The Supreme Court has long held that the federal constitution restricts government action. It is not a remedy for every private misdeed—even when creative litigants, in their search for a deeper pocket, try and pin that private wrong on some public employer or agency. A recent summary judgment ruling from the Central District of Illinois in favor of two teachers, a school administrative assistant, and the school district reaffirms this principle.
The plaintiff was the disgruntled father a five-year-old of whom he had de facto custody. He was estranged from the child’s mother. But there was no formal child custody order. Nor had the mother ever lost custody of any child. On the date of the incident, the father, having been informed that the mother was in the vicinity, obtained (but never served) an ex parte order of protection. He brought a copy to the administrative assistant. When she asked if the child should ride the bus home, the father said yes.
But a few hours later, the father called and told the administrative assistant that the mother was trying to “kidnap” the child, and not to put her on the bus, but that he would come to pick the child up. She wrote a note to the child’s teacher that the child was not to ride the bus as originally planned, but would be picked up by her father. The teacher, in turn, told the child that her father was coming to get her and put the child in the “car rider” line. But in the after-school hubbub, the child switched lines on her own without being noticed, boarded the bus, and was picked up at the bus stop by her mother and taken out of state. The only teacher who saw the child in the bus line thought nothing of it because the child usually rode the bus and this teacher knew nothing of the father’s call. Fortunately, the father retrieved the child about a month later unharmed.
In his lawsuit, the father claims that the school and its personnel “created a danger” to the child by not following his directives and thereby giving the mother a chance to abscond with the child. He insisted the child was safe with him but in danger with the mother (despite the lack of demonstrable harm) and that this was the school and its employees’ fault.
But the Court recognized that the school personnel did act on the father’s instructions. Their actions turned out to be insufficient, and were perhaps careless or negligent. But the state-created danger exception, into which the father tried to fit his lawsuit, requires conduct so egregious that it “shocks the conscience.” The actions of the two teachers and administrator did not come close to meeting this standard. The few Seventh Circuit decisions allowing plaintiffs to proceed on such a theory dealt with far more egregious facts. Furthermore, even if plaintiff could have established a constitutional violation, the defendants would have been entitled to qualified immunity.
The defendants were successfully represented by Michael Bersani and David Mathues.