*

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

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0345p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ROSELLA HUNT,

Plaintiff-Appellant,

v.

SYCAMORE COMMUNITY SCHOOL DISTRICT BOARD

OF EDUCATION, et al.,

Defendants-Appellees.

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No. 07-4082

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

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

1 Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).

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. 
No. 07-4082 Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al. Page 4

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).

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 commonlaw 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
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

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

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 Government of Nashville and

Davidson County, Tenn., 34 F.3d 345 (6th Cir. 1994),3

 that in a non-custodial setting,
No. 07-4082 Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., et al. Page 7

governmental action that is ‘arbitrary in the constitutional sense.’” Id.

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). 
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

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.

(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 statecreated 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
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.