                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0345p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                               X
                          Plaintiff-Appellant, -
 ROSELLA HUNT,
                                                -
                                                -
                                                -
                                                                         No. 07-4082
          v.
                                                ,
                                                 >
 SYCAMORE COMMUNITY SCHOOL DISTRICT BOARD       -
                                                -
                        Defendants-Appellees. N
 OF EDUCATION, et al.,



                               Appeal from the United States District Court
                              for the Southern District of Ohio at Cincinnati.
                              No. 04-00769—Susan J. Dlott, District Judge.
                                            Argued: June 12, 2008
                                 Decided and Filed: September 11, 2008
                     Before: MARTIN, GRIFFIN, and GIBSON, Circuit Judges.*
                                             _________________
                                                  COUNSEL
ARGUED: Marc D. Mezibov, LAW OFFICE OF MARC MEZIBOV, Cincinnati, Ohio, for
Appellant. R. Gary Winters, McCASLIN, IMBUS & McCASLIN, Cincinnati, Ohio, for Appellees.
ON BRIEF: Marc D. Mezibov, Stacy A. Hinners, LAW OFFICE OF MARC MEZIBOV,
Cincinnati, Ohio, for Appellant. R. Gary Winters, Ian R. Smith, McCASLIN, IMBUS &
McCASLIN, Cincinnati, Ohio, for Appellees.
                                             _________________
                                                 OPINION
                                             _________________
       JOHN R. GIBSON, Circuit Judge. Rosella Hunt appeals from the district court’s entry of
summary judgment against her on her 42 U.S.C. § 1983 claim against the Board of Education of the
school district that employed her and the superintendent of that school district, Dr. Karen Mantia,
alleging that the defendants violated her right to substantive due process by subjecting her to
dangerous working conditions in her job as a teacher’s aide for special education students. On an
extra-curricular field trip to a bowling alley, an autistic girl, A--, assaulted Hunt, rupturing disks in
her neck. The district court granted summary judgment to the defendants, concluding that there was


        *
           The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.


                                                         1
No. 07-4082           Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.                  Page 2


no affirmative action by the school district that endangered Hunt. We affirm the judgment of the
district court.
                                              I. Facts.
        On review of a grant of summary judgment, we take the facts in the light most favorable to
Hunt.
       Hunt was hired in 1999 as an “educational assistant,” or teacher’s aide, helping with special
education children in the Sycamore Community School District. In her first year, she was injured
when an autistic child attacked her and she fell to the ground, cracking her elbow.
         In 2002, Hunt was assigned to work in the classroom where A-- was an eighth-grader. A--
is autistic. At that time A-- was 5’8 ” and weighed over 150 pounds. She had a history of assaultive
behavior, as shown by the incident reports appearing in the record. There is a dispute about how
many reports there are, but the school district contends the number is thirty-one, up to and including
the date of Hunt’s injury. These reports show numerous injuries to the people taking care of A--,
including injuries caused by biting, kicking, hitting, and scratching. The reports extend from March
1999 through December 2002, and they indicate that at least some of the people taking care of A--
were frustrated with the situation. For instance, one victim answered the incident form’s question:
“What is being done to prevent this type of incident from happening in the future?” A: “Nothing
that I can see. This behavior of ___ just goes on & on.”
        The record indicates that the school district had a system for information on such incidents
to be collected and ultimately addressed through a disabled child’s Individualized Education
Program and a behavioral intervention plan. Indeed, the district initiated a behavioral intervention
plan for A-- in November 2002.
        In the 2000-01 school year, before being assigned to A–’s classroom, Hunt heard from two
aides and a bus driver that A-- hit, kicked, and bit other students and staff and had injured an aide.
During the 2002-03 school year, Hunt saw A-- bite and hit Priscilla Masters, her teacher, and two
aides. A-- was such a problem on the school bus that the junior high school assistant principal hired
Hunt to ride the bus with her to keep her from hurting other people and to make her get off the bus
when they got to school. Hunt received extra pay for that assignment. On October 7, 2002, while
riding the bus, A-- hit Hunt in the back and bit her hand.
        On December 2, 2002, there was an extra-curricular field trip of the “Partners Club” at a
bowling alley. The Partners Club paired special education students with other children for social
activities. Hunt volunteered to help at Partners Club events and received extra pay for doing so. She
and A-- had been at the bowling alley with the Partners Club before. On this occasion, there were
two teachers and two aides along to supervise. When A-- ventured into another bowling lane and
began trying to hit a child from another school, Hunt went to intervene. A-- hit her in the chest and
pulled a lanyard around Hunt’s neck, choking her. Hunt heard her neck pop. Hunt was injured and
has been diagnosed with two herniated disks in her neck.
        Hunt sued the Sycamore Community School District Board of Education, its superintendent,
Dr. Karen Mantia, and A--’s parents for violation of her federal rights under 42 U.S.C. § 1983 and
for negligence. Her section 1983 claim was for violation of her right “to personal security and
bodily integrity by failing to provide or maintain a workplace that was free of foreseeable and
unreasonable risks of physical harm.” She alleged that the school district and Dr. Mantia knew that
the injury she sustained was substantially certain to result from the way the school district had
chosen to handle A--. The school district and the superintendent moved for summary judgment.
No. 07-4082              Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.                Page 3


         The district court examined whether the school district could be liable under § 1983 based
on the state-created danger doctrine. The district court held that there was no state-created danger
in this case for two reasons: (1) “The mere act of permitting [A--] to attend (or not prohibiting her
attendance at) the extracurricular event is not an affirmative act that can support a state-created
danger claim,” and (2) “Hunt attended the after-school bowling alley event voluntarily despite
knowing that [A--] had attended past Partners Club bowling events and despite knowing firsthand
about [A--’s] physically aggressive behavior in other situations.” The district court    specifically
declined to decide the questions of the schools district’s liability under Monell1 and the school
superintendent’s supervisory liability because it held there was no underlying constitutional
violation.
       The district court entered summary judgment for the school district and the superintendent.
Hunt then settled the case against A–’s parents, which was dismissed with prejudice. She now
appeals from the final judgment against her.
        The standard of review for summary judgment is de novo. Sperle v. Mich. Dep’t of Corr.,
297 F.3d 483, 490 (6th Cir. 2002). Summary judgment is proper where no genuine issue of material
fact exists and the moving party is entitled to judgment as a matter of law. Id.
              II. Substantive Due Process and the State-Created Danger Doctrine.
        To establish a cause of action under § 1983, Hunt must marshal evidence that could establish
two elements: (1) deprivation of a right secured by the Constitution or laws of the United States
(2) caused by a person acting under color of state law. McQueen v. Beecher Cmty. Sch., 433 F.3d
460, 463 (6th Cir. 2006). The right Hunt contends was violated was her right to substantive due
process. In a § 1983 claim predicated on a due process violation, there is a certain redundancy in
the two elements; both require a link between the injury and the government, since the due process
clause is not violated by purely private wrongs. See DeShaney v. Winnebago County Dep’t of Soc.
Servs., 489 U.S. 189, 195 (1989).
         Hunt contends the school district actors violated her due process rights by providing and
maintaining a workplace in which A-- was likely to and did in fact injure her. “[N]othing in the
language of the Due Process Clause itself requires the State to protect the life, liberty, and property
of its citizens against invasion by private actors.” Id. A governmental actor may, however, violate
the due process clause by allowing a third party to harm a person in government custody, see id. at
200; Stemler v. City of Florence, 126 F.3d 856, 868 (6th Cir. 1997), or by creating a particular
danger to the victim. This latter theory of liability, which the Supreme Court adverted to, but did
not espouse, in DeShaney, see 489 U.S. at 201, has been recognized in this Circuit as a viable
species of substantive due process claim. Kallstrom v. City of Columbus, 136 F.3d 1055, 1065-67
(6th Cir. 1998). Under the “state-created danger doctrine,” a governmental actor can be held
responsible for an injury committed by a private person if
        (1) an affirmative act by the governmental actor either created or increased the risk that the
plaintiff would be exposed to the injurious conduct of the private person;
        (2) the governmental actor’s act especially endangered the plaintiff or a small class of which
the plaintiff was a member; and
       (3) the governmental actor had the requisite degree of culpability.
McQueen, 433 F.3d at 464.

       1
           Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).
No. 07-4082               Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.                               Page 4


        Of these three elements, we will focus on the question of culpability.2 In McQueen, the court
explicitly stated that the level of culpability for the state-created danger doctrine is that level that
would suffice to establish a substantive due process violation. Id. at 469.
                                III. Substantive Due Process Culpability.
       The leading case on the standard of culpability in substantive due process cases based on
executive action is County of Sacramento v. Lewis, 523 U.S. 833 (1998). In Lewis, the Supreme
Court considered whether the personal representatives of a boy who was killed in a high-speed car
chase established a claim for a substantive due process violation against a sheriff’s deputy and others
by alleging that the deputy caused the boy’s death through deliberate indifference or reckless
disregard for the boy’s life. Justice Souter’s discussion defined the issue as a question of whether
the executive action of engaging in the car chase was “arbitrary”:
                 Since the time of our early explanations of due process, we have understood
         the core of the concept to be protection against arbitrary action . . . . We have
         emphasized time and again that “[t]he touchstone of due process is protection of the
         individual against arbitrary action of government,” whether the fault lies in a denial
         of fundamental procedural fairness or in the exercise of power without any
         reasonable justification in the service of a legitimate governmental objective . . . .
                 Our cases dealing with abusive executive action have repeatedly emphasized
         that only the most egregious official conduct can be said to be “arbitrary in the
         constitutional sense . . . .”
523 U.S. at 845-46 (citations omitted).
        Justice Souter then said that “the cognizable level of executive abuse of power” is conduct
that “shocks the conscience.” Id. at 846. The conscience is not always shocked by the same level
of culpability, however, so we cannot equate the standard with any “traditional category of common-
law fault,” such as intent or negligence. Id. at 848. We can say that mere negligence is definitely
not enough and that conduct “intended to injure in some way unjustifiable by any governmental
interest is the sort of official action most likely to rise to the conscience-shocking level.” Id. at 834.
But the middle states of culpability, such as recklessness, gross negligence, or deliberate
indifference, may or may not be shocking depending on context. Id. at 849-50. “Deliberate
indifference that shocks in one environment may not be so patently egregious in another, and our
concern with preserving the constitutional proportions of substantive due process demands an exact
analysis of circumstances before any abuse of power is condemned as conscience shocking.” Id. at
850.
        The circumstances the Supreme Court found determinative in Lewis were that the situation
“call[ed] for fast action” and the deputy had “obligations that tend[ed] to tug against each other,”
specifically, the duty to restore and maintain lawful order, on the one hand, versus the duty to avoid
creating danger by engaging in a chase. Id. at 853. The Supreme Court declined to make the
governmental actor’s choice between legitimate obligations into a constitutional issue. Ultimately,
the Supreme Court held that even if the deputy was alleged to have acted with deliberate or reckless
indifference, the complaint did not allege a substantive due process claim because it did not allege
that he had acted from any motivation other than a legitimate law enforcement purpose of
apprehending a suspect. Id. at 855. “Accordingly, we hold that high-speed chases with no intent


         2
           The district court did not reach the question of culpability, but we consider it to be the clearest basis for
affirming. We may affirm on any ground supported by the record. In re Cleveland Tankers, Inc., 67 F.3d 1200, 1205
(6th Cir. 1995).
No. 07-4082           Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.                     Page 5


to harm suspects physically or to worsen their legal plight do not give rise to liability under the
Fourteenth Amendment, redressible by an action under § 1983.” Id. at 853.
         As we shall explain below, when executive action is worse than negligent but was not done
for the purpose of injuring someone or in furtherance of invidious discrimination, see Upsher v.
Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 453 (6th Cir. 2002), Lewis and later cases interpreting
it have identified several considerations that bear on whether the action will be considered arbitrary,
including: (1) the voluntariness of the relationship between the government and the plaintiff,
especially whether the plaintiff was involuntarily in government custody or was voluntarily a
government employee; (2) whether the executive actor was required to act in haste or had time for
deliberation; and (3) whether the government actor was pursuing a legitimate governmental purpose.
        (a) Voluntariness of Plaintiff's relationship with government actor and assumption of
risk.
        Lewis recognized that cases in which the plaintiff is in government custody present a
demanding standard of behavior for governmental actors. Where the victim is in government
custody, deliberate indifference to that person’s medical needs is conscience-shocking. 523 U.S.
at 850. The victim’s dependence on the state, his inability to provide for his own needs, and the
involuntariness of his situation require the government to take care of the prisoner. Id. at 851-52;
Farmer v. Brennan, 511 U.S. 825, 833 (1994). We applied this concept of custody to a case in
which the victim was not literally a prisoner, but was incapacitated by intoxication when the police
physically picked her up and put her in the truck with a drunk and abusive man, which led to her
death. Stemler v. City of Florence, 126 F.3d 856, 868-70 (6th Cir. 1997). Even without proof that
the police intended to hurt the victim, their deliberate indifference to the known risk established the
necessary culpability for a substantive due process claim.
        On the other hand, cases in which the plaintiff is a government employee suing for injuries
received in the line of duty present the opposite situation in terms of voluntariness of the relation;
therefore, such claims are particularly unlikely to succeed. See generally Witkowski v. Milwaukee
County, 480 F.3d 511, 512 (7th Cir. 2007) (“[N]o decision in [the Seventh] circuit (or in any circuit
after Collins [v. Harker Heights, 503 U.S. 115 (1992)]) has awarded damages under § 1983 to a
public employee injured in the line of duty . . . .”).
        The leading case concerning government employees is Collins v. Harker Heights, 503 U.S.
115 (1992), in which a city allegedly failed to train its employees or provide them with equipment
necessary for entering sewer lines, and an employee died of asphyxia after entering a manhole to
unstop a sewer line. The Fifth Circuit denied liability, relying on the fact that the plaintiff’s
decedent was a government employee, but the Supreme Court said, “The employment relationship,
however, is not of controlling significance,” because the city could have committed a due process
violation if it had, for instance, given an employee a dangerous assignment to punish him for
exercising his First Amendment rights. Id. at 119. However, failure to provide the plaintiff’s
decedent a safe working environment was not something due process protected against:
        Petitioner’s submission that the city violated a federal constitutional obligation to
        provide its employees with certain minimal levels of safety and security is
        unprecedented. It is quite different from the constitutional claim advanced by
        plaintiffs in several of our prior cases who argued that the State owes a duty to take
        care of those who have already been deprived of their liberty.
Id. at 127. Failure to provide a safe working environment is not “conscience-shocking, in a
constitutional sense,” id. at 128, because it is not “arbitrary.” The Court concluded:
No. 07-4082               Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.                               Page 6


         Our refusal to characterize the city’s alleged omission in this case as arbitrary in a
         constitutional sense rests on the presumption that the administration of government
         programs is based on a rational decisionmaking process that takes account of
         competing social, political, and economic forces. Cf. Walker v. Rowe, 791 F.2d 507,
         510 (7th Cir. 1986). Decisions concerning the allocation of resources to individual
         programs, such as sewer maintenance, and to particular aspects of those programs,
         such as the training and compensation of employees, involve a host of policy choices
         that must be made by locally elected representatives, rather than by federal judges
         interpreting the basic charter of Government for the entire country.
Id. at 128-29.
        While it has not proved impossible for government employees to establish arbitrariness of
their employer, such claims have, for the most part, not succeeded in this Circuit. In a state-created
danger case in which public employees prevailed against their employer, we determined that police
had a due process claim against the City for endangering them by releasing information that would
make it easier for third persons to harm them. Kallstrom v. City of Columbus, 136 F.3d 1055, 1067
(6th Cir. 1998). In contrast, in other cases in which the harm to a government employee was
inflicted by third persons, we have held that there was no state-created danger. In Nobles v. Brown,
985 F.2d 235 (6th Cir. 1992), we held that a government employee could not recover when hurt by
a third person in the line of duty. In Nobles, a prison guard was taken captive and raped by a
prisoner. We noted that the defendant officials were “charged with having played a part in creating
the dangers faced by the plaintiff,” and so Nobles was distinguishable from DeShaney. Id. at 237.
Nevertheless, the court held that the guard’s rights had not been violated because it was not the
government officials, but a prisoner who raped the guard. Id. at 238. We quoted Walker v. Rowe,
791 F.2d 507, 511 n.2 (7th Cir. 1986), which said that “even deliberate exposure of public
employees to high risk does not violate the constitution because it is not an abuse of government
power.” Nobles, 985 F.2d at 238 (internal quotation marks omitted). Accord Sperle v. Mich. Dep’t
of Corr., 297 F.3d 483, 494 (6th Cir. 2002); see also Hayes v. Vessey, 777 F.2d 1149, 1152 (6th Cir.
1985) (claim by prison teacher against prison officials based on rape by inmate failed for lack of
“intentional governmental act”).
       A case from outside the state-created-danger doctrine shows that a government agency’s
provision of an unsafe workplace to its employees is particularly unlikely to shock the conscience.
In Upsher v. Grosse Pointe Public School System, 285 F.3d 448, 450 (6th Cir. 2002), after a
contractor refused to rip up carpet from asbestos tile because of the danger from the asbestos, a
school district decided to use its custodians to do the work instead, with virtually no safety
precautions. “[T]he plaintiffs chiseled, chipped, pounded, pulverized, hammered, and jack
hammered the tiles . . . .” Id. at 450. The custodians were massively exposed to friable asbestos and
sued the school district under § 1983 for substantive due process violations. We upheld summary
judgment for the school district, stating a very stringent culpability standard:
         This court made clear in Lewellen v. Metropolitan 3Government of Nashville and
         Davidson County, Tenn., 34 F.3d 345 (6th Cir. 1994), that in a non-custodial setting,

         3
            In Lewellen v. Metropolitan Government of Nashville and Davidson County, 34 F.3d 345, 346-47 (6th Cir.
1994), a school district refused to shut down its electricity to allow power lines to be moved before construction work
began, despite its knowledge that the line needed to be moved for safety reasons. The school board refused to allow
electricity to be shut down for a few hours while school was in session or to pay $600 to $1000 to have the line moved
on a weekend, and everyone involved agreed that the line needed to be moved before the construction work was done.
The work went on with the lines in place, and the plaintiff worker was electrocuted in an accident. The defendants
“acted intentionally in delaying the planned move of the power line,” id. at 351, but they did not hurt the plaintiff on
purpose, and this court therefore held that the plaintiffs could not establish a substantive due process claim. Id. We
foreshadowed Lewis in observing, “What seems to be required is an intentional infliction of injury . . . or some other
No. 07-4082               Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.                     Page 7


         in order to establish liability for violations of substantive due process under § 1983,
         a plaintiff must prove that the governmental actor either intentionally injured the
         plaintiff or acted arbitrarily in the constitutional sense. The Lewellen court expressed
         doubt as to whether, in a non-custodial case, “deliberate indifference” could give rise
         to a violation of substantive due process. We point this out because the district court,
         in ruling on the defendants’ initial motion for partial summary judgment, stated that
         “[t]he 1983 claim . . . could possibly go forward as a case of deliberate indifference.”
         We believe the more exact standard, announced in Lewellen, is that in order to
         succeed on a § 1983 claim in a non-custodial setting, a plaintiff must prove either
         intentional injury or “arbitrary conduct intentionally designed to punish
         someone–e.g., giving a worker a particularly dangerous assignment in retaliation for
         a political speech . . . or because of his or her gender.” Or, as stated in Stemler, [126
         F.3d at 869], a plaintiff must prove “conscience shocking” behavior.
285 F.3d at 453 (emphasis added and citations and some internal punctuation omitted). Thus, the
distinction between custodial settings and voluntary relationships such as employment was
considered to be the determinative factor in setting the culpability level for a substantive due process
claim.
        Although not discussed explicitly in Upsher, the concept of assumption of risk is relevant
in the public employee cases where the employee was hired to perform an inherently dangerous job.
Assumption of risk is closely akin to the voluntariness factor that distinguishes governmental action
towards persons in custody from governmental action vis-à-vis government employees. In Walker
v. Rowe, 791 F.2d at 510, a case the Supreme Court cited in Collins, 503 U.S. at 128, and we cited
in Nobles, 985 F.2d at 237-38, Judge Easterbrook relied on the fact that guards signed on for a
dangerous job:
         The state may not dragoon people to be guards. Would-be guards, represented by
         their labor unions, may decide to accept a little less safety in exchange for a little
         higher pay. Having decided that the combination of pay, benefits, and safety is
         satisfactory, the guards cannot turn around and say that the constitution required that
         safety be a larger component of the total package.
791 F.2d at 510. Accord Washington v. Dist. of Columbia, 802 F.2d 1478, 1482 (D. C. Cir. 1986)
(“The state did not force appellant to become a guard, and the state has no constitutional obligation
to protect him from the hazards inherent in that occupation.”). We relied on similar reasoning
outside the government employment context in our case of Jones v. Reynolds, 438 F.3d 685 (6th Cir.
2006), cert. denied, 127 S. Ct. 1141 (2007), where police showed up at a drag race, and one of the
racers decided to back out of the race until the police reassured the crowd that they did not come to
arrest anyone. In fact, the police stayed and played rap music over their car’s public-address system
for the delight of the crowd. There was a crash and bystanders were killed. Id. at 688-89. The court
held that the police had not increased the risk to spectators. Judge Sutton wrote, “When a victim
bears some responsibility for the risks she has incurred, it is even more difficult to say the ‘state’ has
‘created’ the ‘danger’ to her by its affirmative acts.” Id. at 694. While this analysis is directly
relevant to whether the requirement of an affirmative act has been satisfied, the same facts also bear
on the culpability of the government actors. But cf. Kallstrom, 136 F.3d at 1063 n.3 (rejecting
argument that city could require officers to waive constitutional protections as condition of
employment).




governmental action that is ‘arbitrary in the constitutional sense.’” Id.
No. 07-4082           Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.                  Page 8


        The reluctance we have shown to create non-intentional constitutional torts in the public
employment context received validation in the Supreme Court’s recent decision in Engquist v.
Oregon Department of Agriculture, 128 S. Ct. 2146 (2008). There, the Supreme Court held that an
equal protection cause of action based on arbitrary conduct against a “class of one” would not extend
to claims of government employees against their employers. Id. at 2157. While public employees
do not surrender their constitutional rights in entering public employment, “those rights must be
balanced against the realities of the employment context.” Id. at 2152. It would be particularly
disruptive of governmental operations to subject employment decisions based on characteristics
unique to an individual--decisions which are by their nature subjective and discretionary--to
constitutional rationality review. Decisions discriminating against identifiable classes of citizens,
such as racially discriminatory firings, are more easily judged against a clear standard that enables
governmental employer and courts alike to distinguish the permissible from the impermissible. Id.
at 2153. Although we must bear in mind the Supreme Court’s statement in Collins that public
employment is not determinative in assessing due process liability for non-intentional acts, 503 U.S.
at 119, Engquist at least gives us pause when asked to constitutionalize the school district’s alleged
misjudgments in choosing between service to its students and solicitude for its employees.
       (b) Need for haste or opportunity for deliberation by government actor.
        In Lewis, the Supreme Court stated that executive officials are held to a higher standard when
they have the leisure to deliberate about a decision than when they have to act instantaneously. 523
U.S. at 851–54. Justice Souter reasoned that indifference to a prisoner’s medical needs could be
conscience-shocking when the governmental actor actually had the time to deliberate but chose not
to care for or protect the prisoner:
       Nor does any substantial countervailing interest excuse the State from making
       provision for the decent care and protection of those it locks up; the State’s
       responsibility to attend to the medical needs of prisoners [or detainees] does not
       ordinarily clash with other equally important governmental responsibilities.
Id. at 851-52 (internal quotation marks omitted). In contrast, when prison officials are reacting to
an emergency, indifference will not be conscience-shocking because the importance of “competing
obligations” and of deferring to decisions made in haste and under pressure make the court view the
officials’ actions more leniently. Id. at 852. “Like prison officials facing a riot, the police on an
occasion calling for fast action have obligations that tend to tug against each other.” Id. at 853.
Justice Souter therefore concluded that deliberate indifference to the risk was not enough to make
a cause of action against the police who engaged in a dangerous high-speed chase in Lewis. Id. at
855. In contrast, where there is the opportunity for “reflection and unhurried judgments,” we have
stated that government officials could be liable upon a showing that they were subjectively aware
of a substantial risk of serious harm to the plaintiff. McQueen v. Beecher Cmty. Sch., 433 F.3d 460,
469 (6th Cir. 2006); Arledge v. Franklin County, 509 F.3d 258, 263 (6th Cir. 2007).
         This discussion about decisions made in haste and under pressure is a corollary to the theme
that bad government decisions are not due process violations unless they are arbitrary, meaning that
there is no legitimate reason for them. The need to act in haste is itself a governmental purpose that
can justify executive actions that, if made at leisure, might appear irrational or arbitrary. See
Claybrook v. Birchwell, 199 F.3d 350, 359-60 (6th Cir. 2000). Thus, conduct that might offend
under a deliberate indifference test may still not be considered arbitrary if it was undertaken for a
legitimate governmental purpose in a crisis requiring immediate response.
No. 07-4082               Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.                               Page 9


         (c) Countervailing governmental purpose.
         Where the substantive due process claim arises out of a governmental actor’s attempt to
discharge duties which it is required by law or public necessity to undertake, courts are particularly
unlikely to find the action arbitrary, even if the actor was imprudent in choosing one legitimate goal
over another. See Lewis, 523 U.S. at 855. This Circuit discussed the need to allow governmental
actors to balance competing governmental obligations in Schroder v. City of Fort Thomas, 412 F.3d
724 (6th Cir. 2005). There, the parents of a child killed by a speeding car sued the city on the theory
that it violated substantive due process in setting the speed limit on their street and in failing to
enforce the limit. We said that the plaintiffs had not established any of the elements of the state-
created danger doctrine. In particular, the city was not culpable enough to shock the conscience, for
in setting and enforcing a speed limit, the city was obliged to “choose between and among
competing policy options.” Id. at 729-30. Even creating a known risk in the process would not
satisfy the culpability standard for substantive due process. Id. Similarly, in Mitchell v. McNeil, 487
F.3d 374 (6th Cir. 2007), an allegation that the City of Memphis had a policy of police lending their
cars to confidential informants, one of whom killed the plaintiffs’ child, did not rise to the
culpability level required for a substantive due process claim. The city’s use of informants with
criminal proclivities, though certainly not without risk to the public, was undertaken for the
legitimate purpose of fighting crime. Id. at 378. The policy did not shock the judicial conscience.
Id.
        Some authority from this Circuit indicates that whether the required culpability level is
“intent to harm” or subjective deliberate indifference depends entirely on whether the situation is
an emergency or allows time to deliberate. See Ewolski v. City of Brunswick, 287 F.3d 492, 510-13
(6th Cir. 2002); Claybrook, 199 F.3d at 359. But see Draw v. City of Lincoln Park, 491 F.3d 550,
555 (6th Cir. 2007) (stating flat intent to harm requirement in case that presented no obvious need
for hasty action); Upsher, 285 F.3d at 453 (stating that intent to harm or punish is required in all
non-custodial cases, without mentioning haste/deliberation factor). As the rule is articulated in these
cases, if the situation is an emergency, the heightened intent standard would apply, and if there is
time to deliberate, the lower deliberate indifference standard would apply. See Ewolski, 287 F.3d
at 510-13. Superficially, this haste/leisure dichotomy might seem to preclude taking account of
whether or not the government actor is or is not motivated by a countervailing legitimate purpose.
If countervailing purposes could not be taken into account, in non-custodial, non-crisis situations,
a government actor’s choice could shock the conscience because he knowingly risked a person’s life,
even where he picked the lesser of two evils. By this reasoning, a policeman could not risk one
person’s life to save ten others. Cf. Scott v. Clay County, 205 F.3d 867, 876-77 (6th   Cir. 2000) (in
applying objective test for use of excessive force under the Fourth Amendment,4 we balance the
severity of the suspect’s crime, the threat to others’ safety, and whether the suspect is actively
evading or resisting arrest). The outcomes in our cases do not support such an interpretation. As
Ewolski demonstrates, some scenarios facing police or other governmental actors require agonizing
choices, even if those choices do not have to be made in split seconds. In Ewolski, police had to
choose whether to intervene aggressively in a hostage-taking crisis or to continue a stand-off. They
chose to intervene, which led to a disaster when the hostage taker killed one of the hostages. We
held that, even though the police chief was subjectively aware that aggressive intervention might
result in harm to the hostages, he also had reason to believe that delaying could have led to such
harm. Ewolski, 287 F.3d at 513-14. Therefore, even if he made a bad choice, his action was not
deliberately indifferent and therefore did not shock the conscience. Id. at 516. For us to find
deliberate indifference, therefore, we must find not only that the governmental actor chose to act (or

         4
            The substantive due process test is more forgiving to governmental actors than the objective excessive force
test applicable under the Fourth Amendment. Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir. 2001). Thus, if
countervailing governmental purposes can always be taken into account under the Fourth Amendment balancing test,
it would be anomalous if they were irrelevant under the substantive due process test.
No. 07-4082           Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.                  Page 10


failed to act) despite a subjective awareness of substantial risk of serious injury, but we also must
make some assessment that he did not act in furtherance of a countervailing governmental purpose
that justified taking that risk. After all, Farmer v. Brennan, 511 U.S. 825, 837 (1994), defines
deliberate indifference in terms of “excessive risk,” indicating that the need for the risk is being
balanced against countervailing considerations. Id. at 844-45 (deliberate indifference standard
“incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe
custody under humane conditions”) (internal quotation marks omitted). Thus, even where the
governmental actor is subjectively aware of a substantial risk of serious harm, we will be unlikely
to find deliberate indifference if his action was motivated by a countervailing, legitimate
governmental purpose.
       A recent Second Circuit decision pondered this problem. In Lombardi v. Whitman, 485 F.3d
73 (2d Cir. 2007), workers at the World Trade Center site alleged that the EPA had made misleading
statements that lulled the plaintiffs into not protecting themselves from the health risks posed by the
pollutants at the disaster site. The Second Circuit said the standard should not depend on whether
the EPA’s decisions were hurried or unhurried, since that is not the whole story. The statements
characterized as misleading were meant to calm the public to encourage people to “return to their
normal lives.” Id. at 83.
       Hurried or unhurried, the defendants were subjected to the pull of competing
       obligations . . . . The complaint thus recognizes what everyone knows: that one
       essential government function in the wake of disaster is to put the affected
       community on a normal footing, i.e., to avoid panic, keep order, restore services,
       repair infrastructure, and preserve the economy.
Id. (internal quotation marks omitted). The Second Circuit concluded that “substantive due process
liability should not be allowed to inhibit or control policy decisions of government agencies, even
if some decisions could be made to seem gravely erroneous in retrospect.” Id. at 84. Since the
government was acting for the benefit of the public, even a deliberate choice made with knowledge
that it would endanger the plaintiffs’ health would not shock the conscience. Id. at 85. “The
conscience recognizes the dilemma of conflicting obligations.” Id. at 82.
        Granted, Ewolski intimated that there is some limit on the governmental actor’s choice
between legitimate goals, since Ewolski refused to hold that police could “take any risk with the
lives of hostages in an armed standoff situation, as long as they did not act maliciously and
sadistically to cause harm.” 287 F.3d at 513. However, the case in which a governmental actor’s
choice between legitimate governmental purposes would shock the judicial conscience would have
to be quite extreme, since we roundly criticized the police chief’s choice in Ewolski, but we did not
find he had committed a substantive due process violation. Id. at 516. Certainly, where the
governmental actor was animated by a countervailing purpose that was a mandatory duty imposed
by federal law or the Constitution, the possibility of his action shocking the judicial conscience is
remote. In such cases, while we may disagree with the governmental actor’s choice, the necessity
of the choice was foisted upon him by federal law, and we have been loathe to hold that one clause
of the Constitution is violated by executive action taken in furtherance of another clause or in
obedience to another command of federal law.
        This Circuit has held as much in several cases where we have said that we will not place
governmental actors in a Catch 22 situation by imposing substantive due process liability for failure
to do an act that might itself have exposed the actor to liability on another theory. We said in
Bukowski v. City of Akron, 326 F.3d 702, 712 (6th Cir. 2003), that there was no due process
violation where the plaintiffs contended the police should have detained their daughter against her
will to protect her, but doing so could have made the police liable for depriving her of her liberty.
“Under the legal theory adopted by the plaintiffs, the defendant officials would have violated the
No. 07-4082           Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.                  Page 11


Constitution no matter how they acted.” Id. Accord May v. Franklin County Comm’rs, 437 F.3d
579, 585-86 (6th Cir. 2006); Cartwright v. City of Marine City, 336 F.3d 487, 494 (6th Cir. 2003);
see also DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 203 (1989) (“In defense
of [the state officials] it must also be said that had they moved too soon to take custody of the son
away from the father, they would likely have been met with charges of improperly intruding into the
parent-child relationship, charges based on the same Due Process Clause that forms the basis for the
present charge of failure to provide adequate protection.”). This unavoidable liability doctrine is
a specific application of the principle that a governmental actor’s choice between legitimate
governmental purposes is not, as a rule, arbitrary.
        We faced the opposite situation in Caldwell v. City of Louisville, 120 Fed. Appx. 566 (6th
Cir. 2004) (unpublished), in which we held that the evidence supported substantive due process
culpability because the police officer’s omission had no legitimate purpose. There, a police officer
refused to serve a warrant on the victim’s boyfriend because the victim had filed allegations of
misconduct against the officer. The evidence supported the inference that the police officer acted
for her own purposes rather than a governmental purpose. We found that the officer’s conduct was
sufficiently culpable to go to a jury on the claim of substantive due process violation. Id. at 576.
Another such case was Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996), where there was
evidence that a teacher sexually abused a school child; such action would be “so lacking of any
redeeming social value,” id. at 507, that it would violate the child’s substantive due process rights.
Similarly, the facts in Estate of Owensby v. City of Cincinnati, 414 F.3d 596 (6th Cir. 2005), show
an utter lack of a legitimate countervailing purpose; there, police allegedly beat a suspect after he
had been subdued, then failed to give him medical attention while he lay in extremis. Id. at 599-600.
We held that there was evidence sufficient to survive summary judgment that the police violated the
victim’s Fourteenth Amendment right to medical care while in custody. Id. at 603. But cf. Draw,
491 F.3d at 556 (actions of police who encouraged private parties to drag race--actions presumably
without any legitimate governmental purpose--were nevertheless not conscience-shocking behavior).
        In sum, our cases show that as a general rule, even where the governmental actor may be
aware that his action poses a substantial risk of serious harm to the plaintiff, where some
countervailing, mandatory governmental duty motivated that action, the action will not shock the
conscience. While we have held open the possibility that in extreme cases the governmental actor’s
choice to endanger a plaintiff in the service of a countervailing duty would be deemed arbitrary, we
need not reach that question to decide this case, as can be seen from our application of the
arbitrariness standard below.
                           IV. Application of Arbitrariness Standard.
       Our review of Lewis and our own substantive due process cases indicates that where the
governmental actor does not intentionally harm the victim or invidiously discriminate against him,
conduct endangering the victim will not shock the conscience if the victim has voluntarily
undertaken public employment involving the kind of risk at issue and the risk results from the
governmental actor’s attempt to carry out its mandatory duties to the public. This holds true even
where the governmental actor is not forced to act in a crisis, but has time to deliberate.
         In order to comply with the Individuals with Disabilities Education Act, the school district
is, of course, obliged to provide a free appropriate public education to children with disabilities, 20
U.S.C. § 1412(a)(1). The school district’s obligations include helping the child “participate in
extracurricular and other nonacademic activities.” 34 C.F.R. § 300.320(a)(4)(ii). The school district
hired Hunt as a chaperon at the Partners Club event precisely to help achieve this goal. The IDEA
is, in turn, a comprehensive scheme “set up by Congress to aid the States in complying with their
constitutional obligations to provide public education for handicapped children.” Arlington Cent.
No. 07-4082           Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.                  Page 12


Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 305 (2006) (Ginsburg, J., concurring in part and
concurring in judgment) (quoting Smith v. Robinson, 468 U.S. 992, 1004 (1984)).
        There is record evidence indicating that the school district had staff training in handling
student behavioral issues and procedures for addressing particular children’s behavioral problems.
The district initiated a behavioral intervention plan for A-- in November 2002. However, taking into
account at least thirty-one incident reports involving A--, we must conclude that the record creates
an issue of fact as to whether Laurel Frank, the school district’s Assistant Director of Student
Services, was subjectively aware of the risk and failed to respond to it. At her deposition, Ms. Frank
admitted that before the day of Hunt’s injury, Ms. Frank was present at meetings concerning A-- at
which the group discussed A--’s history of “attempting to bite, bit[ing] another, hitting another,
ripping the teacher’s clothing with her teeth, and scratching at teacher’s face.” In the face of this
kind of evidence, Ms. Frank testified:
       Q. Did you feel that she posed a risk of harm to staff or teachers that had to work
       with her?
       ...
       A. No, no real harm.
         Even if the school district was conscious of the risk of harm to Hunt, no one contends that
the school district’s actions were prompted by any purpose other than fulfilling its obligation to
educate A--. This is a case of competing governmental duties. Ms. Frank indicated that the school
district cannot simply decline to educate A-- on the basis of behavior that was a manifestation of her
disability. She also stated that the school district is “charged and obligated [under the IDEA] to
educate kids under the least restrictive environment,” as indeed it is, 20 U.S.C. § 1412(a)(5). A--’s
teacher, Priscilla Masters, testified that she considered the junior high school that A-- attended to
be the appropriate least restrictive environment for A--. The urgency of a countervailing duty must
be conceded to be particularly compelling here, where the duty to educate a child with dangerous
propensities was imposed upon a local government actor by federal law, which in turn was adopted
to further compliance with constitutionally imposed obligations. Had the school district placed A--
in a more restrictive environment, it could well have been liable to her for denying her a free
appropriate public education. While Hunt may disagree with the school district’s reading of the
IDEA or its application of the IDEA in A--’s case, there is no question but that Hunt was hired and,
indeed, exposed to whatever dangers attended caring for A-- because the school district was
attempting to discharge its duties under the IDEA.
        Moreover, this was a case in which the governmental employee knowingly undertook a job
that was risky. Priscilla Masters testified that it was “a normal occupational hazard” to be bitten by
the twelve-to sixteen- year old children in their special education room. Hunt knew before the 2002-
03 school year that A-- hit, kicked, and bit. A-- had bitten Hunt earlier in the year, and Hunt knew
she had injured another aide. She knew A-- had thrown a sewing machine at a student, and, on
another occasion, Hunt saw her throw a computer across a classroom. Nevertheless, Hunt
volunteered for extra assignments that required her not only to be near A--, but to control her. It was
admirable of Hunt to be willing to care for and monitor this volatile child, but the work was
obviously dangerous.
         In light of Hunt’s voluntary undertaking of this hazardous employment and the school
district’s duty under the IDEA to educate a child with dangerous propensities, even assuming Hunt
can establish that the district was chargeable with actual knowledge of the risk and failure to address
it, we cannot say that the school district’s actions were constitutionally arbitrary.
No. 07-4082          Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al.               Page 13


       Hunt has adduced no evidence against Dr. Mantia that indicates she had any higher level of
culpability than did the school district. Therefore, she has failed to establish a genuine issue of
material fact either as to the school district or Dr. Mantia.
        Therefore, we must affirm the district court’s entry of judgment against Hunt and in favor
of the school district and Dr. Mantia.
