Toolbox Tuesday! Is the 5th Circuit off base on the use of excessive force?

“Let us fix the error before the Supreme Court decides to fix it for us.” Thus concludes Judge Wiener’s concurring opinion in T.O. v. Fort Bend ISD.  What’s this about?

The suit alleges that a 1st grader hit and kicked a teacher, whereupon the teacher seized him by the neck, threw him to the ground and held him in a choke hold for several minutes until the student’s aide asked the teacher to release the student so that he could breathe.  The lower court’s opinion in this case disclosed another interesting fact: that the teacher outweighed the student by 205 pounds.  Does it surprise you to hear that the 5th Circuit dismissed this case early on, holding that the suit failed to allege facts that amounted to a constitutional violation? 

In support of its ruling, the court gave us a list of similar factual allegations that failed to meet the constitutional standard: 

  1. The student who was instructed to perform excessive physical exercise as a punishment for talking to a friend;
  2. That time a police officer slammed a student to the ground and dragged him along the floor after the student disrupted class;
  3. The case of the teacher who threatened a student and threw him against a wall, choking him after the student questioned the teacher’s directive;
  4. The student with a disability who was grabbed, shoved, and kicked by a teacher’s aide because the student slid a CD across a table; and
  5. The student who was hit with a wooden paddle by the principal after skipping class.

Surely some of these cases had merit. Surely some of these incidents should be classified as a criminal assault. So why is the 5th Circuit rejecting them?

The 5th Circuit rejected these claims because they were made under federal law and the Constitution.  Each of them allege misdeeds that could be corrected by state courts applying state law.  So the 5th Circuit has consistently dismissed claims like this, on the theory that adequate state remedies exist and should be pursued.  As long as the incident arises out of an effort by an educator to take disciplinary action, the 5th Circuit will not uphold any claims of a violation of federal law.  Key Quote:

Based on the foregoing, we have consistently dismissed substantive due process claims when the offending conduct occurred in a disciplinary, pedagogical setting. 

In this case, the court acknowledged that the teacher may have overreacted, but it was in the context of discipline.  Key Quote:

The aide removed T.O. from his classroom for disrupting class, and [the teacher] used force only after T.O. pushed and hit her.  Even if [the teacher’s] intervention were ill-advised and her reaction inappropriate, we cannot say that it did not occur in a disciplinary context.

Judge Wiener wrote a separate opinion, joined by Judge Costa, expressing the view that the analysis of the 5th Circuit is “not only unjust, but is completely out of step with every other circuit court and clear directives from our Supreme Court.”  According to Judge Wiener, this case would have been decided differently in the 2nd, 3rd, 4th, 6th, 7th, 8th, 9th, 10th and 11th Circuits. No doubt, the lawyers handling the next case alleging excessive force will need to study this decision. 

It’s T.O. v. Fort Bend ISD, decided by the 5th Circuit on June 17, 2021.  It’s at 2021 WL 2461233.


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Tomorrow: extracurricular codes of conduct?