Sixth Circuit rules that school officials’ failure to tell police officer of arrested student’s autism not a violation of substantive due process

Chigano v. City of Knoxville, No. 12-6025 (6th Cir. Jul. 10, 2013)

Abstract: A U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) three-judge panel has ruled that school officials did not violate an autistic student’s Fourteenth Amendment substantive due process rights by failing to inform a police officer called to arrest the disruptive student of her disability.  The panel determined that the student’s claim failed under DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), because the student had failed to show an affirmative act on the part of school officials. Liability requires an affirmative act on the part of the defendants, and the failure to act is not an affirmative act.

Facts/Issue: M.C., who attended Fulton High School (FHS), suffers from autism.  M.C. violated a school policy that phones must be turned off and not visible during the school day.  Pursuant to the policy her cell phone was confiscated to be returned only to her parent.  M.C. attempted to retrieve the phone from the office at the end of the school day.  When she was denied the phone, she refused to leave the office without the phone.

Two school security officers arrived and tried to get M.C. to leave.  A Knoxville police officer then entered the office and attempted to get M.C. to leave voluntarily.  The police officer and M.C. became involved in a physical struggle when he tried to remove her from the office.  M.C. was eventually handcuffed and taken to a juvenile detention center where she was charged with disorderly conduct and resisting arrest.  The charges were later dropped.

M.C. and her parents filed suit in federal district court in Tennessee against a number of  school system and police department defendants asserting 1) a federal claim under Title VI of the Civil Rights Act of 1964;  2) a claim pursuant to 42 U.S.C. § 1983 that M.C.’s Fourth, Eighth, and Fourteenth Amendment rights were violated; and 3) violations of state law.  The teacher who confiscated the phone, the principal, and the police officer filed motions for summary judgment.  The district court granted the motions on both federal claims and dismissed the state law claims without prejudice.  The court rejected the Title VI claim on the ground that M.C. had not been treated differently than any other student on the basis of race.  The plaintiffs did not appeal that ruling.

The plaintiffs appealed only the adverse ruling on their Fourteenth Amendment substantive due process claim.  The plaintiffs argued that M.C.’s liberty interest in bodily security was violated because school officials failed to inform the police officer of her autism before his interaction with her.

Ruling/Rationale:  The Sixth Circuit panel affirmed the district court ‘s decision dismissing the Section 1983 substantive due process claim.

The panel based its decision on the Supreme Court’s ruling in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) and its progeny.  Summarizing DeShaney, the panel stated: “[W]hile the Due Process Clause prohibits the State from depriving any person of life or liberty, it does not explicitly require the State to protect the life and liberty of its citizens against actions by private actors.”  The panel assumed without deciding that the police officer was a private actor.  Accordingly, the school employees did not have a duty to protect M.C. from the actions of the officer.

There are two exceptions to the DeShaney rule.  One applies when the plaintiff is in the functional custody of the state when the injury occurs.  M.C. did not argue this theory.  The other exception exists when the state actor creates or increases the danger to the plaintiff.  M.C. maintains that the school employees created the risk of danger to her by summoning the police officer to the office and increased the risk by failing to inform him of M.C.’s disability. The panel rejected M.C.’s “created risk” argument because the school employees did not call the police office to the office; some other individual did.

M.C.’s “increased risk” argument failed because it is based on the school employees’ failure to act, i.e. to inform the officer of M.C.’s autism, and “for purposes of the state-created danger theory, a failure to act is not an affirmative act.”  Liability requires an affirmative act on the part of the defendants, and the failure to act is not an affirmative act.

Chigano v. City of Knoxville, No. 12-6025 (6th Cir. Jul. 10, 2013)

[Editor's Note: In June 2013, Legal Clips summarized the decision of the U.S. Court of Appeals for the Third Circuit, sitting en banc (all active judges participating), in Morrow v. Balaski holding that a school district did not violate the substantive due process rights of two students who were subjected to physical assaults, harassment, bullying, and intimidation on the basis of race by fellow students. Therefore the school district could not be held liable under section 1983.  Nine of the fourteen judges agreed that the plaintiffs had failed to show that that there was a special relationship between the victimized students and the school district which would have provided an exception to the general rule that government cannot be held liable for the acts of private parties.  A tenth judge joined the nine judge majority in holding that the school district also could not be held liable for those third parties’ acts under the theory of “state created danger.”]

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