials

on the basis of the doctrine of respondeat superior. Monell

v. New York City Dep’t of Social Serv., 436 U.S. 658, 694

(1978). A municipality can, however, be held liable under

1983 if the plaintiff can demonstrate that a policy or custom

of the municipality caused the injury. Leatherman v. Tarrant

County Narcotics Intelligence & Coordination Unit, 113 S.

Ct. 1160, 1162 (1993). To establish a municipal policy, the

plaintiff must show: (1) the municipality officially sanctioned

or ordered the challenged action; (2) the actor or

decisionmaker had final policymaking authority under state

law; and (3) the actor or decisionmaker had final policymaker

authority in the city’s business in question. City of St. Louis

v. Praprotnick, 485 U.S. 112, 123 (1988) (citing Pembaur v.

Cincinnati, 475 U.S. 469, 482-83 (1986)).

An unconstitutional policy may be “inferred from a single

decision taken by the highest officials responsible for set-

ting policy” if the official has authority to make final policy.

Praprotnick, 485 U.S. at 123.

When an official's discretionary decisions are constrained

by policies not of that official’s making, those policies,

rather than the subordinate’s departure from them, are

the act of the municipality. Similarly, when a subordinate’s

decision is subject to review by the municipality's autho-

rized policymakers, they have retained the authority to

measure the official’s conduct for conformance with their

policies. If the authorized policymakers approve a

subordinate’s decision and the basis for it, their ratifica-

tion would be chargeable to the municipality because

their decision is final.

Id. at 127.

Under the terms of the Harlan County Code of Conduct,

parents are to notify the schocl principal if they object to

corporal punishment in order to develop an alternative course

C-8

of action in the event that disciplinary problems arise. Fur-

ther, the Code of Conduct provides that the principal is re-

sponsible for ensuring that all due process procedures are

followed in cases involving staff and students. The principal!

is responsible for providing parents with information regard-

ing the School Board’s Code of Conduct. According to David

Kennedy, a member of the Harlan County School Board,

each principal at the schools within the county are the pri-

mary policymaking personnel responsible for ensuring that

the policies adopted by the Board are carried out.

Under the facts of this case, the principal, William Lee,

was the school board's final policymaker with regard to the

use of corporal punishment. Lee was present and acaqui-

esced in Saylor’s conduct in imposing corporal discipline

on Randy. Accordingly, the decisions made by Principal Lee

with respect to the imposition of corporal punishment con-

stitute actions of the school board, and his ratification of the

punishment is chargeable to the school board because Lee

had the final decision in implementing the board’s policies.

The school board, therefore, is not entitled to summary judg-

ment on Plaintiff's claim for violation of school board policy.

5. Defendants Are Entitled To Summary Judgment

On Plaintiffs’ First Amendment Claim.

Plaintiffs argue that after the paddling incident, Defen-

dants retaliated against Randy by denying him a proper

education because Plaintiffs exercised their First Amend-

ment right in voicing opposition to the imposition of corporal

punishment and the severity of the punishment. In order to

prevail on the First Amendment claim, Plaintiffs are required

to demonstrate that their speech touched on a matter of

public concern. Connick v, Myers, 461 U.S. 138, 169 (1983).

In the First Amendment context, a distinction must be drawn

between personal challenges to the application of a schoo!

policy and challenges to procedures in general. DePree v.

C-9

University of Kentucky, Nos. 88-5755, 88-5798, 1989 WL

98707, *2 (6th Cir. 1989).

The Court finds that Plaintiffs’ complaints to the schoo!

board were a personal challenge to the imposition of pun-

ishment in this particular case. Plaintiffs do not suggest that

they were protesting the corporal punishment policy. To the

contrary, Plaintiffs were simply expressing their private con-

cern over the treatment of their son. Thus, Plaintiffs have

not carried their burden of demonstrating speech on a mat-

ter of public concern and, therefore, Defendants are entitled

to summary judgment on this issue.

Therefore, the court being advised,

IT iS ORDERED as follows:

‘1. That the motion of Defendants to dismiss Plaintiffs’

Fourteenth Amendment claim be, and it is, denied;

2. That the individual Defendants are not entitled to quaii-

fied immunity;

3. That the schoo! board's motion for summary judgment

is denied;

4. That Defendants’ motion for summary judgment on

Plaintiffs’ First Amendment claim be, and it is, granted.

5. That the individual Defendants shall advise the court,

in writing, within fifteen (15) days of the date of this order if

they are going to take an interlocutory appeal on the denial

of qualified immunity. On receipt of such advice, the case

shall be held in abeyance pending the outcome of the inter-

locutory appeal.

This 27th day of December, 1994.

William O. Bertelsman, Chief Judge