No Qualified Immunity as to Allegations that Pre-K School Principal Failed to Respond to Sexual Molestation of Student by Teacher

From Doe v. Jewell, decided Friday by Fifth Circuit Judge Patrick Higginbotham, joined by Judges Don Willett and James Ho:

Parents of a pre-kindergarten student bring claims under 42 U.S.C. § 1983 against April Jewell, a school principal, for failure to respond to sexual molestation of their daughter by a faculty member. The district court denied Jewell's motion to dismiss on the basis of qualified immunity finding that she failed her duty to protect the student. We AFFIRM….

Jane [Doe] brings two claims: (A) that her Fourteenth Amendment right to bodily integrity was violated by Jewell's failure to supervise; and (B) that Jewell's conduct constituted arbitrary and conscience-shocking executive action….

As to bodily integrity and failure to supervise, the panel set forth the Fifth Circuit rule:

A supervisory school official can be held personally liable for a subordinate's violation of "an elementary or secondary school student's constitutional right to bodily integrity in physical sexual abuse cases." Three hurdles await putative plaintiffs:

(1) the defendant learned of facts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing the student;

(2) the defendant demonstrated deliberate indifference toward the constitutional rights of the student by failing to take action that was obviously necessary to prevent or stop the abuse; and

(3) such failure caused a constitutional injury to the student….

Doe v. Taylor Indep. Sch. Dist. (5th Cir. 1994) (en banc).

And it went on to apply Taylor:

The Does allege that by the end of March 2021, a minimum of three school employees [Sams, Peebles, and Willis] had reported to Jewell significant concerns with Crenshaw's behavior towards Jane. Such behavior includes Jane sitting in Crenshaw's lap; Jane wearing Crenshaw's clothes; Jane holding Crenshaw's hand; Crenshaw locking the door while he was the only adult in the room; and Crenshaw lying underneath a blanket with Jane during nap time. Taken together, these actions constitute inappropriate sexual behavior and point toward the conclusion that Crenshaw—Jewell's subordinate—was sexually abusing a student.

Jewell not only knew about this behavior; she also was present at a meeting where multiple employees discussed Crenshaw's habit of being alone with students and locking the door to his classroom. And, Jewell knew that Sams' photographs of Crenshaw depicted inappropriate behavior. Jewell may be correct that some of the above actions by a teacher can be innocent. But Crenshaw's oft-reported behavior creates a pattern of inappropriate sexual behavior pointing directly to sexual abuse of Jane….

The Plaintiffs allege that Jewell did not properly investigate, reprimand, or warn Crenshaw; inform Jane's parents of the concerns and complaints made against him; or report Crenshaw's misconduct to law enforcement. Plaintiffs further allege that Jewell disregarded numerous reports over the course of an entire school year of excessive physical and sexually-charged contact with and "favoritism" of certain students. Moreover, Jewell's decision to reprimand Sams and subdivide the classrooms may have made it easier for Crenshaw to be alone with Jane and other students. While Jewell reassigned Willis to another room, the effect was to remove another pair of watchful eyes.

The complaint sufficiently alleges deliberate indifference by Jewell towards the repeated reports of Crenshaw's sexually inappropriate behavior and, in turn, to Jane's bodily integrity. Accepting the factual allegations as true, Jewell did nothing to stop the abuse, and nothing to free herself from liability through the litany of examples in our caselaw where principals were able to defeat accusations of deliberate indifference….

Plaintiffs urge that Jewell intervened in ways that increased Jane's exposure to Crenshaw's sexual predation and caused her to be molested repeatedly over an entire school year. On the present record, Jewell reprimanded and removed concerned adults from Jane's orbit and failed to alert Jane's parents, despite repeated reports by her subordinates….

As to the shocks-the-conscience theory, the panel reasoned:

The "shocks-the-conscience test" is a demanding and difficult test to apply. "It has been described as conduct that 'violates the decencies of civilized conduct'; conduct that is 'so brutal and offensive that it [does] not comport with traditional ideas of fair play and decency'; conduct that 'interferes with rights implicit in the concept of ordered liberty'; and conduct that 'is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" But the Supreme Court has "made it clear that the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm." The Court has identified "conduct intended to injure in some way unjustifiable by any government interest" as "the sort of official action most likely to rise to the conscience-shocking level."

That said, the test is not confined to intentional acts—it also reaches certain instances of deliberate indifference. "To act with deliberate indifference, a state actor must consciously disregard a known and excessive risk to the victim's health and safety." The Supreme Court has cautioned against rote application of that standard: "Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking." We must therefore evaluate the allegations here without "fastidious squeamishness or private sentimentalism."

Knowledge of danger plays an important role in our analysis of a state actor's inaction. "[T]his court has never required state officials to be warned of a specific danger. Rather, we have held that 'the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.' " And "we may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious."

Here, the pleaded facts present a stark picture. When told a grown man was lying under a blanket with a young girl, Jewell reprimanded—not the man—but the staff member who spoke up. When informed that photos documented additional inappropriate conduct, Jewell scolded the aide who took them and refused even to look. And as concerns mounted, she brushed them off, telling subordinates, "we can't be picky" about who cares for young children.

The danger to Doe and her pre-kindergarten classmates was obvious. Admittedly, Plaintiffs likely cannot show that Jewell consciously concluded that Crenshaw was molesting students. But they do allege that she refused to view photographic evidence of pedophilic behavior, and that she met employee concerns with hostility. This shifts Crenshaw's misconduct from "possible" to "obvious." Multiple employees complained; some had photographic proof. Jewell's reaction was struthious inaction.

These allegations, if proven, depict a school official who "failed to act despite h[er] knowledge of a substantial risk of serious harm" to her students—conduct that can qualify as conscience-shocking. This conclusion is anchored in context: deliberate indifference by a school official to suspected sexual abuse. In Taylor, we recognized a student's "constitutional right to bodily integrity in physical sexual abuse cases," relying on "shocks-the-conscience" precedent. Taylor thus treats supervisory deliberate indifference in the school-abuse setting as the functional equivalent of conscience-shocking conduct. While not every Fourteenth Amendment violation meets that high bar, here—given the context and allegations—Jewell's deliberate indifference does.

And the court concluded that the law on this was so clearly established that defendant was rightly denied qualified immunity:

At least since 1987, students have enjoyed a clearly established substantive due process right to bodily integrity under the Fourteenth Amendment that is violated by sexual abuse by a school employee. It is also well-established that a supervisory school official may be liable for breaching the duty to stop or prevent child abuse. Its contours are sufficiently clear given the breadth of the Taylor opinion and litigation that followed. Given our multi-prong test established by the en banc court, as well as lengthy cases applying Taylor with detailed fact patterns, we are persuaded that this right was clearly established by the 2020-2021 school year….

Judge Higginbotham and the other panel members disagreed on one item: Judge Higginbotham added a footnote that he "would not invoke [the shocks-the-conscience] doctrine here, as in his view it is a judicial creature responding to voids in the reach of § 1983. With Taylor on the books, that void here has been filled. With no void, the shocks-the-conscience test does no work." But Judges Willett and Ho declined to join this footnote, and Judge Ho wrote a concurrence on the subject:

It should shock the conscience if a school principal's extreme dereliction of duty predictably results in the sexual abuse of a five-year-old girl by a suspected pedophile on the faculty.

The Supreme Court has repeatedly held that governmental action that "shocks the conscience" violates the Fifth and Fourteenth Amendments. The Court has further held that deliberate indifference can in some circumstances shock the conscience.

The members of the panel today unanimously agree with the district court that, if the allegations in this case are proven at trial, April Jewell was indeed deliberately indifferent to keeping a sexual predator on her school's faculty. To put it simply, Jewell ignored an obvious risk of serious harm to a student in her care. And that's enough to establish deliberate indifference under governing precedent.

When told that a grown man was caught lying under a blanket with a young girl, Jewell reprimanded the staff member who spoke up. When informed that there were photos showing additional inappropriate behavior, Jewell scolded the classroom aide who took the photos and refused to look at them. When concerns grew, she brushed them off, telling her subordinates that "we can't be picky" about who we entrust to care for young children. And she declined to report any of this to the child's parents.

This is a shocking betrayal of public trust in school administrators.

To be sure, the "shocks the conscience" theory of the Due Process Clause has come under withering criticism in both judicial and academic circles. But until the Supreme Court overturns its own precedent, it remains binding on us as an inferior court.

So we have had no trouble enforcing the "shock the conscience" standard against excessively large monetary damage awards—despite sharp criticism in certain quarters. See, e.g., Caldarera v. Eastern Airlines, Inc. (5th Cir. 1983) (noting that excessive awards "shock the judicial conscience" and ordering remittitur); Wackman v. Rubsamen (5th Cir. 2010). But see, e.g., BMW v. Gore (1996) (Scalia, J., dissenting) (criticizing use of the Due Process Clause to combat excessive damage awards).If a disappointing hit to a company's bottom line can shock the conscience, then surely so too can a principal who is willfully blind as a child's innocence is destroyed at the hands of a pedophile….

Monica Beck (Law Office of Monica Beck, P.L.L.C.), Rachael J. Denhollander (Fierberg National Law Group), and Jeffrey Green (Law Office of Jeff Green, P.C.) represent plaintiffs.