Tag Archives: School Not Liable in Girl’s Sex Assault

Stupid decision from 5th Circuit Court of Appeals regarding school’s custodial responsibilities

28 Mar

Parents in the 5th Circuit should exercise caution when dropping the children off at school. They cannot automatically assume that the school district will be responsible for the child’s safety. Mark Walsh writes in the Education Week article, School Not Liable in Girl’s Sex Assault, Full Appeals Court Rules:

A Mississippi school district is not liable in a federal civil rights suit for failing to protect a 4th grade student from sexual assault by a man who checked the girl out of school without authorization, a full federal appeals court has ruled.

The 16-2 decision by the full U.S. Court of Appeals for the 5th Circuit, in New Orleans, holds that the student did not have a special custodial relationship with her school, and thus the school had no constitutional duty to protect her from harm inflicted by a private “actor.” The court also rejected two other theories for holding the school liable.

“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,” said the majority opinion by Carolyn Dineen King on March 23 in Doe v. Covington County School District..

A three-judge panel of the 5th Circuit had ruled 2-1 last August that the school district may be liable in the case. The full appeals court tossed out that ruling in September and said it would look at the case “en banc.”

The two judges who voted for liability in the panel decision were the dissenters from the full court’s contrary opinion….

The district had a compulsory check-out policy, with parents filling out a form listing adults authorized to check out their children. The man was not authorized to check out Jane Doe but would claim to be her father and even once signed the girl out as her mother, court papers say.

The man was convicted of sexual battery in the assaults and is serving a 10-year prison term, according to press reports at the time of the panel decision.

The suit alleged that the district violated the girl’s 14th Amendment substantive due process rights by being deliberately indifferent to her safety.

While a federal district court dismissed the suit, the 5th Circuit panel ruled last August that the school did have a special relationship with the girl, resulting in a duty to protect her from harm.

The panel cited language from the U.S. Supreme Court’s 1989 decision in DeShaney v. Winnebago County Department of Social Services. In that case, the high court held that there was no special relationship between government social workers and a child who was severely beaten by his father after the social workers had investigated reports of abuse and declined to remove the child from his home.

The high court went on in DeShaney to say that the government agency could have had a duty to protect the child from private violence if it had taken an affirmatively active role in the child’s care.

The full 5th Circuit majority, rejecting the panel’s conclusions, said it has been binding precedent in that circuit for decades that a public school does not have a DeShaney special relationship with its students requiring the school to ensure the students’ safety from private actors.

“Without a special relationship, a public school has no constitutional duty to ensure that its students are safe from private violence,” Judge King said in the majority opinion.

The full 5th Circuit court also rejected district liability under so-called state-created danger and municipal liability theories.


The 5th Circuit had previously ruled in a school custodian case.

The North Carolina School of Law reported about an equally egregious case in the article, School officials did not have duty to protect student from rape by school custodian:

Doe v. Hillsboro Independent School District, 113 F.3d 1412 (5th Cir. 1997)


Jane Doe, a thirteen-year-old student, was raped and assaulted by a school custodian while staying after school to do special work on her studies. Through her parents Doe brought suit against individual school officials, among others, alleging that the officials violated their constitutional duty to protect her from harm by third parties. Normally governmental officials do not have a constitutional duty to protect citizens from harm by third parties, but Doe alleged that her case fit into two exceptions to this rule: the custodial-relationship exception and the state-created-danger exception.


The Fifth Circuit Court of Appeals rejected Doe’s arguments and ordered judgment in favor of the district.

Custodial-relationship argument. The court first rejected Doe’s argument that she was in a custodial relationship with the school district that gave the school officials a constitutional duty to protect her. The custodial-relationship exception was created for relationships in which action the state has taken has deprived the injured party of the ability to protect himself or herself—for instance, when the state imprisons a person or places him or her in a mental institution. Compulsory school attendance laws, without more, do not create that kind of relationship between a school district and its students, the court concluded, joining every other circuit court that had ever considered the issue.

State-created-danger argument. The court went on to reject Doe’s argument that school officials had a duty to protect her because the school district created the danger that caused her harm by hiring the custodian without checking his criminal background. The court noted that the school district placed Doe in the same general area as a school custodian with no known criminal record, with school teachers present in the same building, and that these actions were insufficient to trigger a duty to protect. There was no showing that the district knew the custodian was dangerous. Doe did not allege, and produced no proof to show, that the custodian even had a criminal record for the district to discover.

summarized by Ingrid M. Johansen

posted Spring 1998


The dissent in Doe v. Covington School District made the argument as to why the school district should be liable.

Here is a key portion of the Doe v. Covington School District dissent from Circuit Judge Weiner who was joined by Circuit Judge Dennis, the two dissenters:

Case: 09-60406 Document: 00511798661 Page: 41 Date Filed: 03/23/2012

No. 09-60406

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-compliant complaint and 1 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-yearold 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.

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 relationship with, and thus no constitutional 2 duty to protect, any schoolchildren–not even the very young–from non-state actors...



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,



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,


Appeal from the United States District Court for the Southern District of Mississippi




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


United States Court of Appeals

Fifth Circuit


March 23, 2012

Lyle W. Cayce


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

No. 09-60406


The judges writing for the majority deserve the scorn of the nation.

“The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread.” (Le Lys Rouge)

Anatole France

Dr. Wilda says this about that ©