     Case: 11-41359   Document: 00512258831     Page: 1   Date Filed: 05/31/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                                  May 31, 2013

                                 No. 11-41359                     Lyle W. Cayce
                                                                       Clerk

BARBARA WYATT,

                                           Plaintiff - Appellee
v.

RHONDA FLETCHER; CASSANDRA NEWELL,

                                           Defendants - Appellants



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


Before JOLLY, JONES, and GRAVES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      As next-friend of her minor daughter “S.W.”, Barbara Wyatt brought this
suit under 42 U.S.C. § 1983 against high school softball coaches Rhonda Fletcher
and Cassandra Newell. Wyatt alleges the coaches disclosed S.W.’s sexual
orientation during a disciplinary meeting with S.W.’s mother, primarily claiming
the disclosure to the mother constituted a Fourteenth Amendment invasion of
S.W.’s privacy. Wyatt also alleged a Fourth Amendment claim based on a
disciplinary confrontation in a locked locker room. On the coaches’ motion for
summary judgment, the district court denied qualified immunity to Fletcher and
Newell on the ground that genuine issues of material fact were disputed. We
disagree and reverse. We hold that there is no clearly established law holding
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                                  No. 11-41359

that a student in a public secondary school has a privacy right under the
Fourteenth Amendment that precludes school officials from discussing with a
parent the student’s private matters, including matters relating to sexual
activity of the student. We further hold that such students have no clearly
established Fourth Amendment right that bars a student-coach confrontation in
a closed and locked room. We thus conclude that these individual defendants
are entitled to qualified immunity that bars the federal claims against them,
and, consequently, we REVERSE and VACATE in part and REMAND for entry
of judgment dismissing the federal claims against these individual defendants.
                                         I.
      The first matter we must deal with in this qualified immunity case is the
basis of our jurisdiction. On this interlocutory appeal, we have before us the
district court’s denial of the coaches’ motion for summary judgment asserting the
claim of qualified immunity. Our review is de novo. Flores v. City of Palacios,
381 F.3d 391, 394 (5th Cir. 2004). Although a denial of a defendant’s motion for
summary judgment is not ordinarily immediately appealable, such a denial
based on qualified immunity is a collateral order capable of immediate review.
Brown v. Strain, 663 F.3d 245, 248 (5th Cir. 2011) (inset quotation marks
omitted). We have jurisdiction over such an order, however, only “to the extent
that the district court’s order turns on an issue of law,” Kovacic v. Villareal, 628
F.3d 209, 211 (5th Cir. 2010); if it turns on a disputed material fact, we lack
jurisdiction. Thus, if we decide that the district court erred in assessing the
legal significance of the conduct that the district court considered, we then
decide whether the factual disputes are material to deciding the legal issue
presented in the summary judgment. See Kinney v. Weaver, 367 F.3d 337, 348
(5th Cir. 2004) (en banc); Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000).
If there are no such material factual disputes, we can then rule on the claim for
qualified immunity.

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                                     No. 11-41359

       Ms. Wyatt (“Wyatt”), in her complaint, has made various claims, but in
this interlocutory appeal, we only have appellate jurisdiction over the federal
claims against the individual defendants Rhonda Fletcher (“Fletcher”) and
Cassandra Newell (“Newell”).1 Wyatt alleged in her complaint that the coaches’
conduct violated her daughter’s constitutional right to privacy under the
Fourteenth Amendment and her right to be free from unreasonable seizure
under the Fourth Amendment. As we will see, to decide the overarching
question of whether the district court erred in denying the coaches qualified
immunity, we ask whether the Fourth and Fourteenth Amendment rights, which
Wyatt claims were violated, are “clearly established.” See Jones v. City of
Jackson, 203 F.3d 875, 879 (5th Cir. 2000) (quoting Siegert v. Gilley, 500 U.S.
226, 231 (1991)). If they are not, the appellants are entitled to qualified
immunity, and the district court’s denial of summary judgment on the federal
claims was error.2
                                            II.
                                            A.
       The dispute arose in the East Texas town of Kilgore. On March 3, 2009,
S.W., a student at Kilgore High School (“KHS”), attended a meeting of the
varsity softball team on which she played. The meeting was held at an off-
campus playing field where practices regularly took place. In her complaint,
Wyatt alleges that, upon S.W.’s arrival at the meeting, S.W.’s softball coaches
Fletcher and Newell dismissed the rest of the team and led S.W. into a nearby

       1
         We do not reach Wyatt’s claims brought under the Monell doctrine against Kilgore
Independent School District. Monell v. Dep’t. of Soc. Servs. of City of N.Y., 436 U.S. 658
(1978). Nor are Wyatt’s claims against Douglas Duke before us, see infra n.9. The only
appellants in this case are Fletcher and Newell. To the extent that Wyatt brings state law
claims against Fletcher and Newell under the Texas Constitution and Texas common law,
those claims are not before us on this appeal.
       2
        We stress that our holdings here are narrow: they address only whether the specific
constitutional rights in this case are clearly established.

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                                        No. 11-41359

locker room, locked the door, and questioned her about an alleged relationship
with an older young woman named Hillary Nutt (“Nutt”). Wyatt said that the
coaches then yelled at S.W., falsely accused her of spreading rumors regarding
one of the coaches’ sexual orientation,3 and threatened to tell S.W.’s mother that
her daughter was in a sexual relationship with another woman.4                           In her
complaint, Wyatt made a further allegation: that, at the locker room meeting,
“Fletcher asked S.W. if she was gay.” In her deposition, however, S.W.’s story
changed: she said definitively that the coaches did not ask, point blank, whether
she was a lesbian. Besides this inconsistency, there is one more worthy of note:
in her complaint, Wyatt states, “At the time of Fletcher and Newell’s
confrontation, S.W. was dating [Nutt].” But in her appellate brief, she says “in
fact, [S.W.] and Hillary [Nutt] hadn’t dated” and “weren’t in a relationship.”
       Following the meeting with S.W., the coaches called Wyatt, S.W.’s mother,
and requested they meet.5 The parties’ characterizations of events differ. In her
complaint, Wyatt alleges that Fletcher revealed S.W.’s sexual orientation to her



       3
        The record indicates that S.W. has admitted to starting a rumor: in her affidavit, S.W.
said that, on the day in question, she speculated on Newell’s sexual orientation to another
student. Apparently, students began discussing this rumor, notes were passed in class, and
a student brought the matter to the coaches’ attention. Newell and Fletcher then called the
meeting. S.W.also admits to routinely showing up late and using profanity at practice.
       4
         Wyatt’s central claim is “privacy” in S.W.’s sexual orientation. The undisputed facts,
however, indicate that S.W. talked about her sexual orientation with a close friend in 2007,
admitted she was gay to “five or six” friends the week before the events in question, wore
clothing she describes as “society’s symbol for gay pride,” and “went skipping down the hallway
holding hands” with another girl. Although these facts are in no way dispositive in our
analysis, we note them because they suggest S.W.’s sexual orientation was not a hermetically
sealed secret in the school setting.
       5
         In the KHS “Parent Involvement Plan,” the school states its position that “the more
[KHS] can communicate with parents, the greater success [it] will have in reaching our
students. [KHS] want[s] parents involved in all aspects of our school from academics to
extracurricular activities.” In its “Parent Involvement Policy,” KHS states its goal is to “strive
to increase parental participation in school and encourage positive interaction between school
and home.”

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                                        No. 11-41359

mother at this second meeting and that Newell then offered Wyatt the contact
information for Nutt. As with the locker room meeting, however, there are
inconsistencies in Wyatt’s story. Wyatt’s allegation in her complaint was that,
at the second meeting, the coaches “outed” her daughter: “Fletcher said [to
Wyatt that] S.W. was a lesbian.” Wyatt apparently withdrew this allegation
when, at her deposition, she testified under oath that Coach Fletcher in fact
never used the word “gay” or “lesbian.” The claim involving the revelation of
S.W.’s sexual orientation has become ever more nuanced over the course of the
briefing on this appeal: Instead of alleging that the coaches divulged, point-
blank, her daughter’s homosexuality, Wyatt’s claim is now that she inferred
S.W.’s sexual orientation from the coaches’ comments.6 In response, the coaches
argue that they were obliged to contact S.W.’s mother because rumors regarding
S.W.’s relationship with Nutt were causing dissension on the team, Nutt was a
potentially dangerous and underage user of illegal drugs and alcohol, and any
possible sexual relationship between Nutt and S.W. was a valid concern. See
TEX. PENAL CODE § 22.011(a)(2).7
                                               B.
       Wyatt filed three separate grievances with Kilgore Independent School
District (“KISD”) alleging the coaches acted inappropriately by disclosing S.W.’s




       6
        In her deposition, however, Wyatt testified that she had suspected her daughter was
gay prior to the events at issue in this case.
       7
          Although, for the purposes of summary judgment, we take the evidence in the light
most favorable to Wyatt, see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986), we note at the outset of our discussion that the legitimate, disciplinary basis
for the coaches’ decision to notify Wyatt is established by undisputed facts. S.W. concedes that
she broke multiple team rules, lied to Newell and Fletcher, and discussed Newell’s sexuality
at school prior to the coaches’ decision to notify S.W.’s mother. Thus, the alleged “bad motives”
of the coaches, which the dissent discusses in painful repetition, are incriminatingly tinged
by S.W.’s own admissions, which demonstrate her culpability for her conduct of the same sort.

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                                       No. 11-41359

sexual orientation to her mother; all were subsequently dismissed.8 Then, on
December 10, 2010, Wyatt, as next-friend of her minor daughter S.W., filed a
complaint in federal court against KISD, and, in their personal capacities,
against KHS assistant athletic director Douglas Duke,9 Fletcher, and Newell, for
violating S.W.’s federal rights under the Fourth and Fourteenth Amendments
and state privacy rights under the Texas Constitution.                   In their answer,
Defendants pleaded the affirmative defense of Texas official immunity for KISD
on the state claims and qualified immunity for Fletcher and Newell on the
federal claims. The parties consented to proceed before a magistrate judge, and
the coaches moved for summary judgment on the basis of qualified immunity.
The magistrate judge rejected the defense of qualified immunity and
consequently denied the coaches’ motion for summary judgment. The magistrate
judge cited “multiple unresolved questions of fact.” With regard to Wyatt’s
Fourth Amendment claim of unlawful seizure, the court said “there remains a
genuine material issue of fact as to whether there was an objectively reasonable
basis for the coaches’ actions including factual disputes over what transpired
behind the closed doors of the locker room.” With regard to the Fourteenth
Amendment right to privacy claim, the magistrate judge held that S.W.’s right
to privacy in her sexual orientation was clearly established, and summary
judgment was premature due to unresolved questions of fact – such as “whether
the Coaches[] disclosed S.W.’s sexual orientation as retaliation for S.W.’s
conduct, whether they disclosed the identity of Ms. Nutt [to Ms. Wyatt] without


       8
         In her original grievance filed with KISD officials, however, Wyatt did not allege
Fletcher and Newell had “outed” her daughter but only that the coaches, following the
meetings outlined above, improperly removed S.W. from the softball team and that the athletic
department failed to respond to Wyatt’s queries in a timely fashion. In short, the claims made
by Wyatt have been a constantly moving target.
       9
        The court later granted Wyatt’s motion to file an amended complaint and voluntarily
dismiss Duke from the case; thus, he is not a party in this appeal.

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                                  No. 11-41359

provocation by Ms. Wyatt, and the words they used to describe the
relationship . . .”– all of which related to the reasonableness of their conduct.
      As we have said, we lack appellate jurisdiction in this interlocutory appeal
to determine whether a genuine factual issue exists; however, we do have
jurisdiction to review the materiality of disputed facts as well as the district
court’s legal analysis as it pertains to qualified immunity. See Wagner, 227 F.3d
at 320; see also Kinney, 367 F.3d at 358. As we will see, the magistrate judge
erred in analyzing the materiality of disputed facts because, even taking the
facts in the light most favorable to Wyatt, Wyatt has not alleged violations of
clearly established Fourth and Fourteenth Amendment rights. Consequently,
we have appellate jurisdiction over this interlocutory appeal.
                                        III.
      Our review of the magistrate judge’s legal analysis begins with setting out
the standard for qualified immunity. As we have indicated in many prior cases,
evaluating qualified immunity is a two-step process, and the burden is on the
plaintiff to prove that a government official is not entitled to qualified immunity.
Michalik v. Hermann, 422 F.3d 252, 258 (5th Cir. 2005). First, we determine
whether the plaintiff has alleged a violation of a clearly established
constitutional or statutory right. See Jones, 203 F.3d at 879. A right is clearly
established only if its contours are “sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Wooley v. City of
Baton Rouge, 211 F.3d 913, 919 (5th Cir. 2000) (inset quotation marks omitted).
The applicable law that binds the conduct of officeholders must be clearly
established at the time the allegedly actionable conduct occurs. Id. (inset
quotation marks omitted). If the first step is met (i.e. the official’s conduct
violates an established right), the second step is to determine whether the




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                                       No. 11-41359

defendant’s conduct was objectively reasonable.10 Jones, 203 F.3d at 879 (inset
quotation marks omitted). Both steps in the qualified immunity analysis are
questions of law. Wooley, 211 F.3d at 919.
       Under the Fifth Circuit standard, the doctrine of qualified immunity
protects government officials from civil damages liability when they reasonably
could have believed that their conduct was not barred by law, and immunity is
not denied unless existing precedent places the constitutional question beyond
debate. Morgan v. Swanson, 659 F.3d 359, 370-71 (5th Cir. 2011) (en banc).
“Qualified immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to
shield officials from harassment, distraction and liability when they perform
their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The
law generally disfavors expansive civil liability for actions taken while state
officials are on duty because such liability “can entail substantial social costs,
including the risk that fear of personal monetary liability and harassing
litigation will unduly inhibit officials in the discharge of their duties.” Anderson
v. Creighton, 483 U.S. 635, 638 (1987). In short, “[q]ualified immunity gives
government officials breathing room to make reasonable but mistaken
judgments about open legal questions.” Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2085 (2011).
       When deciding whether the right allegedly violated was “clearly
established,” the court asks whether the law so clearly and unambiguously
prohibited the conduct that every reasonable official would understand that what
he is doing violates the law. Morgan, 659 F.3d at 371 (inset quotations omitted).



       10
          Our analysis does not reach the “second step” of the qualified immunity analysis
because, as the discussion that follows will indicate, the first, “clearly established” step has
not been met by Wyatt in this case. Thus, consideration of the “objectively reasonable” prong
of qualified immunity is unnecessary.

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Answering in the affirmative requires the court to be able to point to “controlling
authority–or a robust consensus of persuasive authority–that defines the
contours of the right in question with a high degree of particularity.” Id. at 371-
72 (citations and inset quotations omitted). This requirement establishes a high
bar. When there is no controlling authority specifically prohibiting a defendant’s
conduct, the law is not clearly established for the purposes of defeating qualified
immunity. See id. at 372. Acknowledging these clearly drawn bright lines as
rigorous background principles of qualified immunity, we proceed to the merits
of Wyatt’s privacy claim.
                                             IV.
       Wyatt’s assertions of federal liability have essentially morphed over the
course of the litigation into one primary constitutional claim involving an alleged
right to privacy under the Fourteenth Amendment. It is true that, originally,
Wyatt alleged two basic claims. In her complaint, Wyatt alleged a Fourth
Amendment violation, saying that the coaches’ decision to “lock the locker room
door and order S.W. to remain inside while Defendants confronted and
threatened her was a de facto seizure of S.W.’s person . . . .” However, in her
appellate brief and at oral argument, Wyatt barely mentioned this seizure
allegation. She cites no authorities establishing such a Fourth Amendment
violation in school contexts, making practically no effort to show the right in
question is “clearly established.” When before the district court on summary
judgment, however, the district court held there was a genuine issue of material
fact relating to her claim of “seizure” – whether there was an objectively
reasonable basis for the coaches’ actions in the locker room, which, according to
S.W., included shouting, intimidating gestures, and locked doors.11 In so doing,


       11
          As mentioned earlier, however, S.W. has conceded that she was not asked in the
locker room whether she was gay, so, even taking the facts in the light most favorable to S.W.,
that specific allegation of her Fourth Amendment claim is not before us.

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however, the court erred; there is no material disputed fact that prevented it
from deciding the legal question. First, the district court overlooked case law
that establishes that the Fourth Amendment applies differently in the school
context and particularly with regard to student athletes in locker rooms. See
Milligan v. City of Slidell, 226 F.3d 652, 654-55 (5th Cir. 2000); see also Vernonia
School District 47J v. Acton, 515 U.S. 646, 657 (1995) (noting that “[p]ublic
school locker rooms . . . are not notable for the [Fourth Amendment] privacy they
afford” and “[b]y choosing to go out for the team, [student athletes] voluntarily
subject themselves to a degree of regulation even higher than that imposed on
students generally.”) (inset quotations omitted).12 Second, verbal abuse does not
give rise to a constitutional violation under 42 U.S.C. § 1983, so any yelling that
may have occurred is not actionable. See Calhoun v. Hargrove, 312 F.3d 730,
734 (5th Cir. 2002); see also Doe v. Gooden, 214 F.3d 952, 955 (8th Cir. 2000)
(holding that a teacher’s statements, while “demeaning” and “belittling” to his
students, did not violate their constitutional rights); Walker-Serrano by Walker
v. Leonard, 168 F. Supp. 2d 332, 347 (M.D. Pa. 2001) (stating “verbal abuse,
whether coming from a student or a teacher, is not a constitutional violation.”).
Thus, there is simply no clearly established constitutional right – and Wyatt
cites none – that protects students from being privately questioned, even




       12
          The dissent scolds us for citing Vernonia, saying the Supreme Court’s urinalysis
decision has “absolutely nothing to do with the instant case.” To be sure, however, Vernonia
states background principles, cited above, that not only are relevant to the application of the
Fourth Amendment in any school athletics context but also support what should be plain:
there is nothing per se unreasonable about a one-on-one, closed door meeting between coaches
and student athletes. As seen in Milligan, courts have routinely applied Vernonia to contexts
other than urinalysis testing. See 226 F.3d at 654-55.

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                                       No. 11-41359

forcefully, even in a locked locker room.13 Thus Newell and Fletcher are entitled
to qualified immunity on the Fourth Amendment claim.
       We are left only with Wyatt’s Fourteenth Amendment claim relating to the
coaches’ conversation with S.W’s mother. Under Wyatt’s theory, S.W. has a
constitutional right to the confidentiality– even with respect to her mother– of
her own sexual orientation, which was breached by the coaches when they spoke
to her about S.W.’s violations of team policy. In order to further understand the
nature of Wyatt’s claim – and whether, for purposes of qualified immunity, the
right purportedly violated is clearly established, we first briefly consider the
modern-day origin and subsequent development of the constitutional right to
privacy under the Fourteenth Amendment upon which Wyatt relies.
                                              A.
       We begin with Griswold v. Connecticut, 381 U.S. 479 (1965). There, the
Supreme Court declared that a state law prohibiting the use of contraceptives
by married couples was unconstitutional because it violated the right to privacy,
a right long last apparent from the penumbra of rights established by the Bill
of Rights and applied to the States by the Due Process Clause of the Fourteenth
Amendment. See id. at 485-86. The decision can be said to have validated an
earlier dissent by Justice Brandeis in Olmstead v. United States, which
described the “right to be let alone” as the “most comprehensive of rights and the
right most valued by civilized man.” 277 U.S. 438, 478 (1928). In order to
protect the right, Justice Brandeis wrote, in dissent, “every unjustifiable



       13
          Wyatt does not make any allegation of physical restraint, instead stressing what does
not sound like a Fourth Amendment claim at all: that her daughter was “bullied into revealing
private information.” S.W. admits she was never asked by coaches whether she was
homosexual, so the “information” Wyatt claims she was forced to reveal is never expressly
stated but seems to involve her interactions with Nutt, with whom she expressly denies being
in a relationship at the relevant time. See supra Part II. The Fourth Amendment claim thus
stumbles, then falls.

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intrusion of the government upon the privacy of an individual . . . must be
deemed a [constitutional] violation . . . .” Id.
      Later, in Whalen v. Roe, the Supreme Court identified two separate
interests that fall under the constitutional right to privacy. 429 U.S. 589, 599-
600 (1977). The one of relevance to us is the “individual interest in avoiding
disclosure of personal matters” by the government. Id. at 599; see also Nixon v.
Adm’r of Gen. Servs., 433 U.S. 425, 457 (1977) (“One element of privacy has been
characterized as ‘the individual interest in avoiding disclosure of personal
matters . . . .’”). This confidentiality interest has been defined as “the right to be
free from the government disclosing private facts about its citizens.” Ramie v.
City of Hedwig Village, Tex., 765 F.2d 490, 492 (5th Cir. 1985).
      Since Whalen and Nixon, however, the Supreme Court “has said little else
on the subject of an individual interest in avoiding disclosure of personal
matters.” NASA v. Nelson, 131 S. Ct. 746, 756 (2011) (noting that “no other
decision has squarely addressed a constitutional right to informational
privacy.”). Wyatt argues, however, that the Fifth Circuit has “addressed the
contours” of her right to privacy and that the constitutional protection accorded
to such a right “in this and other circuits is clear.” But, in so doing, she
overstates the degree to which precedent supports her particular claim. The
Fifth Circuit has never held that a person has a constitutionally-protected
privacy interest in her sexual orientation, and it certainly has never suggested
that such a privacy interest precludes school authorities from discussing with
parents matters that relate to the interests of their children. Indeed, we have
said, “There is no Fifth Circuit authority on what types of disclosures are
personal enough to trigger the protection of the confidentiality branch.” Zaffuto
v. City of Hammond, 308 F.3d 485, 490 (5th Cir. 2002) (emphasis added).
Therefore, when the magistrate judge in this case held that there is a
constitutional right that bars the unauthorized disclosure by school coaches of

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                                        No. 11-41359

a student’s sexual orientation to the student’s mother, he proclaimed a new rule
of law.14
                                               B.
                                               1.
       And although Wyatt argues that the distinct contours of her asserted right
were well-established, she can only cite two irrelevantly remote Fifth Circuit
cases in an attempt to buttress her claim, Fadjo v. Coon, 633 F.2d 1172 (5th Cir.
1981), and ACLU of Miss., Inc. v. Miss., 911 F.2d 1066 (5th Cir. 1990), neither
of which even touch on privacy rights between a student and a parent. The first,



       14
           The dissent gives this error cloud cover and, in so doing, proceeds to miscomprehend
the qualified immunity analysis that is fundamental to deciding this case. The Supreme Court
“has repeatedly told courts . . . not to define clearly established law at a high level of
generality.” al-Kidd, 131 S. Ct. at 2084. Here, the district court and now, apparently, the
dissent have redacted this directive from Supreme Court authority. They have allowed their
analysis to hinge on the existence of a Fourteenth Amendment general right to privacy and
the general possession of that right by some minors in some limited circumstances. As we
observe supra herein, the existence of a general right is established, and we do not take issue
with it. In order for liability to be imposed on public officials, however, qualified immunity
cases require more than a bare allegation of a general right to nondisclosure of private
information: “the right the official is alleged to have violated must have been ‘clearly
established’ in a more particularized, and hence more relevant, sense.” Anderson, 483 U.S.
at 640 (emphasis added). Otherwise, “[p]laintiffs would be able to convert the rule of qualified
immunity that our cases plainly establish into a rule of virtually unqualified liability simply
by alleging violation of [] abstract rights.” Id. at 639. The following two examples illustrate
the dissent’s errant approach: for the Supreme Court, “[t]he general proposition . . . that an
unreasonable search or seizure violates the Fourth Amendment is of little help in determining
whether the violative nature of particular conduct is clearly established.” al-Kidd, 131 S. Ct.
at 2084 (emphasis added). Similarly, “[T]he right to due process of law is quite clearly
established by the Due Process Clause, and thus there is a sense in which any action that
violates that Clause . . . violates a clearly established right . . . .” Morgan, 659 F.2d at 372.
But that does not mean liability will be imposed on public officials, for the question is “whether
that right has been defined with sufficient clarity” and specificity “to enable a reasonable
official to assess the lawfulness of his conduct.” Id. (emphasis added). The central concept is
fair warning: “qualified immunity should not be denied unless the law is clear in the more
particularized sense that reasonable officials should be on notice that their conduct is
unlawful.” Kinney, 367 F.3d at 350 (emphasis added) (inset quotation marks omitted). There
is no authority – and none has been cited – that would put school officials on notice that
specific conversations between a teacher and a parent regarding a student’s conduct are
barred.

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Fadjo v. Coon, concerned disclosure of an insurance beneficiary’s personal
information in the context of a criminal investigation. 633 F.2d at 1174.
Plaintiff Fadjo was the named beneficiary of life insurance policies insuring a
man who mysteriously disappeared. Id. at 1174. After explicit assurances by
the state attorney that his testimony would be absolutely privileged, Fadjo, as
part of the criminal investigation, provided the state with information
concerning “the most private details of his life.” Id. The state attorney then
shared this information with insurance companies, resulting in personal
misfortune to Fadjo, who was forced to move his residence and struggled to find
meaningful employment. Id. Finding that Fadjo’s right to privacy had been
violated by the disclosure, the court held that there was an actionable § 1983
claim under the confidentiality branch of the Fourteenth Amendment15 and that
“no legitimate state purpose existed sufficient to outweigh the invasion into
Fadjo’s privacy.” Id. at 1175. Notably, the court never discussed the specific
nature of the “private details of Fadjo’s life” that were disclosed (i.e. details
private enough to warrant constitutional protection), and the court never
suggested that sexual orientation might be one of them. Furthermore, the court
stressed that Fadjo had been promised that the information he provided
investigators would be confidential and that the plaintiff’s allegation was that
the state had not honored this pledge. Id. at 1176 (stating “Fadjo’s case is
distinguishable . . . since it involves the revelation of intimate information
obtained under a pledge of confidentiality . . . .”) (emphasis added). In Wyatt’s
case, the coaches made no such promise to S.W.



       15
         The court, however, did not perform a detailed qualified immunity analysis. We note
in passing that Fadjo was decided before several noteworthy Supreme Court cases on qualified
immunity, among them, Siegert, 500 U.S. 226; Saucier v. Katz, 533 U.S. 194 (2001); Hope v.
Pelzer, 536 U.S. 730 (2002); Brousseau v. Haugen, 543 U.S. 194 (2004); and Pearson, 555 U.S.
223.

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                                        No. 11-41359

       Even to speculate that an established right to the non-disclosure of one’s
sexual orientation exists does not help Wyatt’s case and still does not result in
liability for the coaches. This is so because such speculation does not establish
specifically that school officials are barred from communicating with parents
regarding minor students’ behavior and welfare, when doing so might cause the
parents to infer their child’s sexual orientation.
       The second Fifth Circuit case Wyatt relies upon is American Civil Liberties
Union of Miss., Inc. v. Mississippi, 911 F.2d at 1066. That case concerned the
dismantling of a state agency whose purpose was to perpetuate racial
segregation. Id. at 1068. After the agency had been shut down, the district
court ordered that all agency files, including some containing sensitive, personal
information of civil rights activists, be released to the general public. Id. This
court reversed. We held that the public interest in full disclosure of the files was
outweighed by the privacy concerns of the individuals whose information was
obtained without permission.16 Id. at 1069. In the passage most relevant to the
case at bar, the court said that plaintiffs “undeniably have an interest in
restricting the disclosure of information” regarding “numerous instances of
(often unsubstantiated) allegations of homosexuality, child molestation,
illegitimate births, and sexual promiscuity . . . .” Id. (emphasis added).



       16
           In ACLU of Miss., the court in its discussion repeatedly pointed to clearly established
rights – the right of a free press to publish matters of public concern, the public’s right to
access certain government documents, and individuals’ right to suppress information the
government gathered unlawfully – and then weighed the parties’ competing interests in
privacy and disclosure. Id. at 1070-73. This balancing of interests standard is appropriate in
a qualified immunity case like ours only if, first, the plaintiff claims a violation of clearly
established law. See, e.g. Sterling v. Borough of Minersville, 232 F.3d 190, 193-96 (3d Cir.
2000) (stating that courts first ask whether plaintiff “had a protected privacy right,” then, if
it exists, “whether it was clearly established at the time of its alleged violation,” and finally
whether there is a “legitimate [government] interest that can override the protections of the
right to privacy.”) For the reasons discussed infra herein, Wyatt has not shown the existence
of a clearly established privacy right, so we do not conduct the balancing of interests.

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                                  No. 11-41359

      Importantly, ACLU of Miss. was an appeal of a district court’s granting of
complete public disclosure of agency files and thus did not involve the qualified
immunity framework fundamental to deciding this interlocutory appeal. The
analysis in ACLU of Miss. also focused in part on First Amendment concerns not
relevant in S.W.’s case, saying that “to the extent that [the] information [in the
agency files] is a matter of public concern, any public need to know could be
satisfied by release of the information in a more limited format.” Id. at 1071.
Although the public undoubtedly had an interest in obtaining information about
the defunct, anti-civil rights agency, the public’s interest could not prevail over
the plaintiffs’ right to privacy because the public interest could be addressed by
this option of selective disclosure. The ACLU of Miss. court also emphasized
that the personal information at issue was originally gathered by
unconstitutional means (illegitimate searches and seizures by segregationist
agency officials) pursuant to an unconstitutional purpose (suppressing speech
of civil rights activists contrary in viewpoint to the agency), suggesting the court
was further motivated by fairness concerns inherent in the public release of
private information the government never had a right to possess in the first
place. Id. at 1070.
      Although the selective disclosure and fairness considerations in ACLU of
Miss. are not analogous to the student-teacher-parent concerns in S.W.’s case,
it is appropriate to point out that the “disclosure” here was only to the student’s
mother; it was not discussed with other coaches, teachers, or students. Further,
instead of bluntly declaring her daughter to be a homosexual, it is undisputed
that the coaches mentioned to Wyatt only that S.W. was in a possibly
inappropriate relationship with Nutt – thus narrowly tailoring the disclosure to
the mother’s “need to know.” Second, unlike the facts in ACLU of Miss., the
government here was not illegally and secretly collecting information in order
to do harm to private citizens; disclosure of S.W.’s relationship was in the

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                                   No. 11-41359

interest of the student and became necessary only after S.W., allegedly
influenced by Nutt, violated team rules and policy, which were in place for the
benefit and safety of students.
      In summary, then, when we consider ACLU of Miss. and Fadjo, neither is
established – much less clearly established – authority for the claims presented
here. It is of major significance that neither occurred in the context of public
schools’ relations with their students and the students’ parents. We therefore
hold there is no controlling Fifth Circuit authority – certainly not with “sufficient
particularity” – showing a clearly established Fourteenth Amendment privacy
right that prohibits school officials from communicating to parents information
regarding minor students’ interests, even when private matters of sex are
involved. See Morgan, 659 F.3d at 372.
                                         2.
      Nor from outside the circuit do we find a “robust consensus of persuasive
authority” that such a right was clearly established. Id. (emphasis added). In
her attempt to draw help from outside friends, Wyatt calls on the Third Circuit.
Sterling v. Borough of Minersville, she argues, stands for the proposition that
there is a clearly established privacy right in one’s sexual orientation. 232 F.3d
190 (3d Cir. 2000). There, a police officer discovered two male teenagers in a
parked car at night and threatened to disclose to one of the teenager’s relatives
the secret that the teenager was a homosexual. Id. at 192. The threat allegedly
resulted in the teenager’s committing suicide. Id. In affirming an order denying
summary judgment on qualified immunity grounds, the Third Circuit held that
public disclosure by the government of a plaintiff’s sexual orientation can give
rise to a constitutional claim for the violation of privacy. Id. at 196. Because
there was a clearly established right to privacy in the Third Circuit, the
defendants were not entitled to qualified immunity. Id. at 196-98.



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                                    No. 11-41359

      The Sterling decision is notable in several respects.           First, it is not
controlling authority in this case and, thus, its reasoning, standing alone, is not
dispositive for us today. Second, the deceased victim was not a minor, and the
court noted this fact when it acknowledged that “because [plaintiff] was 18, there
was no reason for [the officer] to interfere with [plaintiff’s] family’s awareness
of his sexual orientation.” Id. at 197-98 (emphasis added). This observation
suggests that the Sterling court may have considered a situation involving a
minor, differently. Third, although Sterling held that the law regarding the
disclosure of one’s sexual orientation was “clearly established,” at least in the
Third Circuit, in 1997, the court’s justifications for its doing so are dubious: cases
from within the circuit that dealt with private medical and financial information
and precedent from outside the circuit that was, at best, unclear on the issue.
Id. at 195-96; cf., id. at 198, 199 n.3 (Stapleton, J., dissenting) (“[A] person’s
right to privacy in his or her sexual orientation simply was not clearly
established in April of 1997” because, for example, “[t]he Fourth Circuit’s
decision in [Walls v. City of Petersburg, 895 F.2d 188, 193 (1990)] addressed the
issue squarely . . . and reached the opposite conclusion . . . .”). Since Sterling, the
Supreme Court has repeatedly admonished courts to avoid finding “clearly
established” law through such a loose method; looking to precedent that is, at
best, inconclusive, and, at worst, irrelevant, as Sterling did, simply no longer
suffices. See, e.g. Brousseau v. Haugen, 543 U.S. 194, 198-201 (2004) (holding
that, when none of a “handful” of cases “squarely govern” the specific factual
circumstances in a § 1983 suit, the cases do not clearly establish – in the
mandatory “particularized sense” – a right that was violated).
      In our case today, the trial court cited other cases from outside the circuit
on its way to denying summary judgment to the coaches. Perhaps the most
salient distinguishing factor in all these cases is that none occurred in a school
context; together, they establish only the simple and unsurprising proposition

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                                        No. 11-41359

that individuals generally can have a privacy interest in some personal “sexual
matters,” a broad, general proposition with which we do not take issue.17 None
of these cases approximate the factual context we have before us, and none of
them provide any guidance regarding the crucial question: whether a student
has a privacy right under the Fourteenth Amendment that forbids school
officials from discussing student sexual information during meetings with
parents.18
       In sum, then, we hold that Wyatt has not alleged a clearly established
constitutional right – drawn either from the Supreme Court’s jurisprudence,
from our own precedent or from that of other circuits – that the coaches




       17
          The Second Circuit case, Powell v. Schriver, provides modest support for the existence
of a privacy right to medical information. 175 F.3d 107, 112 (2d Cir. 1999) (“Individuals who
are transsexuals are among those who possess a constitutional right to maintain medical
confidentiality.”) The Third Circuit case, Sterling, is discussed above. 232 F.3d 190. The
Sixth Circuit case found that a victim’s interest in preventing dissemination of intimate details
of a rape implicates a fundamental right but that the public official who released those details
to the public was nonetheless entitled to qualified immunity. Bloch v. Ribar, 156 F.3d 673,
686-87 (6th Cir. 1998). The Ninth Circuit case held that a woman who applied to work for a
local police department had an interest in the nondisclosure, throughout the application
process, of her sexual history but emphasized that “considering the sexual morality of []
employees” is not per se prohibited by the Constitution. Thorne v. City of El Segundo, 726 F.2d
459, 468-70 (9th Cir. 1983). Finally, the Tenth Circuit case quotes Thorne, the Ninth Circuit
case, to establish essentially the same proposition. Eastwood v. Dept. of Corrections, 846 F.2d
627, 631 (10th Cir. 1988).
       18
          The dissent criticizes our approach for not weighing S.W.’s interest against the
school’s. Because this is a qualified immunity case, a balancing of interests requires a clearly
established right. We find no evidence of the existence of such a right; thus, we cannot reach
the question of whether the school’s interest outweighed S.W.’s. Obviously, if there is no
clearly established right to begin with, we cannot “balance” it against anything.

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                                        No. 11-41359

violated.19 The magistrate judge, therefore, erred in denying qualified immunity
to each of the defendants on each of the federal claims.
                                               V.
       To summarize our opinion today: we hold that the magistrate judge erred
in denying Newell and Fletcher summary judgment on the claims of qualified
immunity. It was error because there is no Supreme Court or Fifth Circuit case
that clearly establishes or even suggests that a high school student has a Fourth
Amendment right that bars the student from being questioned by coaches in a
locker room or a Fourteenth Amendment right to privacy that bars a teacher or
coach from discussing the student’s private matters with the student’s parents.
Fletcher and Newell were entitled to qualified immunity for this suit with
respect to the federal claims, because, based on undisputed facts, there was no
violation of a clearly established federal right. Jones, 203 F.3d at 879. For the
above reasons, the judgment is reversed and vacated with respect to all federal
claims against the individual defendants, and the case is remanded for entry of
the appropriate judgment not inconsistent with this opinion.

                                              REVERSED and VACATED in part, and
                                                 REMANDED for entry of judgment.




       19
          The dissent chides us for “fail[ing] to provide any authority for [our] finding that the
right to privacy in personal sexual matters does not extend to high school students.” We make
no such finding; we only conclude that such a right is not clearly established. Furthermore,
as noted supra herein, the burden is not on us to find authority for Wyatt’s position. In
qualified immunity cases, “the plaintiff bears the burden of proving that a government official
is not entitled to qualified immunity.” Michalik, 422 F.3d at 258. When a public official, like
Newell and Fletcher here, pleads good faith, “the burden [shifts] to the plaintiff, who must
rebut the defense by establishing that the officer’s allegedly wrongful conduct violated clearly
established law.” Id. at 262. Wyatt simply has not met her burden.

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                                       No. 11-41359

GRAVES, Circuit Judge, dissenting.
       I disagree with the majority’s finding that high school students have no
clearly established rights under the Fourteenth and Fourth Amendments.
Because I would affirm the district court’s denial of qualified immunity to
coaches Cassandra Newell and Rhonda Fletcher, I respectfully dissent.
                                    Factual History
       S.W. was a 16-year-old softball player at Kilgore High School (KHS) in
Texas. S.W., who had told only a few friends that she was gay, became
involved in a relationship with 18-year-old Hillary Nutt. The softball coaches,
Newell and Fletcher, claimed that they had heard a rumor1 that S.W. had
told someone she was involved in a relationship with Nutt and that Nutt was
Newell’s ex-girlfriend. Newell is gay and admitted in her deposition that
Nutt started attending softball games after being invited by Newell’s former
girlfriend.
       Upon hearing this rumor, the coaches decided to confront S.W. They
arranged an off-campus meeting after school on March 3, 2009. During this
meeting, the coaches locked S.W. in the softball locker room and aggressively
questioned her at length about her relationship with Nutt, her sexual
orientation, and whether she had told anyone about Newell’s alleged
relationship with Nutt. S.W. indicated that she was afraid and sat on a
beanbag chair with her arms wrapped around her knees, while the coaches


       1
         The majority erroneously states that S.W. admitted to starting a rumor. S.W. did not
admit to starting any rumor. S.W. admitted to having a “private conversation with one
person” after that person pressed S.W. for an opinion on Newell’s sexuality. Further, there
is no dispute that Newell is gay and brought her girlfriend to softball games. With regard to
extraneous “facts,” S.W. did not admit to “routinely showing up late and using profanity at
practice.” S.W. admitted to being required to run for being late and/or using profanity when
she accidentally hit herself in the kneecap with a bat “maybe two or three” times in 2009,
which is the time period in question. However, there is absolutely no claim by the coaches that
they met with Wyatt to discuss S.W. being late or using profanity, minor team infractions for
which S.W. had already been punished along with other players.

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                                       No. 11-41359

sat on their knees. At one point, Fletcher raised up, towering over S.W., and
yelled at her. Fletcher asked S.W. if she was having a relationship with Nutt.
While S.W. did say in her deposition that the coaches did not use the word
“lesbian,” she said in her declaration that they asked if she was gay. S.W.
also said that the coaches got very angry, repeatedly called her a “liar,”
threatened her, and made intimidating gestures to the point that she thought
Fletcher might hit her.
       The coaches then called S.W.’s mother, Barbara Wyatt, arranged a
meeting with her a short time later, and disclosed to her that S.W. was
having an inappropriate relationship with another female. The coaches also
revealed the identity of S.W.’s “girlfriend” to Wyatt, who was unaware that
S.W. was gay.2 Wyatt testified in her deposition that, although she had
suspected that S.W. may be gay, S.W. had always denied it to her.
       The coaches then refused to discuss the matter further. S.W. was later
removed from the softball team. Wyatt attempted to resolve the situation
through school officials and then by filing official complaints, which were
denied. Subsequently, Wyatt filed an action in district court, asserting that
the coaches violated S.W.’s privacy rights under the Fourth and Fourteenth
Amendments and under the Texas Constitution. The coaches filed a motion
for summary judgment on the basis of qualified immunity. The district court
denied the motion, and the coaches filed an interlocutory appeal. The
majority states that Wyatt’s claim has “become ever more nuanced” and that


       2
        Contrary to the majority’s statement in footnote 4 regarding “undisputed” facts, while
S.W. admitted that she had confided in some friends regarding her sexual orientation, it is
undisputed that she had never told her mother. With regard to “skipping down the hallway
holding hands,” S.W. was asked during her deposition if she had “ever held hands in the
hallway with a girl.” S.W. responded that she and two other girls had held hands and skipped
down the hallway, but clarified twice that it was nothing homosexual. The clothing
representing “society’s symbol for gay pride” was a belt with studs on it forming the shape of
a rainbow that S.W. had worn twice over a few-months’ time.

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                                  No. 11-41359

her “claim is now that she inferred S.W.’s sexual orientation from the coaches’
comments.” In fact, Wyatt has consistently maintained that the coaches told
her S.W. was dating a girl and characterized Nutt as S.W.’s “girlfriend.”
                             Standard of Review
      As correctly stated by the majority, this court reviews de novo a district
court’s denial of a motion for summary judgment on the basis of qualified
immunity. Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). “The
court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The denial of a motion
for summary judgment on the basis of qualified immunity is immediately
appealable, to the extent that it turns on an issue of law. Kovacic, 628 F.3d at
211. The limitation of the interlocutory appellate jurisdiction to questions of
law prohibits this court’s consideration of the correctness of plaintiff’s version
of the facts. Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010).
             This means that the district court’s finding that a genuine
      factual dispute exists is a factual determination that this court is
      prohibited from reviewing in this interlocutory appeal. But the
      district court’s determination that a particular dispute is material
      is a reviewable legal determination. Thus, a defendant
      challenging the denial of a motion for summary judgment on the
      basis of qualified immunity must be prepared to concede the best
      view of the facts to the plaintiff and discuss only the legal issues
      raised by the appeal.

Id. at 397-98. (Internal marks, citations and emphasis omitted).
      The majority erroneously fails to concede the best view of the facts to
the plaintiff, apparently under this Court’s authority to decide whether the
factual disputes are material to deciding the summary judgment. Wagner v.
Bay City, 227 F.3d 316, 320 (5th Cir. 2000). While it is correct that we can



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                                 No. 11-41359

review the materiality of factual disputes, we must keep in mind what this
Court said in the excessive force case of Wagner. There, this Court said:
      In deciding an interlocutory appeal of a denial of qualified
      immunity, we can review the materiality of any factual disputes,
      but not their genuineness. See Colston v. Barnhart, 146 F.3d 282,
      284 (5th Cir.) (on petition for rehearing en banc), cert. denied, 525
      U.S. 1054, 119 S.Ct. 618, 142 L.Ed.2d 557 (1998). So, we review
      the complaint and record to determine whether, assuming that all
      of Wagner's factual assertions are true, those facts are materially
      sufficient to establish that defendants acted in an objectively
      unreasonable manner. Even where, as here, the district court has
      determined that there are genuine disputes raised by the
      evidence, we assume plaintiff's version of the facts is true, then
      determine whether those facts suffice for a claim of excessive
      force under these circumstances.

Wagner, 227 F.3d 320. Rather than weigh Wyatt’s version of the facts and
compare it to the coaches’ version, this Court must decide whether the facts
as presented by Wyatt are materially sufficient to establish that the coaches
acted in an objectively unreasonable manner.
                             Qualified Immunity
      When a defendant moves for summary judgment on the basis of
qualified immunity, the court must decide: 1) Whether the facts made out a
violation of a constitutional right; and 2) whether that right was “clearly
established” at the time of the defendant’s alleged misconduct so that a
reasonable official in the defendant’s situation would have understood that
his conduct violated that right. See Ontiveros v. City of Rosenberg, Tex., 564
F.3d 379 (5th Cir. 2009). See also Brewer v. Wilkinson, 3 F.3d 816 (5th Cir.
1993).
                               Right of Privacy
      With regard to the Fourteenth Amendment right to privacy violation,
the district court found that there is a constitutional right to prevent the


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                                 No. 11-41359

unauthorized disclosure of one’s sexual orientation, and cites various cases
from this Circuit and beyond in support of such a proposition. I agree with
the district court’s analysis.
      The majority acknowledges that the United States Supreme Court has
recognized an individual interest in avoiding the disclosure of personal
matters, but then finds that Wyatt has failed to allege a clearly established
constitutional right. There is no dispute that one’s sexual orientation is a
personal matter. The majority attempts to distinguish the cases cited by the
district court and Wyatt on the basis that none occurred in the school context.
However, the majority ultimately concedes that individuals have a privacy
interest in personal sexual matters. See Whalen v. Roe, 429 U.S. 589, 599, 97
S.Ct. 869, 51 L.Ed.2d 64 (1977). See also Fadjo v. Coon, 633 F.2d 1172 (5th
Cir. 1981), and ACLU v. State of Miss., 911 F.2d 1066, 1070 (5th Cir. 1990).
But, as discussed more fully herein, the majority then finds that any such
right does not extend to high school students.
      At least five other circuits have recognized a right of privacy regarding
personal sexual matters. See Sterling v. Borough of Minersville, 232 F.3d
190, 196 (3d Cir. 2000) (“It is difficult to imagine a more private matter than
one's sexuality and a less likely probability that the government would have a
legitimate interest in disclosure of sexual identity.”)(“We can, therefore,
readily conclude that Wayman’s sexual orientation was an intimate aspect of
his personality entitled to privacy protection under Whalen.”); Powell v.
Schriver, 175 F.3d 107, 111 (2nd Cir. 1999)(“We conclude that the reasoning
that supports the holding in Doe compels the conclusion that the Constitution
does indeed protect the right to maintain the confidentiality of one's
transsexualism.”); Bloch v. Ribar, 156 F.3d 673, 685-86 (6th Cir. 1998) (“Our
sexuality and choices about sex, in turn, are interests of an intimate nature
which define significant portions of our personhood. Publically revealing

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                                  No. 11-41359

information regarding these interests exposes an aspect of our lives that we
regard as highly personal and private. Indeed, for many of these reasons, a
number of our sister circuits have concluded that information regarding
private sexual matters warrants constitutional protection against public
dissemination.”); and Thorne v. City of El Segundo, 726 F.2d 459, 468 (9th
Cir. 1983) (“The interests Thorne raises in the privacy of her sexual activities
are within the zone protected by the constitution. This conclusion follows
from the cases holding that such basic matters as contraception, abortion,
marriage, and family life are protected by the constitution from unwarranted
government intrusion.”); and Eastwood v. Dept. of Corrections, 846 F.2d 627,
631 (10th Cir. 1988) (“As in Thorne, plaintiff in the instant case was forced to
answer a number of irrelevant and embarrassing questions. . . . Indications
of a victim's promiscuity are not probative of either credibility or consent to
sexual advances. . . . Nor should such an inquiry be sanctioned in this case.”).
While this authority may not be controlling, it is certainly persuasive.
      Significantly, the majority fails to provide any authority for its finding
that the right to privacy in personal sexual matters does not extend to high
school students. To the contrary, the Supreme Court has found that the
constitutional right to privacy extends to minors. See Application of Gault,
387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The question is then
whether minors lose that right upon entering the schoolhouse gate. The only
cases cited by the majority, albeit in the Fourth Amendment analysis,
regarding high school students do not support the majority’s finding that the
right to privacy does not extend to high school students. See Vernonia School
District 47J v. Acton, 515 U.S. 646, 655-56 (1995) and Milligan v. City of
Slidell, 226 F.3d 652, 654-55 (5th Cir. 2000), discussed more fully herein.
      Based on the applicable case law set out above, there clearly exists a
right to privacy regarding one’s sexual orientation. The findings of the

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                                  No. 11-41359

United States Supreme Court and six Circuit Courts of Appeal (including the
5th) that information of a sexual nature is intrinsically private is more than a
“simple and unsurprising proposition.” Additionally, the school context does
not defeat the very existence of a right, but rather comes into play with
regard to a balancing test and whether the government’s interest outweighs a
student’s privacy right. “Thus, while children assuredly do not ‘shed their
constitutional rights . . . at the schoolhouse gate,’ the nature of those rights is
what is appropriate for children in school.” Vernonia, 515 U.S. at 655-56
(internal citations omitted). Based on the applicable authority and the
coaches’ own admissions that they recognized the private nature of the
information, the district court is absolutely correct that sexual orientation
would fall within the categories of highly personal information protected by
the right to privacy. The district court correctly held that, while the 5th
Circuit has never explicitly held that a student has a right to privacy in
keeping his or her sexual orientation confidential, an analysis of precedent
compels the finding of such a right.
      The question then becomes whether the coaches had a legitimate
interest which outweighed S.W.’s right to privacy. See Fadjo, 633 F.2d at
1176. See also Vernonia, 515 U.S. at 656-57. The majority does not reach
this balancing test, finding that consideration of the objectively reasonable
prong of qualified immunity is unnecessary. However, this prong is necessary
to determine whether the coaches’ interests outweigh a student’s right to
privacy.
      In support of a legitimate State interest, the coaches assert various
reasons, including the possible sexual assault of a minor under Texas statute,
Nutt being a bad influence, a violation of rules for S.W. riding with Nutt, and
team discipline. Both the law and the facts undermine the legitimacy of the
reasons given by the coaches. The Texas statute referred to by the majority

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                                  No. 11-41359

specifically provides an affirmative defense because S.W. was over 14 and
there was only two-years age difference between S.W. and Nutt. Thus, there
was likely no valid legal concern regarding sexual assault.
      With regard to Nutt being a bad influence, after indicating during her
deposition that she did not know of Nutt ever doing drugs, S.W. was asked,
“[y]ou don’t know whether or not Hillary Nutt has ever taken a sip of
alcohol?” S.W. responded that she knew Nutt had taken a drink but never in
her presence. Also, S.W. was not asked if she knew where Nutt had taken
that “sip of alcohol” or the applicable drinking age of the location. Further,
Coach Newell testified a resounding “No” when asked during her deposition,
“So, just to clarify, did you consider Hillary Nutt, the woman that your
girlfriend invited to see your team members play, to be a threat to any of your
– any of the players on your team ever?” Thus, there is no indication that
Nutt was “potentially dangerous” or an “underage user of illegal drugs and
alcohol.”
      The claim of S.W. violating a team rule for riding with Nutt is also
unsupported by the facts. The team rule involves a permission slip that
pertains to, inter alia, in-school transportation by other softball players
between 6th and 7th periods for practice. Nutt was not listed on the
permission slip. However, the permission slip does not regulate riding with
anyone outside of softball. To construe this permission slip to apply to drivers
not on the softball team is erroneous and would mean that neither Wyatt nor
S.W.’s grandmother would have ever been able to transport S.W. because
neither are listed on the permission slip. Yet, the coaches repeatedly said
both Wyatt and the grandmother could also transport S.W.
      As to team dissension caused by rumors of S.W.’s involvement with
Nutt, we are, again, bound by S.W.’s facts - that she did not spread any
rumors. Further, the coaches could not have known of any alleged dissension

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                                 No. 11-41359

as this alleged “rumor” did not come to light until March 3, the day the
coaches interrogated S.W. and revealed her sexual orientation to her mother.
But the coaches dismissed the rest of the softball team prior to the “meeting”
with S.W. Also, the allegation regarding dissension emanates from the
coaches’ version of the facts.
      More importantly, the only thing the coaches knew prior to
interrogating S.W. was a rumor that she had allegedly told someone that she
was in a relationship with Nutt and that Nutt was Newell’s ex-girlfriend.
There was no evidence that S.W. was actually in a relationship with Nutt,
that it was a sexual relationship, that S.W. lied about anything or had ever
ridden with Nutt. The coaches did not find out that S.W. was actually
involved in a relationship, albeit apparently never sexual, with Nutt until
they interrogated S.W. The record indicates that the coaches also did not find
out that S.W. was riding with Nutt until after they met with S.W. Moreover,
Fletcher admitted as much in her deposition when she testified that the
coaches called Wyatt to the field because they wanted her to help stop the
spreading of rumors about Newell and because S.W. was “dating” an “adult.”
      The district court fully considered all of the above and found that there
was sufficient evidence from which a reasonable person could conclude that
the coaches were not motivated by the need to protect S.W. but rather were
retaliating against S.W. for allegedly spreading a rumor about Newell. The
State has no interest in retaliating against students. As the district court
found, even if the coaches were motivated by a desire to protect S.W., Wyatt
provided expert testimony that the coaches’ actions “were not a reasonable
response to any potential concerns they may have had regarding S.W. or her
welfare.” The district court further found that, based on the record, it could
not find that the States’ interest outweighed S.W.’s right to keep her sexual
orientation confidential, and that S.W.’s rights were clearly established at the

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                                       No. 11-41359

time. The district court also found that there were substantial unresolved
questions of fact surrounding the circumstances leading up to the
confrontation and the content of the coaches conversation with Wyatt that
prevent it from making a qualified immunity determination. “Without a
factual determination by the appropriate trier of fact, this Court cannot
resolve the legal question as to whether the Defendants’ actions are amenable
to a qualified immunity defense on this claim,” concluded the district court. I
agree.
                                Unreasonable Seizure
       With regard to the Fourth Amendment claim based on the
confrontation in the locker room, the majority says that the district court
overlooked case law that establishes that the Fourth Amendment applies
differently in the school context and particularly with regard to student
athletes in locker rooms. Again, the majority cites Vernonia, 515 U.S. 646,
and Milligan, 226 F.3d 652, for the diminished expectation of privacy of
school children, particularly student athletes. However, neither case
supports any such finding.
       Vernonia was a case involving random urinalysis drug testing of
student athletes. The majority cites this case for the proposition that athletes
have less privacy expectations and that locker rooms are “not notable for the
[Fourth Amendment] privacy they afford.” Vernonia, 515 U.S. at 657.3 But
those propositions have absolutely nothing to do with the instant case. The
Supreme Court specifically said:




       3
         The majority asserts that the seizure behind locked doors was proper because, by
choosing to be a student athlete, S.W. subjected herself to a higher degree of regulation, but
then cites Milligan for the proposition that actually being a student athlete has nothing to do
with it. I note that Milligan involved questioning of students by police officers regarding
possible illegal acts, i.e., fights involving weapons.

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                                  No. 11-41359

      While we do not, of course, suggest that public schools as a
      general matter have such a degree of control over children as to
      give rise to a constitutional “duty to protect,” we have
      acknowledged that for many purposes “school authorities ac[t] in
      loco parentis,” with the power and indeed the duty to “inculcate
      the habits and manners of civility,” Thus, while children
      assuredly do not “shed their constitutional rights ... at the
      schoolhouse gate,” the nature of those rights is what is
      appropriate for children in school.
Vernonia, 515 U.S. at 655. (Internal citations, marks omitted). The Court
further said:
      Legitimate privacy expectations are even less with regard to
      student athletes. School sports are not for the bashful. They
      require “suiting up” before each practice or event, and showering
      and changing afterwards. Public school locker rooms, the usual
      sites for these activities, are not notable for the privacy they
      afford. The locker rooms in Vernonia are typical: No individual
      dressing rooms are provided; shower heads are lined up along a
      wall, unseparated by any sort of partition or curtain; not even all
      the toilet stalls have doors. As the United States Court of Appeals
      for the Seventh Circuit has noted, there is “an element of
      ‘communal undress' inherent in athletic participation.”
Vernonia, 515 U.S. at 657. (Internal citations omitted). This case has
nothing to do with physical privacy in a locker room or even compliance with
established rules such as random drug testing. That said, even conceding a
diminished expectation of privacy, the Court’s further analysis regarding
random drug testing is telling:
      Having considered the scope of the legitimate expectation of
      privacy at issue here, we turn next to the character of the
      intrusion that is complained of. We recognized in Skinner that
      collecting the samples for urinalysis intrudes upon “an excretory
      function traditionally shielded by great privacy.” We noted,
      however, that the degree of intrusion depends upon the manner
      in which production of the urine sample is monitored. . . . These
      conditions are nearly identical to those typically encountered in
      public restrooms, which men, women, and especially
      schoolchildren use daily. Under such conditions, the privacy

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                                       No. 11-41359

       interests compromised by the process of obtaining the urine
       sample are in our view negligible.

       The other privacy-invasive aspect of urinalysis is, of course, the
       information it discloses concerning the state of the subject's body,
       and the materials he has ingested. In this regard it is significant
       that the tests at issue here look only for drugs, and not for
       whether the student is, for example, epileptic, pregnant, or
       diabetic. Moreover, the drugs for which the samples are screened
       are standard, and do not vary according to the identity of the
       student. And finally, the results of the tests are disclosed only to
       a limited class of school personnel who have a need to know; and
       they are not turned over to law enforcement authorities or used
       for any internal disciplinary function.
Vernonia, 515 U.S. at 658. (Internal citations omitted).4
       Here, there was no policy regarding lesbian relationships. In fact, at
least one of the coaches and other members of the softball team were gay.
Newell testified in her deposition that she had not made efforts to find out
about other players’ relationships and had never informed any other parents
of who their children were dating. The results of the interrogation were not
disclosed only to a limited class of school personnel who had a need to know,
but were instead turned over to S.W.’s mother.
       The Fourth Amendment claim involves the coaches’ locking S.W. in the
locker room and confronting her - not the invasion of privacy under the
Fourteenth Amendment which involved the disclosure of her sexual
orientation to her mother. Therefore, the majority incorrectly finds that the
district court overlooked case law. Further, the majority finds that verbal
abuse does not give rise to a constitutional violation under 42 U.S.C. § 1983,
and, “thus, there is simply no clearly established constitutional right.” Again,



       4
         The Court further addressed the provision of the drug testing policy that required
students to identify prescription medications in advance if they wanted to avoid sanctions for
a false positive drug test.

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                                         No. 11-41359

the majority errs. The case cited by the majority, Calhoun v. Hargrove, 312
F.3d 730, 734 (5th Cir. 2002), for the proposition that verbal abuse does not
give rise to a constitutional violation under 42 U.S.C. § 1983 actually says:
        A claim for relief under § 1983 must allege the deprivation of a
       right secured by the Constitution or the laws of the United States
       by a defendant acting under color of state law. Wong v. Stripling,
       881 F.2d 200, 202 (5th Cir.1989). Furthermore, under 42 U.S.C. §
       1997e(e), “[n]o federal civil action may be brought by a prisoner
       confined in a jail, prison, or other correctional facility, for mental
       or emotional injury suffered while in custody without a prior
       showing of physical injury.”

Calhoun, 312 F.3d at 734.
       This is not a suit by a prisoner and there is no applicable federal
statute requiring physical injury. Notwithstanding the inapplicability of
Calhoun5, verbal abuse is only one of the actions cited by Wyatt. The others
included locking S.W. in the locker room, interrogating her, intimidating
gestures, etc. Under the same authority as the Fourteenth Amendment
analysis above, there clearly exists a Fourth Amendment right against
unreasonable seizure/false imprisonment. The majority ignores the balancing
test which is required to determine whether the State’s interest outweighs


       5
         Notably, while dismissing as uncontrolling the abundant authority from other circuits
that supports Wyatt’s position, the majority attempts to also rely on Doe v. Gooden, 214 F.3d
952, 955 (8th Cir. 2000), and Walker-Serrano by Walker v. Leonard, 168 F.Supp.2d 332, 347
(M.D. Pa. 2001), for its proposition that verbal abuse does not give rise to a constitutional
violation. In Gooden, the Eighth Circuit found that the teacher’s statements did not amount
to a constitutional violation, but did not foreclose the possibility of such, saying: “Verbal abuse
is normally not a constitutional violation.” 214 F.3d at 955. In Walker, the Pennsylvania
district court cited Gooden for the proposition that “verbal abuse, whether coming from a
student or a teacher, is not a constitutional violation.” Walker, 168 F.Supp.2d at 348.
However, Gooden does not say that. Gooden, 214 F.3d at 955. Further, Walker was a First
Amendment case involving an elementary student’s petition against a school field trip to a
circus. The plaintiff also claimed emotional distress for teasing from other students after she
and her mother boycotted the field trip and protested outside the circus. Importantly, the
district court repeatedly indicated that elementary students do not enjoy the same clearly
established rights as high school students.

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                                 No. 11-41359

S.W.’s right against unreasonable seizure. Instead, the majority presumably
finds that such a right does not clearly exist for high school students and,
thus, there is no need to determine objective reasonableness. I disagree. As
stated previously, school children do not shed their constitutional rights at
the schoolhouse gate. The majority fails to cite any authority to indicate that
the Fourth Amendment right to be free from unreasonable seizure does not
extend to high school students. A consideration of the objectively reasonable
prong is necessary.
      For the same reasons stated in the Fourteenth Amendment right to
privacy discussion, I would conclude that there are genuine issues of
material fact and that summary judgment was correctly denied.
                                 Conclusion
      Accordingly, I would find that Wyatt has alleged clearly established
constitutional rights and that there are genuine issues of material fact
sufficient to warrant denial of summary judgment on the basis of qualified
immunity. Because I would affirm the district court, I respectfully dissent.




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