Tremain Spivey, Shirley Spivey, as Next Friend for Tremain Spivey v. Michael Elliott, Lynn Crothers, Wilma Davis, Carolyn Mitchell

COX, Circuit Judge,

dissenting in part and concurring in part:

I disagree with the conclusion that Spi-vey’s complaint alleges a violation of a constitutional right. Therefore, I would decide this case not on the “clearly established” prong of the qualified immunity analysis, but on the failure of Spivey to allege a violation of a constitutional right. Because my view is that no constitutional right of this kind exists, I necessarily agree that no such right is clearly established.

Truly Spivey is a sympathetic plaintiff. I am glad that Georgia tort law provides a remedy for the wrong he alleges he has suffered. But in my view any wrong done him is not redressable under the Constitution.

The majority suggests that Spivey suffered a deprivation of a liberty interest, protectable under the substantive due process component of the Due Process Clause of the Fourteenth Amendment. The Supreme Court has counseled that we be reluctant to expand this constitutional concept “because the guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended.” Albright v. Oliver, — U.S. -, -, 114 S.Ct. 807, 812 , 127 L.Ed.2d 114 (1994) (quoting Collins v. Harker Heights, - U.S. -, -, 112 S.Ct. 1061, 1068 , 117 L.Ed.2d 261 (1992)); see also Regents of University of Michigan v. Ewing, 474 U.S. 214, 225-26 , 106 S.Ct. 507, 513-14 , 88 L.Ed.2d 523 (1985) (“[T]he substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitu-tional historv: that content is nothing: more *1528 than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.” (quoting Moore v. East Cleveland, 431 U.S. 494, 543-544 , 97 S.Ct. 1932, 1958-1959 , 52 L.Ed.2d 531 (1977) (White, J., dissenting))). Today’s decision is an unwarranted expansion of substantive due process.

Based on Estelle v. Gamble, 429 U.S. 97 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976), Youngberg v. Romeo, 457 U.S. 307 , 102 S.Ct. 2452 , 73 L.Ed.2d 28 (1982), DeShaney v. Winnebago Co. Dept. of Social Servs., 489 U.S. 189 , 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989), and Taylor v. Ledbetter, 818 F.2d 791 (11th Cir.1987), ce rt. denied, 489 U.S. 1065 , 109 S.Ct. 1337 , 103 L.Ed.2d 808 (1989), the majority concludes that the State of Georgia had a “special relationship” with Spivey, giving rise to a duty to protect him from private harm. (Op. pp. 1524-27). Though DeShaney held that “[a]s a general matter ... a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause,” 489 U.S. at 197 , 109 S.Ct. at 1004 , the majority reasons that the exceptions to this general rule that the DeShaney Court outlined contemplate a duty on the part of the State to protect Spivey. This despite the DeShaney Court’s clear statement that the exceptions to the general rule taken together “stand only for the proposition that when the State takes a person into its custody and holds them [him] there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” Id. at 199-200 , 109 S.Ct. at 1005 (emphasis added). Only two cases illustrated this proposition. One, Estelle , involved prisoners confined by a state, and the other, Youngberg , involved involuntarily committed mental patients institutionalized by a state.

More in point are numerous cases involving the assault of a student while attending school. Our court has previously held that a compulsory attendance policy does not create the type of “special relationship” the Supreme Court contemplated in Estelle and Youngberg. Russell v. Fannin County School Dist., 784 F.Supp. 1576 (N.D.Ga.1992), aff 'd without opinion, 981 F.2d 1263 (11th Cir.1992). Several other circuits have reached the same conclusion. See Dorothy J. v. Little Rock School Dist., 7 F.3d 729 , 732 (8th Cir.1993); Maldonado v. Josey, 975 F.2d 727, 732-733 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1266 , 122 L.Ed.2d 662 (1993); D.R. v. Middle Bucks Area Voc. Tech. School, 972 F.2d 1364 , 1371 (3d Cir.1992), ce rt. denied, — U.S. -, 113 S.Ct. 1045 , 122 L.Ed.2d 354 (1993); J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267 , 272 (7th Cir.1990). The majority says that these cases are distinguishable due to Spivey’s status as a “residential student.” The State assumes a greater responsibility for Spivey, the majority finds, because he “could not go home at the end of the day” like the non-resident student-plaintiffs.

This is an irrelevant distinction. The Supreme Court has made clear that the relationship that is necessary to create a duty on the State to prevent private harm to individuals arises only “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.” DeShaney, 489 U.S. at 200 , 109 S.Ct. at 1005 ; see Youngberg, 457 U.S. at 315-16 ; 102 S.Ct. at 2457-58 ; Estelle, 429 U.S. at 103-04 , 97 S.Ct. at 290-91 . The State must be holding a person “against [his or her] will.” DeShaney, 489 U.S. at 199-200 , 109 S.Ct. at 1005 . This court’s holding in Taylor was based upon the involuntary nature of the commitment. See 818 F.2d at 797 (“We hold that a child involuntarily placed in a foster home ... may bring a section 1983 action for violation of fourteenth amendment rights.” (emphasis added)). The State imposed no such restraint upon Spivey. Spivey was voluntarily enrolled in this special school Georgia provides for hearing-impaired students. Spivey’s mother retained the discretion to remove him from the school.

Today’s court acknowledges that existing precedent does not support its holding, and creates a new category of constitutional torts based upon “the extent to which the State exercises dominion and control over an individual.” (Op. p. 1526). This holding has no roots in the history or text of the Constitu *1529 tion. In my view, it has no roots in constitutional law either.