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U.S. Fifth Circuit Court of Appeals
ISD and Teacher Have Legal Immunity Over
Special-Ed Pupil’s “Choke Hold” Discipline
Ruling: A federal lawsuit filed by the parents of a then-first grade special-ed student over a teacher holding their misbehaving son in a choke hold for several minutes is dismissed. T.O., a child; Terrence Outley; Darrezett Craig, v. Fort Bend ISD; Angela Abbott, a teacher. No. 20-20225. Issued June 17. Ordered “published.”
Background
In 2017, first grade FBISD student T.O. was diagnosed with ADHD and oppositional defiant disorder, and was assigned, under his behaviorial intervention plan, to a behavioral aide. The plan called for him to be orally redirected and put in a quiet area whenever he misbehaved, and to be praised when he engaged in appropriate behavior.
The aide had removed T.O. from the classroom to the hallway due to his disruptive behavior when a fourth grade teacher happened by in the hallway.
Despite the aide assuring the teacher that she had things under control, the teacher reportedly positioned herself between T.O. and the classroom door, resulting in T.O. hitting the teacher on her leg as he attempted to get back into the classroom.
The teacher, court records reflect, responded by seizing T.O.’s neck, throwing him to the floor, and holding him in a choke hold for several minutes. During the incident, the teacher yelled that T.O. “had hit the wrong one” and “needed to keep his hands to himself.”
The teacher released T.O. after the aide asked her to release him because he needed air and she was holding him the wrong way.
FBISD investigated the incident on three separate occasions, but the teacher was never fired or otherwise disciplined.
The parents appealed to the Fifth Circuit after lower courts dismissed their federal lawsuit against FBISD (alleging violations of federal antidiscrimination laws) and against the teacher (alleging violations of the student’s constitutional rights).
A three-member Fifth Circuit panel upheld dismissal by citing, as precedent, prior Fifth Circuit rulings issued several years ago.
The justices noted the precedents established that ISDs and their employees within the Fifth Circuit’s jurisdiction are immune from federal lawsuits arising from actions taken to discipline students — no matter how egregious — if (as is the case here) the discipline did not stem from a discriminatory act against the student and the state where the suit originated has its own remedies for the misuse by school personnel of corporal punishment and other forms of student discipline.
“Wrongly Decided”
Although the decision was unanimous, Senior Justice Jacques L. Wiener Jr., joined by a second justice, issued a concurring opinion (see page 15 of the decision) stating that although they were required, based on the Fifth Circuit precedents, to dismiss the lawsuit — they believed the precedent-setting cases were “wrongly decided” to the detriment — for over 30 years — of students within the Fifth Circuit’s jurisdiction (Texas, Mississippi and Louisiana).
Wiener noted that justices in several other federal appeals court circuits (with jurisdictions over other states) have made opposite rulings — that courts in those circuits can consider lawsuits alleging nondiscriminatory violations of the constitutional rights of students due to their being disciplined by school employees and districts.
The concurring opinion urges that the entire 17-member Fifth Circuit consider issuing an “en banc” ruling to set a new precedent.
“Let us Fix This Error ...”
“Let us fix this error before the Supreme Court decides to fix it for us,” the concurring opinion’s final sentence says.