PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                      No. 14-3535
                     _____________

           MICA D. SPADY, Individually and
  as Administratrix of the Estate of Juanya Demore Spady,


                            v.

THE BETHLEHEM AREA SCHOOL DISTRICT; JOSEPH
J. RAY; HARRISON BAILEY, III; CARLTON RODGERS;
    JOHN AND JANE DOE #1; SUSAN DALTON, RN;
KATHLEEN HALKINS, RN; JOHN AND JANE DOES 2-X

                       Carlton Rodgers,
                                    Appellant
                     _____________

         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                 (D.C. Civil No. 5:12-cv-06731)
           District Judge: Honorable Joel H. Slomsky
                     ______________

                   Argued June 2, 2015
                    ______________

       Before: RENDELL, HARDIMAN, and VANASKIE,
                    Circuit Judges

            (Opinion Filed: September 1, 2015)



Audrey J. Copeland, Esq. [ARGUED]
Marshall, Dennehey, Warner, Coleman & Goggin
620 Freedom Business Center, Suite 300
King of Prussia, PA 19406
      Counsel for Appellant

Steven C. Ameche, Esq. [ARGUED]
Richard J. Orloski, Esq.
The Orloski Law Firm
111 North Cedar Crest Boulevard
Allentown, PA 18104
       Counsel for Appellee
                         ___________

                OPINION OF THE COURT
                     ___________

VANASKIE, Circuit Judge.

       This action stems from the death of Juanya Spady, the
fifteen-year-old son of Appellee Mica Spady.1 Juanya died of
what appears to have been a rare form of asphyxiation known
as “dry drowning” or “secondary drowning,” shortly after his
participation in a mandatory swimming class run by his
physical education (“P.E.”) teacher, Appellant Carlton
Rodgers. Spady filed suit against Rodgers and the Bethlehem
Area School District (“BASD”), claiming violations of her
son’s civil rights under 42 U.S.C. § 1983. Rodgers moved for
summary judgment on the basis of qualified immunity, which
the District Court denied. Because we agree with Rodgers’s
contention on appeal that his conduct did not violate a clearly
established constitutional right, we will reverse the District
Court’s order denying summary judgment with instructions to
grant summary judgment in Rodgers’s favor.




      1
         For clarity, we will refer to Mica Spady as “Spady”
and to her son as “Juanya.”


                              2
                               I.

       The facts of this case, as the District Court aptly noted,
are “undeniably tragic.” 2 Spady v. Bethlehem Area Sch.
Dist., No. CIV.A.12-6731, 

, at *1 (E.D. Pa.
July 30, 2014). In November 2010, Juanya Spady transferred
to Liberty High School, which is part of the BASD. A
fifteen-year-old, tenth-grade student, Juanya was enrolled in a
variety of classes, including a P.E. course taught by Rodgers,
who had been a full-time P.E. teacher at Liberty for
approximately four years and was a certified lifeguard.

       As part of the P.E. curriculum, students rotated into a
two-week swimming course conducted at Liberty’s
swimming pool. During the last week in November and the
first week of December of 2010, Juanya’s P.E. class was
assigned to the swimming course. As per Rodgers’s policy,
students were required to be in the pool for the entirety of
each class or risk having points deducted from their grade.
This policy applied to non-swimmers as well as swimmers.
Rodgers acknowledged that he was made aware that Juanya
could not swim.

        The classes were all taught in the same fashion, with
Rodgers standing at the side of the pool and instructing the
students for approximately 20 minutes on a specific stroke.
After each lesson concluded, students were allowed to swim
freely in the pool. In addition to Rodgers, a student lifeguard
also was “on duty,” although such supervision usually
consisted of monitoring the pool from a reclined position on
the bleachers. Non-swimming students could remain in the
shallow end during the entirety of the class, but were also
permitted to venture into the deep end by holding onto the
side of the pool, a practice referred to as “gutter grabbing.”

       2
         As we are obligated to do in reviewing a motion for
summary judgment, we recount the facts in the light most
favorable to Spady, the non-moving party. Frank C. Pollara
Grp., LLC v. Ocean View Inv. Holding, LLC, 

,
179 n.1 (3d Cir. 2015).


                               3
Aside from these general procedures, there were no course
policies governing instruction or swimmer safety.

        On December 2, 2010, Juanya’s first class of the day
was P.E., which commenced at approximately 8:20 a.m.
After roll was taken, Juanya entered the pool and swam in the
shallow end for the first ten to fifteen minutes of class while
Rodgers instructed the students from the side of the pool. At
the conclusion of the lesson, Juanya departed the shallow end
and began to “gutter grab” around the edge of the pool.
While in the deep end, he ran into a group of students and
was submerged for a matter of seconds, possibly inhaling or
swallowing water as he resurfaced. Juanya then exited the
pool and told Rodgers that his chest hurt. Rodgers responded
by telling Juanya to sit on the bleachers for a few minutes.

       Several minutes later, Rodgers went over to check on
Juanya, who requested permission to remain out of the pool
for the rest of class. Rodgers denied the request and told him
to get back into the water. Juanya followed these instructions
and stayed in the shallow end for the remainder of the period.
The students vacated the pool at approximately 9:00 a.m. and
proceeded to the locker room to change.

       A few minutes later, Juanya reported to English class,
which began at approximately 9:16 a.m. His teacher reported
that he was attentive. Abruptly, at around 10:30 a.m., nearly
an hour and a half after he left the pool, Juanya fell backward
from a seated position and hit the desk behind him. As he
rolled off his chair and onto the floor, he began to have a
seizure.     Teachers observed labored breath, general
unresponsiveness, and a pink, frothy fluid escaping from
Juanya’s nose and mouth. A school nurse attempted to revive
Juanya while they waited for medical assistance. Shortly
thereafter, paramedics took Juanya by ambulance to St.
Luke’s Hospital. He died later that day.

       During the course of this litigation, Spady provided an
expert medical report opining that Juanya died of a condition
known as “delayed drowning,” Supp App. 4, or “secondary
drowning,” which can occur when a small amount of water or
other fluid is inhaled into the lungs. If the fluid is not
                              4
removed, the lungs begin to spasm, causing a build-up of
other fluids, which in turn can cause the victim to asphyxiate
because the lungs cannot oxygenate the blood. This condition
can cause death anywhere from an hour to a day after the
initial inhalation of fluid and is extremely rare, accounting for
“only 1%-2% of drownings.” Supp. App. 83.

       In December 2012, Spady filed this civil-rights action
against numerous parties, including Rodgers and the BASD,
who are the only remaining defendants at this juncture.
Spady asserted that the defendants violated Juanya’s
constitutional rights, triggering liability under 42 U.S.C. §
1983. More specifically, Count II of the complaint alleges a
Fourteenth Amendment due-process violation premised on
the state-created-danger theory of liability against Rodgers,
and Count IV raises a claim of municipal liability against
BASD based on a theory of deliberate indifference.

        After the close of discovery, Rodgers moved for
summary judgment as to Count II, asserting that qualified
immunity precluded liability.3 By Memorandum and Order
filed July 30, 2014, the District Court denied the motion for
summary judgment, concluding that a genuine dispute of
material fact existed as to whether Rodgers violated Juanya’s
constitutional rights. Spady, 

at *5. The
District Court also concluded that because it was unclear
“whether a constitutional violation actually occurred,” it need
not determine whether that right was “clearly established.”

v. Klem, 

, 208, 211 (3d Cir.
2007)). Rodgers timely appealed.

                               II.

      The District Court had jurisdiction under 28 U.S.C. §§
1331 and 1343(a)(3), and we have appellate jurisdiction under
28 U.S.C. § 1291 by way of the collateral order doctrine.

       3
        BASD also moved for summary judgement on Count
IV. The District Court denied summary judgement on Count
IV and that ruling is not before us.


                               5
Dougherty v. Sch. Dist. of Phila., 

, 985 (3d Cir.
2014). “It is well established that an order denying summary
judgment on qualified immunity grounds may qualify as an
appealable final decision under the collateral order doctrine”
where the appeal presents a pure question of law. 

(citing Mitchell v. Forsyth, 

, 526–30 (1985)).
“Whether an asserted federal right was clearly established at a
particular time, so that a public official who allegedly
violated the right has no qualified immunity from suit,
presents a question of law[.]” Elder v. Holloway, 

, 516 (1994). Therefore, we have jurisdiction to consider
whether the constitutional right at issue was clearly
established on December 2, 2010.4


       4
          Seizing upon the following language from Curley—
“‘[i]f, and only if, the court finds a violation of a
constitutional right,’ the court moves to the second step of the
analysis and asks whether immunity should nevertheless
shield the officer from 

(quoting
Scott v. Harris, 

(2007))—Spady argues we lack
jurisdiction to consider whether the asserted right was clearly
established on December 2, 2010. Spady’s argument is
without merit. Curley neither speaks to our jurisdiction, nor
limits it in any manner.

       We also take this opportunity to clarify Curley, which
the District Court cited in declining to reach the “clearly
established” prong of the qualified immunity analysis. The
process for determining the applicability of qualified
immunity discussed in Curley was set out in Saucier v. Katz,

(2001). Under Saucier, courts were required to
first decide whether a constitutional violation actually
occurred, and only then consider whether the right at issue
was clearly established at the time of the violation. 

This rigid system of analysis was overruled by
Pearson v. Callahan, which provided that courts should
“exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be
addressed first.” 

, 236 (2009). Under either test,
however, the court may not deny a summary judgment

                               6
                              III.

       “When properly applied, [qualified immunity] protects
‘all but the plainly incompetent or those who knowingly
violate the law.’” Ashcroft v. al-Kidd, 

, 2085
(2011) (quoting Malley v. Briggs, 

, 341 (1986)).
In considering the applicability of qualified immunity, courts
engage in a two-pronged examination. First, a court must
decide “whether the facts that a plaintiff has . . . shown make
out a violation of a constitutional right.” Pearson, 555 U.S at
232. And second, the court must determine “whether the
right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” 

Courts may begin their consideration with either prong. 

       Here, the District Court began with the first prong and
analyzed Spady’s constitutional claim under the state-created-
danger theory, which is an exception to the general rule that
“[t]here is no affirmative right to governmental aid or
protection under the Due Process Clause of the Fourteenth
Amendment.” Ye v. United States, 

, 636 (3d Cir.
2007) (citing Deshaney v. Winnebago Cnty. Dep’t of Soc.
Servs., 

(1989)). We adopted this exception in
Kneipp v. Tedder, where we explained that a plaintiff must
show the following:



motion premised on qualified immunity without deciding that
the right in question was clearly established at the time of the
alleged wrongdoing. See Sherwood v. Mulvihill, 

, 399 (3d Cir. 1997) (“[T]he plaintiff bears the initial
burden of showing that the defendant’s conduct violated
some clearly established statutory or constitutional right.”
(emphasis added)). That is, while issues of fact may preclude
a definitive finding on the question of whether the plaintiff’s
rights have been violated, the court must nonetheless decide
whether the right at issue was clearly established. Failure to
do so is error.


                               7
              (1) the harm ultimately caused
              was foreseeable and fairly direct;
              (2) the state actor acted in willful
              disregard for the safety of the
              plaintiff; (3) there existed some
              relationship between the state and
              the plaintiff; (4) the state actors
              used their authority to create an
              opportunity that otherwise would
              not have existed for the [harm] to
              occur.

, 1208 (3d Cir. 1996) (quoting Mark v. Borough
of Hatboro, 

, 1152 (3d Cir. 1995)). As reflected
in the District Court’s opinion, the state-created-danger
analysis necessitates a fact-intensive inquiry.

       Pearson recognized, however, that there are instances
where a case is most easily resolved by addressing whether
the right was clearly established at the time of the alleged
violation. 

; Werkheiser v. Pocono Twp.,

, 176 (3d Cir. 2015). We conclude this is such a
case and will address the second prong of the qualified
immunity analysis at the outset.

                              A.

        Before deciding whether the constitutional right Spady
relies upon was clearly established, we must first frame the
precise contours of that right. Spady’s claim is derived from
the Due Process Clause of the Fourteenth Amendment, which
reads that “[n]o state shall . . . deprive any person of life,
liberty, or property, without due process of law[.]” U.S.
Const. amend. XIV, § 1. Spady argues that this case
implicates a student’s “constitutional right to be free from
school officials’ deliberate indifference to, or acts that
increase the risk of serious injury from unjustified invasions
of bodily integrity[.]” Appellee’s Br. at 24 (quoting Sciotto v.
Marple Newton Sch. Dist., 

, 570 (E.D. Pa.
1999)).


                               8
        We are mindful, however, that courts are “not to define
clearly established law at a high level of generality.” 

(citations omitted). Instead, courts “must
define the right allegedly violated at the appropriate level of
specificity.” Sharp v. Johnson, 

, 159 (3d Cir.
2012). Accepting Spady’s broad version of the right at issue
“would . . . convert the rule of qualified immunity that our
cases plainly establish into a rule of virtually unqualified
liability simply by alleging violation of extremely abstract
rights.” Anderson v. Creighton, 

, 639 (1987).
We are thus required to frame the right at issue “in a more
particularized, and hence more relevant, sense,” 

, “in light of the case’s specific context, not as
a broad general proposition,” 

.

        In this case, the specific context is a student who
experiences a brief submersion under water, exits the pool
and complains of chest pain, is ordered to return to the pool
after a several-minute respite, then stays in the shallow end of
the pool for the remainder of the class, and does not exhibit
signs of serious distress until more than one hour later. The
specific constitutional right under the Due Process Clause in
this context is the right to affirmative intervention by the state
actor to minimize the risk of secondary or dry drowning.
And, for qualified immunity purposes, the question is whether
the law in this context was so well-established that it would
have been apparent to a reasonable gym teacher that failure to
take action to assess a non-apparent condition that placed the
student in mortal danger violated that student’s constitutional
right under the state-created-danger theory of liability.

                               B.

        In order for a right to be clearly established there must
be applicable precedent from the Supreme Court, which there
is not, and even if “‘a robust consensus of cases of persuasive
authority’ in the Court of Appeals ‘could itself establish the
federal right’” as Spady alleges, there is no such consensus
here. Taylor v. Barkes, 

, 2044 (2015) (per
curiam) (quoting City & Cnty. of S.F. v. Sheehan, 

, 1778 (2015)). Although Spady does not have to
produce “a case directly on point, . . . existing precedent must
                                 9
have placed the statutory or constitutional question beyond
debate.” 

(citations omitted)
(emphasis added). Stated another way, a court need not find
that “the very action in question has previously been held
unlawful,” 

, but rather may
conclude that the firmly settled state of the law, established
by a forceful body of persuasive precedent, would place a
reasonable official on notice that his actions obviously
violated a clearly established constitutional right. 

; 

.

       Turning to the present matter, no Supreme Court case
has established a right to adequate safety protocols during
public-school swimming class. Indeed, no decision of the
Supreme Court even discusses the right of students to have
adequate safety protocols in these settings or in any analogous
setting. Spady also concedes that our jurisprudence has not
recognized a state-created-danger theory on these or similar
facts. Nonetheless, Spady argues that our decision in Kneipp
v. Tedder, and a holding of the Eastern District of
Pennsylvania in Sciotto v. Marple Newton School District,
support her argument that the right at issue was clearly
established. We address each case in turn.

       The facts of Kneipp are not even remotely close to the
facts presented here. There, several police officers came
upon an intoxicated couple walking home and stopped them
for a brief 

. The police observed the
woman to be drunk—she was having difficulty standing,
could not follow simple instructions, and smelled of urine.

officers then sent her male companion home,
but continued to detain her for an additional period of time.

The officers later released her from custody to
walk home alone, and she fell down an embankment,
sustaining serious injuries. 

We held that:

              [T]he state-created danger theory
              is a viable mechanism for
              establishing a constitutional claim
              under 42 U.S.C. § 1983. When
              viewed in the light most favorable
              to the legal guardians, the
                              10
               evidence submitted was sufficient
               to raise a triable issue of fact as to
               whether the police officers
               affirmatively placed [Kniepp] in a
               position of danger.

       The act of separating a visibly intoxicated person from
her traveling companion and then forcing her to walk home
alone—which necessarily increased the obvious risk that she
would fall and injure herself, 

far afield from
having a student participate in swim class as part of a regular
P.E. curriculum. Consequently, it cannot be the case that
Kniepp put Rodgers, a public school gym teacher, on notice
regarding the alleged constitutional violation at issue here.

        Spady’s reliance on Sciotto is equally unavailing. That
case involved a wrestling coach who pitted a 16-year-old,
110-pound sophomore wrestler against a 22-year-old, 150-
pound former member of a Division I wrestling team. 81 F.
Supp. 2d at 561–62. While the two were grappling, the
college athlete severely injured the victim’s spine, ultimately
resulting in quadriplegia. The district court held that “a
student’s right, in a school setting, to freedom from school
officials’ deliberate indifference to, or acts that increase the
risk of serious injury from unjustified invasions of bodily
integrity perpetrated by third parties” was clearly established
based on its canvassing of Supreme Court cases and our
precedent. 

Sciotto relied principally on Ingraham
v. Wright, which held “that Fourteenth Amendment liberty
interests are implicated” when a school official imposes
punishment “by restraining the child and inflicting
appreciable physical pain,” 

, 674 (1977),5 and

       5
       Although recognizing that various constitutional
rights were implicated by corporal punishment in public
schools, the Supreme Court held that

               [t]he     Eighth   Amendment’s
               prohibition against cruel and

                                11
Stoneking v. Bradford Area School District, where we
recognized “a student’s right to be free from sexual assaults
by his or her teachers,” 

, 727 (3d Cir. 1989).6

        We do not deny that Sciotto and this matter present
heart-wrenching circumstances. To equate the intentional
infliction of painful corporal punishment or the sexual
molestation of a student, however, with a student-athlete’s
unfortunate accident during wrestling practice or a rare

              unusual       punishment       is
              inapplicable to school paddlings,
              and the Fourteenth Amendment’s
              requirement of procedural due
              process is satisfied by Florida’s
              preservation of common-law
              constraints and remedies. We
              therefore agree with the Court of
              Appeals . . . that petitioners
              cannot recover damages on the
              basis of any Eighth Amendment
              or procedural due process
              violation.

.

       6
         Sciotto also relies upon D.R. by L.R. v. Middle Bucks
Area Vocational Technical School, where we held there was
no viable state-created-danger claim when students
committed sexual assaults against other students while in
school. 

, 1374 (3d Cir. 1992) (en banc).
Although characterizing it as “an extremely close case,” 

to find that failure to properly monitor a
classroom, which resulted in students being sexually
assaulted, or to report those sexual assaults to the victims’
parents or other authorities made out a constitutional
violation, 

Rather than lending support to Spady’s
position, our reluctance to extend Stoneking further illustrates
its inapplicability to this matter.


                              12
instance of delayed drowning after swim class is a bridge too
far. The case law simply did not inform a reasonable gym
teacher that the failure to asses a student who briefly goes
under water for the possibility of dry drowning violated that
student’s constitutional right to bodily integrity free from
unwarranted intrusions by the state.7

        Much like Ingraham and Stoneking, courts that have
found colorable constitutional violations in school-athletic
settings did so where state actors engaged in patently
egregious and intentional misconduct, which is notably absent
from this case. For example, in Neal ex rel. Neal v. Fulton
County Board of Education, the Eleventh Circuit concluded
that a student athlete had made out “a violation of his right
under the Fourteenth Amendment to be free from excessive
corporal punishment,” 

, 1076 (11th Cir. 2000),
after a coach struck the student with a blunt object, knocking
out his left eye, 

see also Johnson v. Newburgh
Enlarged Sch. Dist., 

, 252 (2d Cir. 2001) (no
qualified immunity where gym teacher picked up a student by
his throat and rammed his head into bleachers and a fuse

      7
          Indeed, when faced with factual scenarios analogous
to Sciotto—i.e., injuries sustained during school athletic
activities—several district courts in this circuit have reached
decidedly different conclusions and declined to find a
constitutional violation. See, e.g., Lavella v. Stockhausen,
No. 13-CV-0127, 

(W.D. Pa. May 1, 2013)
(dismissing civil rights action premised on state-created
danger after previously concussed cheerleader was struck in
the head by another cheerleader during practice); Leonard v.
Owen J. Roberts Sch. Dist., No. CIV.A.08-2016, 

(E.D. Pa. Mar. 5, 2009) (no state-created danger
when student was impaled by a javelin thrown by another
student); Yatsko v. Berezwick, No. 3:06-CV-2480, 

, at *6 (M.D. Pa. June 13, 2008) (failing to withhold
a concussed student from returning to a basketball game did
“not constitute . . . a substantive due process violation”).
These cases demonstrate there is no vigorous consensus of
authority to support Sciotto’s broad holding.


                              13
box). Such blatantly excessive punishment is far afield from
the typical risks that are associated with participation in
athletic activities, see, e.g., Davis v. Carter, 

,
984 (11th Cir. 2009) (no constitutional violation stemming
from student-athlete’s death after rigorous football practice),
or even the minimal type of intentional physical contact that,
while deplorable, will rarely make out a constitutional
violation, see, e.g., Lillard v. Shelby Cnty. Bd. of Educ., 

, 726 (6th Cir. 1996) (“While we do not mean to
suggest that school systems should tolerate a teacher who
slaps a student in anger, neither do we conclude that one slap,
even if made for no legitimate purpose, rises to the level of a
constitutional violation.”).

       Aside from Kniepp and Sciotto, Spady has “not
brought to our attention”—and we cannot find—“any cases of
controlling authority in [any] jurisdiction at the time of the
incident which clearly established the rule on which [she]
seek[s] to rely, nor [has she] identified a consensus of cases
of persuasive authority,” Wilson v. Layne, 

, 617
(1999) (modifications added), whereby a reasonable gym
teacher would have been aware that his actions were
unconstitutional.8 Accordingly, we hold that Juanya did not
have a clearly established constitutional right to dry-
drowning-intervention protocols while participating in P.E.
class.9 Our conclusion is buttressed by numerous rulings

      8
         The closest cases to the present matter we have
located are Estate of C.A. v. Castro, 547 F. App’x 621 (5th
Cir. 2013), which involved the drowning death of a student
during a science experiment, and Langan ex rel. Langan v.
Grand Rapids Public School System, No. 94-CV-174, 

(W.D. Mich. Feb. 28, 1995), which concerned
a student who suffered a neck injury after diving into the
shallow end of a school’s pool. Both courts concluded that
the plaintiffs failed to make out a constitutional claim. C.A.,
547 F. App’x at 625; Langan, 

, at *4.
Thus, they do not support Spady’s position.
      9
        Spady points to a host of safety measures that her
aquatic expert claims should have been implemented and,

                              14
from other courts that address injuries caused by public-
school teachers. See, e.g., Nix v. Franklin Cnty. Sch. Dist.,

, 1378–79 (11th Cir. 2002) (no viable
constitutional claim where student died after touching
exposed high-voltage wire during science experiment);
Voorhies v. Conroe Ind. Sch. Dist., 

, 873
(S.D. Tex. 1985) (no constitutional claim where shop teacher
removed safety guard on a power saw causing student to
severely lacerate hand).

       Our holding is also in accord with the traditional limits
of the Fourteenth Amendment. As observed in DeShaney:

              The [Due Process] Clause is
              phrased as a limitation on the
              State’s power to act, not as a
              guarantee of certain minimal
              levels of safety and security. It
              forbids the State itself to deprive
              individuals of life, liberty, or
              property without “due process of
              law,” but its language cannot
              fairly be extended to impose an
              affirmative obligation on the State
              to ensure that those interests do
              not come to harm through other
              

(emphasis added). “[H]ard as our sympathies
may pull us, our duty to maintain the integrity of substantive

potentially, could have averted this tragedy. Even assuming
Rodgers was charged with implementing these measures—
rather than the BASD—this argument does nothing to change
our conclusion that Rodgers is entitled to qualified immunity.
See 

(“[A] plaintiff cannot
‘avoi[d] summary judgment by simply producing an expert’s
report’” opining that the state actor’s conduct “was
imprudent, inappropriate, or even reckless.” (quoting
Billington v. Smith, 

, 1189 (9th Cir. 2002))).


                              15
law pulls harder.” Turner v. Atl. Coast Line R.R. Co., 

, 589 (5th Cir. 1961).

                           IV.

       For the aforementioned reasons, we will reverse the
District Court’s Order of July 30, 2014, denying Rodgers’s
motion for summary judgment.




                           16