Doe Ex Rel. Magee v. Covington County School District

Case: 09-60406 Document: 00511798661 Page: 1 Date Filed: 03/23/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 23, 2012

No. 09-60406 Lyle W. Cayce

Clerk

JANE DOE, A Minor, By and Through Her Next Friends, Daniel Magee and

Geneva Magee; DANIEL MAGEE, Individually and on Behalf of Jane Doe;

GENEVA MAGEE, Individually and on Behalf of Jane Doe, A Minor,

Plaintiffs–Appellants

v.

COVINGTON COUNTY SCHOOL DISTRICT, by and through its Board of

Education and its President, Andrew Keys and its Superintendent of

Education, I.S. Sanford, Jr.; COVINGTON COUNTY SUPERINTENDENT

OF EDUCATION, I.S. SANFORD, Officially and in His Individual Capacity;

COVINGTON COUNTY BOARD OF EDUCATION, By and Through its

President, Andrew Keys; ANDREW KEYS, Officially and in His Individual

Capacity; TOMMY KEYES; OTHER UNKNOWN JOHN DOE AND JANE

DOE EDUCATION DEFENDANTS A-Z, In Their Official and Individual

Capacities,

Defendants–Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, WIENER,

GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN,

ELROD, SOUTHWICK, HAYNES, GRAVES, and HIGGINSON, Circuit Judges.

KING, Circuit Judge, joined by EDITH H. JONES, Chief Judge, E. GRADY

JOLLY, W. EUGENE DAVIS, JERRY E. SMITH, EMILIO M. GARZA,

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BENAVIDES, CARL E. STEWART, EDITH BROWN CLEMENT, PRADO,

OWEN, JENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, HAYNES,

and GRAVES, Circuit Judges:

For the third time, the en banc court is called upon to decide whether a

public school student has stated a constitutional claim against her school for its

failure to protect her from harm inflicted by a private actor. Relying on our prior

en banc opinions, the district court found that she had failed to state a claim and

dismissed her complaint. A panel of this court reversed in part, concluding that

the student had a special relationship with her school under DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189 (1989), and that

the school was therefore constitutionally obligated to protect her from acts of

private violence. The panel nevertheless granted qualified immunity to those

defendants sued in their individual capacities. We granted rehearing en banc,

thereby vacating the panel opinion. We now hold that the student did not have

a DeShaney special relationship with her school, and her school therefore had

no constitutional duty to protect her from harm inflicted by a private actor. We

also hold that the student has failed to state a claim under the state-created

danger theory or under a municipal liability theory. We therefore affirm the

judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

During the 2007-2008 school year, Jane Doe (“Jane”) attended an

elementary school in Covington County, Mississippi. She was nine years old at

the time. At some point during the school year, Jane’s guardians filled out a

“Permission to Check-Out Form,” on which they listed the names of the

individuals with exclusive permission to “check out” Jane from school during the

school day. On six separate occasions between September 2007 and January

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2008,1 school employees allowed a man named Tommy Keyes (“Keyes”), who

allegedly bore no relation to Jane and was not listed on her check-out form, to

take Jane from school. On these occasions, Keyes took Jane from school without

the knowledge or consent of her parents or guardians, sexually molested her,

and subsequently returned her to school. On the first five occasions, Keyes

signed out Jane as her father. On the final occasion, he signed her out as her

mother. The complaint alleges that Keyes was able to gain access to Jane

because the policy promulgated by the various school officials permitted school

employees to release Jane to Keyes without first verifying Keyes’s identification

or whether he was among those people listed on her “Permission to Check-Out

Form.” The complaint contends that this policy created a danger to students and

the implementation and execution of the policy constituted deliberate

indifference towards the rights and safety of those students, including Jane. This

policy is alleged to be the direct and proximate cause of Jane’s injury.

The complaint thus assigns a passive role to school employees, alleging

that the school violated Jane’s constitutional rights by “allowing the Defendant,

Tommy Keyes, to check the minor child out from school” without verifying his

identity or his authorization to take the child. It also alleges that the school

policy permitted school employees to release students to individuals without

checking their identification or authorization, but did not require them to do so.

The policy thus delegated to school employees the discretion to release a student

without verifying an adult’s identity or his authorization. Furthermore, the

complaint does not claim that any school employee had actual knowledge that

Keyes was not authorized to take Jane from school, only that the employees did

not check Keyes’s identification or verify that he was among the adults listed on

Jane’s check-out form.

1

The incidents occurred on September 12, September 27, October 12, November 6,

December 11, 2007, and January 8, 2008.

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Jane, her father, and her paternal grandmother (together, the “Does”) sued

the Covington County School District; the Covington County Superintendent of

Education, I.S. Sanford, Jr., in his official and individual capacities; the

Covington County School Board; and the President of the Covington County

School Board, Andrew Keys, in his official and individual capacities (together,

“Education Defendants”). The Does also named Keyes and other unnamed

education defendants in their official and individual capacities. The Does

asserted due process and equal protection claims under 42 U.S.C. §§ 1983, 1985,

and 1986,2 as well as various state law causes of action.

On the Education Defendants’ motion, the district court dismissed the

Does’ federal claims for failure to state a claim and declined to exercise

supplemental jurisdiction over the remaining state law claims. The court

concluded that under the Supreme Court’s decision in DeShaney v. Winnebago

County Department of Social Services, 489 U.S. 189 (1989), Jane had no

constitutional right to be protected from harm inflicted by a private actor such

as Keyes except under one of two narrow exceptions—the “state-created danger”

theory and the “special relationship” exception. The district court assumed that

the state-created danger theory was available in this circuit, but held that the

Does had not sufficiently pleaded a due process violation based on that theory.

The court thus determined that the “primary question” was whether the Does

could state a claim based on a special relationship between Jane and the

2

As discussed further herein, the limited right to state protection from private violence

arises out of the substantive due process component of the Fourteenth Amendment, not equal

protection or procedural due process. See DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189, 200 (1989) (“In the substantive due process analysis, it is the State’s

affirmative act of restraining the individual’s freedom to act on his own behalf . . . which is the

‘deprivation of liberty’ triggering the protections of the Due Process Clause . . . .”); Walton v.

Alexander, 44 F.3d 1297, 1302-03 (5th Cir. 1995) (en banc). We therefore analyze Jane’s cause

of action as a substantive due process claim.

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Education Defendants, and concluded that the claim was foreclosed by our

precedent.

On appeal, a majority of a panel of this court reversed the district court’s

judgment in part. The majority found that the Does had pleaded a facially

plausible claim that the school had violated Jane’s substantive due process

rights by virtue of its special relationship with her and its deliberate indifference

to known threats to her safety. Doe ex rel. Magee v. Covington Cnty. Sch. Dist.

ex rel. Bd. of Educ., 649 F.3d 335, 353-54 (5th Cir. 2011). The panel majority,

however, affirmed the district court’s qualified-immunity dismissal of Jane’s

constitutional claim against those Education Defendants sued in their individual

capacities. Id. We ordered rehearing en banc. Doe ex rel. Magee v. Covington

Cnty. Sch. Dist. ex rel. Bd. of Educ., 659 F.3d 358 (5th Cir. 2011). For the reasons

set forth herein, we now affirm the judgment of the district court.

II. STANDARD OF REVIEW

We review a district court’s dismissal under Rule 12(b)(6) de novo,

“accepting all well-pleaded facts as true and viewing those facts in the light most

favorable to the plaintiffs.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338

(5th Cir. 2008) (citation and internal quotation marks omitted). To survive

dismissal pursuant to Rule 12(b)(6), plaintiffs must plead “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009);

Cornerstone Christian Schs. v. Univ. Interscholastic League, 563 F.3d 127, 133

(5th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing

Twombly, 550 U.S. at 556). Our task, then, is “to determine whether the plaintiff

has stated a legally cognizable claim that is plausible, not to evaluate the

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plaintiff’s likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank

PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Iqbal, 129 S. Ct. at 1949).

III. DISCUSSION

To state a claim under 42 U.S.C. § 1983, “a plaintiff must (1) allege a

violation of a right secured by the Constitution or laws of the United States and

(2) demonstrate that the alleged deprivation was committed by a person acting

under color of state law.” James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.

2008) (citation and internal quotation marks omitted). The central issue here is

whether the Does have in fact alleged the violation of a constitutional right.

Because we find that they have not, we affirm the district court’s dismissal of

this case.

A. DeShaney Special Relationship

Jane’s constitutional claim against the Education Defendants is based not

upon Keyes’s molestation of Jane, but rather upon the school’s allegedly deficient

check-out policy, which allowed the molestation to occur.3 Jane’s constitutional

claim can proceed, therefore, only if the Education Defendants had a

constitutional duty to protect Jane from non-state actors. This duty, in turn, may

exist if there is a special relationship, as contemplated by DeShaney, between

Jane and her school. See Walton v. Alexander, 44 F.3d 1297, 1300-01 (5th Cir.

1995) (en banc). We begin by reviewing DeShaney and its progeny, then

consider the application of this law in the context of this case.

3

Jane does not, and indeed cannot, state a substantive due process claim based upon

the sexual molestation itself. Although we recognized a constitutional right to bodily integrity

in Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir. 1994) (en banc), we found

that this right is “necessarily violated when a state actor sexually abuses a schoolchild and

that such misconduct deprives the child of rights vouchsafed by the Fourteenth Amendment.”

Id. at 451-52 (emphasis added). Taylor is inapplicable here because the actual violation of

Jane’s bodily integrity was caused by Keyes, a non-state actor.

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1. DeShaney Recognizes a Limited Duty to Protect

DeShaney v. Winnebago County Department of Social Services, 489 U.S.

189 (1989), arose out of the tragic case of young Joshua DeShaney, who had been

placed in state custody after the Winnebago County Department of Social

Services suspected his father of child abuse. The agency subsequently returned

Joshua to his home after finding insufficient evidence of abuse. Once at home,

Joshua continued to endure beatings from his father, and was ultimately left

with severe brain damage. Id. at 191-93. Joshua DeShaney and his mother sued

the Winnebago County Department of Social Services and various individual

defendants, alleging that the Department and its employees had violated

Joshua’s substantive due process right by failing to protect him from his father’s

violence even though they knew that he faced a very real danger of harm. Id. at

193. The Supreme Court rejected this claim, and held that the plaintiffs could

not maintain an action under § 1983 because there had been no constitutional

violation. Id. at 202. The Court noted that the Fourteenth Amendment was

enacted to “protect the people from the State, not to ensure that the State

protect[] them from each other.” Id. at 196. The Due Process Clause, the Court

explained, “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 means.” Id. at 195. Thus, the Court

concluded 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.

The Court noted that this categorical rule is subject to at least one very

limited exception.4 Under this exception, a state may create a “special

relationship” with a particular citizen, requiring the state to protect him from

4

Several courts of appeals have recognized a second limited exception, the so-called

“state-created danger” theory. We address this theory below.

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harm, “when the State takes a person into its custody and holds him there

against his will.” Id. at 199-200. In such instances, “the Constitution imposes

upon it a corresponding duty to assume some responsibility for his safety and

general well-being.” Id. at 200. That special relationship exists when the state

incarcerates a prisoner, Estelle v. Gamble, 429 U.S. 97, 103-04 (1976), or

involuntarily commits someone to an institution, Youngberg v. Romeo, 457 U.S.

307, 315-16 (1982). The DeShaney Court reasoned that:

when the State by the affirmative exercise of its power so restrains

an individual’s liberty that it renders him unable to care for himself,

and at the same time fails to provide for his basic human

needs—e.g., food, clothing, shelter, medical care, and reasonable

safety—it transgresses the substantive limits on state action set by

the Eighth Amendment and the Due Process Clause.

DeShaney, 489 U.S. at 200. The Court stated that “[t]he affirmative duty to

protect arises not from the State’s knowledge of the individual’s predicament or

from its expressions of intent to help him, but from the limitation which it has

imposed on his freedom to act on his own behalf.” Id.

In addition to the circumstances of incarceration and involuntary

institutionalization recognized by the Court in DeShaney, we have extended the

special relationship exception to the placement of children in foster care. Griffith

v. Johnston, 899 F.2d 1427, 1439 (5th Cir. 1990). We reasoned that the state

assumes a constitutional duty to care for children under state supervision

because “the state’s duty to provide services stems from the limitation which the

state has placed on the individual’s ability to act on his own behalf.” Id. We have

not extended the DeShaney special relationship exception beyond these three

situations, and have explicitly held that the state does not create a special

relationship with children attending public schools.

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2. Schools and the Special Relationship Exception in the Fifth Circuit

We have twice considered en banc whether the special relationship

exception to the DeShaney rule applies in the context of public schools. Doe v.

Hillsboro Indep. Sch. Dist., 113 F.3d 1412 (5th Cir. 1997) (en banc); Walton v.

Alexander, 44 F.3d 1297 (5th Cir. 1995) (en banc). In both cases, we concluded

that a public school does not have a special relationship with a student that

would require the school to protect the student from harm at the hands of a

private actor.

In Walton v. Alexander, the student plaintiff attended the Mississippi

School for the Deaf, a residential public school, and was sexually assaulted by

a fellow student. 44 F.3d at 1299. The student plaintiff brought suit under §

1983, based upon the special relationship exception. Even though the school was

a residential school, and thus responsible for fulfilling most of the students’ day-

to-day needs, we held that the school had not created a special relationship with

the student, because the student “attended [the] school voluntarily with the

option of leaving at will.” Id. at 1305. In so holding, we “strictly” construed

DeShaney and explained that it is “important to apply DeShaney as it is

written.” Id. at 1303, 1305. We reasoned, “DeShaney emphasize[d] . . . that

extending the Due Process Clause to impose on the state the obligation to defend

and to pay for the acts of non-state third parties is a burden not supported by the

text or history of the Clause, nor by general principles of constitutional

jurisprudence.” Id. at 1305. We concluded that “[s]uch an expansion of the state’s

liability for acts of third parties only can make constitutional sense . . . when the

state has effectively taken the plaintiff’s liberty under terms that provide no

realistic means of voluntarily terminating the state’s custody and which thus

deprives the plaintiff of the ability or opportunity to provide for his own care and

safety.” Id. (emphasis in original). It is only under these “extreme circumstances

that the state itself, by its affirmative act and pursuant to its own will, has

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effectively used its power to force a ‘special relationship,’ with respect to which

it assumes a certain liability.” Id.

We next addressed the special relationship exception in Doe v. Hillsboro

Independent School District, where we likewise held that the exception did not

apply in the context of a public school. 113 F.3d at 1415. The student plaintiff in

that case was thirteen years old. She was “kept after school to do special work

on her studies” and was sexually assaulted by a custodian (who was not alleged

to have been acting under color of state law) when she was sent to an unoccupied

area of the school to retrieve supplies for her teacher. Id. at 1414. We rejected

the plaintiff’s argument that a special relationship existed between the school

and the student due to the fact that school attendance was required by state law,

and declined “to hold that compulsory attendance laws alone create a special

relationship giving rise to a constitutionally rooted duty of school officials to

protect students from private actors.” Id. at 1415. We reasoned that “[t]he

restrictions imposed by attendance laws upon students and their parents are not

analogous to the restraints of prisons and mental institutions” because “[t]he

custody is intermittent,” “the student returns home each day,” and “[p]arents

remain the primary source for the basic needs of their children.” Id.

Numerous panel decisions have declined to recognize a special relationship

between a public school and its students. See, e.g., Doe v. San Antonio Indep.

Sch. Dist., 197 F. App’x 296, 298-301 (5th Cir. 2006) (finding no special

relationship between a school and a fourteen-year-old special education student

when the student was allowed to leave with her “uncle,” who later allegedly

molested her); Teague v. Tex. City Indep. Sch. Dist., 185 F. App’x 355, 357 (5th

Cir. 2006) (finding no special relationship between a school and an eighteen-

year-old special education student who was sexually assaulted by another

special education student); Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 199,

202-03 (5th Cir. 1994) (finding no special relationship between a high school and

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a student shot and killed in the school hallway during the school day by a boy

who was not a student but had gained access to the school); Leffall v. Dallas

Indep. Sch. Dist., 28 F.3d 521, 522, 529 (5th Cir. 1994) (finding no special

relationship between a high school and a student fatally wounded by a gunshot

fired in the school parking lot after a school dance).

We reaffirm, then, decades of binding precedent: a public school does not

have a DeShaney special relationship with its students requiring the school to

ensure the students’ safety from private actors. Public schools do not take

students into custody and hold them there against their will in the same way

that a state takes prisoners, involuntarily committed mental health patients,

and foster children into its custody. See DeShaney, 489 U.S. at 199-200; Griffith,

899 F.2d at 1439. Without a special relationship, a public school has no

constitutional duty to ensure that its students are safe from private violence.

That is not to say that schools have absolutely no duty to ensure that students

are safe during the school day. Schools may have such a duty by virtue of a

state’s tort or other laws. However, “[s]ection 1983 imposes liability for violations

of rights protected by the Constitution, not for violations of duties of care arising

out of tort law.” Baker v. McCollan, 443 U.S. 137, 146 (1979).

Like our court, each circuit to have addressed the issue has concluded that

public schools do not have a special relationship with their students, as public

schools do not place the same restraints on students’ liberty as do prisons and

state mental health institutions. See, e.g., Hasenfus v. LaJeunesse, 175 F.3d 68,

69-72 (1st Cir. 1999) (fourteen-year-old student attempted suicide after being

sent unsupervised to a locker room); D.R. v. Middle Bucks Area Vocational

Technical Sch., 972 F.2d 1364, 1366, 1370-73 (3d Cir. 1992) (en banc) (sixteen-

year-old student was sexually assaulted by fellow students in a unisex bathroom

and darkroom, both of which were part of a classroom where a teacher was

present during the attacks); Stevenson ex rel. Stevenson v. Martin Cnty. Bd. of

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Educ., 3 F. App’x 25, 27, 30-31 (4th Cir. 2001) (ten-year-old student assaulted by

his classmates); Doe v. Claiborne Cnty., Tenn., 103 F.3d 495, 500-01, 509-10 (6th

Cir. 1996) (fourteen-year-old student sexually assaulted by an athletic coach off

school grounds); J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 268, 272-73

(7th Cir. 1990) (teacher sexually molested two “school-age children”); Dorothy J.

v. Little Rock Sch. Dist., 7 F.3d 729, 731-34 (8th Cir. 1993) (intellectually

disabled high school boy was sexually assaulted by another intellectually

disabled student); Patel v. Kent Sch. Dist., 648 F.3d 965, 968-69, 972-74 (9th Cir.

2011) (developmentally disabled high school student was sexually assaulted by

a classmate when she was permitted to use restroom alone even though her

parents specifically requested that she be under adult supervision at all times

due to her disability); Maldonado v. Josey, 975 F.2d 727, 728, 729-33 (10th Cir.

1992) (eleven-year-old boy died of accidental strangulation in an unsupervised

cloakroom adjacent to his classroom during the school day); Wyke v. Polk Cnty.

Sch. Bd., 129 F.3d 560, 563, 568-70 (11th Cir. 1997) (thirteen-year-old boy

committed suicide a few days after unsuccessful attempts at school and school

officials never told his mother of the attempts).

3. No Special Relationship Exists Here

Against this backdrop, and the many decisions to the contrary, the Does

(together with our dissenting colleagues) argue that Jane had a special

relationship with her school, and therefore a substantive due process interest.

They contend that compulsory school attendance laws, combined with Jane’s

young age and the affirmative act of placing Jane into Keyes’s custody (what the

Does describe as the Education Defendants’ “active, deliberatively indifferent,

conduct”), created a special relationship in this case. None of these factors,

however, provides a basis to conclude that the school assumed a constitutional

duty to protect Jane. Instead, the Does’ argument ignores the contours of the

special relationship exception to create a cause of action where none exists.

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a. Jane’s Young Age

The Does (and the dissenters) rely largely upon Jane’s young age to

distinguish this case from the many others in which we have held that schools

have no special relationship with their students. We do not find Jane’s age to be

a relevant distinguishing characteristic for purposes of the special relationship

analysis.5

Although it is true that in our prior cases we have dealt with children

older than Jane, we have never relied upon the age of the student at issue to

resolve the special relationship analysis. Rather, we have said that schools do

not have a special relationship with students because “[p]arents remain the

primary source for the basic needs of their children.” Hillsboro, 113 F.3d at

1415. This is as much true for elementary students as it is for high school

students. No matter the age of the child, parents are the primary providers of

food, clothing, shelter, medical care, and reasonable safety for their minor

children. Thus, school children are returned to their parents’ care at the end of

each day, and are able to seek assistance from their families on a daily basis,

unlike those who are incarcerated or involuntarily committed.

5

The Does (and our dissenting colleagues) contort a statement made by the Supreme

Court in a wholly different context in Ingraham v. Wright, 430 U.S. 651 (1977), into a

suggestion that the Court would find a special relationship in this case. Addressing claims

brought by a group of students alleging that corporal punishment in public schools was

prohibited by the Eighth Amendment, the Court stated that “[t]he schoolchild has little need

for the protections of the Eighth Amendment” because “the public school remains an open

institution,” and “[e]xcept perhaps when very young, [a] child is not physically restrained from

leaving school during school hours.” Id. at 670. The Court then listed a number of reasons why

schools are open institutions. Yet the Court did not suggest that a public school is no less an

open institution if a student is restrained from freely leaving the school due to her young age

or if a student is apart from teachers or other students, whether on campus or off. Indeed, in

an opinion written far more recently than Ingraham, the Court explicitly stated in dicta that

its opinions should not be read to “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.’” Vernonia

Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (citing DeShaney, 489 U.S. at 200).

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Jane’s immaturity is insufficient to distinguish this case from our

decisions in Walton and Hillsboro. The suggestion that we ought to examine an

individual’s characteristics to determine whether the state has assumed a duty

to care for that person is wholly unsupported by precedent. The situations in

which the state assumes a duty of care sufficient to create a special relationship

are strictly enumerated and the restrictions of each situation are identical. In

the circumstances of incarceration, involuntary institutionalization, and foster

care, the state has, through an established set of laws and procedures, rendered

the person in its care completely unable to provide for his or her basic needs and

it assumes a duty to provide for these needs. Neither the Supreme Court nor this

court has ever suggested that anything less than such a total restriction is

sufficient to create a special relationship with the state, regardless of the age or

competence of the individual. See DeShaney, 489 U.S. at 200 (“The affirmative

duty to protect arises not from the State’s knowledge of the individual’s

predicament or from its expressions of intent to help him, but from the limitation

which it has imposed on his freedom to act on his own behalf.”).

Moreover, the focus upon Jane’s young age makes an essentially arbitrary

distinction between the thirteen- and fourteen-year-old students in Walton and

Hillsboro and nine-year-old students like Jane. If we were to accept this

argument, schools would be required to evaluate the maturity of each student

to determine whether the school has a special relationship with that student.

Indeed, some students could “age out” of constitutional protection over the course

of one academic year. A constitutional duty to protect a student from harm does

not depend on the maturity of the student, a factor not in the control of the state.

Through their public school systems, states take on the responsibility of

educating students, but, no matter the age of the student, public schools simply

do not take on the responsibility of providing “food, clothing, shelter, medical

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care, and reasonable safety” for the students they educate. See DeShaney, 489

U.S. at 200.

Particularly instructive on this question is the Ninth Circuit’s recent

decision in Patel v. Kent School District, 648 F.3d 965 (9th Cir. 2011). There, a

developmentally disabled student had several sexual encounters with a

classmate in a restroom adjacent to her classroom. Id. at 968. The student’s

parents had requested that she remain under adult supervision at all times

because her disability prevented her from recognizing dangerous situations and

caused her to act inappropriately with others. Id. at 968-70. Nevertheless, the

student’s teacher allowed her to use the restroom alone in order to foster her

development. Id. at 969. The Ninth Circuit held that compulsory school

attendance laws do not create a special relationship between public schools and

students that would require schools to protect the students from harm. Id. at

973-74. Of particular import to this case, the Ninth Circuit also rejected the

student’s contention that the school was required to protect against her “special

vulnerabilities.” Id. at 974. The court reasoned that “[i]n the case of a minor

child, custody does not exist until the state has so restrained the child’s liberty

that the parents cannot care for the child’s basic needs,” and the student’s

disability did not prevent her parents from caring for her basic needs. Id. (citing

DeShaney, 489 U.S. at 199-201). Under the Ninth Circuit’s reasoning, the

existence of a special relationship does not depend on the characteristics of the

individual. Consistent with Patel, we conclude that Jane’s young age and

immaturity do not provide a basis for finding a special relationship with her

school.

Our conclusion that no special relationship exists between nine-year-old

Jane and her school is consistent with the decisions of our sister circuits, four of

which have addressed cases involving children who were approximately the

same age or even younger than Jane. See Allen v. Susquehanna Twp. Sch. Dist.,

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233 F. App’x 149, 151-53 (3d Cir. 2007) (finding no special relationship between

school and developmentally disabled eleven-year-old student who left school

grounds and was subsequently killed); Worthington v. Elmore Cnty. Bd. of Educ.,

160 F. App’x 877, 878, 881 (11th Cir. 2005) (finding no special relationship

between school and developmentally disabled seven-year-old student who was

sexually assaulted by another student on a school bus); Stevenson, 3 F. App’x at

30-31 (finding no special relationship between school and ten-year-old boy who

had been beaten up repeatedly by bullies during the school day); Maldonado, 975

F.2d at 728, 731-33 (finding no special relationship between school and

eleven-year-old boy who died of accidental strangulation in an unsupervised

cloakroom adjacent to his classroom during the school day). While we should

have every reason to expect that public schools can and will provide for the

safety of public school students, no matter their age, our precedents, and the

decisions of every other circuit to have considered this issue, dictate that schools

are simply not constitutionally required to ensure students’ safety from private

actors. Despite her young age, Jane was not attending the school through the

“affirmative exercise of [state] power,” DeShaney, 489 U.S. at 200; she was

attending the school because her parents voluntarily chose to send her there (as

one of several ways to fulfill their compulsory education obligations), and they

remained responsible for her basic needs.6

6

Although it is true that Jane’s guardians were less able to protect Jane during the

school day, this fact exists to some extent in every alleged special relationship case involving

injuries that occurred at school. See, e.g., Patel, 648 F.3d at 969-70; Hasenfus, 175 F.3d at 70-

71; Middle Bucks, 972 F.2d at 1366; Maldonado, 975 F.2d at 728, 732-33; see also Stevenson,

3 F. App’x at 27-28. This fact has never been found to create a special relationship, as the

parents remain the primary caregivers, and the child can turn to his or her parents for help

on a daily basis. See Middle Bucks, 972 F.2d at 1372 (“D.R.’s complaint alleges an ongoing

series of assaults and abuse over a period of months. Although these acts allegedly took place

during the school day, D.R. could, and did, leave the school building every day. The state did

nothing to restrict her liberty after school hours and thus did not deny her meaningful access

to sources of help.”).

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b. Compulsory School Attendance Laws

The Does also suggest that a special relationship exists because Jane’s

attendance at school was mandated by compulsory attendance laws. We have

specifically held, however, that compulsory school attendance laws do not “alone

create a special relationship.” Hillsboro Indep. Sch. Dist., 113 F.3d at 1415.

There is no indication that Jane’s attendance at the school was somehow

more compulsory as a nine-year-old than if she were a teenager. While it may be

true that elementary school students are subject to more rules during the school

day (a fact not pleaded), their attendance at school is no more or less mandatory

than teenagers’ attendance. In fact, Jane was subject to exactly the same

Mississippi compulsory education laws as was the plaintiff in Walton, who

voluntarily attended a residential school for the deaf. Mississippi requires

parents to enroll their children in school until age seventeen, and parents may

fulfill this requirement in several ways, only one of which is to send their child

to public school. MISS. CODE ANN. § 37-13-91(3) (requiring that parent enroll

compulsory school-age child in a public school, a “legitimate nonpublic school,”

or provide a “legitimate home instruction program”). It may well be true that, for

the vast majority of parents in Mississippi, the only way for them to fulfill their

obligation is to enroll their children in public school. But that practicality does

not alter the fact that Jane’s parents voluntarily sent her to the school as a

means of fulfilling their obligation to educate her. Jane’s parents were free at

any time to remove Jane from the school if they felt that her safety was being

compromised. This reality is a far cry from the situation of incarcerated

prisoners, institutionalized mental health patients, or children placed in foster

care. Mississippi’s compulsory education law is therefore insufficient under our

precedent to create a special relationship between the school and Jane, despite

Jane’s young age.

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c. Release of Jane to Keyes

As a final effort to distinguish this case from the many others in this area,

the Does contend that the “active, deliberately indifferent, conduct” of school

officials in releasing Jane to Keyes formed a special relationship. The dissent

similarly argues that a special relationship was created when the school

separated Jane from her teachers and classmates and delivered her into Keyes’

exclusive custody. This argument, however, has several flaws.

Even assuming that the school had custody over Jane to the exclusion of

her legal guardians, which it did not, the school did not knowingly transfer that

custody to an unauthorized individual. The complaint alleges that the school

employee releasing Jane committed an affirmative act, but does not assert that

the school employee actually knew that Keyes was unauthorized to take Jane

from school. Implicit in the Supreme Court’s holding that a state may create a

special relationship through an “affirmative exercise of its power,” DeShaney,

489 U.S. at 200, is the requirement that the state actor know that he or she is

restricting an individual’s liberty. When a state incarcerates a prisoner,

institutionalizes a mental health patient, or places a child in foster care, the

state knows that it has restricted the individual’s liberty and rendered him

unable to care for his basic human needs. When a school employee carelessly

fails to ensure that an adult is authorized to take an elementary student from

the school, no state actor has knowledge that the school has thereby restricted

the student’s liberty, because the adult taking the student from school may or

may not be authorized.

The Does’ (and the dissent’s) theory also suggests that the same act that

creates the special relationship can also violate the duty of care owed to the

student. Under the special relationship exception, the state assumes a duty to

care for and protect an individual. Once the special relationship is created, it is

the failure to fulfill that duty that gives rise to a constitutional violation. An

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allegation of deliberate indifference may be sufficient to violate a constitutional

duty, but it is not sufficient to create the constitutional duty. Furthermore, this

theory suggests that the school’s very act of releasing Jane into the custody of a

private actor somehow created the state custody that is necessary for a

DeShaney special relationship to exist in the first place. Such a theory is wholly

inconsistent with DeShaney itself. 489 U.S. at 199-200 (“[W]hen the State takes

a person into its custody and holds him there against his will, the Constitution

imposes upon it a corresponding duty to assume some responsibility for his

safety and general well-being.”) (emphasis added).

The Tenth Circuit in Graham v. Independent School District No. I-89, 22

F.3d 991 (10th Cir. 1994), rejected an argument similar to the one the Does raise

here. In that case, Graham brought suit under Section 1983 against a school

district after certain students shot and killed her son on school property during

the school day.7 Graham alleged that the school knew that her child was in

danger of being harmed, but failed to take appropriate protective measures. Id.

at 993. The plaintiffs argued that the school’s “knowledge of the violent

propensities of one of its students . . . coupled with the quasi-custodial nature of

school attendance, satisfies the standards articulated in DeShaney.” Id. at 994.

The court rejected this argument, holding that “foreseeability cannot create an

affirmative duty to protect when plaintiff remains unable to allege a custodial

relationship.” Id. The court concluded:

[i]naction by the state in the face of a known danger is not enough

to trigger the obligation; according to DeShaney the state must have

limited in some way the liberty of a citizen to act on his own behalf.

In the absence of a custodial relationship, we believe plaintiffs

cannot state a constitutional claim based upon the defendants’

alleged knowledge of dangerous circumstances.

7

The appeal was considered jointly with another suit, which was brought by the mother

of a student who was stabbed on school premises. Graham, 22 F.3d at 993.

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Id. at 995 (citation and internal quotation marks omitted). Thus, the state’s

failure to protect the student from private harm (even if foreseeable) did not give

rise to a constitutional claim in the absence of a finding that a custodial

relationship already existed.

The Does point us to no distinguishing characteristics of this case that are

sufficient to give rise to a DeShaney special relationship between Jane and her

school. This case is ultimately no different than Walton and Hillsboro, and thus

requires the same outcome.

4. Conclusion

The question posed to us is whether Jane’s school, through its affirmative

exercise of state power, assumed a constitutional duty to protect Jane from a

private actor. We are compelled by our precedent, and by the Supreme Court’s

guidance in DeShaney, to conclude that the school did not assume that duty.

The district court correctly held that the Does have failed to state a claim under

§ 1983 for a constitutional violation under the special relationship exception.

Because we find no special relationship, we do not address whether the

school’s alleged actions in releasing Jane to Keyes amounted to “deliberate

indifference.” As this en banc court previously explained in McClendon v. City

of Columbia, 305 F.3d 314 (5th Cir. 2002), only where a state first creates a

special relationship with an individual does the state then have “a constitutional

duty to protect that individual from dangers, including, in certain circumstances,

private violence.” Id. at 324; see also Walton, 44 F.3d at 1300-01 (explaining that

if a state creates a special relationship with an individual, it will then owe “some

duty—arising under the Due Process Clause of the Fourteenth Amendment to

the United States Constitution—to protect [the individual’s] bodily integrity

from third party non-state actors.”). Without a special relationship, the school

had no constitutional duty to protect Jane from private actors such as Keyes,

and the question of its alleged deliberate indifference is simply immaterial.

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Having concluded that the school had no special relationship with Jane

that imposed on the school a constitutional duty to protect her from private

harm, we now turn to the Does’ remaining theories of liability.

B. State-Created Danger

The Does argue that they have stated a viable constitutional claim under

the so-called “state-created” danger theory of liability. We find no such viable

claim.

After DeShaney, many circuits8 used the following language in the Court’s

opinion to provide an alternative basis for § 1983 liability for harm inflicted by

private actors:

While the State may have been aware of the dangers that Joshua

faced in the free world, it played no part in their creation, nor did it

do anything to render him any more vulnerable to them. That the

State once took temporary custody of Joshua does not alter the

analysis, for when it returned him to his father’s custody, it placed

him in no worse position than that in which he would have been had

it not acted at all . . . .

DeShaney, 489 U.S. at 201 (emphases added). Under the state-created danger

theory, a state actor may be liable under § 1983 if the state actor created or

knew of a dangerous situation and affirmatively placed the plaintiff in that

situation. See, e.g., Carlton v. Cleburne Cnty., 93 F.3d 505, 508 (8th Cir. 1996)

(“In [the state-created danger] cases the courts have uniformly held that state

actors may be liable if they affirmatively created the plaintiffs’ peril or acted to

render them more vulnerable to danger. In other words, the individuals would

not have been in harm’s way but for the government’s affirmative actions.”)

(citation omitted). In Wood v. Ostrander, 879 F.2d 583, 586 (9th Cir. 1989), the

8

See, e.g., Lombardi v. Whitman, 485 F.3d 73, 80 (2d Cir. 2007); Kneipp v. Tedder, 95

F.3d 1199, 1211 (3d Cir. 1996); Kallstrom v. City of Columbus, 136 F.3d 1055, 1066-67 (6th Cir.

1998); Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir. 2011); Carlton v.

Cleburne Cnty., 93 F.3d 505, 508 (8th Cir. 1996); Wood v. Ostrander, 879 F.2d 583, 589-90 (9th

Cir. 1989); Uhlrig v. Harder, 64 F.3d 567, 572-73 (10th Cir. 1995).

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Ninth Circuit adopted the state-created danger theory in the context of a § 1983

claim brought against police officers by the passenger of an impounded vehicle,

who was raped after officers abandoned her on the side of a road in a high crime

area in the early morning hours. Id. at 586, 588-90. Similarly, in Kneipp v.

Tedder, 95 F.3d 1199 (3d Cir. 1996), the Third Circuit adopted the state-created

danger theory in the context of a lawsuit brought against a city and several

police officers on behalf of a woman who suffered extensive brain damage when

the officers allegedly sent her home “unescorted in a seriously intoxicated state

in cold weather.” Id. at 1208-09.9

Unlike many of our sister circuits, we have never explicitly adopted the

state-created danger theory. See, e.g., McClendon, 305 F.3d at 325. The district

court in this case acknowledged our precedent, but held that even if the theory

were recognized, the Does had failed to plead facts that would amount to a

constitutional violation. The court held that the Does did not contend that the

Education Defendants knew that their policy would allow Jane to be checked out

of school by an unauthorized adult and sexually assaulted; therefore, the Does

had not alleged that the Defendants were deliberately indifferent to a known

danger.

9

Our sister circuits have since set out various multi-factor tests related to the state-

created danger theory. The Seventh Circuit, for example, has developed a three-part test. See

Jackson, 653 F.3d at 654 (“To establish a substantive due process claim under a state-created

danger theory, [the plaintiff] must demonstrate that: (1) the district, by its affirmative acts,

created or increased a danger that [the plaintiff] faced; (2) the district’s failure to protect [the

plaintiff] from danger was the proximate cause of her injuries; and (3) the district’s failure to

protect her ‘shocks the conscience.’”). The Sixth Circuit has laid out a similar three-factor test.

See Estate of Smithers ex rel. Norris v. City of Flint, 602 F.3d 758, 763 (6th Cir. 2010) (“A

state-created danger claim has three elements: (1) an affirmative act by the state which either

created or increased the risk that the plaintiff would be exposed to an act of violence by a third

party; (2) a special danger to the plaintiff wherein the state’s actions placed the plaintiff

specifically at risk, as distinguished from a risk that affects the public at large; and (3) the

state knew or should have known that its actions specifically endangered the plaintiff.”).

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The Does contend that this circuit has in fact adopted and applied the

state-created danger theory in light of our decisions in Scanlan v. Texas A&M

University, 343 F.3d 533 (5th Cir. 2003), and Breen v. Texas A&M University,

485 F.3d 325 (5th Cir. 2007), which arose out of the 1999 bonfire collapse at

Texas A&M University. In Scanlan, the panel considered the allegations and

stated that the “district court should have concluded that the plaintiffs stated

a section 1983 claim under the state-created danger theory.” 343 F.3d at 538.

Despite this statement, subsequent panels have concluded that Scanlan did not

in fact adopt the state-created danger theory. In Rivera v. Houston Independent

School District, 349 F.3d 244 (5th Cir. 2003), for example, we explained that

while Scanlan remanded the “case to the district court for further proceedings,

[it] did not recognize the state created danger theory.” Id. at 249 n.5; see also

Rios v. City of Del Rio, Tex., 444 F.3d 417, 422-23 (5th Cir. 2006) (“[N]owhere in

the [Scanlan] opinion does the court expressly purport to adopt or approve th[e]

[state-created danger] theory.”). This understanding was complicated somewhat

by our decision in Breen, where a panel of this court again interpreted Scanlan.

485 F.3d at 336. The Breen panel concluded that “[t]he Scanlan panel’s clearly

implied recognition of state-created danger as a valid legal theory applicable to

the case is the law of the case with respect to these further appeals in these

same cases now before this panel.” Id. The panel, however, subsequently

withdrew this portion of the opinion. Breen v. Texas A&M Univ., 494 F.3d 516,

518 (5th Cir. 2007). Despite the potential confusion created by Scanlan and

Breen, recent decisions have consistently confirmed that “[t]he Fifth Circuit has

not adopted the ‘state-created danger’ theory of liability.” Kovacic v. Villarreal,

628 F.3d 209, 214 (5th Cir. 2010); see also Bustos v. Martini Club, Inc., 599 F.3d

458, 466 (5th Cir. 2010) (“[T]his circuit has not adopted the state-created danger

theory.”).

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We decline to use this en banc opportunity to adopt the state-created

danger theory in this case because the allegations would not support such a

theory. Although we have not recognized the theory, we have stated the

elements that such a cause of action would require. The Scanlan panel explained

that the state-created danger theory requires “a plaintiff [to] show [1] the

defendants used their authority to create a dangerous environment for the

plaintiff and [2] that the defendants acted with deliberate indifference to the

plight of the plaintiff.” Scanlan, 343 F.3d at 537-38. To establish deliberate

indifference for purposes of state-created danger, the plaintiff must show that

“[t]he environment created by the state actors must be dangerous; they must

know it is dangerous; and . . . they must have used their authority to create an

opportunity that would not otherwise have existed for the third party’s crime to

occur.” Piotrowski v. City of Houston, 237 F.3d 567, 585 (5th Cir. 2001) (citation

and internal quotation marks omitted); see also McClendon, 305 F.3d at 326 n.8

(“To act with deliberate indifference, a state actor must know of and disregard

an excessive risk to the victim’s health or safety.”) (internal quotation marks and

alterations omitted). Critically, this court has explained that the “state-created

danger theory is inapposite without a known victim.” Rios, 444 F.3d at 424

(citation and internal quotation marks omitted); see also Lester v. City of Coll.

Station, 103 F. App’x 814, 815-16 (5th Cir. 2004) (“[E]ven if it is assumed that

the state-created-danger theory applies, liability exists only if the state actor is

aware of an immediate danger facing a known victim.”) (citing Saenz v.

Heldenfels Bros., Inc., 183 F.3d 389, 392 (5th Cir. 1999)) (emphasis added).

In support of their state-created danger claim, the Does allege that school

officials “received complaints and inquiries and/or had internal discussions and

safety meetings concerning checkout policies and procedures and access to

students under their care and control by unauthorized individuals,” and they

therefore “had actual knowledge of the dangers created by their policies, customs

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and regulations, but they failed to take corrective action to reduce or prevent the

danger.” According to the Does, the school’s failure to adopt a stricter policy

amounted to “deliberate indifference.” Nevertheless, the Does’ allegations cannot

make out a state-created danger claim, as they do not demonstrate the existence

of “an immediate danger facing a known victim.” Saenz, 183 F.3d at 392. At

most, the Does allege that the school was aware of some general deficiencies in

the check-out policy. They do not allege that the school knew about an

immediate danger to Jane’s safety, nor can the court infer such knowledge from

the pleadings. Without such allegations, even if we were to embrace the state-

created danger theory, the claim would necessarily fail.

We have consistently cautioned against finding liability under the state-

created danger theory based upon an ineffective policy or practice in cases where

the plaintiff’s injury is inflicted by a private actor. In Rivera v. Houston

Independent School District, for example, we rejected a state-created danger

claim against a school after a student died as a result of gang-related violence,

and explained:

[T]o hold HISD responsible for the ultimate ineffectiveness of [its

policies designed to combat gang violence] would turn the Due

Process Clause’s limited duty of care and protection into a

guarantee of shelter from private violence. This result would be

inimical to the Supreme Court’s conclusion [in DeShaney] that the

Due Process Clause does not require the State to protect individuals

from private violence.

349 F.3d at 250; see also Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415

(5th Cir. 1997) (finding no viable state-created danger claim in case where

student was raped by a school custodian with no known criminal history, and

explaining that a “post hoc attribution of known danger would turn inside out

this limited exception to the principle of no duty”). We conclude that the Does’

allegations do not support a claim under the state-created danger theory, even

if that theory were viable in this circuit.

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C. Municipal Liability

Finally, the Does maintain that they have stated a viable claim under

what they describe as a “pure” municipal liability theory. They argue that

municipal liability is available under Monell v. Department of Social Services of

City of New York, 436 U.S. 658 (1978), because the school promulgated a

policy—the ineffective student check-out policy—that was the moving force

behind Jane’s injury. We disagree.10

A claim of municipal liability under Section 1983 “requires proof of three

elements: a policymaker; an official policy; and a violation of constitutional

rights whose ‘moving force’ is the policy or custom.” Piotrowski, 237 F.3d at 578

(citing Monell, 436 U.S. at 694).11 We have stated time and again that “[w]ithout

an underlying constitutional violation, an essential element of municipal liability

is missing.” Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997); see also

Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992) (“[P]roper

analysis requires us to separate two different issues when a § 1983 claim is

asserted against a municipality: (1) whether plaintiff’s harm was caused by a

constitutional violation, and (2) if so, whether the city is responsible for that

violation.”). Thus, even if the ineffective check-out policy was the moving force

10

The Does also contend that the district court erred in applying a heightened pleading

standard to their municipal liability claim, in violation of Leatherman v. Tarrant County

Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993). That contention fails. Fairly

read, the district court applied the Twombly and Iqbal standards in this case.

11

We have, of course, recognized that § 1983 municipal liability can also exist if “[t]he

official policy itself [is] unconstitutional.” James v. Harris Cnty., 577 F.3d 612, 617 (5th Cir.

2009); Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th

Cir. 2004) (“For a municipality to be liable on account of its policy, the plaintiff must show,

among other things, either (1) that the policy itself violated federal law or authorized or

directed the deprivation of federal rights or (2) that the policy was adopted or maintained by

the municipality’s policymakers ‘with “deliberate indifference” as to its known or obvious

consequences . . . .’”) (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407

(1997)). Jane’s claim, however, rests upon deliberate indifference, and she does not allege that

the school’s policy itself violates the constitution.

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behind Jane’s injury, there can be no § 1983 liability unless Jane suffered a

constitutional violation. Jane did not suffer a constitutional violation at the

hands of Keyes because Keyes is not a state actor. The only state actions that

could give rise to a constitutional violation in this case are the school’s failure to

prevent Keyes from injuring Jane or the act of releasing Jane to Keyes. As

explained above, these state actions are insufficient for purposes of the special

relationship and state-created danger theories. The Does now contend that they

have alleged a constitutional violation because the school’s conduct shocks the

conscience.

The Supreme Court recognized the shocks the conscience standard in

Rochin v. California, 342 U.S. 165 (1952). There, the Court found a violation of

Rochin’s substantive due process rights after police officers who had arrested

Rochin ordered doctors to pump Rochin’s stomach to induce him to vomit two

capsules of morphine that he had previously swallowed. Id. at 166. The Court

determined that the state’s conduct “shock[ed] the conscience,” and therefore

violated Rochin’s due process rights. Id. at 172. Later, in County of Sacramento

v. Lewis, 523 U.S. 833 (1998), the Supreme Court explained that substantive due

process is violated by executive action “only when it ‘can properly be

characterized as arbitrary, or conscience shocking, in a constitutional sense.’” Id.

at 847 (quoting Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992)).

The Lewis Court found that a police officer’s deliberate indifference during a

high-speed chase that caused the death of a motorcyclist did not “shock the

conscience,” but left open the possibility that unauthorized law enforcement

behavior in other contexts might “shock the conscience” and give rise to § 1983

liability. Id. at 836-37, 850, 854; see Chavez v. Martinez, 538 U.S. 760, 774

(2003).

Conduct sufficient to shock the conscience for substantive due process

purposes has been described in several different ways. It has been described as

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conduct that “violates the decencies of civilized conduct”; conduct that is “so

brutal and offensive that it [does] not comport with traditional ideas of fair play

and decency”; conduct that “interferes with rights implicit in the concept of

ordered liberty”; and conduct that “is so egregious, so outrageous, that it may

fairly be said to shock the contemporary conscience.” Lewis, 523 U.S. at 846-47

& n.8 (citation and internal quotation marks omitted). Many cases that have

applied the standard have involved the use of extreme force by police officers or

other state actors. See Checki v. Webb, 785 F.2d 534, 535-36, 538 (5th Cir. 1986)

(state trooper intentionally used his vehicle to terrorize motorist and passenger);

Shillingford v. Holmes, 634 F.2d 263, 264-65 (5th Cir. 1981) (police officer

intentionally struck tourist because he was photographing the police officer and

fellow officers apprehending a boy on the street during a Mardi Gras parade),

abrogated on other grounds by Valencia v. Wiggins, 981 F.2d 1440 (5th Cir.

1993); see also Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069,

1071, 1075-76 (11th Cir. 2000) (student blinded in one eye when a coach

intentionally hit him in the head with a metal weight); Rogers v. City of Little

Rock, Ark., 152 F.3d 790, 797 (8th Cir. 1998) (rape of a woman at her house by

a police officer after he stopped her for a traffic violation); Hemphill v. Schott,

141 F.3d 412, 418-19 (2d Cir. 1998) (police officer provided assistance to a third

party in shooting the plaintiff). As one court has recently summarized, “[t]he

burden to show state conduct that shocks the conscience is extremely high,

requiring stunning evidence of arbitrariness and caprice that extends beyond

mere violations of state law, even violations resulting from bad faith to

something more egregious and more extreme.” J.R. v. Gloria, 593 F.3d 73, 80

(1st Cir. 2010) (citation and internal quotation marks omitted).

We find that the Does’ attempt to employ the shocks the conscience

standard is unsuccessful for two reasons. First, the only state action at issue

here is the adoption and implementation of an allegedly deficient policy, which

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allowed school employees to release Jane to Keyes without verifying his

identification or his right to take Jane from the school. We conclude that the

implementation and execution of such a policy does not, on its own, shock the

conscience, particularly when compared to those cases detailed above in which

that standard has been successfully applied. See, e.g., Checki, 785 F.2d at 538;

Shillingford, 634 F.2d at 265. The policy simply does not fall within the category

of conduct that “is so egregious, so outrageous, that it may fairly be said to shock

the contemporary conscience.” Lewis, 523 U.S. at 847 n.8. Far from a policy that

shocks the conscience, the check-out policy at issue here appears to be relatively

common and to have some logical basis, particularly in small communities such

as Covington County, Mississippi.12 The mere fact that Keyes exploited the

check-out system to gain access to Jane does not mean that the school’s adoption

and implementation of the policy shocks the conscience.

Second, we must be careful not to read the Rochin shocks the conscience

standard as a separate exception to the DeShaney principle. The actual harm

inflicted upon Jane in this case was caused by private actor Tommy Keyes, and

after DeShaney, the state cannot be held constitutionally liable for its “failure

to protect an individual against private violence,” save for the special

relationship theory and, in some circuits, the state-created danger theory.

DeShaney, 489 U.S. at 197. To allow the Does to proceed on a shocks the

conscience theory without first demonstrating a constitutional duty to protect

would be wholly inconsistent with DeShaney. In fact, the DeShaney Court itself

12

Amici curiae the National School Boards Association, the Texas Association of School

Boards Legal Assistance Fund, and the Mississippi School Boards Association argue, “a [check

out] policy that allows for the exercise of professional judgment and discretion is not

inherently dangerous . . . . In some communities, particularly those with small campus

enrollments, school personnel often know parents, grandparents, babysitters, and other

visitors by sight.” They further maintain that “[a]n ironclad rule precluding any exercise of

discretion would prevent the release of children to parents and guardians who have lost or

forgotten their identification . . . , and it would prevent the release of children in circumstances

in which the legal guardian is unavailable . . . .” We need not address those arguments.

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rejected a similar argument. There, the petitioners had argued that a special

relationship existed between the state and young Joshua DeShaney, such that

the state had a duty to protect him from his father’s violence. Id. The state’s

failure to discharge that duty, the petitioners argued, was an “abuse of

governmental power that so ‘shocks the conscience,’ as to constitute a

substantive due process violation.” Id. (citing Rochin, 342 U.S. at 172). The

Court rejected this argument because it concluded that no special relationship

existed between Joshua DeShaney and the state. Id. at 198.

As we conclude that the school’s adoption and implementation of its check-

out policy does not itself shock the conscience, a constitutional claim on this basis

necessarily fails. Moreover, as we have found that Jane has not alleged an

underlying constitutional violation (under either the special relationship theory

or the purported state-created danger theory), there is no other potential basis

for municipal liability. Becerra, 105 F.3d at 1048 (“Without an underlying

constitutional violation, an essential element of municipal liability is missing.”).

We therefore reject the Does’ municipal liability argument.13

D. Qualified Immunity

The district court held in the alternative that, even if the Does had stated

a constitutional claim, the Education Defendants sued in their individual

capacities were entitled to qualified immunity, because any right to

governmental protection based upon a special relationship between Jane and her

school was not clearly established at the time that Jane was victimized.

13

The Does also attempt to impose supervisory liability on a failure to train or

supervise theory. Nevertheless, this theory still requires the violation of an underlying

constitutional right, which is lacking here. See City of Canton v. Harris, 489 U.S. 378, 386-90

(1989); Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 254 (5th Cir. 2005) (“[S]upervisors may

be liable for constitutional violations committed by subordinate employees when supervisors

act, or fail to act, with deliberate indifference to violations of others’ constitutional rights

committed by their subordinates.”) (emphasis omitted); see also Jenkins v. Bartlett, 487 F.3d

482, 492 (7th Cir. 2007) (“[T]here can be no liability under Monell for failure to train when

there is no violation of the plaintiff’s constitutional rights.”).

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Although no longer mandated as a first step in the qualified immunity

analysis, one part of this analysis requires us to “decide whether the facts that

a plaintiff has alleged . . . make out a violation of a constitutional right.” Pearson

v. Callahan, 555 U.S. 223, 232, 236 (2009). Because we determine that the Does

have failed to state a violation of Jane’s constitutional rights, we need not

further consider the qualified immunity analysis.14

IV. CONCLUSION

In affirming the dismissal of the Does’ complaint, we do not suggest that

schools have no obligation to insure that their students remain safe from acts of

private violence. State law provides the appropriate legal framework to address

Jane’s injury. The question we have addressed is simply whether the school’s

failure to check Keyes’s identity and be certain that he was authorized to take

Jane amounted to a constitutional violation. Supreme Court precedent, our

precedent, and the decisions of every other circuit to address the special

relationship exception compel this court to conclude that it does not. In addition,

neither the state-created danger theory nor municipal liability provides a viable

basis for recovery.

For these reasons, the judgment of the district court is AFFIRMED.

14

Upon dismissal of the Does’ constitutional claim, the district court also declined to

exercise supplemental jurisdiction over their remaining state law claims, and dismissed those

claims without prejudice, consistent with 28 U.S.C. § 1367(c)(3). The Does do not appeal this

dismissal.

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E. GRADY JOLLY, Circuit Judge, specially concurring:

I fully concur with the thorough and comprehensive opinion of Judge King.

I specially concur, however, to underline the stubborn fact that the issue of

whether a special relationship can be created between a school and its students

has been before the en banc court three times and three times we have said the

same thing. As this en banc court makes clear, the other two en banc cases,

Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995) (en banc), and Doe v. Hillsboro

Independent School District, 113 F.3d 1412 (5th Cir. 1997) (en banc), were not

only fully consistent with one another– and their authority undiminished before

this en banc court occurred–but now the combined authority of all three en banc

cases affirms and makes unambiguous the rule of this court to be: We “strictly”

construe DeShaney v. Winnebago County Department of Social Services, 489 U.S.

189, 199-200 (1989), to hold that, “only when the state, by its affirmative

exercise of power, has custody over an individual involuntarily or against his

will, does a ‘special relationship’ exist between the individual and the state.”

Walton, 44 F.3d at 1303 (emphasis in original). Walton and Hillsboro are not

just clear, they are emphatically clear that a special relationship under

DeShaney “only arises” between the state and an individual when the individual

“is involuntarily confined or otherwise restrained against his will pursuant to a

governmental order or by the affirmative exercise of state power”; it “does not

arise solely because the state exercises custodial control over an individual.” Id.

at 1299. When a person claiming the right of state protection is voluntarily

within the care or custody of a state agency, such as a schoolchild who

voluntarily subjects himself or herself “to the rules and supervision of [ ] School

officials,” any “willful relinquishment of a small fraction of liberty simply is not

comparable to that measure of almost total deprivation experienced by a

prisoner or involuntarily committed mental patient.” Id. at 1305 (emphasis

added). Expanding state liability for the acts of private persons can make

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constitutional sense only if the state has “effectively taken the plaintiff’s liberty

under terms that provide no realistic means of voluntarily terminating the

state’s custody and which thus deprives the plaintiff of the ability or opportunity

to provide for his own care and safety.” Id. (emphasis in original). There is no

room–not an inch–for confusion. The law yesterday and today is bare and bald:

No DeShaney special relationship exists between a public school and its

students. Absent a special relationship, any analysis of the defendant’s conduct

as deliberately indifferent to the rights of the student is, under DeShaney,

irrelevant.

No further panel of this court should require us to iterate these clear

statements of the law a fourth time.

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HIGGINSON, Circuit Judge, concurring in the judgment:

Dicta in DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189

(1989), has contributed to twenty-three years of circuit (and intra-circuit)

disharmony, and excited legions of law review articles, about whether the

Constitution asserts positive or negative liberties, or regulates government

action or inaction—all giving uncertain guidance to litigants and courts, as well

as public officials, hence necessarily also giving uncertain relief to citizens whom

government persons cause to be subjected to injury.

In this case, a plaintiff-father and his minor child Jane Doe (“Jane”), and

others, complain that Jane was injured when unknown government actors

(designated “EDUCATION DEFENDANTS A-Z”), among others, released her

from public elementary school to an adult male (“Tommy Keyes”), who bore no

relation to her and was not listed on her check-out form, who then raped her and

returned her each time to school.

The district court dismissed this complaint as one that fails to state a

legally cognizable claim. Our court today affirms that dismissal based on

extensive, but nearly exclusive, discussion of the “special relationship” extra-

statutory theory of liability adverted to by the Supreme Court in DeShaney.

Although I agree that the enlargement of liability beyond Section 1983’s literal

requirements contemplated by the “special relationship” test is not a basis for

liability in this case, I write separately to redirect inquiry back to Congress’s

exact language.

Section 1983 has a pedigree older than the harms it was found not to cover

in DeShaney. Passed in 1871, Section 1983 reads:

Every person who, under color of [law] . . . subjects, or causes to be

subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other

proper proceeding for redress . . . .

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42 U.S.C. §1983.

Set against this statutory language, the instant complaint makes a

conclusory, and I ultimately conclude not facially cognizable, claim. Plaintiffs

do not complain that government persons subjected Jane to rape, but they come

close to complaining that government persons caused her to be subjected to rape.

If the complaint had asserted that the affirmative act of releasing Jane to Keyes

was a causal act of recklessness or deliberate indifference or intentionality that

caused her to be subjected to injury, and specifically to the deprivation of her

right to bodily integrity, the complaint properly would proceed through discovery

to trial.

The Supreme Court considered similar challenged government action in

Martinez v. California, 444 U.S. 277 (1980), nine years before DeShaney. In

Martinez, the Court assessed a complaint filed against parole officials who had

released a parolee who, five months later, tortured and killed a child. The Court

explained that, “[a]lthough the decision to release Thomas from prison was

action by the State, the action of Thomas five months later cannot be fairly

characterized as state action” depriving the decedent of her right to life protected

by the Fourteenth Amendment. Id. at 284-85. The Court further elaborated

that:

We need not and do not decide that a parole officer could never be

deemed to ‘deprive’ someone of life by action taken in connection

with the release of a prisoner on parole. But we do hold that at least

under the particular circumstances of this parole decision,

appellants’ decedent’s death is too remote a consequence of the

parole officers’ [release] action to hold them responsible under the

federal civil rights law.

Id. at 285. Jane was raped on numerous school days, each time after she was

released to her assailant, whereafter he returned her to complete her school day.

On the day of Keyes’ final rape, January 8, 2008, Jane was released despite the

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fact that to check her out of school Keyes allegedly “stated that he was the

minor’s mother” (emphasis added).

It may well be that a jury would conclude that an assault on the same day

as a government release is too remote for causal attribution, if not in time then

in location or circumstance. And a jury might always conclude that no more

than negligent conduct was present, however tragic. See Davidson v. Cannon,

474 U.S. 344, 347 (1986). But if a jury, not us, were to come to such conclusions,

then we, as government persons, are not immunizing other government persons,

here state public school officials, against accountability for their affirmative act

of releasing Jane from school under whatever complicating, aggravating, or

mitigating release circumstances might be developed through discovery and at

trial. This assignment of decision-making responsibility to assess, check, or

overlook government action as a cause-in-fact of an injury, and specifically a

deprivation of a constitutionally protected right, is consistent with the choice

made by electors who, through Congress in 1871, established that a cause of

action exists when a government officer “causes to be subjected” a person to a

“deprivation of any right[] . . . secured by the Constitution . . . .”

To the extent that our court contemplates this “causes to be subjected”

statutory language before turning to DeShaney, it is in a footnote reference to

our decision in Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. 1994) (en

banc), which recognized a constitutional right to bodily integrity “vouchsafed by

the Fourteenth Amendment” against state action. The court today infers from

that important truism that “Taylor is inapplicable here because the actual

violation of Jane’s bodily integrity was caused by Keyes, a non-state actor”

(emphasis added). But that conclusion substitutes this court for a jury in

deciding one of three inter-related elements of Section 1983: (1) state action, as

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(2) the cause-in-fact of (3) a deprivation of right protected by the Constitution.1

The conclusion also either constricts the statute—and government accountability

for wrongdoing—from cases where a government person causes a victim “to be

subjected” to a violation, just to cases where the government person “subjects”

the victim to the actual violation, or constricts even more by rewriting the

statute to make liable only government persons who actually “depriv[e]” others

of rights secured by the Constitution.

Section 1983, as well as its historical moment and purpose, and as implied

by the Supreme Court in Martinez, does not perceive only a divisible and binary

world of government or non-government rights violations. Instead, these

difficult cases arise often out of a grey zone where a government person’s alleged

recklessness or deliberate indifference or intentionality is inextricably

intertwined with a not-remote injury allegedly inflicted by a third person, the

first (government person) causing the citizen to be subjected to injury by the

second (non-government) assailant. See, e.g., Wood v. Ostrander, 879 F.2d 583,

589-90 (9th Cir. 1989) (holding that a Section 1983 claim was triable when police

arrested driver and impounded vehicle, leaving passenger alone in a high crime

area at 2:30 a.m. who then was raped); Reed v. Gardner, 986 F.2d 1122, 1126-27

(7th Cir. 1993) (holding that a Section 1983 claim was triable when police

arrested and removed driver but left drunk passenger with keys who then drove

off and killed and injured individuals in another car in a head-on collision).

1

In any Section 1983 complaint, the challenged conduct must be conduct taken under

color of state law because, as the Supreme Court held in United States v. Cruikshank, 92 U.S.

542, 544 (1885), when purely private conduct causes injury, the Fourteenth Amendment is not

implicated. Here, therefore, what is challenged is the government’s conduct releasing Jane.

Whether that government conduct is too remote from the child’s injury, in turn, is the

statutory question of causation which, under Martinez, I contend can and should generally be

resolved by a jury, see Johnson v. Greer, 477 F.2d 101, 105-08 (5th Cir. 1973), with the

DeShaney proviso that government inaction—a failure to protect—may alone be actionable,

hence causal pursuant to Section 1983, in the unique context of government-ordered custody.

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I do not think that this court would argue, for example, that an intentional

and knowing release by a government person to a self-proclaimed rapist would

immunize the releaser from liability simply because the violation physically was

inflicted by another. Perhaps there even would be little disagreement about

permitting a Section 1983 complaint to proceed to discovery and trial if the

complaint alleged that Keyes had had a no-contact order excluding him from

Jane’s “check-out list,” coupled with a school policy that mandated identity

verification against that check-out list, yet a government person intentionally

or recklessly or with deliberate indifference still released Jane to Keyes who

immediately raped her.

I write separately, therefore, to affirm and clarify that citizens gain the

protection that they have given themselves, through Congress, against

government persons who cause them to be subjected to deprivations which the

Constitution and laws disallow. Section 1983 was passed in a time when this

was a real and specific threat. Today, these “silver platter” or grey zone cases

thankfully are rare, yet government persons, intentionally or recklessly or

through deliberate indifference, must know they will be held blameful if they

cause a citizen to be subjected to a rights deprivation even if the “actual

violation” is inflicted by a third person, as would be true if, for example, a sheriff

released a prisoner to a vengeful lynch mob.

To the extent that this statutory validation has added constitutional

importance, beyond checking government wrongdoing, it is that it assigns to jury

resolution difficult grey zone questions about state action and causality when the

challenged government conduct combines in time and circumstance with third

party activity to cause a constitutional injury. See Johnson v. Greer, 477 F.2d

at 105-08; Anderson v. Nosser, 456 F.2d 835, 841 (5th Cir. 1972) (en banc).

I do not mean to imply that DeShaney’s “special relationship” theory has

no relevance. I ultimately conclude, concurring with the court, that the thrust

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of the plaintiffs’ complaint alleges that the depriving act was the government’s

“failure to protect” Jane because of its discretionary identification check-out

policy. To that extent, I agree that compulsory education laws did not force Jane

into a custodial setting with Keyes so that her injury is attributable to school

persons because of their policy failure to better protect children being released

from school. The Supreme Court implied such extra-statutory, all-encompassing

“special relationship” liability when the challenged government conduct is

inactivity—so untethered by Section 1983’s cause-in-fact element—only in the

unique, double-confining setting of government-controlled custody which gives

opportunity to aggressor-inmates and denies opportunities for self-defense to

inmate-victims. Whereas post-DeShaney “special relationship” doctrine reads

into the Fourteenth Amendment, at least for purposes of Section 1983 liability,

a duty of protection when government-ordered custody makes self-help

impractical or impossible, looking only at the victim and the victim’s relationship

to the government invites anguishing comparisons between whether a foster

child is more or less helpless than a schoolchild, see Griffith v. Johnston, 899

F.2d 1427, 1439 (5th Cir. 1990) (extending “special relationship” theory of

liability to placement of children in foster care), as well as unanswerable

questions of moral duty and the perils of indifference. It may well be that nine-

year-old Jane, like Joshua DeShaney, was no less helpless than an adult prison

inmate, but for Section 1983 to make actionable government inaction, under the

DeShaney “special relationship” theory, liability should attach only when the

government has complete physical control of victims and their aggressors, as in

prison, but unlike in schools or foster home circumstances.

The literal language approach, if persuasive to others, might also tighten

DeShaney helpfully in a second sense. Every other court of appeals to have

considered the issue, except us, has embraced the expanded claim of liability

termed “state-created danger,” which also derives from dicta in DeShaney. We

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have avoided this second judicial enlargement of liability presumably because

its loose articulation (shielding persons from “perils” and “vulnerabilities” and

“harm’s way” said to be “created by” government action), like the “special

relationship” theory, also was not the result of the lawmaking process.

Moreover, the existence of this ill-defined notion of government liability has

provided a leaky bucket for the grey zone cases that properly should go to a jury

as to state action and causation without any extra-statutory gloss which courts

conjure. See Maj. Op. at 22 n.9 (listing complexity of “various multi-factor tests

related to the state created danger theory”). Indeed, our court in this case

highlights, in part, the confusion, stating, alternatively, that, “[w]e decline to use

this en banc opportunity to adopt the state-created danger theory in this case

because the allegations would not support such a theory.” The court goes on to

write that, “we have stated the elements that such a cause of action would

require,” and then quotes a medley of non-statutory “factors,” that include, but

are not limited to, government creation of “‘a dangerous environment,’”

government “‘deliberate indifference to the plight of the plaintiff,’” a “‘third

party’s crime,’” a known and disregarded “‘excessive risk to the victim’s health

or safety,’” and government “‘aware[ness] of an immediate danger facing a

known victim.’” The instant allegations then are said not to “support such a

theory.” It is unsurprising that no Section 1983 litigant in this circuit ever has

been able to support such a theory.

To summarize, Section 1983 should be construed literally. Literal

application of Section 1983 would narrow only to government custody the

DeShaney “special relationship” theory of actionable inaction, as explicitly stated

by the late Chief Justice Rehnquist, and literal application of Section 1983 would

reduce only to statutory elements the amorphous “state-created danger” theory

we have not endorsed. At the same time, literal application of Section 1983

would (1) acknowledge that the statute protects not just against government

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persons who subject citizens to a constitutional deprivation but also against

government persons who cause citizens to be subjected to such deprivations; (2)

avoid government persons (courts) from immunizing other government persons

(state or local officials) from liability for wrongdoing which electors, through

Congress, have made actionable and which non-government persons (jurors)

should resolve; and (3) would apply Section 1983’s syntax to comprehend the

rare but tragic set of grey zone cases where government persons, intentionally

or recklessly or through deliberate indifference, cause, consistent with Martinez,

a victim to be subjected by a third person to a rights deprivation.

Having made the above statutory observation—urging narrowed liability

on extra-statutory theories emanating from dicta in DeShaney, but recognizing

liability for government persons who non-negligently cause in time and

circumstance citizens to be subjected to constitutional injury actually inflicted

by others—I nonetheless conclude that the instant complaint, put alongside the

plain language of Section 1983, is not congruent enough to survive summary

dismissal. Instead of setting forth a facially plausible charge of government

recklessness or indifference or intentionality in the release of Jane that caused

her to be subjected to her injury, the complaint’s preliminary statement

(paragraph 1), statement of facts (paragraphs 2-7), and above all its “[b]ut for”

allegation in its “action for deprivation of civil rights” (paragraphs 20-25), focus

exclusively on the opposite, namely the education defendants’ alleged policy of

inaction, giving school officials who check out children discretion to verify or not

to verify the identification of receiving adults. That contention describes liability

non-causally, which is the extra-statutory theory of liability recognized by the

Supreme Court to apply only in custodial settings.

For the above reasons, I concur in the judgment of the court.

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WIENER, Circuit Judge, joined by DENNIS, Circuit Judge, dissenting.

Like the law of nature, the law of man recognizes no more basic or

extensive “special relationship” than that between parents and their “very

young” children. Central to that relationship is the parents’ exclusive right to

the custody of their children and the concomitant duty to protect them. It must

follow that when a state mandates that parents delegate the custody of their

child to a state agency, subdivision, or municipality, such total delegation creates

a special relationship between the delegatee and the child in its custody–at least

when such child is “very young”–and imposes on such custodial state delegatee

a duty to protect that child from violations of her constitutional rights. I am

convinced that the parents’ custodial delegatee here– the Covington County

Elementary School (“the School”)–cannot be permitted to evade its duty to

protect its very young pupils while they are in its exclusive custody.

As is apparent from the Does’ Iqbal/Twombley-compliant1 complaint and

the majority opinion, this case involves repeated decisions and acts by the

School’s officials to temporarily sub-delegate its exclusive custody of a nine-year-

old fourth-grade girl, in the middle of six different school days, over a span of

four months, to an unidentified adult, who was not authorized under the School’s

express policy to check her out, and whose identity it did not even attempt to

verify. On each of those six occasions, that adult, Tommy Keyes, proceeded to

brutally rape the little girl, Jane Doe, and then return her to the custody of the

School–still during the course of the school day. This was no isolated or

anecdotal incident, and the School’s officials allegedly contributed to its

recurrence by failing, each time, to verify Keyes’s identity and his lack of

authorization.

1

Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007).

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Despite our standard of review of dismissal of actions at their initial (Rule

12(b)(6)) stage, the majority raises the stakes of this appeal by not limiting its

analysis to the Does’ complaint, but instead asserting categorically that public

schools have no DeShaney special relationship2 with, and thus no constitutional

duty to protect, any schoolchildren–not even the very young–from non-state

actors. Thus, I address (1) whether a public school can ever have a constitutional

duty to protect any subset of children in its care, (2) whether the Does

adequately pleaded facts that would support such a duty, and (3) whether School

officials violated that duty through their deliberate indifference to Jane’s

constitutional rights. Ultimately, I answer these questions in the affirmative.

Assuming, as we must at this initial, pleadings stage of the proceedings, that the

factual allegations of the Does’ complaint are correct, I conclude that the School’s

actions constitute a serious derogation of the State’s constitutional duty to

protect a helpless individual while in its exclusive custody and care. Because I

remain convinced that the majority’s conclusion that the State had no such

constitutional duty is contrary to both law and common sense, I respectfully but

strenuously dissent.

I. SPECIAL RELATIONSHIP

The substantive component of the Due Process Clause of the Fourteenth

Amendment protects individuals from state action that “shocks the conscience.”3

Although substantive Due Process does not generally protect individuals from

private actors, the Supreme Court stated in DeShaney that there is an exception,

2

DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199-200 (1989).

3

Rochin v. California, 342 U.S. 165, 172 (1952).

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and that the State does owe an individual a duty of protection when a special

relationship exists between the State and the individual:

[W]hen the State takes a person into its custody and holds him

there against his will, the Constitution imposes upon it a

corresponding duty to assume some responsibility for his safety and

general well-being. . . . The rationale for this principle is simple

enough: when the State by the affirmative exercise of its power so

restrains an individual’s liberty that it renders him unable to care

for himself, and at the same time fails to provide for his basic

human needs—e.g., food, clothing, shelter, medical care, and

reasonable safety—it transgresses the substantive limits on state

action set by the Eighth Amendment and the Due Process Clause.4

In this case, Jane attended a public elementary school in Mississippi,

where attendance is compulsory5 and where all the relevant events took place

during the school day, not at its end.6 None disputes that more than compulsory

public education is required to establish a special relationship between the State

and a student, but this does not justify taking the leap of logic needed to reach

the conclusion that a special relationship can never exist in the public school

setting. When, in Doe v. Hillsboro Independent School District, we held that

alone compulsory attendance does not create a special relationship between a

state and a presumably pubescent, thirteen-year-old middle-school student, we

4

DeShaney, 489 U.S. at 199-200 (citation omitted; emphasis added).

5

See Miss. Code Ann. § 37-13-91(3) (school attendance generally compulsory for

children between the ages of six and seventeen).

6

Contra Doe v. Hillsboro Indep. School Dist., 113 F.3d 1412, 1414 (5th Cir. 1997) (no

special relationship when student was raped after school hours).

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quoted the following general explanation from the Supreme Court’s decision in

Ingraham v. Wright as to why public schools are distinguishable from, e.g.,

prisons and mental institutions:

Though attendance may not always be voluntary, the public school

remains an open institution. Except perhaps when very young, the

child is not physically restrained from leaving school during school

hours; and at the end of the school day, the child is invariably free

to return home. Even while at school, the child brings with him the

support of family and friends and is rarely apart from teachers and

other pupils who may witness and protest any instances of

mistreatment.7

Ingraham’s latent exception for the “very young” public school attendee is finally

before us, in the Does’ complaint, for the first time.

The majority attempts to distinguish Ingraham based on that case’s

concern with the application of the Eighth Amendment to corporal punishment

in public schools, but our decision in Hillsboro expressly recognized the obvious

relevance of Ingraham’s analysis to the special relationship inquiry.

Compounding the majority opinion’s error in making this purported distinction,

it strangely declares that the Supreme Court’s reasoning does “not suggest that

a public school is no less an open institution if a student is restrained from freely

leaving the school due to her young age or if a student is apart from teachers or

7

113 F.3d 1412, 1415 (5th Cir. 1997) (quoting Ingraham v. Wright, 430 U.S. 651, 670

(1977) (emphasis added)).

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other students, whether on campus or off.”8 In fact, though, that is precisely

what the Supreme Court’s analysis suggests.

Specifically, the Ingraham exception can only mean that there may very

well be a special relationship between a public school and a student who (1) is

“very young,” (2) is “physically restrained” by (and unable to leave freely) the

school’s custody, and (3) is isolated or kept “apart from teachers and other pupils

who may witness and protest any instances of mistreatment”–as is precisely

alleged here. Rather than superficially distinguishing what the Supreme Court

has said–even in dicta–we should apply it, as I shall now attempt to do.

A. Jane Was of Such a Very Young Age That She Could Not Protect

Herself

When Jane was repeatedly checked out of school and brutally raped, she

was a very young, pre-pubescent, nine-year-old, fourth-grade girl. The majority

refuses to acknowledge the obvious: that the degree of control exercised by a de

jure and de facto custodian over very young children is necessarily much greater

and more pervasive than over post-puberty teenagers or adults. The majority

does not even acknowledge that the Does might be able to establish as much if

given the opportunity to adduce evidence, especially expert reports and

testimony. But expert testimony is not required to know that very young

children like Jane are virtually never capable of protesting or challenging adult

authority figures, particularly those whose authority is apparently endorsed by

the very persons or institutions that such children trust.9 Neither are such

8

See supra, En Banc Majority Opinion at 13, note 5.

9

See A. v. Laredo Indep. School Dist., No. 5:05-cv-237, 2007 WL 189458, at *4

(S.D.Tex. Jan. 22, 2007) (“The notion that a seven year-old child can be expected to assert his

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youngsters generally able to recognize and respond to subtle threats to their

safety, which is the prime reason why they, unlike older students, are never

permitted to leave school grounds by themselves. The defendants in this case

do not assert that the School had a unique policy of allowing very young,

fourth-grade students to come and go without restraint; indeed, the School’s

adoption of a formal check-out policy confirms that just the opposite is true. Add

to this truism the two-step factual allegations of the Does’ complaint that Jane

was first taken from her class (and thus separated from the very teacher and

classmates who, under Ingraham, were her support) and, second, turned over to

Keyes outside the ken of these putative supporters, and the flaw in the

majority’s logic becomes all the more apparent. In such isolation, a very young

child like Jane could hardly have stood up for herself in light of the actions taken

by School officials.

Under the majority’s analysis, the age of the schoolchild is categorically

irrelevant to the special relationship inquiry: “No matter the age of the child,

parents are the primary providers of food, clothing, shelter, medical care, and

reasonable safety for their minor children”; and children return home at the end

of each school day.10 But neither the majority nor any decision it cites explains

how or why parents’ care of children before and after the school day can or

should preclude the existence of a special relationship during school hours.11

liberties in the face of institutional authority is questionable to say the least. . . . One may

intuitively conclude that this reality gives rise to a commensurate supervisory duty to protect

the child’s basic physical safety.”).

10

See supra, En Banc Majority Opinion at 13.

11

See D.R. by L.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364,

1379 (3rd Cir. 1992) (Sloviter, C.J., dissenting) (“DeShaney contains no language to support

the . . . holding that the duty to protect can be triggered only by involuntary, round-the-clock,

legal custody.”); see also id. at 1381 (“prisoners are probably much more articulate about their

complaints about mistreatment than are school children, particularly when the treatment

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Although Jane’s parents were presumably able to provide her with food,

clothing, and protection before she left home in the morning and after she

returned home at the end of each school day, this in no way enabled them to

provide for her safety–reasonable or otherwise–throughout the course of the

school day. Albeit in dicta, now-Chief Judge Jones exposed the fallacy of holding

otherwise in Johnson v. Dallas Independent School District, which involved a

shooting committed by a non-student, non-state actor on the school grounds:

The argument against holding that public schools have “custody,” at

least for some purposes of protecting their physical well-being,

appears to derive less from logic than from a pragmatic desire to

limit their legal liability. As has been shown, students must attend

school and may not leave without permission. To say that student

attendance is voluntary because parents may elect to home-school

their children or send them to a private school is lamentably, for

most parents, a myth. See D.R. v. Middle Bucks, [972 F.2d 1364,

1380 (3d Cir. 1992) (Sloviter, C.J., dissenting)]. To intimate that

parents retain effective responsibility for their children’s well-being

when the school alone makes critical decisions regarding student

safety and discipline is inaccurate. To suggest that parents

somehow are in a better position than the schools to protect their

children from the ravages of weapons smuggled onto campus during

the school day is cruelly irrational. To hope that students who are

unarmed can protect themselves from the depredation of armed

criminals in their midst is ridiculous. That parents yield so much

of their children’s care into the hands of public school officials may

consists, as in this case, of sexual abuse”).

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well be argued to place upon the officials an obligation to protect

students at least from certain kinds of foreseeably dangerous harm

during regular school hours.12

This reasoning is all the more powerful when, as here, the schoolchild who

suffers injury to her bodily integrity is “very young.” To contend that it is

primarily up to parents to prevent public schools from handing off their nine-

year-old girls to unknown men during the course of the school day would be

outrageous. Yet the majority’s emphasis on parents’ responsibility for their

children’s needs, including safety from sexual predation, if not wholly irrelevant,

can have no other meaning. At the same time, the majority never addresses just

what it is that Jane’s parents conceivably could have done, or should have done,

to safeguard her in this situation. Even if it could somehow be imagined that the

parents bear some responsibility, such a conclusion cannot be drawn from the

Does’ pleadings without the benefit of discovery.

The majority also suggests that the distinction between very young

children and older children is “essentially arbitrary.”13 But, far from being

arbitrary, distinguishing between pre-pubescent and pubescent or post-

pubescent children is not just natural and intuitive–it is grounded in extensive

science.14 This distinction, which is based on biology and is reflected in the

differentiation between elementary school and junior high school, has

12

38 F.3d 198, 203 n.7 (5th Cir. 1994).

13

See supra, En Banc Majority Opinion at 14.

14

See Theresa O’Lonergan & John J. Zodrow, Pediatric Assent: Subject Protection

Issues Among Adolescent Females Enrolled in Research, 34 J.L. MED. & ETHICS 451, 454 (2006)

(“Sexual development is the morphologically recognizable hallmark of adolescence. Of

particular interest here is the bald fact that adolescent girls can conceive and bear children.”).

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historically been considered important by the medical profession and society at

large.15 In addressing numerous areas, Congress and state legislatures have

treated pre-pubescent and post-pubescent children differently and have used age

as a proxy for that distinction.16 The particular age selected might appear to be

arbitrary (though it could have been informed by expert analysis had this case

been allowed to proceed), but not the distinction. A distinction with such deep

biological and historical roots, and which remains vital in many legal realms,

can hardly be considered “arbitrary.”

The majority also contends that it would be impractical to assess every

individual’s characteristics to determine whether a special relationship exists.

15

See id. at 454-55 (footnotes omitted):

Adolescence is, by definition, a convergence of developmental factors.

Historically, the law, religion and society have implicitly applied the “rule of

sevens” to assign legal and moral responsibility to children and adolescents.

Courts have treated seven-year-olds as capable of distinguishing right from

wrong . . . . Likewise, religions and courts have treated fourteen-year-old

adolescents as far more accountable than younger children for their actions and,

in many cases, assign culpability. . . . [P]hysicians generally acknowledge that

adolescents are differentially equipped to make medical decisions from thirteen

years to adulthood. . . . In most states, adolescents may seek and obtain sexual

and reproductive health information and services without the permission of or

even notification of their parents.

16

See, e.g., Fair Labor Standards Act, 29 U.S.C. §§ 201-19 (setting fourteen as the

minimum age for most non-agricultural work); see also Charles A. Phipps, Misdirected Reform:

On Regulating Consensual Sexual Activity Between Teenagers, 12 CORNELL J.L. & PUB. POL’Y

373, 429-31 (2003) (footnotes omitted):

Without exception, the law in all fifty states prohibits sexual activity between

an adult and a pre-pubertal child. . . . [T]he criminal law treats post-pubescent

victims differently from pre-pubescent victims. While post-pubertal minors are

still deemed incapable of consenting to sexual activity with adults, the fact that

they have reached puberty generally translates into lower criminal penalties for

those who engage in sexual activity with victims in this category. Because the

age of consent in the majority of states is sixteen, this means that [this type of

post-pubertal] victim generally is one aged fourteen or fifteen.

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Not so: A schoolchild’s age is an objective and easily-determined fact. I do not

suggest–and we need not decide, in this case–that more subjective factors, such

as a specific child’s (Jane’s) mental acuity or degree of social development,

should be a part of the special relationship inquiry.17 Line-drawing is inevitable

in this area, but an approach guided by objective facts does not require

line-drawing of unusual difficulty. By contrast, an approach that categorically

ignores age–by, for example, ignoring the differences between a nine-year-old

grammar school girl and a high school senior twice her age–only heightens the

arbitrariness of the line demarcating special relationships. Further, the

majority’s approach would presumably leave pre-schoolers and even infants in

the State’s care unprotected–a patently absurd result.

In short, nine-year-old, elementary-school students in general–not just

Jane, subjectively–are significantly distinct from teenage, middle- and high-

school students in their ability to provide for their own protection from sex

offenders when they are mandatorily separated from their legal guardians

during the school day. Jane’s very young age is thus highly relevant to the

existence of a special relationship between herself and the School. This factor

need not be sufficient alone, however, because the School also affirmatively

exercised its power to restrain Jane’s liberty even more strictly, as detailed

below.

17

It is worth noting, however, that the Supreme Court has considered such subjective

factors in holding that a state’s duty to protect an involuntarily committed psychiatric patient

extends to “such training as may be reasonable in light of [the patient’s] liberty interests in

safety and freedom from unreasonable restraints[.]”. Youngberg v. Romeo, 457 U.S. 307, 322

(1982). If individual characteristics were categorically irrelevant, then Youngberg would not

have defined a state’s constitutional duties to institutionalized psychiatric patients any more

broadly than its duties to competent adult prisoners.

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B. The School Affirmatively Forced Jane into Keyes’s Sole Custody

at School and Allowed Keyes to Take Her Away from the School

Where She Could Not Protect Herself

Under the well-pleaded allegations of the Does’ complaint, the State had

a special relationship with Jane, not just because of her very young age, but also

because of the School’s decision, while acting in loco parentis to the exclusion of

all others, and pursuant to its express policies, (1) first, to separate Jane from

her teachers and classmates, and (2) only then to deliver her into the exclusive

custody of Keyes for the express purpose of his taking her away from the school

grounds and later returning her there, all during the course of the school day.

This affirmative exercise of state power is significant under the Supreme Court’s

analysis in Ingraham, quoted by this court in Doe v. Hillsboro Independent

School District. By actively removing Jane from the classroom and then

delivering her in isolation into Keyes’s custody, the School rendered Jane (1)

entirely “apart from teachers and other pupils who may witness and protest any

instances of mistreatment,”18 and (2) not “free to return home”19–except,

exclusively, at Keyes’s mercy. This was an affirmative exercise of state power,

on six separate occasions, that further disabled Jane and further obliged the

State to protect her.

We and other courts have held that a special relationship may exist when

a state sub-delegates its delegated custody of an individual to a third party. For

18

Doe v. Hillsboro Indep. School Dist., 113 F.3d at 1415 (quoting Ingraham, 430 U.S.

at 670).

19

Id.

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example, a state has a special relationship with a minor it places in foster care,20

a burglary suspect it temporarily places in the custody of a private club owner,21

and a woman it threatens with arrest and physically places in her intoxicated

boyfriend’s truck.22 In none of these or other such cases did a state actor

physically hold the victim at the time of the injury (had no de facto “custody”),

but the victim “was in the defendant officers’ custody at the time she was forced

into” the third party’s control.23 The State is therefore considered “a participant

in the custody which led to the victim’s death [or injury].”24 The same reasoning

has to apply here.

Moreover, these cases demonstrate that the special relationship doctrine

is not inflexibly limited to “24/7” incarceration or institutionalization only.

Rather than excluding broad areas of state action, such as public schools, from

the reach of the special relationship doctrine, we must be sensitive to the factual

20

Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir. 1990) (state agency “created a

‘special relationship’ . . . when it removed [children] from their natural homes and placed them

under state supervision. At that time, [the state agency] assumed the responsibility to provide

constitutionally adequate care for these children.”); see also DeShaney, 489 U.S. at 201 n.9

(“Had the State by the affirmative exercise of its power removed [the child] from free society

and placed him in a foster home operated by its agents, we might have a situation sufficiently

analogous to incarceration or institutionalization to give rise to an affirmative duty to

protect.”).

21

Horton v. Flenory, 889 F.2d 454, 458 (3d Cir. 1989) (state had duty to protect

plaintiff when, pursuant to state policies, police officer left plaintiff in custody of club owner,

who beat plaintiff to death).

22

Stemler v. City of Florence, 126 F.3d 856, 868-69 (6th Cir. 1997) (state had duty to

protect woman who “was rendered unable to protect herself by virtue of both the threat of

arrest and her physical placement in the truck by the officers”; woman was then killed when

her boyfriend crashed the truck into a guardrail); see also Davis v. Brady, 143 F.3d 1021,

1024-26 (6th Cir. 1998) (state had special relationship with intoxicated police-car passenger

abandoned on a highway).

23

Stemler, 126 F.3d at 869.

24

Horton, 889 F.2d at 458.

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context in which a case arises.25 Here, the relevant context includes the School’s

affirmative decision to (1) isolate the “very young” Jane from her teachers and

classmates and (2) deliver Jane into Keyes’s exclusive custody, in those

sequential steps rendering Jane and her parents utterly helpless.

In light of their decision to separate Jane from her teacher and classmates

and then release her to Keyes, the school officials’ role was not merely passive

or simply negligent, as the majority asserts. The active nature of the School’s

role is underscored by the check-out policy in question. That policy

admittedly–as the majority opinion states–“permitted school employees to

release students to individuals,”26 but, more importantly, forced Jane, the

student to be released, giving her, as well as her teacher, her classmates, and her

parents, no choice in the matter.27 Only by examining the relationship between

Jane and the State–not the relationship (for these purposes irrelevant) between

the State officials who set the School’s policies and those who implemented

25

See, e.g., Estate of Lance v. Lewisville Indep. School Dist., No. 4:11–CV–00032, 2011

WL 4100960, at *7-8 (E.D.Tex. Aug. 23, 2011), adopted, 2011 WL 4101164 (E.D.Tex. Sept. 13,

2011) (engaging in such an analysis and holding that the plaintiff adequately alleged a special

relationship when a very young, disabled child was placed in in-school suspension); Teague ex

rel. C.R.T. v. Texas City Indep. School Dist., 348 F.Supp.2d 785, 792-93 (S.D.Tex. 2004)

(construing special relationship doctrine “in the context of this particular plaintiff” and holding

that the plaintiff adequately alleged a special relationship between a public school and a child

with Down’s Syndrome), vacated, 386 F.Supp.2d 893, 896 (S.D. Tex. 2005) (granting summary

judgment to defendant when discovery revealed that the victim was in fact 18 years old at the

time of the incident, was no longer subject to compulsory attendance, and had the mental

capacity of a 13 year-old).

26

See supra, En Banc Majority Opinion at 3.

27

The complaint does not reveal Jane’s reactions to being placed in Keyes’s custody.

Only discovery or trial evidence could resolve such an issue. In any event, a nine-year-old’s

possible failure affirmatively to protest being placed in the custody of a grown man, even one

who repeatedly raped her, surely does not somehow convert that custody from involuntary to

voluntary.

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them–does the question of a special relationship in this case come into proper

focus.

The majority also reasons that the School’s temporary delegation of its

exclusive custody of Jane to Keyes does not support the existence of a special

relationship because the School did not “knowingly transfer that custody to an

unauthorized individual.”28 A state-knowledge requirement, the majority

continues, is “implicit” in the principle that a special relationship may be created

only through an “affirmative exercise” of state power.29 But such a state-

knowledge requirement–for which the majority cites no precedent–would not

imply that, for there to be a special relationship, the state must know all the

circumstances, i.e., each and every discrete fact, surrounding its custody of an

individual.30 As alleged here, the School clearly did affirmatively exercise its

powers by separating Jane from her teachers and classmates and delivering her

to Keyes, and it did so pursuant to its express policies. School personnel were

perfectly aware that they were undertaking these actions–affirmatively, not

passively.

It is technically true that the School did not “know” Keyes to be

unauthorized, but all it had to do was (1) verify Keyes’s identity, and (2) follow

its own express policy by viewing Jane’s check-out form. Although the School’s

28

See supra, En Banc Majority Opinion at 17.

29

DeShaney, 489 U.S. at 200 (“when the State by the affirmative exercise of its power

so restrains an individual’s liberty that it renders him unable to care for himself, and at the

same time fails to provide for his basic human needs— e.g., food, clothing, shelter, medical

care, and reasonable safety—it transgresses the substantive limits on state action set by the

Eighth Amendment and the Due Process Clause”).

30

For example, if a state inadvertently imprisons the wrong person, it still owes a duty

to protect the person it actually did imprison. The state’s error in this regard does not

immunize it from the constitutional consequences of its known, affirmative exercise of

power–imprisoning the individual.

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self-inflicted lack of knowledge could arguably indicate that it was not

deliberately indifferent to Jane’s safety, that has nothing to do with the special

relationship inquiry. For example, a state has a special relationship with and

a concomitant duty to protect a prisoner even if the prisoner is injured because

of an unknown or unexpected danger to which the official could not have shown

deliberate indifference.31 To conclude, however, that such a prisoner was never

in a special relationship to begin with would be illogical. The same is true in this

case. My point: the majority has conflated the special relationship and

deliberate indifference inquiries.

Curiously, the majority goes on to assert that it is the Does who have

conflated these questions, stating that, under the Does’ theory, the “same act”

both creates the special relationship and demonstrates the State’s deliberate

indifference.32 Although it is true, as the majority notes, that the creation of a

special relationship does not itself demonstrate deliberate indifference, the Does

have never made such a claim. Rather, they allege (1) the special relationship

in this case was created when the School placed Jane, a nine-year-old student

at a compulsory-attendance public school, in the exclusive custody of Keyes

during school hours; and (2) the School officials’ deliberate indifference consisted

of their failure to verify Keyes’s identity or his authority to check Jane out of

school. And, what could constitute indifference more deliberate than checking

Jane out to a man who asserts that he is her mother? It is only natural that the

31

For example, in Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991), we held that

a state was not deliberately indifferent to a prisoner’s serious medical needs when it allegedly

failed to recognize the purported danger of forcing the prisoner to stand in line for meals. The

state’s lack of knowledge about this risk, however, did not imply that the state never had a

duty to protect the prisoner at all.

32

See supra, En Banc Majority Opinion at 18.

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facts underlying the special relationship and those underlying the State’s

deliberate indifference are related, but those facts are nonetheless distinct.33

The majority also asserts that the School’s act of releasing Jane into

Keyes’s custody cannot demonstrate the kind of state custody that is required

for a special relationship to exist. This argument ignores the cases discussed

above, however, which teach that a special relationship survives a state’s

delegation of its exclusive custody to a third party.34

Further, the majority’s Wonderland-esque analysis of this point implies

that, by removing Jane from her classroom and releasing her to Keyes for a

portion of the school day, the School secured rather than restrained Jane’s

liberty. Really? In fact and in logic, just the opposite is true. By first isolating

her and then delegating its exclusive custody of Jane to Keyes, the School (1)

deprived Jane of any potential assistance of teachers and classmates, (2) left

Jane helpless against Keyes’s assault, and (3) eliminated any ability that Jane’s

parents had to protect her from danger by removing her from the School.35 Even

though Jane’s parents presumably had the general ability to remove her from

the School (at least for limited periods of time), neither they nor her teachers nor

her fellow pupils had any ability to remove her or otherwise protect her once the

33

Even if some of the same facts are relevant to both the special relationship and

deliberate indifference inquiries, that does not mean that these prongs are somehow conflated

under the Does’ theory. See Stemler, 126 F.3d at 867 (describing these as “distinct, though

interrelated inquiries”). For example, suppose that a state places a prisoner in an

unreasonably unsafe prison–a clear 42 U.S.C. § 1983 claim under a special relationship theory.

That placement, it could be argued, underlies both the special relationship and the state’s

putative deliberate indifference to the prisoner’s reasonable safety. Yet none could deny that

this scenario presents an actionable constitutional claim.

34

See Stemler, 126 F.3d at 869, Griffith, 899 F.2d at 1439; Horton, 889 F.2d at 458.

35

Even assuming arguendo that the School’s duty to protect Jane would have been

ceased had it released her to an authorized individual, that is not what happened in this case.

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School took her from their presence and delivered her into Keyes’s custody. At

this crucial juncture, the majority appears to reason that any special

relationship there could ever have been between Jane and the School abruptly

ceased. But what is the use of the special relationship doctrine and its

protection of helpless individuals in the State’s custody, “if it is in effect an

umbrella which is taken away as soon as it begins to rain?”36

The majority concludes that it is “compelled” to rule that there is no

special relationship in this case.37 Although we have rejected the special

relationship theory in most school situations, we have never foreclosed the

application of that theory in “extreme circumstances.”38 Neither have we ever

held that characteristics such as very young age are categorically irrelevant to

the special relationship inquiry. Indeed, it is for the express reason of Jane’s

very young age that the School’s acts in separating her from teachers and

classmates during school hours and delivering her to Keyes caused Jane and her

parents to have “no realistic means of voluntarily terminating the state’s

custody” and no “ability or opportunity to provide for [her] own care and

safety.”39 I remain convinced that, under the Does’ allegations, the State had a

constitutional duty to protect Jane.

36

Abba Eban, Statement to the United Nations Security Council (June 6, 1967),

available at http://www.mfa.gov.il/MFA/Foreign+Relations/Israels+Foreign+Relations

+since+1947/1947-1974/19+Statement+to+the+Security+Council+by+Foreign+Mi.htm.

37

See supra, En Banc Majority Opinion at 19.

38

Walton v. Alexander, 44 F.3d 1297, 1305 (5th Cir. 1995) (finding no special

relationship when student voluntarily attended state school for the deaf).

39

Id.

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II. DELIBERATE INDIFFERENCE

A state does not violate its substantive due process duty to protect an

individual pursuant to a special relationship when it merely acts negligently.

Such a violation occurs when the state acts with “deliberate indifference” to that

individual’s health or safety.40 Thus, in addition to alleging that a special

relationship existed between Jane and the School, the Does needed to allege

adequately that the School officials acted, at the very least, with deliberate

indifference. “To act with deliberate indifference, a state actor must consciously

disregard a known and excessive risk to the victim’s health and safety.”41 Even

though the majority does not reach this issue, any objective reading of the Does’

complaint confirms that they have quite adequately pleaded that the State acted

with deliberate indifference to Jane’s safety.

The Does allege with specificity that the School adopted and implemented

a flawed check-out policy despite its knowledge that the specific policy thus

adopted posed excessive risks to students. In particular, the Does allege that the

School’s check-out policy included a “Permission to Check-Out” form for each

student which listed by name the only adults authorized to check out that

student during the school day. The Does also allege that (1) the policy did not

direct School officials to verify the identity of an adult requesting to check out

a student, and (2) the School failed adequately to train and supervise the

cognizant officials in the proper administration of the check-out policy. The Does

further allege that these “customs and practices guaranteed that verification

would not be checked which created an unreasonable danger to the minor child

named herein.” Thus, when Keyes checked Jane out on multiple occasions as

40

Hernandez ex rel. Hernandez v. Texas Dept. of Protective and Regulatory Servs., 380

F.3d 872, 880 (5th Cir. 2004).

41

Id.

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her “father” (and, on at least one occasion, as her “mother”), School officials

neither (1) verified Keyes’s identity, nor (2) referred to Jane’s check-out form, on

which Keyes was not listed as an individual authorized to take custody of Jane.42

Importantly, the Does’ pleadings expressly state that the School’s officials

were well aware of the risks that their flawed policies engendered, alleging that:

Upon information and belief, the Education Defendants received

complaints and inquiries and/or had internal discussions and safety

meetings concerning checkout policies and procedures and access to

students under their care and control by unauthorized individuals.

The complaints, inquiries, discussions, and/or meetings show that

the Education Defendants had actual knowledge of the dangers

created by their policies, customs, and regulations, but they failed

to take corrective action to reduce or prevent the danger.

These discrete allegations are sufficient to state a claim that School officials

acted with deliberate indifference to a known risk to Jane’s safety.

True, the Does do not allege that School officials knew that Keyes, in

particular, was dangerous. But, “this court has never required state officials to

be warned of a specific danger.”43 Indeed, state officials may be deliberately

indifferent even if they do not know which particular individual poses the safety

risk, or which potential victim will ultimately be injured.44 An official is

42

Had this case been allowed to proceed, the defendants would have remained free to

raise any independent reasons that the School’s officials might have had to believe that Keyes

was authorized to check out Jane or did not pose a danger to her.

43

Hernandez, 380 F.3d at 881.

44

Farmer v. Brennan, 511 U.S. 825, 843 (1994) (“Nor may a prison official escape

liability for deliberate indifference by showing that, while he was aware of an obvious,

substantial risk to inmate safety, he did not know that the complainant was especially likely

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deliberately indifferent if he knows of and disregards “a substantial risk of

serious harm.”45 And it is such awareness that the Does precisely allege.

The defendants’ awareness of this risk to student safety is eminently

plausible in light of (1) the alleged complaints, inquiries, discussions, and

meetings among the defendants on the subject of unauthorized individuals’

access to students; (2) the School’s allowing Keyes to check out Jane on at least

six occasions, including one occasion when he signed her out as her mother,

which these officials had to have known was bogus; and (3) the general

awareness by schools and school boards–heightened in recent years–of the threat

posed in the elementary school setting by deviant adults to young children.46

With regard to the last point, we learned in a recent appeal of a

nationwide program employing an electronic tracking system to identify whether

visitors to primary and secondary schools were registered sex offenders or

otherwise presented threats to young students.47 By 2006, the school year

immediately preceding the one at issue here, this program had been endorsed

by the U.S. Department of Justice, had received federal grant money, and had

already been activated in at least 1,400 schools in some 100 school districts

to be assaulted by the specific prisoner who eventually committed the assault.”); Curry v.

Scott, 249 F.3d 493, 507 (6th Cir. 2001) (“‘actual knowledge’ does not require that a prison

official know a prisoner would, with certainty, be harmed, or that a particular prisoner would

be harmed in a certain way”); see also Rosa H. v. San Elizario Indep. School Dist., 106 F.3d

648, 659 (5th Cir. 1997) (for “actual notice” purposes, “[s]tudents need not show that the

district knew that a particular teacher would abuse a particular student”).

45

Farmer, 511 U.S. at 837.

46

This threat is arguably heightened in the middle of the school day, when–unlike at

the end of the school day–an unauthorized adult seeking to take custody of a child will

presumably not be confronted with the child’s actual parent or guardian.

47

Meadows v. Lake Travis Indep. Sch. Dist., 397 F. App’x 1 (5th Cir. 2010)

(unpublished).

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across ten states. In light of the ubiquitous awareness by schools of the threat

posed by deviant adults preying on very young schoolchildren, it is certainly

“plausible,” and indeed highly likely, that the School knew that it was playing

with fire. Of course, nothing more than plausibility is required at this stage of

the proceedings.48

Despite their alleged awareness of the risk, School officials nevertheless

checked Jane out to a man whose identity and authority they never bothered to

verify. These allegations are sufficient, at least at this initial motion-to-dismiss

stage, to state an actionable constitutional claim grounded in deliberate

indifference.

III. CONCLUSION

Any case involving the rape of a child is, of course, a terrible one, so why

is this case so shocking? Part of the special horror of this case is the appalling

way in which Jane’s parents’ state-mandated trust in public school officials for

the care and safety of their very young child was rewarded. In a case such as

this, in which the alleged actions of state officials “shock the conscience,”49 the

proper remedy is not merely to compensate the victim in tort, but, additionally,

to compensate all of us with a constitutional remedy under 42 U.S.C. § 1983,

which is intended “to deter state actors from using the badge of their authority

to deprive individuals of their federally guaranteed rights and to provide relief

to victims if such deterrence fails.”50

48

Twombly, 550 U.S. at 570.

49

Rochin, 342 U.S. at 172.

50

Wyatt v. Cole, 504 U.S. 158, 161 (1992).

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As one of our Tenth Circuit colleagues has aptly observed, “[w]e do not

adequately discharge our duty to interpret the Constitution by merely describing

the facts as ‘tragic’ and invoking state tort law[.]”51 Neither do we adequately

discharge our duty by interpreting the special relationship doctrine so narrowly

that a helpless nine-year-old girl, abruptly removed from her classroom by school

personnel and wrongly delivered to an unauthorized grown man, falls through

the mesh of the Constitution’s safety net. The Does have more than adequately

alleged discrete facts to show that the State had a constitutional duty to protect

Jane and that it failed abysmally in that duty. These are the reasons why I

dissent.

51

Maldonado v. Josey, 975 F.2d 727, 735 (10th Cir. 1992) (Seymour, J., concurring).

63