REVISED, MARCH 14, 2000

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30978

REXFORD KIPPS, CAROL KIPPS AND KYLE KIPPS,

Plaintiffs-Appellants,

versus

JAMES CAILLIER, RAY AUTHEMENT, NELSON J. SCHEXNAYDER, JR. AND NELSON STOKLEY,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Louisiana

February 25, 2000 ORDER DENYING REHEARING EN BANC

Before WIENER, DeMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Plaintiffs petition the Court for a en banc rehearing of our

panel opinion at

(5th Cir. 1999). Because we find

that plaintiffs raise no arguments that were not adequately

considered in the panel opinion, their petition for rehearing en

banc is denied.

An issue was raised with respect to the panel majority's

qualified immunity analysis. Specifically, whether a court could assume arguendo the first prong of the analysis--the existence of

a constitutionally protected right.1 Fifth Circuit case law

appears to require a court to first answer whether an existing

constitutional right has been asserted by a party. See, e.g.,

Evans v. Ball,

(5th Cir. 1999) (“We may not

pretermit that first prong but must decide whether Evans has

alleged any constitutional violation before we may move to the

inquiries under the second prong.”) (citing Quives v. Campbell,

(5th Cir. 1991)). Without resolving the

question of whether Supreme Court and Fifth Circuit precedent

require rigid application of Evans to all qualified immunity

situations, we have little trouble finding that a constitutional

interest in familial association does, in fact, exist and was

clearly established at the time Kipps was fired.

Existence of a Liberty Interest in Familial Association

According to Supreme Court precedent, the Constitution

accords special protection to two different types of association,

“intimate association” and “expressive association.” See Roberts

v. United States Jaycees,

(1984); see also

Louisiana Debating and Literary Assoc. v. City of New Orleans,

(5th Cir. 1995). In Roberts, the Court noted

that the right to intimate association, the freedom to choose “to

1 See, e.g., Kipps v. Callier,

(5th Cir. 1999) (“Assuming arguendo that defendants violated Kipps's constitutional liberty interest in familial association, the resolution of this issue turns on whether the defendants' actions were 'objectively reasonable.'”).

-2- enter into and maintain certain intimate human relationships,” is

a “fundamental element of personal liberty.”

.

At the foundation of this right to intimate association are

family relationships:

Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.

Roberts,

(emphasis added); see also McCabe v.

Sharrett,

(11th Cir. 1994) (“At a minimum, the

right of intimate association encompasses the personal

relationships that attend the creation and sustenance of a

family.”) (emphasis added). Supreme Court precedent with

respect to intimate association can be synthesized as a continuum

with “family relationships” at one end, receiving the most

protection, and arms length relationships, like a business

acquaintance, at the other end, “remote from the concerns giving

rise to this constitutional protection.” Roberts,

.

Defendants assert that in order to have an actionable claim

based on familial association there must be a permanent and

involuntary separation between parent and child. In other words,

before a party can bring a cognizable claim based on interference

-3- with familial association, that relationship at issue must be

totally destroyed. Notwithstanding the questionable validity of

this position, defendants' argument misunderstands the nature of

plaintiffs' alleged constitutional injury. Kipps claims that he

was fired because of his actual association with his son.2 See

(Complaint ¶ 16). This is separate and distinct from a claim of

state interference with that association.

The importance of the family has been discussed in numerous

cases. See, e.g., Lehr v. Robertson,

(1983)

(“[T]he relationship of love and duty in a recognized family unit

is an interest in liberty entitled to constitutional

protection.”); Stanley v. Illinois,

(1972) (“It

is plain that the interest of a parent in the companionship,

care, custody, and management of his or her children 'come[s] to

this Court with a momentum for respect lacking when appeal is

made to liberties which derive merely from shifting economic

arrangements.'”) (quoting Kovacs v. Cooper,

(1949) (Frankfurter, J., concurring)); see also Tyson v. New York

City Hous. Auth.,

(S.D.N.Y. 1974) (holding

that public housing tenants had a cause of action under the right

of association when they were threatened with eviction because of

acts committed by their adult children who did not live with

them).

2 The special concurrence focuses on Kyle Kipps's age as if it makes a difference in the analysis of the issues in this case. If anything, the fact that Kipps could not legally force his son to attend USL, supports the inference that Kipps was fired merely for his association with Kyle.

-4- Although it is clear that “family relationships” are subject

to constitutional protection,3 the definitional boundaries that

limit the types of associations that constitute “family

relationships” are blurred. The case subjudice, however, does

not deal with an association on the fringe of the definition for

“family relationships.” Indeed, the parent-child relationship

lies at the heart of protected familial associations. See, e.g.,

Prince v. Massachusetts,

(1944) (“It is

cardinal with us that the custody, care and nurture of the child

reside first in the parents, whose primary function and freedom

include preparation for obligations the state can neither supply

nor hinder.”); Morris v. Dearborne,

(5th Cir.

1999) (“The constitutional right to family integrity was well

established in 1992.”). Our recognition of Kipps's

constitutional right4 to familial association with his son (i.e,

his right to preserve the integrity of that family relationship)

does not take us to the limits that may be imposed on

constitutionally protected family relationships.

Kipps's association with his son deserves at least the same

3 Laurenzo v. Mississippi High Sch. Activities Ass'n,

(5th Cir. 1981) (“The constitutional right generally protecting the family has been recognized for nearly three score years by the Supreme Court.”). 4 The assertion in the special concurrence that “the Kippses have not alleged violation of a clearly established right” misses the point. Mrs. Kipps and Kyle are unable to bring a constitutional claim under these circumstances. Only Rexford Kipps can properly claim a violation of his right to familial association. This explains the use of a singular possessive modifier in the opinion: Kipps's.

-5- protection as association with members of a union, see Boddie v.

City of Columbus,

, 750 (5th Cir. 1993)(“We conclude

that Chief Gale should reasonably have known that firing Boddie

for his association with union firemen violated clearly

established law.”). Plaintiffs' claim that Kipps was terminated

because his son chose to play football for LSU alleges the

impingement of a cognizable constitutionally protected interest.

Objective Reasonableness of Defendants

Although we find that Kipps had a clearly established,

constitutionally protected right to familial association with his

son, we continue to hold that the defendants' actions were, under

the unique facts of this case, objectively reasonable.5 See

Kipps,

. Therefore, defendants are entitled to

qualified immunity for their actions.

Conclusion

Treating the Petition for Rehearing En Banc as a Petition

for Panel Rehearing, the Petition for Panel Rehearing is DENIED.

No member of the panel nor judge in regular active service of the

court having requested that the court be polled on Rehearing En

Banc, see FED. R. APP. P. 35; 5TH CIR. R. 35, the Petition for

Rehearing En Banc is DENIED.

Judge Wiener and Judge Parker concur in the entirety of this

5 Judge DeMoss clearly places no great emphasis on the role recruiting plays in an athletic program. Perhaps his position is influenced by his distinguished tenure at Rice Institute, an institution whose academic repute greatly overshadows its athletic record. We can only point him to the affidavit testimony of Spike Dykes.

-6- order. Judge DeMoss concurs specially.

-7- DeMOSS, Circuit Judge, concurring in the denial of rehearing only:

On December 6, 1999, when the majority filed its original

opinion in this case, it acknowledged that:

Whether a constitutional liberty interest is implicated by the facts of this case is highly questionable.

Kipps v. Caillier,

, 769 n. 4 (5th Cir. 1999). Now,

less than 90 days later and without citation to any relevant

intervening decision, the majority jumps to the following

conclusion:

We have little trouble finding that a constitutional interest in familial association does, in fact, exist and was clearly established at the time Kipps was fired.

Majority Opinion, at 2. This 180/ turnabout permits the majority

to at least superficially comply with our precedent requiring

that it first address the first prong of the qualified immunity

analysis, by finding that the Kippses' alleged a violation of a

clearly established constitutional right, but then in the end,

return to the actual holding of the original opinion that:

The defendants are entitled to qualified immunity because their conduct was objectively reasonable.

There are several serious problems with the majority’s

analysis of the first prong of the qualified immunity inquiry in

this case. First, the majority spills a lot of ink driving home

the importance of the family. I wholeheartedly agree that family

relationships are important. I even agree that the United States

Constitution affords parents certain protections from unreasonable state interference in decisions regarding the care,

custody, training, and education of their children. I do not

agree, however, that the Constitution may be invoked to remedy

every stupid, irrational, or unreasonable decision taken by a

state official, regardless of whether there is actually any

tangible interference in the family/parental relationship. The

majority apparently disagrees, stating that:

Kipps was fired because of his actual association with his son. This is separate and distinct from a claim of state interference with that association.

I can find no logical or jurisprudential support for the

existence of a constitutional right of association that is so

easily divorced from state interference with that right.

The majority’s stated objective in making this questionable

distinction is nothing more than an attempt to avoid the

defendants’ argument that the level of state interference must be

such that the facts state a claim of constitutional magnitude.

Majority Opinion at 4. I find the majority’s cursory rejection

of this argument unpersuasive, and therefore register my

disagreement with the majority’s view that some tangible level of

state interference is not required to state a constitutional

claim for violation of the plaintiffs’ associational rights.

Having established that there is a clearly established right

to familial association that is separate and apart from the right

to be free from state interference with familial relationships,

the majority next remarks that the facts in this case actually

fall in the heartland, rather than "on the fringe," of the

jurisprudence addressing the constitutional right to familial integrity. The majority’s conclusion in this regard is supported

by nothing more than the assumption that the case involves a

parent/child relationship. Majority Opinion at 5-6. I could not

disagree more. At all times relevant to the actions in

controversy in this suit, Kyle Kipps was over the age of 18, and

under Louisiana law, his parents could no longer tell him where

he had to go to school. There is no dispute whatsoever about the

fact that Kyle Kipps himself, rather than his parents, made the

decision to go to school at LSU and play football there. There

is no dispute that Kyle had full and ample opportunity to discuss

with his parents the choices and alternatives he had about going

to college and playing football. Furthermore, there is no

allegation that any of the defendants' conduct caused any breach

or separation of the love and affection existing between the

Kippses and their adult son. There are, therefore, no facts

tending to establish any actual interference with the Kippses’

familial relationships. I conclude that the Kippses have not

alleged a clearly established right which some conduct of the

defendants violated.

To the extent the majority concludes otherwise, I believe

they are conflating the issues of whether a constitutional right

exists in the abstract, and whether that right is implicated on

the facts alleged by the plaintiffs. The majority assumes that

the mere existence in the abstract of some clearly established

constitutional right, in this case the right to “actual” familial

association, is sufficient to defeat a claim of qualified

g:\opin\98-30978.d2 -10- immunity. But that is not the law. We have consistently

required more than that the plaintiffs be able to name or invoke

some clearly established constitutional right. A defendants’

properly invoked claim of qualified immunity cannot be defeated

absent factual allegations which, if accepted as true, at least

potentially state a claim for violation of that right. See,

e.g., Shipp v. McMahon,

(5th Cir. 2000); Petta

v. Rivera,

(5th Cir. 1998); Cantu v. Rocha,

(5th Cir. 1996). For that reason, the relevant

issue is not whether there might, in an appropriate case, be some

constitutionally impermissible measure of intrusion into the

familial relationship. The question is whether the Kippses’

factual allegations even potentially set forth a claim for an

intrusion of constitutional magnitude in this case. For the

reasons stated, I do not believe the mere existence of a

parent/child relationship between the Kippses and their son is

sufficient to state a cause of action for such an intrusion.6 I

would therefore base the decision in this case upon the Kippses’

failure to state the violation of a constitutional claim, rather

than on the patently ridiculous premise that the head coach's

6 The majority claims I have “missed the point” by failing to realize that only Rexford Kipps alleged a violation of his right to familial association. I beg to differ. There are three plaintiffs in this case and all of the allegations relating to the plaintiffs’ familial association rights are consistently framed in terms of all three plaintiffs or all three complainants. See, e.g., Complaint ¶ 15 (“the defendants’ actions impermissibly infringe upon complainants’ right to make intimate, personal decisions regarding their familial relationships”); Id. at ¶ 16 (defendants “violated complainants’ right to association as guaranteed by the First, Third, Fourth, and Fifth Amendments to the United States Constitution, and Rexford `Rex’ Kipps’ right to due process under the Fourteenth Amendment to the United States Constitution”). That being the case, I am frankly baffled by the majority’s comment that only Rexford Kipps is raising the claim.

g:\opin\98-30978.d2 -11- decision to fire Kyle's father because Kyle decided to attend LSU

was objectively reasonable.

g:\opin\98-30978.d2 -12-