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• Author: Wheeler, Thomas E.
• Position: Developments in law, surveyed by International Ass'n of Defense Counsel law committees

WHAT conduct by public school teachers "shocks the conscience" so as to rise to the level of a constitutional violation?

Under substantive due process, ordinary torts committed by state actors do not rise to the level of constitutional violations unless the conduct is so arbitrary and capricious as to "shock the conscience."(1)

In DeShaney v. Winnebago County Department of Social Services, (2) the U.S. Supreme Court discussed the 14th Amendment due process clause concept of substantive due process in a case in which it was alleged that a state deprived a child of his liberty interest to be free from "unjustified intrusions on personal security" by failing to provide him with adequate protection against his father's violence. "The claim is one invoking the substantive rather than procedural component of the due process clause," the Court stated.

This standard was discussed in Collins v. City of Harker Heights,(3) in which the Supreme Court affirmed the district court's dismissal of an action on the grounds that no constitutional violation had been shown because the alleged conduct did not shock the conscience. Justice Stevens stated that the first step in analyzing a 42 U.S.C. [subsection] 1983 claim against a municipality was whether the "plaintiff's harm was caused by a constitutional violation." Whether the action was taken pursuant to an official policy is irrelevant until the first step has been answered affirmatively.

In Collins, it was argued that a policy of deliberate indifference by a city caused the plaintiff a constitutional injury under the substantive component of the due process clause. In dismissing, the Court found that the city's deliberate indifference to safety procedures did not shock the conscience, as the injury was of a type traditionally governed by state law, and thus no substantive due process violation was pleaded, and the federal claims were properly dismissed because under Section 1983 no constitutional violation had been shown. (4)

Statements insufficient

Courts generally have held that verbal sexual statements are insufficient by themselves to be "conscience shocking," although one court said it had not foreclosed that possibility, but that the threshold for alleging such claims is high and that the fact alleged here [explicit sexual commentary] do not rise to that level."(5)

The basis for refusing to allow verbal harassment to implicate substantive due process goes back to the core right -- the right to bodily integrity. There must be significant physical touching to implicate the right to bodily integrity.(6)

In Abeyta by Martinez v. Chama Valley Independent School Dist. No. 19,(7) the issue was whether certain conduct by a teacher arose to the level of "shocking to the conscience." The teacher allegedly called a student a prostitute and apparently permitted her classmates to taunt her over a period of weeks. In rejecting this as a substantive due process claim, the 10th, Circuit held: "What allegedly occurred here might be enough to state a claim under Title VII if done in an employment context. But plaintiff is claiming a constitutional substantive due process violation. More is required to state a claim for a constitutional violation.... [E]ven extreme verbal abuse typically is insufficient to establish a constitutional violation."

Bodily intrusion

The fact that there must be a significant bodily intrusion was examined in Lillard v. Selby County Board of Education,(8) in which the Sixth Circuit was faced with a case where a male coach allegedly made numerous sexual remarks to three female plaintiffs. Title IX and Section 1983 claims were presented.

In addressing whether the coach's conduct was "shocking to the conscience," the court noted that the teacher's conduct included verbal sexual abuse, fondling of a breast, touching of buttocks, and rubbing a student's stomach while making sexual comments. Rejecting the substantive due process claims, the court held that while the coach's actions were "careless and unwise," they fell "far short of `brutal' or 'inhumane,' or any of the other adjectives employed to describe an act so vicious as to constitute a violation of due process."

Not a "font of tort law"

The Supreme Court has repeatedly admonished litigants that the 14th Amendment does not act, as it said in Paul v. Davis, as "a font of tort law to be superimposed upon whatever systems may already be administered by the states."(9) Thus actions such as assault and the intentional infliction of emotional distress, which may be torts under a state's common law, do not become violations of the 14th Amendment merely because the defendant is a governmental unit.

Physical assaults will not arise to the requisite level absent special circumstances. In Anderson v. Everett Area School Board,(10) a student alleged that he was abused and physically assaulted by a school bus driver in violation of his substantive due process rights. In granting the school's motion to dismiss for failure to state a claim, the district court noted the statement in Paul v. Davis, and went on to hold that because the conduct of the school bus driver did not "shock the conscience," no constitutional deprivation occurred, and the student was limited to state tort law for his remedies against the driver and the school.

Business Litigation Committee

AS MORE companies explore commercial opportunities in "cyberspace," litigation over "cyberdeals" and "cybertorts" is becoming more prevalent. One of the first issues a court must consider in such a case is whether it has personal jurisdiction over the defendant. Recent decisions have addressed the question of whether activities on the Internet are sufficient to confer jurisdiction over a defendant not otherwise "present" in the forum state.

Applying standard jurisdictional tests, courts have reached conflicting results on whether a commercial "home page" on the World Wide Web is, in and of itself, a sufficient "contact" to create personal jurisdiction. Courts have also found that persons conducting electronic commerce over the Internet are subject to jurisdiction in a forum in which buyers of the products or services are located, notwithstanding the fact that the transactions occur in cyberspace. In tort cases, courts have applied an "effects" test, finding jurisdiction over nonresident defendants if the effects of their electronic torts are felt in the forum.

Internet Advertising

In cases in which the courts have treated Internet advertising as the equivalent of advertising in such traditional mediums as print and radio, courts have not been inclined to find jurisdiction based solely upon the fact that a commercial Web site is accessible to Internet users in the forum state. In McDonough v. Fallon McElligott, Inc.,(11) a federal district court in California dismissed a claim by a California resident against a Minnesota advertising agency that allegedly used a photograph taken by the plaintiff in one of its publications without permission. The plaintiff claimed that the court had general jurisdiction over the defendant because, among other things, the defendant maintained a website accessible in California, although the website was not otherwise involved in the dispute between the parties.

The court rejected the plaintiff's claim, reasoning as follows: "Because the Web enables easy world-wide access, allowing computer interaction via the web to supply sufficient contacts to establish jurisdiction would eviscerate the personal jurisdiction requirement as it currently exists ... Thus, the fact that [the defendant] has a website used by Californians cannot establish jurisdiction by itself."(12)

A contrary result, however, has been reached by those courts that have concluded that Internet advertising is qualitatively different...