181 F.3d 657 (5th Cir. 1999), 98-40488, Morris v Dearborne

Docket Nº:98-40488
Citation:181 F.3d 657
Party Name:JIM MORRIS, Individually and as Next Friend of Hilary Faith Morris, a Minor; GLORIA MORRIS, Individually and as Next Friend of Hilary Faith Morris, a Minor, Plaintiffs-Appellees, v. CHARLOTTE HAWKINS DEARBORNE, ET AL., Defendants, CHARLOTTE HAWKINS DEARBORNE, Individually and in her official capacity as a Teacher for Whitehouse Independent School D
Case Date:July 16, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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181 F.3d 657 (5th Cir. 1999)

JIM MORRIS, Individually and as Next Friend of Hilary Faith Morris, a Minor; GLORIA MORRIS, Individually and as Next Friend of Hilary Faith Morris, a Minor, Plaintiffs-Appellees,



CHARLOTTE HAWKINS DEARBORNE, Individually and in her official capacity as a Teacher for Whitehouse Independent School District,Defendant-Appellant.

No. 98-40488

United States Court of Appeals, Fifth Circuit

July 16, 1999

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Appeal from the United States District Court for the Eastern District of Texas

Before JOLLY, WIENER, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Plaintiffs Jim and Gloria Morris, individually and on behalf of their minor daughter, Hilary Faith Morris, 1 brought suit against defendants for separating the family for a period of three years during an investigation of possible child abuse. Appellant Charlotte Hawkins Dearborne ("Dearborne") brings this interlocutory appeal challenging the district court's denial of her motion for summary judgment based on qualified and statutory immunity in reporting possible abuse of Hilary, who was one of her students. We affirm in part, reverse in part, and remand this case to the district court for further proceedings.


Because this is an interlocutory appeal from a denial of summary judgment, the following recitation of facts accepts the Plaintiffs' evidence and reasonable inferences drawn from it as true and should not be construed as expressing any view as to the weight or credibility of their evidence. See Salas v. Carpenter, 980 F.2d 299, 304 n.3 (5th Cir. 1992).

In September 1992, Jim and Gloria Morris enrolled their four-year old daughter, Hilary, at Cain Elementary School in the Whitehouse Independent School District ("WISD") for the purpose of obtaining speech therapy for the child. Hilary had been diagnosed as having elective mutism; she was able to speak, but refused to do so. The child had been receiving treatment for this condition at the firm of Counseling, Testing, and Psychological Services ("CTPS"). On September 16, 1992, without the parents' permission or knowledge, the child's teacher, Appellant Dearborne, had Hilary use a machine called a Facilitative Communicator ("FC"), a device not unlike a word processor, following a routine known as Facilitated Communication. 2 In this process, a person known as a "facilitator" supports the arm of a developmentally disabled or mechanically deficient individual so as to allow that individual to type. The process was known to be highly controversial at the time, in large part because of the obvious fear, borneout by numerous studies, that the facilitator, and not the typist, would control the output. 3 Furthermore, the Plaintiffs allege that the machine, and the

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technique, about which Dearborne had received one day of training, is not to be utilized with children as young as the plaintiff child or with children who have the mechanical ability to type on their own. The device serves no purpose when used with individuals who are not yet literate.

During the initial session with Hilary, which was also Dearborne's first attempt to use FC with a student, Dearborne guided Hilary's hand to type a printout containing allegations of sexual abuse against her parents. At that time, Hilary could not read or write, and did not even know all the letters of the alphabet. While the teacher guided the child's hand, a number of sexually explicit and graphically violent phrases were typed.

As the only method used to test the accuracy and reliability of the FC process, Dearborne asked Hilary to type the words "LAUREN IS YOUR DAUGHTER." 4 With Dearborne assisting in typing, Hilary typed the sentence with correct spelling, "in a flash." Although Dearborne was familiar with double-blind studies 5 and the risk of facilitator influence, she conducted no reliable test to determine her own influence on the output, stating that she was too busy to conduct such tests.

Dearborne and WISD contacted the Texas Department of Protective & Regulatory Services ("TDPRS"), but not the plaintiff parents, about the alleged sexual abuse of Hilary. The following day, September 17, 1992, an employee of TDPRS and a sheriff's deputy came to Dearborne's classroom. They interviewed the child and observed an FC session, during which it was abundantly clear that Dearborne was producing the messages. Plaintiffs allege that defendants below were incompetent to operate the machine, and that the session was guided by a desire to achieve the result sought by the defendants. The session produced a printout that again implicated the parents, using compound predicates and correctly spelled anatomical terms for genitalia.

On the basis of these readouts, the child was removed from her parents' custody, and TDPRS initiated a suit to permanently terminate parental rights. Examinations by two physicians revealed no evidence of sexual abuse. TDPRS then contracted with CTPS to provide therapy for the child and to further test the allegations. Plaintiffs recount that, for eight months, the minor Plaintiff was exposed to explicit sexual language and behavior, and that this treatment was only terminated by reason of the Plaintiffs' insistent and persevering efforts.

Also, during this time, from September 1992, until May 1993, against the instructions of the TDPRS officer involved in Hilary's case, the child's foster parent, and Karen Goforth (a counselor at CTPS), Dearborne continued to conduct FC sessions with the child, during which graphic themes of sexual conduct and violence were explored. The child was seated on Dearborne's lap during at least one session. One session had the four-year-old child, who could spell only her own name, and that only with assistance, writing the complex phrase, "JACK EQUALS JIM." In another, the child supposedly wrote, "ALWAYS BELIEVE ME ALWAYS." When Dearborne suggested to the child that it would be good if they typed every day, the child reportedly typed, "YES IT WOULD I WANT TO TELL ABOUT JIM BUT THE WORDX [sic] WONT COME OUT." With Dearborne's guidance, the child wrote, "PENIS," "VAGINA," "F****ED," "SCARED," and the phrases, "SON OF A BITCH," "AM I CRAZY," and "SICK IN MYT [sic] SOUL ALWZAYS [sic] FRIGHTENED." The sessions also included matter showing that the child had multiple identities, one of

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whom was referred to as "JEZIBEL." This reference was not the sole religious item explored. Once when the child purportedly typed, "SAID A PRAYWER [sic] FOR MYSELF," Dearborne responded, "GOD GIVES COMFORT AND SAFETY. I HAVE SAID LOTS OF PRAYERS FOR YOU." Under the teacher's guidance, the four-year old supposedly answered, "THANK YOU ALSIO [sic] FOR SAVING MY LIFE." Despite the mandates to stop, Dearborne conducted a total of eight sessions with the child. She also contacted the child's foster parent, urging that they do everything possible to ensure that the child not be returned to her parents.

Others attempted to conduct FC with Hilary but attained no results. Once when the child typed, "MGXAEER," she told Karen Goforth that it spelled, "Momma, I love you." When showed anatomical correct figures of the human body during a session at CTPS, Hilary only referred to the male's genitalia as a "dangy" and the female's as a "yah." Only Dearborne could produce any legible results from the FC, and only Dearborne with the help of FC could get the child to use anatomically correct sexual terms. During another of the sessions, it was observed that the child was not looking at the keyboard while she typed, and that the output would change when Dearborne was not looking at the screen. It was also noted that Dearborne was supporting the child's wrist and erasing letters allegedly typed by the child. Those observing the pre-schooler within the few months after she was taken from her parents noted that she could not read. Polly Yeager, a relative of Plaintiff Gloria Morris, informed WISD Superintendent, Marshall Neill, as early as October 1992, that the child could not read or write the messages attributed to her. Yeager presented Neill with a writing sample, in which the child was barely able to write her own name. Additionally, Hilary had no motor skill defect that required her to be assisted in typing. Despite this, and despite WISD's policy that the FC was not to be used on children without motor skill deficiencies, WISD, through Neill, chose to do virtually nothing. By reason of the further efforts of Dearborne, WISD, and the TDPRS, the Plaintiffs lost custody of their daughter for a period of almost three years.

Plaintiff Jim Morris was precluded from having any contact with his daughter until September 6, 1995, a period of approximately 36 months. In the meantime, Plaintiff Gloria Morris was allowed supervised visits with her daughter. TDPRS finally allowed the child to return home and dismissed the termination suit without prejudice. The agency continues to maintain that the plaintiff parents molested their child, and the family remains under TDPRS supervision. Plaintiff Jim Morris lost his job as a juvenile detention officer because of the accusations and Plaintiffs maintain that the charges of abuse destroyed their marriage.

Following return of their child, Plaintiffs filed the action below alleging, pursuant to 42 U.S.C. § 1983, deprivations of procedural and substantive due process rights, sexual harassment under Title IX, 20 U.S.C. § 1681, et seq., violations of the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400, et seq...

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