On January 7th, 2016, the Sixth Circuit Court of Appeals decided the Domingo et al. v. Kowalski et al. [i], which serves as instructive regarding when abuse of a student in school, by a school official, may amount to a violation of the student’s Fourteenth Amendment due process rights. The relevant facts of Kowalski, taken directly from the case, are as follows:

Appellants’ factual allegations are based almost entirely on the testimony of Suzanne Brant, who worked as a teaching aide in Kowalski’s special-education class of autistic and developmentally delayed students during the 2003-2004 school year. As the year progressed, Brant became increasingly concerned that some of Kowalski’s teaching methods were inappropriate and abusive. N.D., for example, was a six-year-old autistic and developmentally delayed girl who was not toilet-trained. N.D. struggled in particular with transitioning from one activity to another, and when forced to do so, she would sometimes throw tantrums, remove her clothes, and smear feces on the floor or wall. According to Brant, “just about every day” Kowalski removed N.D.’s pants and placed N.D. on a training toilet in the classroom, and often left her on the training toilet for as long as a fourth of the school day. Though Laurie Fogg, another teaching aide in the class, claimed that N.D.’s training toilet was separated from the other students by a “partition,” she admitted that the students could easily walk around the partition and see N.D. Kowalski left N.D. on the training toilet during mealtimes, and sometimes fed lunch to N.D. while N.D. sat on the toilet. Brant said that Kowalski once “proudly” displayed one of N.D.’s bowel movements to the class. Kowalski believed that N.D.’s difficulties in making smooth transitions between activities merited these particular toilet-training techniques.

Brant also grew concerned over Kowalski’s treatment of R.G., a nine-year-old boy with autism and hyperactivity disorder. The record establishes that, while he was a student in Kowalski’s classroom, R.G. frequently exhibited behavior that Kowalski, Brant, and Fogg found challenging, including spitting, throwing tantrums, screaming, and tripping others. Brant alleged that, on one occasion in February 2004, she found R.G. strapped to a gurney in the hallway outside of the classroom, his mouth gagged with a bandana. Kowalski disputed this. Kowalski claimed that she only briefly covered R.G.’s mouth with a therapeutic “chewy” that R.G. kept around his neck on a bandana, for long enough to tell him to stop spitting, and that she did not restrain R.G. to a gurney. However, accepting Brant’s version of events as true, Brant testified that she believed that Kowalski had restrained R.G. on this specific occasion to correct R.G.’s disruptive behavior. Brant also claimed that Kowalski had yelled at R.G. on several occasions, and had inappropriately restrained him several times in a Rifton Chair, a therapeutic chair designed to support children who cannot maintain a safe seated position in a stand-alone chair.

Additionally, Brant was concerned with Kowalski’s treatment of J.J., an eleven-year-old girl with cerebral palsy, autism, and developmental delays. According to Brant, Kowalski frequently used a belt to strap J.J. to the toilet, and left her strapped to the toilet, alone in the bathroom, for twenty to thirty minutes at a time. However, as Kowalski explained, J.J. was not toilet-trained, would frequently soil herself when her diaper was removed, and, due to her difficulties balancing and her low muscle tone, might fall from the toilet seat without support. Therefore, Kowalski believed that strapping J.J. to the toilet with a belt was a reasonable measure to employ in assisting J.J. in learning to safely and properly use a toilet. In fact, toilet-training was an explicit goal in J.J.’s individual education plan. Kowalski and Fogg also testified that they always kept J.J. in sight while she was strapped to the toilet.

Finally, Brant became concerned that certain techniques occasionally used by Kowalski to focus her students’ attention were abusive and inappropriate. According to Brant, Kowalski would regularly assert control of an unruly or disruptive student by grabbing the student’s face, squeezing his or her cheeks, and pointing the student’s face toward Kowalski. Brant also claimed that if a student was not focusing or staying on task Kowalski would have the student fold his arms on the desk, and then force the student’s head down onto his folded arms.

Neither the students’ parents nor Kowalski’s supervisors were aware of the full extent of Brant’s concerns until after the end of the 2004 school year. In fact, no parent ever complained to the school administrators about any mistreatment or reported any concerns about injury to a child. Kowalski’s class met in a church where Kowalski went largely unobserved by other teachers or her direct supervisors, aside from a few weekly visits from behavioral and therapeutic specialists.

The record indicates that Kowalski’s supervisors heard no similar complaints about Kowalski until March 2004, when an unnamed “therapy supervisor” visited Kowalski’s class and witnessed Kowalski placing N.D. on a training toilet in view of other students.…

…On July 1, 2004, Brant filed a written report of child abuse with the Huron Department of Job and Family Services.

Lally subsequently contacted Erie County Children’s Services, the Norwalk Law Director, the Norwalk Police Department, and the Ohio Department of Education, all of which investigated Brant’s allegations. McCarthy also initiated an internal investigation. North Point suspended Kowalski for a year with pay, pending completion of these investigations. No investigation resulted in any charges or sanctions. The Norwalk Police Department brought no criminal charges, and the Norwalk Law Director concluded that he found “insufficient credible evidence against Kowalski to substantiate the filing of criminal charges.” The Ohio Department of Education concluded its investigation with a consent agreement in which Kowalski denied any wrongdoing, but agreed to complete twenty to thirty “contact hours” of college-level special-education coursework. [ii]

The guardians of the three children who were allegedly abused filed suit and alleged (1) that Kowalski violated the children’s due process rights under the Fourteenth Amendment by her abuse, (2) Kowalski’s supervisors were deliberately indifferent to her abuse of the children, and (3) North Point created an environment for such abuse by unconstitutional policy and practice.  The district court granted summary judgment to Kowalski, her supervisors, and North Point.  The plaintiff’s appealed to the Sixth Circuit Court of Appeals.

At the outset the court noted that that, while Kowalski denies some of the facts provided by the plaintiff’s, the court is required to view the facts in a light most favorable to the plaintiff at this stage of the case.  As such, the court will decide the issues on the version of facts provided by the plaintiff.

The first issue before the court was whether the alleged conduct by Kowalski amounted to a Fourteenth Amendment due process violation.

The court then stated the legal framework that they would use to determine this issue.  The court stated:

[W]e analyze Appellants’ claims under the useful framework developed by the Third Circuit in Gottlieb vLaurel Highlands SchDist., 272 F.3d 168 (3d Cir. 2001). In Gottlieb, the Third Circuit analyzed a student’s constitutional claim under the “shocks the conscience” standard by considering the following:

a) Was there a pedagogical justification for the use of force?; b) Was the force utilized excessive to meet the legitimate objective in this situation?; c) Was the force applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm?; and d) Was there a serious injury? [emphasis added] [iii]

The court then set out to examine each of the factors listed above.  The first factor was whether there was a “pedagogical justification,” or basically, an educational purpose or justification, to Kowalski’s actions.  In other words, the court set out to determine if the teacher’s alleged actions could be properly “construed as an attempt to serve pedagogical (educational) objectives.” [iv]  The court then noted that the record shows that Kowalski’s actions were intended to serve educational objectives.  For example, J.J.’s individualized education plan included toilet training; thus, while unorthodox, securing her to the toilet with a belt to help her balance problem was related to an education purpose.  N.D. also needed toilet training so placing her on a toilet in the classroom, while offensive, was related to an educational purpose.  Lastly, R.G. issues included numerous bad behaviors, such as spitting and pushing others, so restraining him in a hallway after verbal requests to calm down failed to remedy an episode was still related to an educational purpose.  The court stated:

In finding that Kowalski’s actions clearly served a legitimate, identifiable pedagogical purpose, we do not pass judgment on the advisability of these interventions as special-education practices. Indeed, based on the testimony of Appellants’ expert, Dr. Helen Malone, Kowalski’s methods were improper and counterproductive. However, special-education professional standards are not the relevant consideration in an analysis of whether a teacher’s conduct violated the Fourteenth Amendment. As the Eleventh Circuit stated in T.W., “we do not express any judgment as to the desirability of corporal punishment as a policy matter. Instead, we look at the circumstances surrounding [the] use of force to determine whether the force is ‘capable of being construed as an attempt to serve pedagogical objectives.'” T.W., 610 F.3d at 599 (quoting Gottlieb, 272 F.3d at 174). Here, the surrounding circumstances indicate a clear educational or disciplinary motive for each of Kowalski’s allegedly unconstitutional acts, and therefore this factor weighs in Kowalski’s favor. [v] [emphasis added]

The second factor was the court set out to examine was whether Kowalski’s actions were excessive with respect to their pedagogical (educational) goals.  The court stated:

We have made clear that, when a teacher’s allegedly unconstitutional conduct was motivated by a legitimate educational or disciplinary goal, the conduct must be clearly extreme and disproportionate to the need presented to be excessive in the constitutional sense. [vi] [emphasis added]

The court then examined the facts of this case to determine if the conduct rose to the level of “extreme and disproportionate to the need presented.”  The court stated that none of the force she used was extreme and disproportionate.  As to the toilet training for J.J. and N.D., if any force was used, it was no more than needed to keep the students safely on their toilets.  Further, squeezing a student’s face in the alleged manner and pushing their heads down to their arms was minimal force.  Lastly, the force used to restrain R.G. occurred only one time and was not unconstitutionally excessive.  As such, the court held that Kowalski did not use excessive force in her methods discussed above.

The third factor considered by the court was Kowalski’s intent by her actions.  The court stated:

[W]e next consider whether Kowalski acted in a good-faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm[.]” Gottlieb, 272 F.3d at 174. This factor focuses our attention on “what animated [Kowalski’s] action or [her] intent in acting.” Id. Absent direct evidence of a malicious intent, courts look to the surrounding circumstances to determine whether a school official’s conduct was undertaken in a good-faith effort to educate, train, or maintain discipline, or for the purpose of causing harm. [vii] [emphasis added]

The court then noted that the plaintiff’s offered no evidence that Kowalski acted with malice, callousness, or deliberate indifference.  In deciding this factor in favor of Kowalski, the court stated:

Indeed, the facts reveal that Kowalski’s purpose, in most instances, was to assist her students in meeting their educational goals, and in the others, to curb disruptive behavior. The mere fact that Kowalski did not use good or even acceptable practices to accomplish these goals is simply insufficient to raise an inference that she undertook these practices with a malicious or sadistic intent. [viii]

Lastly, the court examined whether the plaintiff’s suffered a “serious injury.”  The court stated that, while typically a serious physical injury is required, there is no reason that a psychological injury supported by evidence could not satisfy this factor.  However, the court then stated that there was no evidence offered of a serious physical or psychological injury in this case.  Thus, this factor weighed in Kowalski’s favor.

The court then granted summary judgment to Kowalski as her conduct did not rise to the level of a Fourteenth Amendment violation.  The court did note that Kowalski’s conduct may have been inappropriate and even possibly tortious.  The Sixth Circuit then stated:

Kowalski’s educational and disciplinary methods, as reported by Brant, may have been inappropriate, insensitive, and even tortious. This does not, however, render them unconstitutional. As we stated in Lillard and Webb, “the substantive due process claim is quite different than a claim of assault and battery under state tort law . . . .” Lillard, 76 F.3d at 725 (quoting Webb, 828 F.2d at 1158); see also Lewis, 523 U.S. at 848 (The Due Process Clause does not impose liability “whenever someone cloaked with state authority causes harm.”). The evidence establishes that Kowalski attempted to toilet-train and control her special-education students in furtherance of valid pedagogical goals. The methods she employed to accomplish these goals do not shock the conscience. Moreover, Appellants produced no evidence that Kowalski acted out of malice, callousness, or deliberate indifference. Appellants also produced no evidence that any student suffered a serious physical or psychological injury. Therefore, the district court did not err in granting summary judgment to Kowalski on Appellants’ substantive due process claims. [ix]

Therefore, the court of appeals affirmed the grant of summary judgment to Kowalski because she did not violate the Fourteenth Amendment.  The court affirmed summary judgment for the supervisors and North Point because there was no underlying constitutional violation.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 14-3957 (6th Cir. Decided January 7, 2016)

[ii] Id. at 3-6

[iii] Id. at 9

[iv] Id. at 10

[v] Id. at 12-13

[i][vi] Id. at 13

[vii] Id. at 14

[viii] Id. at 15

[ix] Id. at 16-17

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