Duty to Protect School Children From Personal Injury

F.3d, 2011 U.S. App. LEXIS 16321 (5th Cir. Aug. 5, 2011)

"The Sexual Abuse of a Student: Deliberate Indifference to a Special Relationship; a School Child’s Lament Heard"

By Todd A. DeMitchell

Professor of Education Law & Policy, Department of Education; Lamberton Professor, Justice Studies Program, University of New Hampshire

The sexual abuse of a child is heinous act. Bringing to bear the full weight of the law and society’s condemnation of these acts are appropriate responses. But what legal remedy is brought to bear in instances in which the child is a public school student and the abuse is related to her/his status as a student? A case out of the Fifth Circuit Court of Appeals recently addressed this question of what remedy is available to a nine-year-old student who was checked out of school a number of times by an unauthorized adult, who raped and sodomized her and then returned her to school. This case is important because it potentially opens a door previously closed to student plaintiffs seeking judicial relief for their injuries. The case is Doe v. Covington County School District, ___F.3d___, 2011 U.S. App. LEXIS 16321 (5th Cir. Aug. 5, 2011), in which the Fifth Circuit Court of Appeals found that the school acted with deliberate indifference to the due process rights of Jane Doe.

Previous to Covington, and from the same appellate court, the Fifth Circuit Court of Appeals in Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir.1994) (en banc) held that schoolchildren have a liberty interest in their bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment. Similarly, the Third Circuit Court of Appeals in Stoneking v. Bradford Area School District, 882 F.2d 720 (3rd Cir.1989) found that the Due Process Clause encompasses a student’s right to be free from sexual assaults by his or her teacher.

However, while courts have held that children have a constitutional right under the Fourteenth Amendment to be free from bodily injury, student plaintiffs have been denied relief under the Fourteenth Amendment substantive due process right to liberty. A suit out of the Seventh Circuit best sums the legal approach to the use of substantive due process, commonly called a constitutional tort, to hold a school district liable for an injury to a student. J.O. v. Alton Community Unit School District 11, 909 F.2d 267 (7th Cir. 1990) involved accusations of abuse by three students against a teacher. The Court of Appeals applying the due process reasoning of the United States Supreme Court in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), rejected the analogy between school children and prisoners or mental patients which have a special relationship with the state that incarcerated them.  Prisoners and mental patients, the Supreme Court in DeShaney wrote, because the State by affirmative action “restrains an individual’s liberty that it renders him unable to care for him unable to provide for basic human needs like food, clothing shelter, medical care, and reasonable safety” it transgresses Constitutional guarantees (Id. at 200). In contrast, the state merely requires a child to attend school, which does not prevent the child from meeting her basic human needs. By mandating school attendance, the Seventh Circuit Court of Appeals in J.O. said, “the state . . . has not assumed responsibility for [children’s] entire personal lives; these children and their parents retain substantial freedom to act” (J.O. v. Alton Community School District 11, 909 F.2d at 273).

The Seventh Circuit concluded that school children are not entitled to the special constitutional protection given to prisoners and mental patients under DeShaney. “The analogy of a school yard to a prison may be a popular one for school-age children,” the court observed, “but we cannot recognize constitutional duties on a child’s lament” (Id.).

The Issue

The Fifth Circuit Court of Appeals in Covington wrote, “The question that lies at the core of this appeal is: Are there circumstances under which a compulsory-attendance, elementary public school has a ‘special relationship’ with its nine-year-old students such that it has a constitutional ‘duty to protect’ their personal security.” Id. at *2.

The Facts (as alleged by the Plaintiffs)

Jane Doe was a nine-year old fourth-grade student. Her school had a policy that required adults who wanted to check out their children to go to the office and sign the child out. The school’s policy created an individual Permission to Check-Out Form for each student, which listed each adult’s name who was authorized to check out the student. The policy did not require school personnel to verify the identity of the person. (Id. at *10-11).

On six occasions, Tommy Keyes checked Jane out of school during the school day. Keyes was not listed on the authorized list. Five of the six times when checking Jane out of school Keyes wrote that he was Jane’s father and the other time he wrote that he was Jane’s mother. Upon checking Jane out of school, Keyes “brutally raped, sodomized, and molested her and then returned her to the School, where the School's employees checked her back on to the school grounds.” Id. at *10.

The Special Relationship of DeShaney

As a general constitutional proposition, government agencies do not have an affirmative duty to protect citizens from injury caused by private actors. However, the United States Supreme Court in Deshaney v. Winnebago County Department of Social Services, 489 U.S 189 (1989), while supporting the general proposition (“As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Id. at 197), recognized an exception to this rule under the substantive component of the Due Process clause.

States have an affirmative duty to protect those with whom it has a custodial relationship, the Supreme Court asserted. In particular, states have an affirmative duty to protect incarcerated prisoners and hospitalized mental patients from harm because those persons are unable to care for themselves (Id. at 200). Absent a custodial type of relationship that renders the person, or his/her parents/guardians acting on their behalf, incapable of acting on his or her own, the State does not have an affirmative duty to protect the individual from harm from another (Id.). In other words, a special relationship has not been established.

Analysis of the Issue

The federal district court in Covington granted the defendant school district’s motion to dismiss based on the argument the school did not have a special relationship with her and therefore it did not owe her a constitutional duty to protect Jane Doe’s personal integrity/security.

The plaintiff appealed. In order to prevail, Jane Doe was required to show that she had a special relationship with the school. The Fifth Circuit had specifically rejected this cause of action in a previous case, which presented a major obstacle for Jane Doe to overcome. The Court of Appeals met this challenge by declaring what the case was not about. First, the case did not involve the school standing passively by in the face of suspicious circumstances (Id. at *3). Second, the case did not involve an assault after school (Id.). Third, the assault did not take place on school grounds during the school day by a private actor (Id.). Fourth, Doe was not sexually abused by an employee (Id.). “Thus,” the court asserted, “the instant case is distinguishable from the significant ‘special relationship’ cases that this court, sitting en banc, has previously decided” (Id.). In addition to distinguishing the present case from its past holdings, the court also had to find that the facts of the Doe case were “significantly different” from those in DeShaney (Id. at *15).

The majority of the Fifth Circuit’s three-judge panel held that while compulsory-attendance alone does not ipso facto create a special relationship, a special relation can be created when the plaintiff is very young (pre-pubescent) and the school affirmatively acts pursuant to its check-out policy to effectively isolate the child from her teachers, classmates, and without the knowledge or consent of the parents/guardians, and the school “forces” the student into a more restrictive, off-campus custody (Id. at *25). The active nature of releasing the child to the abuser who was not privileged to remove the student from the protective custody of the school was important to the Panel. The court wrote, “We are convinced that, as alleged, these repeated deliberate acts of the School constitute precisely the kind of "affirmative exercise of State power" contemplated in DeShaney” (Id. at 31-2).

The affirmative acts not only formed the basis for the special relationship they were instrumental in the reasoning of the court to establishing that the special relationship was breached by the school. The Panel found that the school acted with deliberate indifference to their duty to protect Jane’s personal security (Id. at *42). The school failed to follow its own policy for checking students out during the course of the school day, not once but multiple times. It did not verify the identity of Keyes to confirm that he was entitled to check Jane out of school even though it had actual knowledge of the danger the policy created for Jane’s safety (Id. at *44).

The Panel reversed the lower court’s dismissal of the suit asserting that a special relationship had been created with Jane Doe and that the school’s deliberate indifference violated Jane’s substantive due process rights (Id. at *47-8). However, the court affirmed the dismissal of the claims because the defendant’s special relationship right was not clearly established at the time of the incidents.

The Dissent

A dissent was filed by Judge King. Characterizing the release of Jane to her abuser as a “careless mistake” Judge King asserted the Majority’s decision was “an unwarranted expansion of the ‘special relationship’ exception to the general rule that state actors are not required to protect individuals from private harm” (Id. at *51). The Dissent stated that the Majority conspicuously failed to adequately discuss the wide uniformity of cases under a variety of circumstances holding that a school does not have special relationship with its students creating a constitutional duty to protect the student from harm (Id. at *65). The distinction between the age of Jane Doe and other plaintiffs from previous cases was “troubling” and “arbitrary” to Judge King (Id. at *66). Also, Judge King disagreed with the assertion that Jane was “forced” to go with Keyes, instead describing the check-out as allowing her to leave. (Id. at *50). No constitutional duty was created, the Dissent concluded.


Clearly this case is very important. For the first time a Court of Appeals has found that a special relationship was created between a public school student and a public school. A door for plaintiffs, which had previously been closed, has been opened. Its true impact will be developed through the application of the standard in the Fifth Circuit. It remains to be seen whether other circuits will use Covington as persuasive authority or whether the Supreme Court will accept it for review.

Whether a door opens or not in all jurisdictions, this case underscores the need to review policies and practices that are designed to protect students. Do they serve the goal of protection and are they implemented in a consistent and effective manner? In the final analysis, it is not which legal remedy a student can use n a law suit that is critical; it is how the educational policies are implemented so as to protect children that is the most important task of educators.