Doe v. Aberdeen Sch. Dist.

• Decision Date: 01 August 2022
• Docket Number: 21-3269
• Citation: 42 F.4th 883
• Parties: Jane DOE, individually and on behalf of their minor child, A.A.; John Doe, individually and on behalf of their minor child, A.A.; Jessica Doe, individually and on behalf of their minor child, B.B.; Jill Doe, individually and on behalf of their minor child, C.C.; Jeff Doe, individually and on behalf of their minor child, C.C.; Janet Doe, individually and on behalf of her minor child, D.D. ; Julie Doe, individually and on behalf of her minor child, E.E., Plaintiffs - Appellees James Doe, individually and on behalf of their minor child, B.B., Plaintiff v. ABERDEEN SCHOOL DISTRICT, Defendant Becky Guffin, in her individual and official capacity; Camille Kaul, in her individual and official capacity; Renae Rausch, in her individual and official capacity; Colleen Murley, in her individual and official capacity; Michael Neubert, in his individual and official capacity; Carrie Weisenburger, in her individual and official capacity, Defendants - Appellants
• Court: U.S. Court of Appeals — Eighth Circuit

42 F.4th 883

Jane DOE, individually and on behalf of their minor child, A.A.; John Doe, individually and on behalf of their minor child, A.A.; Jessica Doe, individually and on behalf of their minor child, B.B.; Jill Doe, individually and on behalf of their minor child, C.C.; Jeff Doe, individually and on behalf of their minor child, C.C.; Janet Doe, individually and on behalf of her minor child, D.D. ; Julie Doe, individually and on behalf of her minor child, E.E., Plaintiffs - AppelleesJames Doe, individually and on behalf of their minor child, B.B., Plaintiff

v. ABERDEEN SCHOOL DISTRICT, DefendantBecky Guffin, in her individual and official capacity; Camille Kaul, in her individual and official capacity; Renae Rausch, in her individual and official capacity; Colleen Murley, in her individual and official capacity; Michael Neubert, in his individual and official capacity; Carrie Weisenburger, in her individual and official capacity, Defendants - Appellants

No. 21-3269

United States Court of Appeals, Eighth Circuit.

Submitted: May 11, 2022

Filed: August 1, 2022

Margaret O. Kane, Kane Education Law, LLC, Saint Paul, MN, Thomas L. Sannes, Delaney & Nielsen, Webster, SD, for Plaintiffs - Appellees.

Kimberly Dorsett, Jack Hieb, Zachary William Peterson, Richardson & Wyly, Aberdeen, SD, for Defendants - Appellants.

Before ERICKSON, MELLOY, and KOBES, Circuit Judges.

ERICKSON, Circuit Judge.

This case involves allegations that Carrie Weisenburger restrained, secluded, and abused her students as a teacher in a special education classroom. The students’ parents sued Weisenburger, along with Aberdeen School District ("ASD") and a host of its administrative officials, on their children's behalf under 42 U.S.C. § 1983. The district court denied Weisenburger's assertion of qualified immunity from claims for infringing the Fourth and Fourteenth Amendment rights of three students, identified as A.A., B.B., and C.C. We affirm in part and reverse in part.

I. BACKGROUND

The facts remain disputed, but we recount them in the light most favorable to the students at this stage. See Walton v. Dawson, 752 F.3d 1109, 1114 n.1 (8th Cir. 2014).

Throughout the 2014-2015 and 2015-2016 school years, Weisenburger taught in the Enrich II classroom at May Overby Elementary School. A.A., B.B., and C.C. attended her class for third and fourth grades. Each child is a student with disabilities who had an individualized education program ("IEP") in effect. While the students vary in their ability to communicate, none could vocalize their daily experiences in school to others.

A.A. has been diagnosed with both autism

spectrum disorder and moderate cognitive disability. A behavior intervention plan signed by her mother on October 15, 2015 recorded that A.A. had run away from recess and academic settings, acted aggressively toward her peers, refused to comply with teacher directions, and often distracted her classmates.

Most of the allegations about A.A.’s mistreatment stem from Weisenburger's use of the "little room." The little room measures 10 feet by 10 feet and is situated in a different part of the school than the Enrich II classroom, just off the gymnasium. There is a window on the door and a small table, a whiteboard, and cupboards inside. May Overby staff employed the room for purposes ranging from a calm-down space to Title I instruction to tutoring.

On a regular basis, Weisenburger and her two teaching aides physically picked up and carried students—who sometimes resisted by kicking and screaming—from class to the little room. Once there, students had to demonstrate calm behavior and complete several "task baskets" unrelated to whatever disciplinary infraction led to their visit before they were permitted to leave. Either Weisenburger or an aide would wait outside and hold the door shut until they gained compliance. Students sat in the little room for up to hours at a time, with a few instances extending to as long as an entire afternoon.

According to a "frowny face" journal shown to A.A.’s mother, Weisenburger and her aides placed A.A. in the little room 274 times between October 26, 2015 and March 1, 2016. Weisenburger sent A.A. to the little room for rule breaking as minor as incorrectly hanging up her coat and pushing a cabinet. A handwritten amendment to A.A.’s behavior plan dated February 4, 2016 stated: "If necessary, staff can take [A.A.] up to the Little Room ... so she is not a disruption to other students and she is not getting attention from others." A.A.’s mother acknowledged consenting to placement in the little room but said Weisenburger told her the space would be for one-on-one instruction rather than discipline.

B.B. has been diagnosed with autism

and attention deficit hyperactivity disorder. An unsigned behavior intervention plan imposed in February 2016 documented that he would repeat movie quotes or run to the bathroom to avoid following directions from staff. B.B.’s mother denied seeing or signing the plan.

The allegations regarding B.B. are more varied. Weisenburger and her aides physically confined B.B. using dividers in an atrium adjacent to the classroom called the "calm-down corner." Although students could technically leave the calm-down corner, staff stood nearby to make them stay. Weisenburger also repeatedly dragged B.B. to gym class despite his protests and once lifted him under his armpits to force his participation in a game. In another incident, B.B. refused to swim when the class went to the pool. Weisenburger and her aides grabbed B.B.’s arms and pushed him into the water. As B.B. frantically tried to climb out, an aide pried his fingers from the edge and shoved him back into deeper water.

C.C. has been diagnosed with moderate to severe inner ear hearing loss

. An unsigned behavior intervention plan imposed in December 2015 reported that he would refuse to comply with directions "by just sitting at his desk or on the carpet." C.C.’s mother denied seeing or signing the plan.

The allegations underlying C.C.’s claims derive from two specific incidents. First, when C.C. refused to change for swimming, Weisenburger pinned him on the ground, forcibly stripped his clothes off, and put on his bathing suit. C.C. screamed so loudly that a concerned adult walked into the locker room to check on whoever had yelled. Second, staff purportedly forced him to ride a horse while he was kicking and screaming. The teachers later learned that C.C. had been in pain from blocked ear tubes at the time.

Multiple generalized claims of physical and verbal abuse appear in the record as well. Weisenburger would grab students by the chin and tell them to "look at me when I'm talking to you." And staff handled children roughly, "grabbing arms and then jerking them around," which was "usually accompanied by chasing the child." Weisenburger frequently made demeaning remarks about students and their parents. In response to an aide addressing a student, she said while laughing, "Oh you are so cute talking to them like they understand you." She commented on the smell of one student who had toileting issues and would check the girl's underwear in front of the whole class while referring to her parents as "drug users and losers." There was "a lot of yelling and shouting at the kids."

C.C.’s sign language interpreter, Ava Weixel (formerly Solberg), made some of these allegations to ASD Special Education Director Camille Kaul in April 2015. Kaul investigated but deemed the accusations unfounded. In January 2016, after the two aides separately expressed additional concerns, Kaul and May Overby Principal Michael Neubert placed Weisenburger on an assistance plan due to "the support staff not knowing what to do to address inappropriate behaviors." Less than three months later, A.A.’s mother witnessed Weisenburger and her aides push B.B. into the pool. She sent a cell phone video of the incident to Kaul. In response, Kaul wrote a memo to Weisenburger to convey her "concerns regarding restraints used with a student in the Enrich classroom." Kaul went on to command: "As I have instructed you before, restraint is to only be used as a last resort and only if the student is a harm to himself or at risk to harm others. Restraints should never be used to gain compliance." Kaul also reminded Weisenburger that "during the past school year" all staff in the Enrich II classroom had completed training through the Crisis Prevention Institute ("CPI") on when and how to use restraint and seclusion methods. The memo concluded by giving notice "that this is your final written warning concerning the improper use of restraints with students." Weisenburger and her aides soon resigned.

Following the resignations, Weixel met with A.A.’s mother over the summer to disclose the full extent of what had happened in the Enrich II classroom. In turn, A.A.’s parents reported the allegations to a disability rights advocacy agency, which then submitted a civil rights complaint. A joint investigation by the Departments of Justice and Education directly mentioned the little room and calm-down corner when determining that "various school personnel were utilizing seclusion as a disciplinary measure to routinely address behaviors that were a manifestation of a disability."

The students’ parents initiated this lawsuit under 42 U.S.C. § 1983, asserting violations of their children's Fourth and Fourteenth Amendment rights. In addition, the plaintiffs advanced claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ; the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. ; the South Dakota Human Rights Act, S.D. Codified Laws § 20-13-1 et seq. ; and common-law negligence. All the individually named defendants invoked qualified immunity and moved for summary judgment on the § 1983 claims. The district court rejected the motion as to Weisenburger but appeared to dismiss the constitutional claims against the remaining ASD administrators.¹ The defendants bring this interlocutory appea...