### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-41359

BARBARA WYATT, Plaintiff - Appellee
v. RHONDA FLETCHER; CASSANDRA NEWELL, Defendants - Appellants

A ppeal from the United States District Court for the Eastern District of Texas

Before JOLLY, JONES, and GRAVES, Circuit Judges. E. GRADY JOLLY, Circuit Judge: As next-friend o f her minor daughter “S.W.”, Barbara Wyatt brought this suit under 42 U .S.C. § 1983 against high school softball coaches Rhonda Fletcher and Cassandra N ewell. Wyatt alleges the coaches disclosed S.W.’s sexual orientation during a disciplinary m e e t i n g w i t h S

. W

. ’ s m o t h e r , p r i m a r ily claiming the disclosure to the m o t her constituted a Fourteenth Amendment invasion of S.W.’s privacy. Wya t t a l s o a lleged a Fourth Amendment claim based on a disciplinary confrontation in a locked l ocker ro o m
. O n t he coaches’ motion for

sum m a r y j udgment, the district c ourt denied qualified immunity to Fletcher and Newell on the ground that genuine issues of mater i a l f a c t were disputed. We disagree and reverse. We hold that there is no clearly established law holding U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May31, 2013 Ly l e W . Cay ce Clerk Case: 11-41359 Document: 00512258831 Page: 1 Date Filed: 05/31/2013No. 11-41359

that a s tude n t i n a public secondary school has a privacy right u nder the Fourteenth Amendment t h a t precludes school officials f rom d iscussing with a parent the st u d ent’s private matters, including matters relating to sexual activity o f t h e s t u d ent. We further hold that such students have no clearly established Fourth A mendment right that bars a student-coach confrontation in

a closed and loc k ed room. We thus conclude that these i ndividual defendants

are entitled to qualified i m m u n i t y that bars t he federal claims against them, and, consequently, we REVERSE and VACATE i n part and REMAND for entry of judgment dismissing t he federal c l aims against these individual defendants. I. The first matter we must deal with in this q ualified immunity case is the basis of our jurisdiction. On this interlocutory appeal, we h a v e b efore us the distri c t c o u r t ’ s denial o f the c oaches’ motion f or summary judgment asserting the claim of qualified immunity. Our review is d e novo
. Flores v. City of Palacios , 381 F.3d 391, 394 (5th C ir. 2004). Although a denial of a defendant’s m otion for
summary judgment is not ordinarily immediately appealable , s u c h a denial based on qualified immunity is a collateral order capable of immediate review. Brown v
. Strain , 6 63 F

. 3d 2 45, 248 (5th Cir. 2011) (inset quotation marks omitted). W e have jurisdiction over such an order, however, only “to the extent that the d istrict court’s order turns on an issue of law,” Kovacic v. Villareal , 628 F

. 3d 2 09, 211 ( 5th Cir. 2010); if it turns on a disputed material f a c t , w e l a c k jurisdiction. T hus, if we decide tha t t h e d i s t r ict court erred in assessing the legal significance of the c onduct that t he dis t r i c t c o u rt c onsidered, we then decide whether the factual disputes are material to deciding t he legal issue presented in the summary j udgment. See K inney v. Weaver , 367 F.3d 337, 348 (5th Cir. 2004) (en banc); Wagner v. Bay City , 2 27 F.3d 316, 320 (5th Cir. 2000). If there are n o such material f actual disputes, we can then rule on the claim for qualified immunity.

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M s
. W y att (“Wyatt”), in her complaint, has made v arious claims, bu t i n this interlocutory a p peal, we only have appellate jurisdiction over the federal claims against the individual defe n dants Rhonda Fletcher (“Fletcher”) and Cassandra Newell (“Newell”). 1 Wyatt alleged in her complaint t hat the coaches’ conduct violated h er daughter’s constitutional right to privacy u nder the Fourteenth Amendment a nd her right to be free from unreasonable seizure under the Fourth Amendment. As we wi l l s e e , to decide t he o verarching question of whether the d istrict court erred i n denying the co a c h e s qualified i m m u n i t y , w e a s k w h e t h er the Fourth and Fourteenth Amendment r i g h t s , w h i c h Wyatt claims were violated, a r e “clearly established.” See Jones v. City of Jackson , 203 F.3d 875, 8 7 9 (5th Cir. 2000) (quoting Siegert v. G illey , 500 U.S. 226, 2 31 (1991)). If they are not, t h e appellants are entitled to qualified imm u n i t y , and the district court’s denial of summary judgment on the federal claims was error. 2 I I. A. The dispute arose in the East Texas town of Kilgore. On March 3, 2009, S.W., a student at K i l gore High School (“KHS”), attended a meeting of the varsity soft b a l l t e a m on which she p layed. The m eeting was held a t an offcampus playing f

ield where p ractices regularly took place. In her complaint, Wyatt alleges that, upon S.W.’s arrival at the meeting, S.W.’s softball coaches Fletcher and Newell dismissed the rest of the team and led S.W. into a nearby

1 We d o not reach Wyatt’s claim s brought und er the M onel l d octrine agains t K i l g o r e Ind ep end ent School D is t r i ct. M onel l v
. D ep ’t. of Soc. S erv s. of Ci ty of N

. Y. , 436 U

. S. 658 ( 1978)

. Nor are Wyatt’s claim s agains t D ouglas D uk e bef ore us , s e e i nf

ra n. 9. The only ap p ellants in this cas e are Fletcher and N ew ell. T o the extent t h a t W y a t t brings s tate law claim s agains t F letcher and N ew ell und er the Texas Cons tituti o n a n d T exas com m on law , thos e claim s are not bef ore us on this ap p eal.

2 We s tres s that our hold ings here are narrow : they ad d res s only w hether the s p ecif ic
cons titutional rights in this cas e are clearly es tablis hed

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locker room, locked the door, and questioned her about an alleged relationship with an older young woman named Hillary Nutt (“Nutt”). Wyatt said that the coaches then yelled a t S

. W., f alsely accused her of spreading rumors regarding

one o f the coaches’ sexual o rientation, 3 and threatened to tell S.W.’s mother that h e r daughter w as in a sexual relationship with another woman. 4 In her complaint, Wyatt made a further allegation: that, at the loc k e r room m eeting, “Fletcher asked S.W. if she was g ay.” I n her deposition, however, S.W.’s story changed: she said definitively that the coaches d id not ask, point blank, whether she w as a lesbian. Besides t his inconsistency, there is one more worthy of note: in her c omplaint, Wyatt states, “ At t he t ime of Fletcher and N ewell’s confrontation, S .W. was dating [Nutt].” But in her appellate brief, s he says “in fact, [S.W.] and Hillary [Nutt] hadn’t dated” and “weren’t in a relationship.” Following the meeting with S.W., the coaches called Wyatt, S.W.’s mother, and requested they meet. 5 T he parties’ characterizations of e vents differ. In her complaint, Wyatt alleges that Fletcher revealed S.W.’s sexual orientation to her

3 The record ind icates that S. W. ha s a dm itted to s tarting a rum or: in her af f id avit, S. W.
s a i d t h a t, on the d ay in ques tion, s he s p eculated on N ew ell’s s exual orientation to ano t h e r s tud ent. Ap p arently, s tud ents began d is cus s ing this rum or, notes were p as s ed in clas s , and
a s tud ent brought the m atter to the coaches ’ attention. New ell and Fletcher then called the
m eeting. S. W. als o ad m its to routinely s how ing up late and us ing prof anity at p ractice.

4 Wyatt’s central claim is “p rivacy” in S. W. ’s s exual orientation. T he und is p uted f acts , how ever, ind icate that S. W. talk ed about her s ex ual orientation w ith a clos e f riend in 2007, ad m i t t e d s h e w a s gay to “f ive or s ix” f

riend s the w eek bef

ore the events in ques tion, w ore clothing she descri bes as “s ociety’s sym bol for gay prid e, ” and “w ent s k ip p ing dow n the hallw ay h o l d i n g hand s ” w ith another girl. Although thes e f acts are in no w ay d is p os itive i n o u r analys is , w e note them becaus e they s ugges t S. W. ’s s exual orientation w as not a herm etically
s ealed s ecret in the s chool s etting.

5 In the K H S “Parent Involvem ent Plan, ” the s chool s tates its p os ition that “the more [ K H S] can com m unicate w ith p arents , the greater succes s [ it] w il l h a v e in reaching our s tud ents

. [ K H S] w a n t [ s ] p arents involved in all as p ects of our s chool f rom acad em ics to extracurricular activities

. ” In its “Parent Involvem ent Policy, ” K H S s tates its goal is to “s trive to increas e p arental p articip ation in s chool and encourage p os itive interaction betw een s chool and hom e. ”
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mother at this second meeting and that Newell then offered Wyatt the contact information for N utt. As w ith the lock e r r o o m m eeting, however, there are inconsistencies in Wyatt’s story. Wyatt’s allegation in her complaint w as that,
at t he second meeting, the coac h e s “ outed” her daughter: “Fletcher said [to W y a t t that] S.W. w as a lesbian.” Wyatt apparently withdrew this allegation when, a t her deposition, she testified under oath that Coach F l etcher in fact

never used the word “gay” or “lesbian.” The claim involving t he r eve l a t i o n of S.W.’s sexual orientation h as become e ver more nuanced over t he course of the briefing on this a ppeal: Instead of alleging that the coaches divu l g e d, pointb lank, her d aughter’s homosexuality, Wyatt’s claim is now that she i n f e r r e d S.W.’s sexual orientation from the coaches’ c o mments. 6 In response, the coaches
argue that they were obliged to contact S.W.’s mother because r u mors regarding S.W.’s relationship w ith Nutt were causing dissension o n t he team, Nutt was a potentially d angerous and u nderage user of illegal drugs and a lcohol, a n d any possible s e x u a l r e lationship between Nutt and S .W. was a v alid concern. See T E X

. P E N

A L C O D E § 22.011(a)(2). 7 B. Wyatt filed three s eparate grievances with Kilgore I ndependent S c h o o l District (“KISD”) alleging t he coaches acted inappropriately by disclosing S.W.’s

6 In her d ep os ition, how ever, Wyatt tes tif ied that s he had s us p ected her d aughter w as gay p rior to the events at is s ue in this cas e.

7 Although, f

or the p urp os es of s um m ary jud gm ent, w e tak e the evid ence in the light
m os t f avorable to Wyatt, see M a t sushi ta El ec. I

ndus. Co. , Ltd. v
. Zeni th Ra di o C orp
. , 475 U

. S. 574, 587 ( 1986) , we note at the outs et of our d is cus s ion that the legitim ate, d is cip linary bas is f or the coaches ’ d ecis ion to notif y Wyatt is es tablis hed by und is p uted f acts

. S. W. conced es that
s he brok e m ultip le team rules , lied to N ew ell and Fletcher, and d is cus s ed N ew ell’s s exuality at s chool p rior to the coaches ’ d ecis ion to notif y S. W. ’s m other. Thus , the alleged “bad m otives ” of the coaches , w hich the d is s ent d is cus s es in p ainf ul rep etition, are incrim inatingly tinged by S. W. ’s ow n ad m is s ions , w hich d em ons trate her culp ability f or her cond uct of the s am e s ort.
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sexual orientatio n to her m other; all were subsequently dismissed. 8 Then, on D ecember 10, 2010, Wyatt, as next-friend of her minor daughter S.W., filed a complaint in federal court a gainst KISD, and, in their personal c a p a cities, against KHS assistant athletic director Douglas Duke, 9 F letcher, a n d N e w e l l, for violating S.W.’s federal rig h t s u n d er the Fourth and F ourteenth Amendments and state privacy r ights u nder the Texas Constitution. In th e i r answer, Defendants pleaded the affirmative defense of Texas official immunity for KISD

on the state claims and qualified i mmunity for Fletc h er and Newell on the federal c l aims. The parties consented t o proceed b efore a m agistrate judge, and the coaches moved for summary jud g m e n t on the basis of qualified immunity. The magistrate judge r ejected the d e fense of q u alified immunity and

c o n s e q u e n t l y d e n i e d the c oaches’ motion f or summary judgment. T he m a g i s t r a t e j u d g e cited “multiple unresolved questions of fact.” With regard to Wyatt’s Fourth A mendment claim of unlawful seizure, the c ourt said “there remains a genuine material issue of fact as to whether there w as an objectively reasonable basis for the co a c h es’ actions including factual disputes over what transpired behind the closed doors of the locker room.” W ith regard t o the Fourtee n th Amendment right to privacy claim, the magistrate judge held that S.W.’s right
to privacy in her sexual orientation was clearly e stablished, an d s ummary judgment was premature due to unresolved questions of fact

– such as “whether the C oaches[] disclos e d S

. W.’s sexual orientation as retaliation for S.W.’s conduct, whether they disclosed the identity of Ms. Nutt [to Ms. Wyatt] without

8 I n her original grievance f iled w ith KISD of

f icials , how ever, Wya t t d id not allege Fletcher and N ew ell had “outed ” her d aughter but only that the coaches , f ollow ing the
m eetings outlined above, i mp r op erly rem oved S. W. f rom the s of

tball team and that the athletic d ep artm ent f

ailed to res p ond to Wyatt’s queries in a tim ely f as hion. I n s hort, the claim s m ad e by Wyatt have been a cons tantly m oving target.

9 The court later granted Wyatt’s m otion to f ile an am end ed com p laint and voluntarily d is m is s D uk e from the cas e; thus , he is not a p arty in this ap p eal.
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provocation by Ms. Wyatt, and the words they used to describe the relationship . . .”– all of which related to the reasonableness of their conduct. As we have said, we lack appellate jurisdiction in this interlocutory appeal
to d etermine whether a genuine fac t u al issue exists; however, w e do have jurisdiction to r evi e w t he materiality of disputed facts as well as t h e district court’s legal analysis as it pertains to qualified i mmunity. See Wagner , 227 F.3d
at 320; see also Kinney , 3 67 F .3d at 3 58

. As we w ill see, t he magistrate judge erred i n analyzing the materiality o f disputed facts because, eve n t a k ing the facts i n the light most favorable t o W y a tt, Wyatt has not alleged violations of clearly e stablished Fourth and Fourteenth Amendment rights. Consequently, we have appellate jurisdiction over this interlocutory appeal. III. Our review of the magistrate judge’s legal analysis begins with setting out the standard for q ualified i mmunity. A s we h ave indicated i n many p rior cases, evaluating q ualified immunity is a t w o-step process, and the burden is on the plaintiff to prove t hat a government official is not entitled t o qualified immunity. Michalik v. Herman n , 422 F.3d 252, 258 (5th Cir. 2005). First, we determine whether the p laintiff has alleged a violation of a clearly established constitutional or statutory right. See Jones , 203 F.3d at 879. A right i s clearly established only i f its cont o u r s are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Wooley v
. C ity of Baton Rouge , 211 F.3d 913, 919 (5th C ir. 2000) (inset quotation marks omitted). The applicable l aw that binds the conduct o f o f f iceholders must be clearly establishe d a t t h e time t he allegedly actionable conduct occurs. Id

. (inset quotation marks o mitted). If the first step is met (i.e. th e o f f icial’s conduct violates an e stablished r i g h t ) , t he second step is to determine whether the

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defendant’s c onduct was objectively reasonable. 1 0 Jones , 203 F.3d at 879 (inset
q u o tation marks omitted). Both steps in t he q ualified immunity analysis are questions of law. Wooley , 211 F.3d at 919. Under t h e F i fth C ircuit standard, the doctrine o f qualified immunity protects government o fficials from civil damages liability when they reasonably could h ave b elieved that their conduct was not barred by law, a nd immunity is
not denied unless e xisting precedent places the constitutional question beyond debate

. Morgan v. Swanson , 659 F.3d 359, 370-71 (5th Cir. 20 1 1 ) ( e n banc). “Qualified immunity balances two important interests – the need to hold public officials accountable when t h ey e x e r c i se power irresponsibly and the need to shield o fficials from harassment, distraction and l iability when they perform their duties reasonably.” Pe a rson v. Callahan , 555 U.S. 223, 231 (2009). The law generally disfavo r s expansive civil liability for a ctions taken w hile state officials are on duty because such liability “ c an e ntail substantial social c o s t s , including the risk that f ear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of t h eir duties.” A nderson

v. Creighton , 483 U.S. 635, 638 (1987). In short, “[q]ualified i m m u n i t y gives
gov e rnment officials breathing room to make reasonable but mistaken judgments about o pen legal questions.” Ashcro f t v
. al-Kidd , 131 S

. C t. 2074, 2085 (2011). When deciding whether t he right allegedly violated was “clearly

e s t a b l i shed,” the court a sks whether the law so clearly and unambiguousl y
p r o h i b i t e d t h e c o n d u c t that e very reasonable official would understand that w h a t he i s doing violates the law. Morgan , 659 F.3d at 371 (inset quotations omitted).

1 0 O ur analys is does not reach the “s econd s tep ” of the q u a l i f i ed im m unity analys is becaus e, as the d is cus s ion that f ollow s w ill ind icate, t h e f irs t, “clearly es tablis hed ” s tep has not been m et by Wyatt in this cas e. Thus , cons id eration of the “objectively reas onable” p rong of qualif ied im munity is unneces s ary. 8 Case: 11-41359 Document: 00512258831 Page: 8 Date Filed: 05/31/2013No. 11-41359

Answering in t he affirmative requires the c o urt to be able to point to “controlling authori t y

– or a robust consensus o f persuasive a uthority–that defines the
contours of the right in question w ith a high degree of particularity.” Id. at 371- 72 (citations and inset quotations omitted). This requirement establishes a high bar. When there i s no cont r o l l i n g authority s pecifically prohibiting a defendant’s conduct, the law i s not c learly established for the purposes of defeating qualified immunity. See id

. at 372. A cknowledging t h ese clearly draw n b r i g h t lines as rigorous background principles o f qualified immunity, we proceed to the merits of Wyatt’s privacy claim. IV. Wyatt’s assertions o f federal l iability have essentia l l y morphed over the

course o f the litigation i nto one primary constitutional c l a i m i n v o l v ing an alleged right to privacy under the Fourteenth Amendment. It is true tha t , o r i g inally, Wyatt alleged two basic claims. In her complaint, Wyatt alleged a Fourth Amendment violation, s aying that the coaches’ decision to “lock the locker room door and order S. W

. t o remain i n side while Defendants confronted and threatened her was a de fac t o s e i z u r e o f S.W.’s p erson
. . . .” However, in her appellate brief and a t o ral argument, Wyatt barely mentioned this seizure alleg a t i o n
. She cites no authorities establishing such a Fourth Amendment violation in school contexts, m a king practically no e ffort to show the right in question is “clearly established.” When be f o r e the d istrict court on summary judgment, however, the d istrict court held there was a g enuine issue of material fact relating to her claim of “seizure”

– whether there was an objectively reasonable b asis for the c oaches’ actions in the l ocker r oom, which, according to S.W., included shouting, intimidating gestures, and locked doors. 1 1 In so doing,

11 As m entioned earlier, how ever, S. W. has conced ed that s he w as not as ked i n t h e lock er room w hether s he w as gay, s o, even tak ing the f acts in the light m os t f avorable to S. W. , that s p ecif

ic allegation of her F ourth Am end m ent claim is not bef ore us
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h o w ever, the court erred; there is no material disputed fact that prevented it from deciding the legal question. First, the district court overlooked case law that e stablishes that the F ourth Amendmen t a pplies differently in the school
context and particularly with regar d t o s t u dent athletes in locker rooms. See Milligan v. City of Slidell , 226 F.3d 652, 654-55 (5th Cir. 2000); see also Vernonia School District 47J v. Acton , 515 U.S. 646, 657 (1995) ( noting that “[p]ublic school l ocker rooms
. . . are not notable for the [Fourth Amendment] p rivacy they afford” a nd “ [b]y choosing to go out for the team, [student a thletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.”) (inset q uotations omitted). 1 2 S econd, verbal abuse does not give rise to a c onstitutional violation under 42 U.S.C. § 1983, so any yelling that
may have occurred is not actionable. See Calhoun v. Hargrove , 312 F.3d 730, 7 3 4 ( 5th Cir. 2002); see a lso Doe v. Gooden , 214 F .3d 952, 955 (8th C i r
. 2 0 0 0 ) (holding that a teacher’s statements, while “demeaning” and “belittling” to his students, did n ot violate their constitutional r ights); Walker-Serrano by Walker

v. Leonard , 1 68 F

. Supp. 2d 332, 347 ( M.D. P a. 2001) (stat i n g “ v e rbal abuse, whether coming from a student or a t eacher, is n ot a constitutional violation.”). Thus, t h e r e i s simply no clearly established c onstitutional right – a nd Wyatt cites none – that protects students from being privately q uestioned, even

1 2 The d is s ent s cold s us f or citing V

ernoni a , s ayin g t he Sup rem e Court’s urinalys is d ecis ion has “abs olutely nothing to d o with the ins tant cas e. ” To be s ure, how ever, V ernoni a s tates back ground princip les , cited above, that not only are relevant to the ap p lication of the Fourth Am end m e n t i n any s chool athletics context but als o s up p ort w hat s hould be p lain: there is nothing p er se unreas onable about a one- on- one, clos ed d oor m eeting betw een coaches and s tud ent athletes

. As s een in M i l l i ga n , courts have routinely ap p lied V ernoni a to contexts other than urinalys is tes ting. See 226 F. 3d at 654- 55.
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forcefully, even in a locked locker room. 1 3 Thus Newell and F letcher a re entitled to qualified immunity on the Fourth Amendment claim. We are left only with Wyatt’s Fourteenth Amendment claim r e l a t i n g to the coaches’ conversation with S.W’s mother. Under Wyatt’s t heory, S.W. has a constitutional right to the confidentiality– even with respect to her mother– of her o wn sexual orientation, w hich was breached by the coaches when they spoke
to h er about S.W.’s violations of team policy. In order to further understand the
nature of Wyatt’s claim

– a nd whether, for purposes of qualified immunity, the

r i ght purportedly violated is clearly e stablished, we first briefly consid e r t h e modern-day origin and subsequent development of the constitutional r i g h t to privacy under the Fourteenth Amendment upon which Wyatt relies. A. We begin with G riswold v. C o n n e c t i c ut, 381 U.S. 479 (1965). There, the Supreme Court declared that a state law prohibiting the use of contrac e p t i ves by married couples was unconstitutional because it violated the r i ght to privacy,

a right l ong last a p parent from the penumbra of rights established by the Bill of R ights and a pplied to the States by the Due Process Clause of the Fourteenth A m e n d m e nt. See id

. at 4 85-86. The decision can be said t o h ave validated a n earlier dissent by Justice Brandeis in Olmstead v. Unite d S t a tes , which described the “ right to be let a lone” as the “most comprehensive of rights and the right m ost valued by c ivilized m a n
. ” 2 7 7 U.S. 438, 478 (1928). In order to
p rotect the right, Justice Brandeis wrote, in dissent, “every unjusti f i a b l e

1 3 Wyatt d oes not m ak e any allegation of p hys ical res traint, ins tead s tres sing w hat d oes not s ound lik e a Fourth A m end m ent claim at all: that her d aughter was “bullied into revealing p rivate inf

or mation. ” S. W. ad m its s he w as never as k ed by coaches w hether s he w as hom os exual, s o the “inf orm ation” Wyatt claim s she w a s f orced to reveal is never exp res s ly
s tated but s eem s to involve her interactions w ith N utt, w ith whom s he exp res s ly d enies being in a relations hip at the relevant tim e. See sup ra P art II. The Fourth Am end ment claim thus
s tum bles , then f

alls

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intrusion of t he government upon the privacy of an individual

. . . must be deemed a [constitutional] violation . . . .” Id

. L a ter, in Whalen v. Roe , the S upreme C ourt i d entified two separat e interests that fall under the constitutional right t o p rivacy. 429 U.S. 589, 599- 600 ( 1977). The one of relevance to us is the “i n d ividual interest in avoiding disclosure of p ersonal matters” by the government. Id

. a t 599; see a lso Nixon v. Adm’r of Gen. Servs ., 433 U.S. 425, 457 (1977) (“One element of p r ivacy has been characterized as ‘ the individual interest in avoiding disclosure of personal
matters

. . . .’”). This confidentiality interest has been d efined as “the right to be free from the government disclosing p rivate facts about i ts citizens.” R amie v. City of Hedwig Village, Tex. , 765 F.2d 490, 492 (5th Cir. 1985). Since Whalen a nd Nixon , however, t he Supreme Court “has said little else

on the subject of an individual interest in avoiding discl osure of personal matters.” NASA v. Nelson , 131 S. Ct. 746, 756 (2011) ( noting that “no other d ecision has squarely addressed a constitutional right t o informational privacy.”). Wyatt argues, h owever, that the F ifth Circuit has “ addressed the contours” of h er right to privacy and that t he c o nstitutional protection accorded
to s uch a right “in this and other circuits is clear.” But, in so doing, she
overstates the degree to which pr e c e d e n t supports her particular claim. The Fifth Circuit has never held that a person has a constitutionall y -protected privacy interest i n her s exual orientation, a nd it certainly has never suggested that such a privacy interest precludes school authorities f rom discussing with parents m a tters that relate to the interests of their children. Indeed, w e have said, “There i s no Fifth C ircuit authority o n what types of disclosures are personal enough to trigger the protection of the confidentiality b ranch.” Zaffuto

v. C i t y o f Hammond , 308 F.3d 485, 490 (5th Cir. 2002) (emphasis added). The r e f o r e, when the magistrate judge in t his case held that there is a constitutional right that bars the unauthorized disclosure b y school coaches of

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a student’s sexual orientation to the student’s mother, he proclaimed a new rule of law. 1 4 B.
1

. And although Wyatt argues that the distinct contours of her asserted right

were well-established, she can only cite two irrelevantly remote Fifth Circuit

cases in an attempt t o buttress her claim, Fadjo v. Coon , 633 F.2d 1172 (5th Cir. 1981), and ACLU o f Miss., Inc. v. Miss. , 911 F.2d 1066 ( 5th C ir. 1990), neither of which even t ouch on p rivacy rights b etween a student and a p a rent. The first,

1 4 The dis sent gives this error cloud cover and , in s o d oing, p roceed s to m is com p rehend the qualif

ied im m unity analys is that is f und am ental to d ecid ing this cas e. The Sup rem e Court “has rep eated ly told courts

. . . not to d ef ine clearly e s t a b l i s h e d l a w at a high level of generality. ” a l

- Ki dd , 131 S. Ct. at 2084. H ere, the d is trict court and now , ap p arently, t he d is s ent have red acted this d irective f rom Sup rem e Court authority. They have allow ed their analys is to hinge on the e x i s tence of a Fourteenth Am end m ent general right to p rivacy and the general p os s es sion of that right by som e minors in s om e lim ited circum stances

. As w e obs erve sup ra herein, the exis tence of a general right is es tablis hed , and w e d o not tak e is s ue w ith it. In ord er f

or liability to be im p os ed on p ublic of f icials , how ever, qualif ied im m unit y cas es require m ore than a bare allegation of a general right to nond is clo s u r e o f p rivate inf orm at i o n: “the right the of f icial is alleged to have violated m us t have been ‘clearly
es tablis hed ’ in a m ore p a rti cul a ri zed , and hence m ore rele v a n t , s e n s e. ” Anderson , 483 U

. S. at 640 ( em p has is ad d ed )

. O therw is e, “[ p ] laintif f s w ould be able to convert the rule of qualif ied im m unity that our cas es p lainly es tablis h into a rule of v irtually unqualif ied liability s im p ly by alleging violation of [ ] abs tract rights

. ” Id

. at 639. The f ollow ing tw o exam p les illus trate the d is s ent’s errant ap p roach: f or the Sup rem e Court, “[ t] he general p rop os ition

. . . that an unreas onable s earch or seizure violates the Fourth Am end ment is of little help in determ ining
w hether the violative nature of p a rti cul a r conduct is clearly es tablis hed

. ” a l

- Ki dd , 131 S. Ct. at 2084 ( em p has is ad d ed )

. Sim ilarly, “[ T ]he ri g h t t o d u e p roces s of law is quite clearly
es tablis hed by the Due Proces s Claus e, and thus there is a s ens e in w h i c h any action that violates that Claus e
. . . v i o l a t e s a clearly es tablis hed right

. . . . ” M orga n , 659 F. 2d at 372. But that d oes not m ean liability will be im p os ed on p ublic of f icials , f or the ques tion is “w hether that right has been d ef ined w i th suf

f i c i ent cl ari ty ” and s p ecif icity “to enable a reas onable of f icial to as s es s the law f ulnes s of his cond uct. ” Id

. (em p has is ad d ed ). The central concep t is f air w arning: “qualif

ied im m u nity s hould not be d enied unles s the law is clear i n the m ore p a rti cul a r i z e d s ense that reas onable of f icials s hould be on notice that their cond uct is unlaw ful. ” Ki nney , 367 F. 3d at 350 ( em p has is ad d ed ) ( ins et quotation m ark s om itted )

. There is n o authority – and none has been cited – that would p ut s chool of f icials on notice that
s p ecif ic convers ations betw een a teacher and a p arent regard ing a s tud ent’s cond uct are barred

. 13 Case: 11-41359 Document: 00512258831 Page: 13 Date Filed: 05/31/2013No. 11-41359

F a djo v. Coon , concerned disclosure of an insurance beneficiary’s per s o n a l information in the context of a criminal i n v e s t i gation. 633 F.2d at 1174. Plaintiff Fadjo was the n amed beneficiary of life insur a n c e policies insuring a

man who m ysteriously disappeared. Id

. at 1174. After explic i t assurances by the state attorney that his testimony would be absolutely privileged, Fadjo, as part of the criminal inv e s t i g a t ion, provided the s tate with information concerning “ t h e m o s t p rivate details of his life.” Id

. The state attorney then shared this information with insurance companies, resultin g i n personal misfortune t o Fadjo, w ho was forced to move his residence and struggled to find meaningful e mployment. Id. Finding that Fadjo’s right to privacy had been violated by the disclosure, the court held that there was an actionab le § 1983 claim u nder the confidentiality branch of the Fourteenth A m endment 1 5 and that “no legitimate state purpose existe d sufficient to outweigh the invasion into Fadjo’s p r i v a c y
. ” I

d

. at 1175. Notably, the c o urt never discussed the specific
nature o f the “private details of Fadjo’s life” that were disclosed (i.e. details
pr i vate enough t o warrant constitutional protection), a nd the court never suggested that s exual orientation might be one of them. Furthermore, the court
str e ssed that Fadjo had been promised that the information he p rovided investigators would be confidential and that t h e plaintiff’s allegation was that the state had not h onored this pledge. Id

. a t 1 176 (stating “Fadjo’s case is distinguishable

. . . since it involves the revelation of intimate information obtained under a pledge of confidentiality

. . . .”) ( emphasis added). In Wyatt’s case, the coaches made no such promise to S.W.

1 5 The court, how ever, d id not p erf orm a d etailed qualif

ied im m unity analys is

. We note in p as s ing that Fa djo w as d ecid ed bef ore s everal notew orthy Sup rem e Court cas es on qualif ied im m unity, am ong them , Si egert, 500 U

. S. 226; Sa uci er v
. Ka t z , 533 U

. S. 194 ( 2001) ; H op e v
. Pel z er , 536 U

. S. 730 ( 2002) ; Broussea u v
. H augen , 543 U

. S. 194 ( 2004) ; and P ea rson, 555 U

. S. 223.
14 Case: 11-41359 Document: 00512258831 Page: 14 Date Filed: 05/31/2013No. 11-41359

Even t o speculate t hat an established right to the non-disclosure of one’s sexual orientation exists does not help Wyatt’s case and still does not result in liability for t he coaches. T his is so because such speculation does not establish specifically that school o fficials a re b arred from communicating w ith parents regarding minor students’ behavior and welfare, when doing so might cause the parents to infer their child’s sexual orientation. The second Fif

t h C i r cuit case Wyatt relies upon is American Civil L iberties Union of Miss., Inc. v. Mississi p p i , 9 1 1 F.2d at 1066. That case concerned the dismantling of a s tate a g e ncy whose purpose was to perpetuate racial segregation. Id

. a t 1068. After the agency had been shut down, the d i s t r i ct
court ordered t hat all agency files, including some containing sensitive, personal information of civil rights activists, be released to the general public. I d

. This
court reversed. We held that t he public i nterest in full disclosure of the files was outweighed b y the privacy c oncerns of the individuals whose information was obtained without permission. 1 6 Id

. a t 1069. In the passage most relevant to the

case at b ar, t he court said that plai n t i f f s “undeniably have an interest in restri c t ing the disclosure of information” regarding “numerous instances of (often unsubstant i a t ed) allegations of homosexuality , c h ild molestation, illegitimate births, and sexual promiscuity . . . .” Id . (emphasis added).

1 6 I n A CLU of M

i ss
. , the court in its d is cus s ion rep eated ly pointed to clearly es tablis hed rights – the right of a f ree p res s to p ublis h mat t e r s o f p ublic concern, the p ublic’s right to
acces s certain governm ent d ocum ents , and ind i v i d uals ’ right to s up p res s inf orm ation the governm ent gathered unlaw f ul l y

– and then w eighed the p arties ’ com p eting interes ts in p rivacy and d is clos ure. Id

. at 1070- 73. This balancing of interes ts s tand ard is ap p rop riate in
a qualif ied im m unity cas e lik e ours only if , f irs t, the p l a intif

f claim s a violation of clearly
es tablis hed l a w
. S e e , e
. g

. Sterl i ng v
. Borough of M i nersv i l l e , 232 F. 3d 190, 193- 96 ( 3d Cir. 2000) ( stating that courts f irs t as k w hether p laintif f “had a p rotected p rivacy right, ” then, if it exis ts , “w hether it w as clearly es tablis hed at the tim e of its alleged violation, ” and f inally
w hether there is a “legitim ate [ governm ent] interes t that can overrid e the p rotections of the right to p rivacy. ”) For the reas ons d is cus s ed i nf ra herein, Wyatt has not s how n the exis tence of a clearly es tablis hed p rivacy right, s o we d o not cond uct the balancing of interes ts

. 15 Case: 11-41359 Document: 00512258831 Page: 15 Date Filed: 05/31/2013No. 11-41359

Importantly, ACLU of Miss

. was a n a ppeal of a district c ourt’s granting of complete public disclosure o f agency files and thus did not involve the qualified immunity fra m e w o r k fundamental to d e ciding this interlocutory a ppeal. The analysis in ACLU of Miss. also focused in part on First Amendment concerns not relevant in S.W.’s c ase, saying that “to the e xtent that [the] information [in the
agency files] is a matter o f public concern, any public need to k n o w could be satisfied by r elease of the information in a more limited format.” Id

. at 1071. Although t he public u ndoubtedly had an interest in o btaining information about the d e funct, anti-civil rights agency, the public’s interest could not prevail o ver the plaintiffs’ right to privacy because the public interest could be a ddressed by this option of selective disclos u r e
. T h e ACLU of Miss. court also emphasized that the personal information at issue was o riginally gathered by

uncons t i tutional means (illegitimate searches and seizures by segregationist

a g e ncy o fficials) p ursuant to an unconstitutional p urpose (suppressing spe e c h of civil rights a ctivists contrary i n viewpoint to the agency), suggesting the court

was further motivated by fairness concerns i nherent in t he public release of private information the government never had a r ight to possess in the first place. Id . at 1070. Although t he s elective disclosure and fairness considerations in ACLU of Miss. are not analog o us to the student-teacher-parent concerns in S.W.’s case, it is appropriate to point out t hat the “ disclosure” here was only to the student’s mother; it was not discussed with other coaches, teachers, or students. Further, instead of bluntly declaring her daughter t o be a homos e x u a l , i t is undisputed that the coaches mentioned to Wyatt only that S.W. was in a possibly inappropriate relationship w ith Nutt – thus narrowly tailoring the disclosure to the mother’s “need t o know.” Second, unlike the f acts in ACLU o f Miss. , the government here w as not illegally and secretly coll e cting i nformation in order
to do harm to private citi z e n s ; d i s closure of S.W.’s relationship was in the

16 Case: 11-41359 Document: 00512258831 Page: 16 Date Filed: 05/31/2013No. 11-41359

interest of the s tudent and became n ecessary onl y a fter S.W., a llegedly influenced by Nutt, violated team rules and policy, which were in place for the benefit and safety of students. In summary, then, when we consider ACLU of Miss. and Fadjo , neither is established – much less clearly established – authority for the claims presented here. I t is of major signif i c a n c e t h a t neither occurred in the context of public schools’ relations w ith their s tudents a n d t h e students’ parents. We therefore hold there is no controlling Fifth C ircuit autho r i t y

– c e rtainly n ot with “sufficient particularity” – showing a clearly established Fourteenth Amendment privacy right that prohibits s chool officials from communicating t o parents information regarding minor students’ interests, e ven when priva t e matters of sex are involved. See Morgan , 659 F.3d at 372. 2

. Nor from outside the circuit do we find a “robust consensus of persuasive authority” that such a right was clearly established. Id . (emphasis added). In her attempt to d raw help f rom outside friends, Wyatt calls on the Third Circuit. Sterli n g v
. B o rough of Minersville , she argues, s tands for the proposition that there is a clearly established p rivacy right in one’s sexual orientation. 232 F.3d
1 90 ( 3d Cir. 2000). There, a police officer d iscovered two male teenagers in a parked car at night and threatened to disclose to one o f t he t eenager’s r elatives the secret that the teenager was a homosexual. Id

. at 192. The threat a llegedly resulted in the t eenager’s committing suicide. Id

. In affirming an order denying
summary judgment on qualified immunity grounds, the Third Circuit held that public disclosure b y the government of a plaintiff’s sexual orientation can give rise t o a constitutional claim for the violation o f privacy. Id

. at 19 6

. Because there w as a clearly established rig h t t o p r i vacy in the T hird C i r cuit, the defendants were not entitled to qualified immunity. Id . at 196-98.

17 Case: 11-41359 Document: 00512258831 Page: 17 Date Filed: 05/31/2013No. 11-41359

The Sterling decision is notable in several respe c t s
. F irst, it is not controlling authority in this case and, thus, its reasoning, standing alone, is not dispositive for us today. Second, t he deceased victim was not a minor, and the
court noted this fact w h e n it acknowledged that “because [plaintiff] was 18 , there

was no reason f

or [ the officer] to interfere with [pl a i n t i f f ’ s] family’s awareness of his sexual o rientation.” Id. at 197-98 (emphasis added). This observation suggests that the Sterling court may have considered a situa t i o n i n volving a minor, differently. Third, although Sterling held t h at the law regar d ing the disclosure of one’s sexual orientation was “clearly established,” at l east in the Third Circuit, in 1 997, the court’s justifications for its doing so are dubious: cases from within the circuit that d ealt with private medical and financial information and precedent f

rom outside the circuit that was, at b est, unclear o n the issue. Id

. at 1 95-96; cf. , i d

. at 198, 199 n.3 (Staplet o n , J

. , dissenting) ( “[A] person’s right to privacy i n his or her sex u a l o r i e n tation simply was n o t clearly established in April of 1997” because, for example, “[t]he Fourth Cir c u it’s decision in [ Walls v. City of Petersburg , 895 F.2d 188, 1 93 (1990)] addressed the issue squarely

. . . and reached the opposite conclusion

. . . . ”). Since Sterling , the Supreme Court has repeatedly admonished courts to avoid finding “clearly established” law through such a loose method; looking to preced e nt that is, at best, inconclusive, and, at worst, irrelevant, as Sterl i ng did, simply no longer suffices. See , e.g. B rousseau v. Haugen , 543 U .S. 194, 198-201 (2004) (holding that, when n one of a “ h a n dful” of cases “squarely govern” the specific factual circumstances in a § 1983 s uit, the cases do not c l early e stablish – in the mandatory “particularized sense” – a right that was violated). In our case t oday, t he trial court cited other cases from o utside the circuit

on its w ay to denying summary judgment to the coaches. Pe r h a ps t he most salient distinguishing factor i n all these cases is that none occurred in a school context; together, they establish only the s imple and unsurprising proposition

18 Case: 11-41359 Document: 00512258831 Page: 18 Date Filed: 05/31/2013No. 11-41359

that individuals generally can have a privacy interest in some personal “sexual matters,” a b road, general proposition with which we do not take issue. 1 7 None of these cases appr o x i m a te the f actual context we have before us, a nd none of them p rovide any guidance regar d i n g t h e crucial question: w hether a student h a s a privacy right under the Fourteenth Amendment that forbids school officials from d iscussing stud e n t s exual information during meetings with parents. 1 8 In sum, then, we hol d t h a t Wyatt h as not alleged a clearly established constitutional right – d r a w n e ither from the Supreme C ourt’s j urisprudence, from our own precedent or from that o f othe r c i r c uits – that the coaches

1 7 The Second Circuit cas e, Pow el l v
. Schri v e r , p r o v i d es m od es t sup p ort f or the exis tence of a privacy right to m ed ical inf orm ation. 175 F. 3d 107, 112 ( 2d Cir. 1999) ( “Ind ivid uals w ho
are trans s exuals a r e am ong thos e w ho pos s es s a cons titutional right to m aintain m ed ical conf id e n t i a l ity. ”) The Third Circuit cas e, Sterl ing , is dis cus s ed above. 232 F. 3d 190. T he Sixth Cir c u i t c a se f

ound that a victim ’s interes t in p reventing d is s em ination of intim ate d etails of a rap e im p licates a f und am ental right but that the p ublic of f icial w ho releas ed thos e d etails to the p ublic w as nonethele s s e n t itled to qualif ied im m unity. Bl och v
. Ri ba r , 156 F. 3d 673, 686- 87 ( 6th Cir. 1998)

. The Ninth Circuit cas e held that a wom an w ho ap p lied to w ork f or a local p olice d ep artm ent had an in t e r e s t in the nond is clos ure, throughout the ap p lication p r o ces s , of her sexual his tory but em p has ized that “cons id ering the s exual morality o f [ ]
em p loyees ” is not p er se p rohibited by the Cons titution. Thorne v
. C i ty of El Segundo , 726 F

. 2d 459, 468- 70 ( 9th Cir. 1983)

. Finally, the Tenth Circuit cas e quotes Thorne , the N inth Circuit
cas e, to es tablis h es sentially the s am e prop os ition. Ea stw ood v
. D ep t. of Correcti ons , 846 F

. 2d 627, 631 ( 10th Cir. 1988)

.

1 8 The dis s ent criticizes ou r a p p r o a ch f or not w eighing S. W. ’s interes t agains t the
s chool’s

. Becaus e this is a qualif ied im m unity cas e, a balancing of interes ts requires a clearly
es tablis hed right. We f ind no evid ence of the exis tence of s uch a right; thus , w e cannot reach the ques tion of w hether the s chool’s inter e s t o u t w e i g h ed S. W. ’s

. Obvious ly, if there is no clearly es tablis hed right to begin w ith, w e cannot “balance” it agains t anything.
19 Case: 11-41359 Document: 00512258831 Page: 19 Date Filed: 05/31/2013No. 11-41359

violated. 1 9 The m agistrate judge, therefore, erred i n denying qualified immunity to each of the defendants on each of the federal claims. V. To summarize o ur opinion t oday: we hold that the magistrate judge erred in denying Newell and Fletch er s ummary judgment on the claims of qualified immunity. It was error because there is no S upreme Court or Fifth Circuit case that clearly establishes or even suggests that a high school student has a Fourth Amendment right that bars the student from being questioned by coaches in a locker room or a Fourteenth Amendment right to privacy that bars a teacher or coach from discussing the s tudent’s private matters with the student’s parents. Fletc h e r and Newell were entitled t o qualified immunity f or this suit with respect to the federal claims, because, based on undisputed facts, t h ere was no violation of a clearly established federal right. Jones , 203 F.3d at 879. For the above reasons, the judgment is reversed and vacated with r espect to all federal claims against t he individual defendants, and the case is remanded for entry of the appropriate judgment not inconsistent with this opinion.
REVERSED and VACATED in part, and REMANDED for entry of judgment.

1 9 The d is s ent chid es us f or “f ail[ ing] to p rovid e any authority f or [ our] f ind ing that the right to p rivacy in p ers onal s exual m atters d oes not extend to high s chool s tud ents .” We m ak e no s uch f

ind ing; w e only conclud e that s uch a right is not clearly es tablis hed

. Furtherm ore, as noted sup ra herein, the b u r d e n i s not on us to f ind authority f

or Wyatt’s p os ition. In qualif ied im m unity cas es , “the p laintif f bears the burd en of proving that a governm ent of f icial is not entitled to qualif ied im m unity. ” M

i cha l i k , 422 F. 3d at 258. When a p ublic of f icial, lik e N ew ell and Fletcher here, p lead s good f aith , “ t h e b urd en [ shif ts ] to the plaintif

f , who m us t rebut the d ef

ens e by es tablis hing that the of f icer’s alleged ly w rongf ul cond uct violated clearly
es tablis hed law

. ” Id

. at 262. Wyatt s im p ly has not m et her burd en. 20 Case: 11-41359 Document: 00512258831 Page: 20 Date Filed: 05/31/2013No. 11-41359

GRAVES, Circuit Judge, dissenting. I disagree with the majority’s finding that high school students have no clearly established rights under the Fourteenth and Fourth Amendments. Because I would affirm the district court’s denial of qualified immunity to coaches Cassandra Newell and Rhonda Fletcher, I respectfully dissent. Factual History S.W. was a 16-year-old softball player at Kilgore High School (KHS) in Texas. S.W., who had told only a few friends that she was gay, became involved in a relationship with 18-year-old Hillary Nutt. The softball coaches, Newell and Fletcher, claimed that they had heard a rumor 1 that S.W. had told someone she was involved in a relationship with Nutt and that Nutt was Newell’s ex-girlfriend. Newell is gay and admitted in her deposition that Nutt started attending softball games after being invited by Newell’s former girlfriend. Upon hearing this rumor, the coaches decided to confront S.W. They arranged an off-campus meeting after school on March 3, 2009. During this meeting, the coaches locked S.W. in the softball locker room and aggressively questioned her at length about her relationship with Nutt, her sexual orientation, and whether she had told anyone about Newell’s alleged relationship with Nutt. S.W. indicated that she was afraid and sat on a beanbag chair with her arms wrapped around her knees, while the coaches

1 The m ajority erroneous ly s tates that S. W. ad m itted to s tarting a rum or. S. W. d id not ad m it to s tarting any rum or. S. W. ad m itted to hav ing a “p rivate convers ation w ith one p ers on” af

ter that p ers on p res s ed S. W. f o r a n op inion on N ew ell’s s exuality. Further, there is no d is pute that N ew ell is gay and brought her girlf riend to s of

tball gam es
. With regard to extraneous “f

acts , ” S. W. d id not ad m it to “routinely s how ing up late and us ing p rof anity at p ractice. ” S. W. ad m itted to being required to run f or being late and / or us ing prof anity w hen
s he accid entally hit hers elf in the k neecap w ith a bat “m aybe tw o or th r e e ” t i m e s i n 2009,
w hich is the tim e p eriod in ques tion. H ow ever, there is abs olutely no claim by the coaches that they m et with Wyatt to d is cus s S. W. being late or us ing p rof anity, m inor team inf

ractions f

or w hich S. W. had alread y been p unis hed along with other p layers

. 21 Case: 11-41359 Document: 00512258831 Page: 21 Date Filed: 05/31/2013No. 11-41359

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

2 Contrary to the m ajority’s s tatem ent in footnote 4 regard ing “und is p uted ” f acts , w hile S. W. ad m itted that s he had conf id ed in s om e f

riend s regard ing her s exual orientation, it is und is p uted that s he had never told her m other. With regard to “s k ip p ing d ow n the hallw ay h o ld ing hand s, ” S. W. w as as k ed d uring her d ep os ition if s he had “ever held hand s i n t h e hallw ay w ith a girl. ” S. W. res p ond ed that s he and tw o other girls had held hand s and s k ip p ed d o w n t he hallw ay, but clarif ied tw ice that it w as nothing hom os exual. T he clothing rep res enting “s ociety’s sym bol f or gay p rid e” w as a belt w ith s tud s on it form ing the s hap e of
a rainbow that S. W. had w orn tw ice over a f ew
- m onths ’ tim e. 22 Case: 11-41359 Document: 00512258831 Page: 22 Date Filed: 05/31/2013No. 11-41359

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

This means that the district court’s finding that a genuine factual dispute exists is a factual determination that this court is prohibited from reviewing in this interlocutory appeal. But the district court’s determination that a particular dispute is material is a reviewable legal determination. Thus, a defendant challenging the denial of a motion for summary judgment on the basis of qualified immunity must be prepared to concede the best view of the facts to the plaintiff and discuss only the legal issues raised by the appeal.
Id . at 397-98. (Internal marks, citations and emphasis omitted). The majority erroneously fails to concede the best view of the facts to the plaintiff, apparently under this Court’s authority to decide whether the factual disputes are material to deciding the summary judgment. Wagner v. Bay City , 227 F.3d 316, 320 (5th Cir. 2000). While it is correct that we can

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review the materiality of factual disputes, we must keep in mind what this Court said in the excessive force case of Wagner . There, this Court said: In deciding an interlocutory appeal of a denial of qualified immunity, we can review the materiality of any factual disputes, but not their genuineness. See Colston v. Barnhart , 146 F.3d 282, 284 (5th Cir.) (on petition for rehearing en banc), cert. denied, 525 U.S. 1054, 119 S.Ct. 618, 142 L.Ed.2d 557 (1998). So, we review the complaint and record to determine whether, assuming that all of Wagner's factual assertions are true, those facts are materially sufficient to establish that defendants acted in an objectively unreasonable manner. Even where, as here, the district court has determined that there are genuine disputes raised by the evidence, we assume plaintiff's version of the facts is true, then determine whether those facts suffice for a claim of excessive force under these circumstances. Wagner , 227 F.3d 320. Rather than weigh Wyatt’s version of the facts and compare it to the coaches’ version, this Court must decide whether the facts as presented by Wyatt are materially sufficient to establish that the coaches acted in an objectively unreasonable manner. Qualified Immunity When a defendant moves for summary judgment on the basis of qualified immunity, the court must decide: 1) Whether the facts made out a violation of a constitutional right; and 2) whether that right was “clearly established” at the time of the defendant’s alleged misconduct so that a reasonable official in the defendant’s situation would have understood that his conduct violated that right. See Ontiveros v. City of Rosenberg, Tex. , 564 F.3d 379 (5th Cir. 2009). See also Brewer v. Wilkinson , 3 F.3d 816 (5th Cir. 1993). Right of Privacy With regard to the Fourteenth Amendment right to privacy violation, the district court found that there is a constitutional right to prevent the

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

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

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

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

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

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time. The district court also found that there were substantial unresolved questions of fact surrounding the circumstances leading up to the confrontation and the content of the coaches conversation with Wyatt that prevent it from making a qualified immunity determination. “Without a factual determination by the appropriate trier of fact, this Court cannot resolve the legal question as to whether the Defendants’ actions are amenable to a qualified immunity defense on this claim,” concluded the district court. I
agree. U nreasonable Seizure With regard to the Fourth Amendment claim based on the confrontation in the locker room, the majority says that the district court overlooked case law that establishes that the Fourth Amendment applies differently in the school context and particularly with regard to student athletes in locker rooms. Again, the majority cites Vernonia, 515 U.S. 646, and Milligan , 226 F.3d 652, for the diminished expectation of privacy of school children, particularly student athletes. However, neither case supports any such finding. Vernonia was a case involving random urinalysis drug testing of student athletes. The majority cites this case for the proposition that athletes have less privacy expectations and that locker rooms are “not notable for the [Fourth Amendment] privacy they afford.” Vernonia , 515 U.S. at 657. 3 But those propositions have absolutely nothing to do with the instant case. The Supreme Court specifically said:

3 The m ajority as s e r t s t h at the s eizure behind lock ed d oors w as p rop er becaus e, by choos ing to be a s tud ent athlete, S. W. s ubjected hers elf to a higher d egree of regulation, but then cites M

i l l i ga n for the prop os ition that actually being a stud ent athlete has nothing to d o w ith it. I note that M i l l i ga n involved ques tioning of s tud ents b y p olice of f icers regard ing p os sible illegal acts , i. e. , f ights involving w eap ons
.

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

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

4 The Co u r t f

u rther ad d res s ed the p rovis ion of the d rug tes ting p olicy that required
s tud ents to id entif

y p res crip tion m ed ications in ad vance if they w anted to avoid s anctions f or a f als e p os itive d rug tes t.
32 Case: 11-41359 Document: 00512258831 Page: 32 Date Filed: 05/31/2013No. 11-41359

the majority errs. The case cited by the majority, Calhoun v. Hargrove , 312 F.3d 730, 734 (5th Cir. 2002), for the proposition that verbal abuse does not give rise to a constitutional violation under 42 U.S.C. § 1983 actually says: A claim for relief under § 1983 must allege the deprivation of a right secured by the Constitution or the laws of the United States by a defendant acting under color of state law. Wong v. Stripling , 881 F.2d 200, 202 (5th Cir.1989). Furthermore, under 42 U.S.C. § 1997e(e), “[n]o federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.”
Calhoun , 312 F.3d at 734. This is not a suit by a prisoner and there is no applicable federal statute requiring physical injury. Notwithstanding the inapplicability of Calhoun 5 , verbal abuse is only one of the actions cited by Wyatt. The others included locking S.W. in the locker room, interrogating her, intimidating gestures, etc. Under the same authority as the Fourteenth Amendment analysis above, there clearly exists a Fourth Amendment right against unreasonable seizure/false imprisonment. The majority ignores the balancing test which is required to determine whether the State’s interest outweighs

5 N otably, w hile dis m is s ing as uncontrolling the abund ant authority f rom other circuits that s up p orts Wyatt’s p os ition, the m ajority attem p ts to als o rely on D oe v
. G ooden , 214 F

. 3d 952, 955 ( 8th C ir. 2000) , and Wa l ker- Serra no by Wa lker v
. Leona rd , 168 F. Sup p
. 2d 332, 347 ( M

. D

. Pa. 2001) , f

or its prop os ition that verbal abus e d oes not g ive ris e to a cons titu tional violation. In Gooden , the Eighth Circuit f ound that the teacher’s s tatem ents did not am ount to a cons titutional violation, but did not f oreclos e the pos s ibility of s uch, s aying: “Verbal abus e is norm ally not a cons titutional violation. ” 214 F. 3d at 955. In Wa l ker , the P e n n s y l v a nia d is trict court cited G ooden f or the p rop os ition th a t “ v e r b a l abus e, w hether com ing f rom a s tud ent or a teacher, is not a cons titutional viola t i o n
. ” Wa lker , 168 F. Sup p. 2d at 348. H ow ever , G ooden d oes not s ay that. G ooden , 214 F. 3d at 955. Further, Wa l ker w as a Firs t Am end m ent cas e involving an elem entary stud ent’s p e t i t i o n a ga ins t a school f ield trip to a circus

. The plaintif

f als o claim ed em otional dis tres s f or teas ing f

rom other s tud ents af

ter s he and her m other boycott e d the f ield trip and p rotes ted outs id e the circus

. I m p ortantly, the d is trict court rep eated l y i n d icated that elem entary s tud ents d o not enjoy the s am e clearly
es tablis hed rights as high s chool s tud ents

. 33 Case: 11-41359 Document: 00512258831 Page: 33 Date Filed: 05/31/2013No. 11-41359

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

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