Ebonie S. v. Pueblo School District 60, et al

Filing

[9996401] Affirmed;Terminated on the merits after oral hearing;Written, signed, published; Judges Lucero (authoring), Hartz and O'Brien. Mandate to issue. [11-1273]

Appellate Case: 11-1273

Document: 01018903991

Date Filed: 08/28/2012

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FILED 
United States Court of Appeals 
Tenth Circuit 

PUBLISH
August 28, 2012 
UNITED STATES COURT OF APPEALS

Elisabeth A. Shumaker 
Clerk of Court 
TENTH CIRCUIT

EBONIE S., a child, by her mother and
next friend, Mary S.,
PlaintiffAppellant,
v.
PUEBLO SCHOOL DISTRICT 60;
MARILYN GOLDEN, Teacher, in her
official and individual capacities; GARY
TRUJILLO, Principal, in his official and
individual capacities; MARY JO
BOLLINGER, Executive Director of
Exceptional Student Services, in her
official and individual capacities;
LOUISE RIVAS, paraprofessional, in her
official and individual capacities;
SHARON WELLS, paraprofessional, in
her official and individual capacities;
ISABEL SANCHEZ, paraprofessional, in
her official and individual capacities;
AUDRA MARTINEZ, paraprofessional,
in her official and individual capacities;
KRISTEN POTTER, paraprofessional, in
her official and individual capacities,
DefendantsAppellees,
-----------------------------COUNCIL OF PARENT ATTORNEYS
AND ADVOCATES, INC.; COLORADO
ASSOCIATION OF SCHOOL BOARDS,
Amici Curiae.

No. 11-1273

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Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:09-CV-00858-WJM-MEH)

Cristina F. Gomez, Holland & Hart LLP, Denver, Colorado (Jonathan S. Bender, Holland
& Hart LLP, Denver, Colorado; Maureen Reidy Witt, Holland & Hart LLP, Englewood,
Colorado; and Katherine Gerland, Law Offices of Louise Bouzari LLC, Englewood,
Colorado, with her on the briefs), for the Plaintiff-Appellant.
Sonja S. McKenzie (Sarah A. Schreiber with her on the briefs), Senter Goldfarb & Rice
LLC, Denver, Colorado, for Defendants-Appellees Pueblo School District 60, Gary
Trujillo, Mary Jo Bollinger, Louise Rivas, Sharon Wells, Isabel Sanchez, Audra
Martinez, and Kristen Potter.
W. Stuart Stuller (Meghan Pound with him on the briefs), Caplan and Earnest LLC,
Boulder, Colorado, for Defendant-Appellee Marilyn Golden.
Kimberly F. Rich, Baker & McKenzie LLP, Dallas, Texas, for Amicus Curiae Council of
Parent Attorneys and Advocates, Inc.
Kathleen Sullivan, Denver, Colorado, for Amicus Curiae Colorado Association of School
Boards.

Before LUCERO, HARTZ, and O’BRIEN, Circuit Judges.

LUCERO, Circuit Judge.

This appeal requires us to decide whether the use of a particular desk in special
education classrooms is permissible under the United States Constitution. The desks in
question wrap around the student on the front and the sides and have a securing bar that
runs behind the student’s chair. A student can only remove herself by sliding under or
crawling over the desk’s surface when the bar is in place. In a kindergarten specialeducation classroom at Bessemer Academy in Pueblo, Colorado, Ebonie S., a young girl
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with multiple disabilities, was often required to sit in this type of desk. Ebonie’s mother,
Mary S., filed suit on her behalf under 42 U.S.C. § 1983, contending that the use of the
desk violated the Fourth Amendment, the Due Process Clause, and the Equal Protection
Clause, as well as the Americans with Disabilities Act (“ADA”) and the Rehabilitation
Act. The district court granted summary judgment to defendants on the constitutional
claims, but denied summary judgment on the statutory claims. Plaintiff now appeals the
grants of summary judgment, and exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
Plaintiff devotes much effort to arguing that the use of the desk was prohibited
under Colorado law and was contrary to well-established educational standards. But it is
not our office to decide the lawfulness of the desk under state law or the wisdom of using
the desk as a matter of pedagogical policy. We firmly decline to offer any view on those
questions. Moreover, we express no view as to the claims under the ADA and the
Rehabilitation Act. We hold only that use of the desk under the circumstances presented
did not violate the Fourth or the Fourteenth Amendments.
I
Ebonie was born addicted to cocaine. She has been diagnosed with multiple
developmental and intellectual disabilities, including Down syndrome, as well as
numerous physical ailments. Mary adopted Ebonie when she was four years old.
Ebonie began attending Bessemer Academy in 2006 at age five. She was placed
in a class for students with severe disabilities taught by Marilyn Golden. Golden was
assisted by several paraprofessionals: Louise Rivas, Sharon Wells, Isabel Sanchez,
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Audra Martinez, and Kristen Potter. Ebonie attended class from 8 am to 11 am five days
a week, although she stayed until 1 pm for at least part of the year.
In Golden’s classroom, there were special desks for several children, including
Ebonie. The surfaces of these desks are U-shaped, such that when a student’s chair is
completely pulled in, the student is surrounded by the desk on three sides. The cutout
portion of the desk is lined with rubber. A wooden bar, approximately one inch by two
inches, runs the length of the back of the desk. When a student is sitting at the desk, the
bar rests behind the student’s chair, thus preventing her from pushing her chair out. A
barrel bolt, akin to the fastener on the door of a restroom stall, can be used to secure the
bar.1
Defendants maintain that Ebonie could unfasten and lift the restraining bar herself,
and that Ebonie could also exit the desk by sliding under or crawling over the table.
Plaintiff contends that Ebonie did not have the motor skills or range of motion required to
unfasten the desk—an assertion supported by expert evidence. Plaintiff has not,
however, refuted the claim that Ebonie could escape from the desk by climbing over or
sliding under it.2 Plaintiff refers to the desk as a “restraint,” which is accurate insofar as
the desk restricted Ebonie’s movement by preventing her from pushing out her chair. It
is important to note, however, that the desk did not bind or hold Ebonie down in any way.

1

Plaintiff refers to the bar as a “locking bar,” but that term could be misleading.
Although the bar could be secured in position with the barrel bolt, none of the desks in
Golden’s classrooms were ever locked with a key.
2
Plaintiff claims to have presented evidence to the contrary, but all of the
evidence cited addresses Ebonie’s ability to undo the bolt, not whether she could escape
the desk through other means.
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Golden and the paraprofessionals used the desks to discipline Ebonie and to
ensure that she remained on-task and did not disrupt the classroom. Everyone agrees that
Ebonie did not need the desk for orthopedic purposes, and that the desk was never used
as an emergency measure to ensure her own safety or the safety of others. According to
school officials, Ebonie was placed in the desk with the bar down for only a few minutes
at a time. However, Mary asserted that on visits to the classroom she observed Ebonie in
the desk for an hour, with the bar in place the entire time. Mary initially consented to the
use of the desk when Ebonie was in a different preschool in the same district. Mary
argues, however, that she consented to the desk’s use only as a means of keeping Ebonie
in her chair, not as a disciplinary mechanism. Additionally, Mary contends that her
consent was not informed because she was unaware that the desk violated the Colorado
Protection of Persons from Restraint Act. See C.R.S. § 26-20-103(1)(a).3
By the beginning of 2007, Mary became increasingly concerned about what she
perceived as a lack of progress by Ebonie at Bessemer. In March, she met with Principal
Gary Trujillo and revoked her consent for the use of the desk. But news of Mary’s
revocation did not trickle down to Golden and the paraprofessionals.
On April 9, 2007, Golden sent Ebonie home with what she thought was a digestive
ailment. Ebonie had actually fractured her upper arm. No one knows how or when
Ebonie’s arm was broken. A police report concluded that she broke the bone before

3

The Act prohibits schools districts from using any “restraint”—defined as “any
method or device used to involuntarily limit freedom of movement”—except in cases of
emergency. C.R.S. §§ 26-20-103(1)(a), 102(6). We express no view as to whether the
desk ran afoul of this provision.
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school when she fell at a babysitter’s house. An expert for the plaintiff, however, opined
that the break was not likely the result of a fall and could have been caused by an injury
related to the desk.
Mary subsequently removed Ebonie from Bessemer. She first brought an
administrative claim against the school district under the Individuals with Disabilities in
Education Act, 20 U.S.C. § 1400. A hearing officer ruled that Ebonie had been deprived
of a free and appropriate education within the meaning of the Act. Additionally, the
hearing officer determined that use of the desk was prohibited by the Colorado Protection
of Persons from Restraint Act, though he acknowledged that he lacked jurisdiction to
award damages on that claim. Mary and Ebonie then filed suit in federal court, naming
as defendants the school district, Golden, the paraprofessionals, Principal Trujillo, and
Mary Jo Bollinger, the district’s Interim Director of Exceptional Student Services. On a
motion for summary judgment, the district court held that the plaintiff’s Fourth
Amendment, Due Process, and Equal Protection claims failed as a matter of law.
However, the court concluded that the plaintiff’s claims under the ADA and the
Rehabilitation Act merited consideration by a jury. At plaintiff’s request, the district
court entered judgment on the constitutional claims pursuant to Fed. R. Civ. P. 54(b).4
She now appeals.
II

4

The defendants do not contest the district court’s 54(b) certification, and our
independent review reveals no reason to disturb that determination. See Stockman’s
Water Co. v. Vaca Partners, L.P., 425 F.3d 1263, 1265 (10th Cir. 2005) (“[A] district
court’s decision to grant certification under Rule 54(b) merits substantial deference and
should not be disturbed unless the district court’s determination was clearly erroneous.”).
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We review the district court’s summary judgment grant de novo. Bohn v. Park
City Group, 94 F.3d 1457, 1460 (10th Cir. 1996). Summary judgment is only appropriate
if there is no dispute of material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). “We view the summary judgment evidence in the light most
favorable to the non-movant, applying the same standard as the district court.” Bertsch v.
Overstock.com, 684 F.3d 1023, 1028 (10th Cir. 2012).
A
Students do not “shed their constitutional rights . . . at the schoolhouse gate.”
Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 506 (1969). However,
federal courts have long recognized that government action impermissible in other
spheres may be proper in the school setting. See Hazelwood Sch. Dist. v. Kuhlmeier, 484
U.S. 260, 266 (1988) (“[R]ights of students in the public schools are not automatically
coextensive with the rights of adults in other settings.” (quotation omitted)).
To evaluate whether an in-school seizure is permissible, we ask if the challenged
action was “justified at its inception” and “reasonably related in scope to the
circumstances which justified the interference in the first place.” Edwards ex rel.
Edwards v. Rees, 883 F.2d 882, 884 (10th Cir. 1989). But before reaching this standard,
a plaintiff must satisfy a preliminary hurdle: She must show that the school’s
restrictions rose to the level of a seizure under the Fourth Amendment. Couture v. Bd. of
Educ. of Albuquerque Pub. Sch., 535 F.3d 1243, 1250 (10th Cir. 2008). In the ordinary
law-enforcement setting, a seizure occurs “only if, in view of all the circumstances
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surrounding the incident, a reasonable person would have believed that he was not free to
leave.” California v. Hodari D., 499 U.S. 621, 628 (1991). But “[w]e must think about
seizures differently in the school context, as students are generally not at liberty to leave
the school building when they wish.” Couture, 535 F.3d at 1250-51; cf. Sandin v.
Conner, 515 U.S. 472, 485 (1995) (“[C]hildren sent to public school are lawfully
confined to the classroom.”). For this reason, “[t]o qualify as a seizure in the school
context, the limitation on the student’s freedom of movement must significantly exceed
that inherent in every-day, compulsory attendance.” Couture, 535 F.3d at 1251.
In Couture, we considered the placement of a six-year old child in a closet-sized
“time out room.” 535 F.3d at 1249. We skirted the question of whether that detention
constituted a seizure because we held that even if it was, it was reasonable under the
Fourth Amendment. Id. at 1256. Similarly, when faced with a vice principal’s twentyminute interrogation of a student in a closed office, we assumed without deciding that a
seizure had occurred and held that, if it had, it was reasonable. Edwards, 883 F.2d at
884.
In light of our precedent and the record before us, we conclude that the desk’s
limitation on Ebonie’s movement did not “significantly exceed that inherent in every-day,
compulsory attendance.” Couture, 535 F.3d at 1251. Accordingly, we hold that Ebonie
has failed to demonstrate a cognizable seizure under the Fourth Amendment. Three key
facts support our conclusion. First, while it is undisputed that the desk restricted
Ebonie’s movement, the position that it forced her to assume—seated in a chair faced
forward—is the standard pose required of countless schoolchildren across the nation.
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Significantly, and in contrast to Couture and Edwards, the restrictions imposed on Ebonie
did not remove her from the classroom environment. The controversial portion of the
desk was its restraining bar, but there is no evidence that the bar would force a student to
sit in any unusual manner.
Second, Ebonie had the ability to remove herself from the restraints imposed on
her. Viewing the facts in the light most favorable to the plaintiff, we must assume that
she was unable to lift the bar if it was latched in place.5 But the plaintiff has not
submitted any evidence to controvert the defendants’ testimony that Ebonie could get out
of the desk by crawling over or sliding under the front portion. Thus, the record indicates
that Ebonie was only inhibited from getting out of the desk in one manner, though that is
the easiest and most natural one—by pushing out her chair. Unlike the boy in Couture,
who was barricaded in the time-out room with no means of escape, Ebonie had an
opportunity to remove herself from her restraints, albeit in a somewhat awkward fashion.
The plaintiff argues that this opportunity is irrelevant in light of the fact that Ebonie was
indisputably not allowed to leave her desk. But a teacher’s command that a student
remain sitting upright in her seat is a paradigmatic example of a restriction of movement
that is “inherent in every-day, compulsory [school] attendance.” Couture, 535 F.3d at
1251.
Finally, we find significant that the restraining mechanisms were not attached to
Ebonie’s body. This fact distinguishes Ebonie’s circumstances from the cases the

5

Despite our assumption that Ebonie was physically unable to lift the bar, we
nonetheless find significant the fact that the bar was never locked with a key.
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plaintiff cites in which other circuits have found in-school seizures. See Gray v. Bostic,
458 F.3d 1295, 1306 (11th Cir. 2006) (handcuffing student was unreasonable seizure);
Doe ex rel. Doe v. Haw. Dep’t of Educ., 334 F.3d 906, 910 (9th Cir. 2003) (taping
student’s head to a tree was a seizure).6 Physically binding a student is a much more
significant imposition on her dignity and bodily integrity than the use of the desk in this
case.
If one or more of these facts were absent, our conclusion might be different. But
in light of these three factors, we conclude that Ebonie was not seized within the meaning
of the Fourth Amendment. We affirm the district court’s grant of summary judgment on
this claim.
B
Plaintiff also contends that the desk violated Ebonie’s Fourteenth Amendment
rights by restricting her liberty without due process. “[F]reedom from bodily restraint
lies at the core of the liberty protected by the Due Process Clause.” Turner v. Rogers,
131 S. Ct. 2507, 2518 (2011) (quotation omitted). But it is clear that the interest is not
implicated by minimally restrictive governmental actions. Doe v. Bagan, 41 F.3d 571,
575 (10th Cir. 1994). In light of our conclusion that the restrictions placed on Ebonie did
not substantially exceed those inherent in compulsory education, we conclude that
Ebonie’s liberty interest in freedom from bodily restraint was not implicated. Cf.
Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005) (holding that, in the penal context, a

6

Admittedly, these cases do not employ the “substantially-exceeds” test we
announced in Couture. But the results reached in those cases are certainly consonant
with that standard.
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liberty interest is implicated only by an “atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life”).7 Just as the Fourth Amendment
allows restrictions in the school setting that would be untenable elsewhere, Due Process
rights cannot be triggered by every time-out and after-school detention.
Our conclusion is fully consonant with the Supreme Court’s decision in Ingraham
v. Wright, 430 U.S. 651 (1977). In that case, the Court explained that some in-school
disciplinary measures that restrict a student’s movement present only a “de minimis level
of imposition with which the Constitution is not concerned.” Id. at 674. The Court held,
however, that a student’s liberty interest was implicated by an ordinance that authorized
schools to impose corporal punishment that “inflict[s] appreciable pain.” Id. at 673-74;
see also id. at 674-682 (concluding that no advance process was required before
administering such punishment). Following Ingraham, the Fifth Circuit held that a
school-day detention that was not designed to cause pain fell on the de minimis side of
Ingraham’s line, even though more appropriate means of punishment were available.
See, e.g., Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1081-82 (5th Cir. 1995).
Although the plaintiff alleges that Ebonie’s arm fracture can be attributed to the
desk, there is no evidence to suggest that any defendant deliberately harmed Ebonie. We
find the absence of an intent to harm dispositive in this case. See Ingraham at 674

7

Prisons and schools are both areas in which the government may impose
restrictions that would otherwise violate the Fourth Amendment and Due Process Clause.
However, this is not to say that the constitutional rights of inmates and schoolchildren are
coterminous. See Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir. 1993)
(holding that, in some regards, “public schools are simply not analogous to prisons and
mental institutions”).
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(declaring that a liberty interest is implicated when school officials “deliberately decide
to punish a child for misconduct by restraining the child and inflicting appreciable
physical pain” (emphasis added)); Daniels v. Williams, 474 U.S. 327, 328 (1986) (“[T]he
Due Process Clause is simply not implicated by a negligent act of an official . . . .”). To
be sure, although any injuries were not intentional, the restraint of Ebonie was
undisputedly deliberate. But the restraint itself, not rising to the level of a seizure under
the Fourth Amendment, simply does not implicate the liberty interest recognized in
Ingraham. It follows that the district court was correct to grant summary judgment on the
Due Process claim. 
C
The Equal Protection claim is based on the school district’s use of the desks
exclusively in special education classrooms. As with all Equal Protection challenges, we
must first determine the appropriate standard of review. Supreme Court precedent holds
that disabled individuals do not constitute a suspect class. See City of Cleburn v. Cleburn
Living Ctr., 473 U.S. 432, 442 (1985). Nevertheless, plaintiff argues that strict scrutiny
is appropriate because the desk infringed on Ebonie’s fundamental right to be free from
bodily restraint.
We agree that freedom from bodily restraint is a fundamental right protected by
the Equal Protection Clause. See United States v. Phelps, 17 F.3d 1334, 1344 (10th Cir.
1994) (“[I]t cannot reasonably be disputed that an individual’s liberty is a fundamental
right” under the Equal Protection Clause); see also Hydrick v. Hunter, 500 F.3d 978, 983
(9th Cir. 2007) (identifying “a liberty interest in freedom from bodily restraint” as a
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fundamental right under the Equal Protection Clause), vacated on other grounds, 129 S.
Ct. 2431 (2009). But in light of our analysis of the plaintiff’s Fourth Amendment and
Due Process claims, we conclude that the use of the desk did not infringe on this
fundamental right. Cf. Hedgepeth ex rel. Hedgepeth v. Wash. Metro. Area Transit Auth.,
386 F.3d 1148, 1156 (D.C. Cir. 2004) (rejecting claim that arrest implicated
“fundamental right to freedom of movement” because arrest comported with Fourth
Amendment standards).
All of the cited cases recognizing a fundamental right to freedom from restraint
deal with incarceration or other modes of confinement. See, e.g., Foucha v. Louisiana,
504 U.S. 71, 73 (1992) (psychiatric commitment); Phelps, 17 F.3d at 1336 (criminal
imprisonment); Hydrick, 500 F.3d at 983 (9th Cir. 2007) (commitment of sexual
offenders). Plaintiff cites no case holding that an in-school limitation of movement,
especially one that was not significantly more restrictive than those imposed on all
students, implicates this fundamental right. As in the Due Process context, we are
unwilling to subject every teacher’s order that limits the freedom of a student to strict
constitutional scrutiny.
Having concluded that use of the desk does not trigger heightened scrutiny, we
consider whether “there is any reasonably conceivable state of facts that could provide a
rational basis” for using the desk on Ebonie but not on regular education students.
Copelin-Brown v. N.M. State Pers. Office, 399 F.3d 1248, 1255 (10th Cir. 2005).
Although we are mindful of the fact that disability-based distinctions are sometimes
felled on rational-basis review, see, e.g., id.; Cleburn, 473 U.S. at 450, we conclude that
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this particular classification withstands scrutiny. Ebonie’s disabilities presented unique
pedagogical challenges, and it is certainly conceivable that requiring her to sit in a special
desk was a rational response to those challenges. Although plaintiff hypothesizes that
non-disabled students in mainstream classrooms might also have presented similar
behavioral challenges, the record contains no evidence to support this claim. Thus, we
hold that the district’s use of the desk survives rational-basis review and affirm the grant
of summary judgment on the Equal Protection claim.
III
For the foregoing reasons, the judgment of the district court is AFFIRMED.8
Plaintiff’s motion for leave to file a supplemental appendix is GRANTED.

8

Because we hold that plaintiff has not shown any constitutional violations, we do
not consider the plaintiff’s supervisory-liability claim or the individual defendants’
qualified-immunity defenses.
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