by Herman N. (Rusty) Johnson, Jr.
The recent decision in J.W. v. Birmingham Board of Education[i] presents a timely consideration of the legal standards governing the excessive use of force in schools. As the national citizenry debates the recently-surfaced video depicting a Columbia, South Carolina police officer (acting as an “S.R.O.”, or School Resource Officer) forcefully ejecting a sixteen-year-old student from her desk and tossing her across the classroom, the J.W. decision discusses the proper constitutional standard by which such force should be adjudged in the school setting. The J.W. decision properly frames the available options governing excessive force claims involving school students, yet this piece attempts to unreservedly resolve the issue. The Supreme Court decided a case late in the last term—Kingsley v. Hendrickson[ii]—that should unqualifiedly establish the excessive force standard for most contexts, including public school environments.
The presence of S.R.O.s is prevalent in schools across the nation. Generally, S.R.O. programs encompass the deployment of police officers in schools to ensure the safety of a student population. In the J.W. case, the S.R.O.s resorted to using Freeze +P, an incapacitating agent similar to mace, on several students across the Birmingham city school system in response to varying degrees of safety and disciplinary situations.[iii] Eight students challenged the S.R.O.s’ use of the chemical spray as excessive force in violation of the Fourth Amendment to the United States Constitution.[iv] After a bench trial, the court ruled that certain S.R.O.s perpetrated excessive force against two plaintiffs when they sprayed them with Freeze +P, and against six plaintiffs when the S.R.O.s failed to adequately decontaminate the students after direct exposure to the chemical agent.[v] In addition, the court found that the excessive force violations emanated from a policy or custom propagated by the Birmingham Police Defendant, and thus the municipal entity defendants were liable for the constitutional violations as well.[vi] Pursuant to the remedies available under 42 U.S.C. § 1983,[vii] the court awarded $40,000 in damages to the aggrieved plaintiffs, along with an injunction limiting the use of chemical agents to appropriate circumstances and requiring adequate decontamination procedures.[viii]
Although the J.W. opinion raises several issues that may be reviewed on appeal,[ix] I wish to focus upon an issue that the court did not conclusively decide—the proper excessive force standard in the school context. Typically, courts adjudicate Fourth Amendment excessive force claims by applying the objective reasonableness standard established in Graham v. Connor.[x] Pursuant to this standard, court must balance “’the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake,” principally by examining the “totality of the circumstances” warranting the use of force, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”[xi] Importantly, aggrieved plaintiffs do not need to demonstrate a culpable intent or motivation on the part of a governmental actor to sustain an excessive force claim under the objective reasonableness standard.[xii]
The J.W. defendants argued for a limited liability standard affording a more permissive regime in the school context than Graham’s objective reasonableness framework. The defendants relied upon the Supreme Court’s doctrine that officials in public schools need only demonstrate a reasonable suspicion that an offense has been created—rather than the typical, higher Fourth Amendment probable cause requirement—to lawfully conduct searches of students and their personal property.[xiii] Therefore, school searches “will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.’”[xiv] Although the J.W. opinion did not describe the exact contours of a lower excessive force standard for public schools, the court cited the defendants’ argument that the court “must balance the government’s interest in ‘maintaining order in the schools’ and the plaintiffs’ reduced Fourth Amendment expectations.’”[xv] Notwithstanding the court’s decision to decline the defendants’ entreaty due to the lack of binding authority on the issue, the court deemed the liability finding the same under either standard.[xvi]
The Supreme Court’s recent decision in Kingsley v. Hendrickson[xvii] forecloses any argument that the school context merits a more permissible excessive force standard. In Kingsley, the Court considered the appropriate excessive force standard in the pretrial detainee context, that is, when the incidents occurred in a jail setting, after arrest but before conviction.[xviii] Although the context of the incidents warranted the pursuit of a substantive due process claim by the detainee rather than a Fourth Amendment claim, the Court declared that Graham’s objective reasonableness standard applied to the excessive force claim.[xix] Notably, the Court ruled that subjective intent manifests only as a requirement that the governmental actor purposely or knowingly (or possibly recklessly) applied force against the aggrieved plaintiff, but the balance of the objective reasonableness standard does not require the plaintiff to prove that the defendant was subjectively aware that the force used was excessive.[xx]
Kingley’s import for the issue left undecided in J.W. is evident: the Supreme Court in Kingsley established one excessive force standard for Fourth Amendment and substantive due process claims—Graham’s objective reasonableness standard. Although the Court reserved the question whether the objective reasonableness standard would extend to Eight Amendment claims,[xxi] it is clear the standard applies in all other contexts. Furthermore, the Court determined that the objective reasonableness standard does not serve merely to assess the existence of an impermissible intent to punish a person who has not been convicted of a crime, as intimated in Bell v. Wolfish[xxii] and directly argued in Kingsley’s dissent.[xxiii] That is, applying Graham’s standard does not constitute an alternative means, in the absence of direct evidence, of proving a governmental official’s intent to punish a person, a transgression that is prohibited in all contexts except upon convicted individuals. Rather, an excessive force claim may be properly pursued against any state actor who used illegitimate force against an individual, and “proof of intent (or motive) to punish is [not] required for [an individual] to prevail on a claim that his due process [or Fourth Amendment rights] were violated.”[xxiv] All that is required is “objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose,” or, more succinctly, establishing that the use of force was objectively unreasonable.[xxv] Consequently, Graham’s objective reasonableness standard represents the measure to apply to any force used by public officials in the execution of their duties to determine if the force was excessive.
Even more clearly, the educational setting does not require a lesser standard. In fashioning an appropriate excessive force standard, courts should not rely upon the prevailing standards regarding Fourth Amendment searches in schools, in which reasonable suspicion is the standard rather than the more burdensome probable cause standard. The claim at issue is excessive force, and by definition, whether brought under the Fourth Amendment or Fourteenth Amendment, such force is never constitutionally permissible. There exist gradations of circumstances that warrant searches and seizures by public officials, and the bar for such activities may be lower in school settings, but there are never any circumstances that warrant excessive force. As discussed previously, Kingsley established only one standard for such constitutionally impermissible conduct.
Furthermore, the rationale for the lower search and seizure burden does not readily apply to excessive force claims. Safford and like cases provide that the lower burden reflects the need to avoid undue burdens on the efforts to achieve the educational mission of schools, secure the safety of students, and maintain order.[xxvi] In addition, the courts have identified that students enjoy less freedom in schools by dint of the acknowledgement that education is compulsory.[xxvii] That is, governments per se restrict the liberty of students because students have to be in school. The rejoinder, however, is clear—the important obligations to educate students, secure their safety, and maintain school order may require reduced rationales to stop and search students—or some would say, even corporally punish a student—but such obligations do not permit the imposition of excessive force. Force administered by school personnel or S.R.O.s may not be deemed excessive when applying the objective reasonableness standard, but if it is deemed so, no amount of entreaties—whether educational mission, student safety, or maintenance of order—excuses the deprivation to bodily integrity and autonomy occasioned by the use of such force.
Indeed, it would be unseemly to apply the objective reasonableness standard for pretrial detainees and apply a more permissive excessive force standard for school children. The rationales discussed previously to support a lower standard—educational mission, student safety, and maintenance of order—all possess the animating principle that students deserve special protection. This desire to afford special protection for school students compels application of the objective reasonableness standard to excessive force claims in the educational setting. The standard to avoid excessive force for those charged with the protection of school students should not be lower than the standard applied to those officials charged with the care of pre-trial detainees.[xxviii]
By extension, the objective reasonableness standard should apply to any force used by school officials, even the intentional use of corporal punishment that exceeds the bounds of the standard. There presently exists a circuit split on the proper standard to adjudge claims of excessive corporal punishment in those nineteen states that still permit such action in schools. Several circuits prohibit excessive corporal punishment under a substantive due process standard, whereby such punishment has to “shock the conscience” and usually requires proving the perpetrator possessed a malicious state of mind.[xxix] Other courts apply the Fourth Amendment and Graham’s objective reasonableness standard to excessive corporal punishment claims.[xxx] Kingsley puts to rest any delineation between excessive force claims under the Fourth and Fourteenth Amendments. The circuit split should dissolve, and the only intent inquiry that should apply is that discussed in Kingsley: whether the school official purposefully (or recklessly) used corporal punishment. If so, the analysis proceeds to determine whether the corporal punishment was excessive pursuant to the objective reasonableness standard, regardless whether the punishing official was subjectively aware of such excessiveness. This standard should not be onerous for school administrators to apply. Law enforcement officers, including S.R.O.s, should be well aware of the objective reasonableness standard (as indicated by the Court in Kingsley),[xxxi] and the common law standard for corporal punishment has traditionally involved a reasonableness inquiry.[xxxii]
With the event at Spring Valley High School in Columbia, South Carolina still imposing a stark image for reflection, it is past time to establish a singular standard to adjudge the use of excessive force in schools. More critically, it is past time to put to rest any notion that school children suffering punishment deserve less protection than other categories of individuals who encounter a use of force by governmental officials, including pretrial detainees, arrestees, and, perhaps soon, incarcerated persons. The Supreme Court’s Kingsley decision signaled the proper standard for such excessive force claims, and the nation’s school children are no less worthy of its protection.
[i] No. 2:10-cv-03314-AKK (N.D. Ala. September 30, 2015).
[ii] 135 S. Ct. 2466 (2015).
[iii] As described in the court’s opinion, the incidents involved S.R.O.s responding to fights between students or students engaging in disruptive behavior, although in some of the episodes the parties disputed the actions of the participants. J.W., slip op. at 6–24.
[iv] The Fourth Amendment prohibits governmental officials from conducting unreasonable searches and seizures. U.S. Const. amend. IV. Excessive force claims represent one type of claim pursued under those constitutional provisions.
[v] J.W., slip op. at 4–5.
[vi] Id. at 5.
[vii] Section 1983 is the procedural and remedial vehicle for pursuing constitutional claims against state and local government officials in their individual capacities, and local governmental entities. It provides that every person who acts under the color of law and deprives an individual of a constitutional right shall be liable for damages and appropriate equitable relief. 42 U.S.C. § 1983 (2012).
[viii] J.W., slip op. at 117–20.
[ix] One interesting issue is whether the failure to adequately decontaminate the students constitutes an excessive force violation. An excessive force claim must exhibit a purposeful or knowing (and perhaps reckless) use of force by the putative violator. Kingsley, 135 S. Ct. at 2472 (citations omitted). The question ensues whether a failure to administer adequate decontamination measures reflects a deliberate decision by S.R.O.s or a negligent disposition, especially if one deems the chain of causation severed between, one, the act to apply the chemical agent and, two, the failure to administer the necessary aid. If such causation is severed, the Supreme Court reaffirmed that the Constitution requires a properly culpable state of mind to sustain an excessive force claim under the Due Process Clause. Id. As demonstrated, infra, the Supreme Court has consolidated the excessive force doctrine under the Fourth and Fourteenth Amendments; therefore, that the Court stated its state-of-mind rule in a substantive due process context should merit no appreciable distinction in application. Indeed, even the Fourth Amendment prohibition requires a showing that force was “intentionally applied.” County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (citations omitted).
This finding regarding the liability of the individual officers would not automatically shield the municipal entity defendants from liability, however. Even if the individual officers are not constitutionally liable for the failure to administer decontamination measures, the municipal entities may be liable for a failure to train the officers on such procedures. See City of Canton, Ohio v. Harris, 489 U.S. 378, 379 (1939) (“The inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train in a relevant respect amounts to deliberate indifference to the constitutional rights of persons with whom the police come into contact.”).
[x] 490 U.S. 386, 388 (1989).
[xi] Id. at 396 (citations omitted).
[xii] Id. at 397.
[xiii] Safford Unified School District #1 v. Redding, 557 U.S. 364, 370–371 (2009).
[xiv] Id. (citing New Jersey v. T. L. O., 469 U. S. 325, 342 (1985)).
[xv] J.W., slip op. at 49 (citations and internal alteration marks omitted).
[xvi] Id. at 50–51.
[xvii] 135 S. Ct. 2466 (2015).
[xviii] Id. at 2470–71. The Court has previously delineated excessive force claims by the constitutional provision under which they are brought: the Fourth Amendment for seizure contexts, defining seizure as the intentional application of force to stop a person’s freedom of movement, Lewis, 523 U.S. at 844; the Eight Amendment context, for those occasions when force occurs in a confinement context and the aggrieved has been convicted of a crime, Kingsley, 135 S. Ct. at 2475; and for all other contexts, the Fourteenth Amendment’s Due Process Clause, which proscribes violations of substantive due process when no amount of process warrants the aggrieved deprivation of life, liberty, or property. Lewis, 523 U.S. at 840.
[xix] Kingsley, 135 S. Ct. at 2472–73.
[xxi] Id. at 2476. Supreme Court precedent on excessive force claims by convicted prisoners requires a showing that the perpetrators engaged force with a malicious and sadistic intent. Hudson v. McMillian, 503 U.S. 1, 2 (1992).
[xxii] 441 U.S. 520 (1979).
[xxiii] Kingsley, 135 S. Ct. at 2478.
[xxiv] Id. at 2473.
[xxv] Id. at 2473–74.
[xxvi] See, e.g., New Jersey v. T. L. O., 469 U. S. 325, 342 (1985).
[xxvii] See, e.g., Wallace ex rel. Wallace v. Batavia School District 101, 68 F.3d 1010, 1013–14 (7th Cir. 1995) (“restricting the liberty of students is a sine qua non of the educational process”).
[xxviii] Cf. T.L.O., 469 U.S. at 338–39 (“’[T]he prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration.’ We are not yet ready to hold that the schools and the prisons need be equated for purposes of the Fourth Amendment.”) (citation omitted).
[xxix] See Mahone v. Ben Hill Cnty. Sch. Sys., 377 F. App’x 913 (11th Cir. 2010); Davis v. Carter, 555 F.3d 979 (11th Cir. 2009); Meeker v. Edmundson, 415 F.3d 317 (4th Cir. 2005); Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168 (2d Cir. 2002); Gottlieb ex rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168 (3d Cir. 2001); Harris v. Robinson, 273 F.3d 927 (10th Cir. 2001); Saylor v. Bd. of Educ. of Harlan Cnty., Ky., 118 F.3d 507 (6th Cir. 1997); London v. Dirs. of DeWitt Pub. Schs., 194 F.3d 873 (8th Cir. 1999); Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987).
[xxx]See Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175 (9th Cir. 2007); Wallace ex rel. Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010 (7th Cir. 1995).
[xxxi] Kingsley,135 S. Ct. at 2472 (2015).
At common law, a single principle has governed the use of corporal punishment since before the American Revolution; teachers may impose reasonable but not excessive force to discipline a child. . . . To the extent that the force is excessive or unreasonable, the educator in virtually all States is subject to possible civil and criminal liability.
. . . .
. . . .Public school teachers and administrators are privileged at common law to inflict only such corporal punishment as is reasonably necessary for the proper education and discipline of the child; any punishment going beyond the privilege may result in both civil and criminal liability.
Ingraham v. Wright, 430 U.S. 651, 661, 670 (1977) (internal citations omitted).