Case: 09-60406    Document: 00511563892         Page: 1     Date Filed: 08/05/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                           FILED
                                                                          August 5, 2011

                                      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, also in their official and
individual capacities,*

                                                  Defendants-Appellees



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


Before KING, WIENER, and DENNIS, Circuit Judges.

        *
        In addition to these Defendants-Appellees, the Plaintiffs-Appellants originally named
Covington County, the Mississippi Department of Education, and the State Superintendent
of Education as co-defendants, but they were dismissed before the district court decided this
case.
     Case: 09-60406        Document: 00511563892       Page: 2   Date Filed: 08/05/2011



                                            No. 09-60406

WIENER, Circuit Judge:
                                     I. PERSPECTIVE
        Plaintiff-Appellant Daniel Magee is the father and next friend, and
Plaintiff-Appellant Geneva Magee is the grandmother, guardian, and next
friend, of Plaintiff-Appellant Jane Doe (collectively the “Does”). Individually and
on behalf of nine-year-old Jane Doe (“Jane”), the Magees sued, inter alia, the
Covington County [Mississippi] School District, its Board of Education, its
president, and other persons, in their official and individual capacities
(collectively, the “Education Defendants”), as well as other known and unknown
persons, under 42 U.S.C. §§ 1983 and 1985, alleging violations of Jane’s
Fourteenth Amendment substantive due-process rights (and various state law
violations).
A.      Question Presented
        The question that lies at the core of this appeal is:
        Are there circumstances under which a compulsory-attendance,
        elementary public school has a “special relationship” with its nine-
        year-old students such that it has a constitutional “duty to protect”
        their personal security?
B.      Context
        The framework in which the question thus posed must be answered is a
construct of not only that which the complaint alleges and asserts but—of equal
importance—that which the complaint does not allege or assert.
        First, the Does have not complained that a school passively “stood by and
did nothing” when “suspicious circumstances” indicated that it should have
protected a student from his legal guardian, distinguishing this case from the
seminal Supreme Court case of DeShaney v. Winnebago County.1 Second, the
Does have not complained that a compulsory-attendance public school failed to


        1
            See 

, 203 (1989).

                                                 2
   Case: 09-60406         Document: 00511563892          Page: 3    Date Filed: 08/05/2011



                                         No. 09-60406

protect a teenage student from an assault on school grounds after the close of the
school day, by a teacher, coach, janitor, or any other such state actor who was
hired by the school.2 Third, the Does have not complained that a non-compulsory
school failed to protect a student from an assault on school grounds during the
school day by a private actor—as, for example, another student at school, or a
visitor to the school, or even an uninvited person who furtively comes onto the
school grounds and spirits the student away.3 Thus, the instant case is
distinguishable from the significant “special relationship” cases that this court,
sitting en banc, has previously decided.
       Finally, and perhaps most importantly to understanding their claim in the
right context, the Does have not complained that a school employee or other
individual acting under color of state law physically abused a student.4 The
constitutional violation alleged here is not a violation by a state actor of Jane’s
substantive due-process right to be free from sexual abuse and violations of her
bodily integrity. Accordingly, cases involving a state actor’s violation of the
bodily integrity of a citizen are wholly inapposite and easily distinguishable from
the instant case—a distinction that this court sitting en banc has previously
recognized.5
       To be clear, what the Does have alleged is that Jane’s school, the
Covington County Elementary School (the “School”), violated her substantive
due-process rights by being deliberately indifferent to nine-year-old Jane’s safety


       2
           See Doe v. Hillsboro Indep. Sch. Dist., 

, 1416 (5th Cir. 1997) (en banc).
       3
           See Walton v. Alexander, 

(5th Cir. 1995) (en banc).
       4
         See Becerra v. Asher, 

, 1047 (5th Cir. 1997); Doe v. Taylor Indep. Sch.
Dist., 

, 450 (5th Cir. 1994) (en banc).
       5
         See 

(“Unlike Doe v. Taylor, in which a school employee
acted under color of state law, this case requires us to locate the primary constitutional wrong
in the board and school officials.”).

                                                3
   Case: 09-60406      Document: 00511563892        Page: 4    Date Filed: 08/05/2011



                                     No. 09-60406

when the School affirmatively deprived Jane of her liberty to care for herself by
forcing her into the sole custody of an unauthorized adult, Defendant Tommy
Keyes, for the School’s known and intended purpose of facilitating his taking her
off of the School’s grounds. The constitutional right at issue here is the “right to
personal security,” which the Supreme Court has repeatedly said “constitutes a
‘historic liberty interest’ protected substantively by the Due Process Clause.”6
      Specifically, the Does have alleged in minute detail that the School had a
special relationship with (1) Jane, a pre-pubescent nine-year-old, fourth-grade
student, (2) at the compulsory-attendance elementary public school, (3) in the
full and sole legal custody and control of the School, to the exclusion of even her
legal guardian, (4) during school hours (not at the end of the day when the
School normally relinquishes its state-ordered custody)—under which
relationship the School assumed responsibility for her personal safety and
general well-being. The School’s duty to protect Jane arises from the School’s
total limitation on Jane’s freedom to act on her own behalf: Jane was required
to attend the School throughout the entire school day, out of the presence of her
legal guardian and without any ability to leave; and Jane’s exclusive
confinement by the School, entirely without the protection of her legal guardian,
in combination with her very young age, made Jane wholly dependent on the
School for her safety. The School thus assumed the duty to protect her, then
allegedly violated the Due Process Clause by being deliberately indifferent to her
safety.
      The Does further allege that the School had a special relationship with
Jane because it repeatedly handed her over to Keyes during school hours,
surrendering to Keyes the School’s statutorily obtained, full and exclusive
custody over her, and then allowing him to take her away from the School’s

      6
        Youngberg v. Romeo, 

, 315 (1982) (quoting Ingraham v. Wright, 

, 673 (1977)).

                                            4
   Case: 09-60406        Document: 00511563892          Page: 5     Date Filed: 08/05/2011



                                        No. 09-60406

campus to some unknown location, and isolating her from her teachers and
classmates, without the School’s supervision (and against her and her legal
guardian’s will).7 In other words, even if the School did not already have a duty
to protect very young students like nine-year-old Jane while on school grounds
during the school day, it certainly did assume a duty to protect her when it
affirmatively delivered her from the School’s exclusive custody into the sole
custody of Keyes, further depriving her of her liberty by isolating her from the
people she trusted and the surroundings she knew. The School then allegedly
violated its due-process duty to protect Jane by acting with deliberate
indifference to her safety when it intentionally placed her in Keyes’s custody for
the explicit purpose of his taking her off campus, without verifying his identity
as an identified adult authorized to check her out of the School.
       Assuming as we must at this initial Rule 12(b)(6) phase of the case that
the allegations of the Does’ complaint are true, we conclude that they have
alleged a constitutional violation and that their complaint should not have been
dismissed by the district court. True, the horrific sexual abuse alleged here was
committed by a private actor. But, the Does have not alleged that Keyes violated
Jane’s constitutional rights by sexually abusing her—and properly so, as private
violence does not in and of itself amount to a constitutional violation. Rather, the
Does have alleged that (1) the School so restricted little Jane’s liberty that it
assumed a duty to protect her from unsafe conditions, and (2) the School violated
Jane’s substantive due-process rights by being deliberately indifferent to her

       7
         The dissent accuses us of “re-character[izing] the allegations in the Does’ complaint
and paint[ing] a picture suggesting that Jane was ‘forced’ by school employees into the
‘custody’ of Keyes” when “the complaint specifically assigns a more passive role to the school
employees.” Dissent at 2. The dissent, however, misreads the Does’ allegation, which states
that the School “allow[ed] the Defendant, Tommy Keyes, to check [Jane] out from school.”
Thus, the dissent misinterprets the Does’ allegation as reading, “[t]he School [ ] ‘allowed’ Jane
to leave with Keyes, rather than ‘forcing’ her to leave with him.” 

This
distinction is critical, and we reaffirm our position that the Does allege that the School allowed
Keyes to take Jane out of school and, thereby, forced Jane into his custody.

                                                5
     Case: 09-60406     Document: 00511563892         Page: 6     Date Filed: 08/05/2011



                                       No. 09-60406

safety. In those contexts, it matters not that Jane’s rapist was a private actor;
what does matter is that the School, an institution of the State, had a special
relationship with its nine-year-old student that it violated by its affirmative acts
of checking her out to an unknown and unauthorized adult, thereby
involuntarily confining her, against her will, in his custody and thereby failing
in its duty to protect her from such a quintessential and widely known threat to
young children as pedophilia.
        When the question posed is addressed in the framework thus constructed,
the Does’ complaint survives the Education Defendants’ Rule 12(b)(6) motion.
We therefore reverse the district court’s dismissal of the Does’ action, based on
that court’s holding of the absence of any duty of the Education Defendants to
protect Jane, and we remand for further proceedings incorporating the special-
relationship analysis as hereafter clarified.8
                           II. FACTS & PROCEEDINGS
A.      Facts
        The Does’ complaint precisely alleges that, during the 2007-2008 school
year, cognizant personnel at the School deliberately released Jane to Keyes
during the school day on at least six different occasions: September 12, 2007,
September 27, 2007, October 12, 2007, November 6, 2007, December 11, 2007,
and January 8, 2008. Each time that Keyes checked Jane out of the School, he
brutally raped, sodomized, and molested her and then returned her to the
School, where the School’s employees checked her back on to the school grounds.
        According to the Does’ complaint, the School had formally adopted and



       8
         In deciding this appeal on the special-relationship grounds asserted in the Does’
complaint, we need not and therefore do not address the slippery slope of the state-created-
danger theory, also alleged therein. Neither do we address the alternative theory of liability
advanced by the Does that the School’s check-out policy was the “moving force” of Jane’s
injury, as the sole ground on which the district court denied municipal liability was its
erroneous holding that the School did not have a special relationship with Jane.

                                              6
     Case: 09-60406    Document: 00511563892        Page: 7     Date Filed: 08/05/2011



                                     No. 09-60406

actively implemented a compulsory9 check-out policy, one express aspect of
which was the creation and maintenance of a “Permission to Check-Out Form”
(the “Form”) for each student, which listed by name the only adults who were
authorized to take that particular student off of the School’s campus during the
school day. At all relevant times, however, the School’s check-out policy did not
include a requirement or directive to the School’s employees that they verify that
any adult seeking to check out a student was who he said he was, i.e., an adult
listed by name on the Form by the student’s legal guardians as someone
authorized to check out the student in question.
        As a direct result of this “express” aspect of the policy, or of its
implementation by the School’s personnel charged with administering the policy,
allege the Does, no employee of the School ever (1) consulted Jane’s Form or
(2) required Keyes to furnish identification consistent with her Form, before
delegating its exclusive school-day custody of Jane to Keyes and allowing him to
take her away from the School. If they had, allege the Does, they would have
discovered that “Tommy Keyes” was never authorized by Jane’s legal guardian
to check Jane out of the School: His name was not listed on her Form; he was not
related to her in any way; he never had any parental, custodial, or guardianship
rights whatsoever over her. Nevertheless, according to the Does’ complaint, the
School repeatedly checked Jane out to this unauthorized stranger, who on
multiple occasions signed her out as her father and, on at least one occasion, as
her mother!
B.      Proceedings
        In September 2009, the Does filed this action in the district court against
the Education Defendants as well as against Keyes and unknown defendants.
The Does advanced constitutional claims under §§ 1983 and 1985 as well as

       9
         There is no indication in the Does’ complaint that the School’s young pupils—alone
or even through their legal guardians—could opt out of this check-out policy.

                                            7
     Case: 09-60406        Document: 00511563892         Page: 8    Date Filed: 08/05/2011



                                          No. 09-60406

claims under Mississippi law. In response, the Education Defendants filed a
motion to dismiss the Does’ action pursuant to Rule 12(b)(6) for failure to state
a claim on which they could recover.
        The district court granted that motion and dismissed the case on the
ground that the Education Defendants owed no duty to protect Jane because
(1) the Fifth Circuit has never recognized the “state created danger” theory of
recovery, and (2) there was no “special relationship” between the School and
Jane. As a result, the district court ruled that there was no constitutional
violation for which the Does could recover from the Education Defendants. In
addition, the district court granted qualified immunity to the Education
Defendants.10
                                       III. ANALYSIS
A.      Standard of Review
        “We review a district court’s grant of a motion to dismiss for failure to
state a claim de novo, ‘accepting all well-pleaded facts as true and viewing those
facts in the light most favorable to the plaintiff.’”11 In conducting this review, we
examine only the allegations within the four corners of the complaint.12 We will
not address or assume what the plaintiff may or may not find through discovery.
Rather, the plaintiff must allege sufficient facts to suggest a plausible ground for




       10
          The district court appears to have inadvertently included all Defendants-
Appellees—both the municipal entities and those persons who were sued in their individual
capacity—into its qualified-immunity analysis. As only natural persons who are sued in their
individual capacities are entitled to qualified immunity, however, we address such immunity
with regard to those defendants only.
       11
        Bustos v. Martini Club Inc., 

, 461 (5th Cir. 2010) (quoting True v. Robles,

, 417 (5th Cir. 2009)).
        12
             McCartney v. First City Bank, 

, 47 (5th Cir. 1992).

                                                 8
     Case: 09-60406        Document: 00511563892             Page: 9   Date Filed: 08/05/2011



                                           No. 09-60406

relief.13 “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.”14
B.      The Does’ Special-Relationship Claim Has Facial Plausibility
        1.        DeShaney Recognized a “Special Relationship”
                  Exception for When the State Has Duty to Protect a
                  Private Citizen against Private Violence
        The Supreme Court firmly established its “special relationship” doctrine
in DeShaney v. Winnebago County. The facts of DeShaney are significantly
distinct from the instant case, but the Court’s analysis is instructive. In
DeShaney, state social workers became aware that a child might be the victim
of abuse based on suspicious injuries. They concluded, however, that there was
insufficient evidence of child abuse to retain the child in state custody, so they
allowed him to be returned to his father’s custody from the hospital where he
was being treated.15 Later, the father so severely beat the child that he suffered
severe brain damage and fell into a life-threatening coma.16 The child and his
mother then filed a § 1983 action against the state social workers, asserting that
they failed in their duty to protect the child, thus violating his substantive due-




       13
          See generally Ashcroft v. Iqbal, 

(2009). Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 

(1993), does not affect our analysis
in this case. That case held that federal courts may not apply a heightened pleading standard
in municipal liability cases. 

Iqbal does not require a heightened pleading standard.
Rather, it re-articulates Rule 8’s notice pleading. See Bell Atlantic Corp. v. Twombly, 

, 557 (2007) (stating that the “plausibility” standard “reflects the threshold requirement
of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is
entitled to relief’”). We have consistently applied the plausibility standard in municipal-policy
suits, see e.g., Morgan v. Swanson, 

, 882 (5th Cir. 2010), and we do so again today.
        14
             

(citation omitted).
        

.
        16
             

                                                  9
  Case: 09-60406         Document: 00511563892       Page: 10      Date Filed: 08/05/2011



                                          No. 09-60406

process rights.17
      The Court made clear 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.”18 The Court identified an exception to this
general rule, however, specifying that the State does have a duty to protect
citizens against private violence when the State has a “special relationship” with
that citizen:
      [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.19
It is, therefore, “the State’s affirmative act of restraining the individual’s
freedom to act on his own behalf—through incarceration, institutionalization, or
other similar restraints of personal liberty”—which constitutionally imposes on
the State a duty to protect the restrained citizen from private violence.20
      Based on the discrete facts before it, the DeShaney Court concluded that
there was no special relationship between the social workers and the child. Even
though “the State once took temporary custody of [the child],” “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; the State does not become the


      17
           

at 197.
      19
           

(citation omitted and emphases added).
      20
           

(emphases added).

                                              10
  Case: 09-60406          Document: 00511563892         Page: 11    Date Filed: 08/05/2011



                                           No. 09-60406

permanent guarantor of an individual’s safety by having once offered him
shelter.”21 The Court emphasized that, despite the fact that the social workers
may have had good reason to suspect that the father was a threat to the child,
“[t]he most that can be said of the state functionaries in this case is that they
stood by and did nothing when suspicious circumstances dictated a more active
role for them.”22 This state inaction was simply not enough to create a special
relationship with the child.
       Despite finding that the social workers did not have a special relationship
with the child under those discrete facts, the Court went out of its way to make
clear that the social workers could have had a duty to protect the child from
private violence had they taken an active role:
       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. Indeed, several Courts of Appeals have held . . . that
       the State may be held liable under the Due Process Clause for
       failing to protect children in foster homes from mistreatment at the
       hands of their foster parents.23
Notably, this is one such court of appeals.24 We have recognized that, when the
State places a child in the custody of a state-approved foster home, the child
“suffer[s] a deprivation of a right to personal security,” in violation of the Due
Process Clause, if the State violates its “affirmative duty [ ], based on a ‘special
relationship’, to protect [the child] from violence in [that] foster home.”25

       21
            

       22
            

(emphases added).
       23
            

n.9.
       24
            Griffith v. Johnston, 

, 1439-40 (5th Cir. 1990).
       25
         Hernandez v. Tex. Dep’t of Protective and Regulatory Servs., 

, 880 (5th
Cir. 2004).

                                               11
  Case: 09-60406        Document: 00511563892    Page: 12   Date Filed: 08/05/2011



                                      No. 09-60406

      Accordingly, as we address the facts alleged in Does’ complaint, we must
necessarily consider whether the School’s repeated acts of delivering nine-year-
old Jane into the exclusive custody of Keyes—on the School’s premises, for the
purpose of his taking her away from the School’s premises—during the school
day, amounted to (1) affirmative acts on the part of the State, as opposed to state
inaction, and (2) a deprivation of Jane’s liberty sufficient to impose on the School
a duty to protect her from violence in that state–approved and facilitated private
custody.
      2.       The Fifth Circuit Has Applied DeShaney in the School
               Context, Focusing on the Involuntary Aspect of the
               Custody and the Age and Isolation of the Student
      Sitting en banc, this court has twice confronted the question whether a
DeShaney “special relationship” exists between a minor student and his school.
First, we determined in Walton v. Alexander that a non-compulsory state school
does not have a special relationship with a student who chooses to attend it.
There, the student voluntarily attended a state school for the deaf where he was
under twenty-four-hour supervision and was subject to strict rules regarding his
coming and going.26 While attending this school, the student was sexually
assaulted on school grounds by a classmate. The student then sued the school,
asserting that, because of the extremely restrictive conditions imposed by that
particular state school, it had affirmatively restrained his ability to care for
himself and thus had a duty to protect him from his classmate’s assault.
      We disagreed, holding that a special relationship “only arises when a
person is involuntarily confined or otherwise restrained against his will
pursuant to a governmental order or by the affirmative exercise of state
power.”27 We concluded, therefore, that the plaintiff was not in a special

      26
           

.
      27
           

                                          12
  Case: 09-60406          Document: 00511563892      Page: 13     Date Filed: 08/05/2011



                                          No. 09-60406

relationship with the school because he voluntarily attended the school for the
deaf and thus chose to be placed in the restrictive custodial condition in which
he was assaulted.28 We went on to note, however, that a special relationship does
exist “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.”29 Albeit in dicta, we thus recognized that a school does
create a special relationship with a student if it affirmatively acts to confine the
student against his will, depriving him of his ability to defend himself.
       Next, we determined in Doe v. Hillsboro Independent School District that
a compulsory-attendance middle school did not have a special relationship with
its thirteen-year-old student who was sexually abused by a janitor on the school
grounds after the close of the school day.30 In that particular context, we
“decline[d] 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.”31 In determining that public school custody
of students (at least those as old as thirteen) was not equivalent to state
imprisonment or institutionalization of adults, we relied on an explanation
provided by the Supreme Court:
       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

       28
         

As such, we did not need to confront the effect of compulsory attendance
laws on the relationship between a public school and a student because the plaintiff had
voluntarily attended the school for the deaf.
       29
            

original).
       

.
       31
            

(emphasis added).

                                              13
  Case: 09-60406         Document: 00511563892        Page: 14     Date Filed: 08/05/2011



                                        No. 09-60406

        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.32
Thus, our reasoning in Hillsboro was that there is not a special relationship
between a public school and its students when (1) the students are not “very
young,” (2) the students are not “physically restrained from leaving,” and (3) the
students are not apart from teachers and classmates who might help protect
them. As the emphasized language in the foregoing quotation suggests, however,
the converse could very well pertain, i.e., a school could have a special
relationship with a student if he (1) is “very young,” (2) is “physically restrained”
by (and unable to leave) the school’s custody, and (3) is secluded or kept “apart
from teachers and other pupils who may witness and protest any instances of
mistreatment.”33
        3.       Under the Detailed Facts Alleged in the Does’
                 Complaint, the School Had a Special Relationship with
                 Jane
        Taking these cases into consideration, we accept that compulsory-
attendance schools (at least middle and upper schools) alone do not ipso facto
have a special relationship with their students. But, the situation alleged in the
Does’ complaint is palpably distinguishable from our precedent in at least two
respects: (1) unlike the student in Hillsboro, Jane was an elementary-school
student and was only nine-years old, which is a very young, pre-pubescent age;
and (2) unlike the school in Walton, Jane’s school affirmatively acted, pursuant



        32
             

and quotation marks omitted) (citing 

).
        33
          We went on in Hillsboro to hold that, because the janitor was not acting under color
of state law and there was no special relationship between the school and the student, the
plaintiffs could not recover even if the school had been deliberately indifferent in hiring the
janitor (which, we also suggested, it was not). 

                                              14
  Case: 09-60406       Document: 00511563892          Page: 15     Date Filed: 08/05/2011



                                       No. 09-60406

to its express check-out policy, to isolate nine-year-old Jane from her teachers
and classmates and then, without her legal guardian’s knowledge or consent,
force her into Keyes’s exclusive off-campus custody, which was even more
restrictive than the School’s on-campus custody of Jane.
              a.     Jane Was of Such a Very Young Age That
                     She Could Not Protect Herself
       As noted, the Does allege that Jane was a nine-years-old girl at the time
of the School’s putative constitutional violation. Up until now, we have not been
faced with a case involving (1) such a young girl (2) attending a public
elementary school (3) under compulsory-attendance laws. Even though in
Hillsboro, we held that a public middle school does not automatically have a
special relationship with its thirteen-year-old students, we nevertheless
acknowledged that a public school’s custodial relationship with a student might
be different when very young children are involved. We recognized the truism
that younger children are necessarily much more dependent on their custodians
than are teenagers or adults.34
       In our view, there is a continuum of restrictions that the State must
impose on a private citizen to trigger a special relationship, the degree of which
corresponds to the age and competency of the individual in question, i.e., his
mental, psychological, and physical ability to recognize and defend himself
against threats to his safety. For example, the Supreme Court has said that, for
the State to have a special relationship with a competent adult, it must
incarcerate that adult, thereby wholly depriving him of any ability to fend or


       34
         The dissent asserts broadly that, “[u]nder our binding precedent, a public school does
not have a DeShaney special relationship with its students requiring the school to ensure the
students’ safety.” Dissent at 7. But, this court has never expressly held that no public school
will ever have a special relationship with any student in any context. To the contrary, this
court has indicated that youth, among other circumstances, may create a special relationship
between a public compulsory-attendance school and its students. See 

.

                                              15
  Case: 09-60406         Document: 00511563892          Page: 16     Date Filed: 08/05/2011



                                           No. 09-60406

seek care for himself.35 When an otherwise capable and competent adult is so
deprived, the State has a duty to provide him with such care and security as is
necessary.36 Likewise, when the State physically restrains an incompetent,
intellectually disabled adult, it has “the unquestioned duty to provide reasonable
safety,” which, under the circumstances of an incompetent adult involuntarily
committed to a mental institution (unlike a competent adult at a prison),
includes “such training as an appropriate professional would consider reasonable
to ensure [the incompetent adult’s] safety and to facilitate his ability to function
free from bodily restraints.”37
       In the secondary school context, we have held that an “open,” compulsory-
attendance, public middle school does not have a special relationship with a
teenage student because “the restrictions imposed by the attendance laws upon
students and parents” does not prevent parents from providing for the basic
needs of their teenage children.38 Today, however, we must consider whether, in
like manner, a pre-pubescent nine-year-old girl’s basic needs can conceivably be
provided by her legal guardian while she is at school, or whether, instead, a
public elementary school has a duty to provide for such a young girl’s reasonable
safety during the school day throughout which she is apart from her legal
guardian—and here her teachers and classmates as well.


       35
          Estelle v. Gamble, 

, 103-04 (1976) (“An inmate must rely on prison
authorities to treat his medical needs; if the authorities fail to do so, those needs will not be
met.”).
       36
         See 

(“[B]ecause the prisoner is unable by reason of the
deprivation of his liberty to care for himself, it is only just that the State be required to care
for him.” (citing 

) (quotation marks and citation omitted)).
       37
         

. See also 

(“[T]he substantive
component of the Fourteenth Amendment’s Due Process Clause requires the State to provide
involuntarily committed mental patients with such services as are necessary to ensure their
‘reasonable safety’ from themselves and others.” (citation omitted)).
       38
            

.

                                               16
  Case: 09-60406       Document: 00511563892          Page: 17      Date Filed: 08/05/2011



                                       No. 09-60406

       It cannot be debated that nine-year-old children have no real ability to
fend for themselves against threatening adults. Nine-year-old children like Jane
virtually never possess the will or fortitude to protest or challenge adult
authority figures, particularly those whose authority is apparently endorsed by
the very persons or institutions such children trust. Neither are such youngsters
generally apprised of or able to recognize threats to their safety, which is why
they are never permitted to leave the school grounds by themselves—unlike older
teenage students who regularly come and go on their own, during, before, and
after school hours. Quite simply, we conclude that nine-year-old, elementary-
school students are significantly distinct from teenage, middle- and high-school
students in their ability to provide for their own protection from sex offenders
while they are mandatorily separated from their legal guardians—let alone
when they are also separated from their regular teachers and classmates.39


       39
          The dissent refers to the distinction between pre-pubescent nine-year-old,
elementary-school students and post-pubescent teenage, middle- and high-school students as
“arbitrary.” Dissent at 14. Congress disagrees. See, e.g., The Fair Labor Standards Act, 29
U.S.C. §§ 201-19 (setting fourteen as the minimum age for most non-agricultural work). The
legislatures of all fifty states disagree. See, e.g., Charles A. Phipps, Misdirected Reform:
On Regulating Consensual Sexual Activity Between Teenagers, 12 CORNELL J.L. & PUB. POL’Y
373, 429-31 (2003):

       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.

(footnotes omitted). Society and the medical profession disagree. See, e.g., Theresa
O’Lonergan & John J. Zodrow, Pediatric Assent: Subject Protection Issues Among Adolescent
Females Enrolled in Research, 34 J.L. MED. & ETHICS 451, 454-55 (2006):

       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.

                                              17
  Case: 09-60406            Document: 00511563892    Page: 18     Date Filed: 08/05/2011



                                        No. 09-60406

Although nine-year-old students, like all elementary-school children, are picked
up by or delivered to their parents at the end of the school day, we are satisfied
that this has nothing to do with the duty owed to such very young students while
they are in the compulsory custody of their elementary schools during the course
of the school day.
       Nevertheless, we need not decide whether the School had a special
relationship with Jane based solely on her very young age because the School
also affirmatively exercised its state power to restrain Jane’s liberty even more.
We, therefore, do not conclude, as the dissent alleges, that all elementary-school
children “have a constitutionally protected liberty interest in remaining safe at
school.”40
                 b.     The School Affirmatively Forced Jane into
                        Keyes’s Sole Custody and Allowed Keyes to
                        Take Her Away from the School Where She
                        Could Not Protect Herself
       The Does’ complaint further alleges that, in addition to Jane’s very young
age, the School’s adherence to its express check-out policy in checking Jane out
to Keyes was an affirmative exercise of the School’s power that further disabled
Jane and further obliged the School to protect her. The School’s check-out policy
worked both to relinquish the School’s custody of Jane on campus and to place


       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.

(footnotes omitted). Even Mother Nature disagrees. See, e.g., 

is
the morphologically recognizable hallmark of adolescence. Of particular interest here is the
bald fact that adolescent girls can conceive and bear children.”).
       40
            Dissent at 1.

                                             18
  Case: 09-60406       Document: 00511563892        Page: 19   Date Filed: 08/05/2011



                                      No. 09-60406

her in the absolute custody and control of Keyes off campus. The Does allege that
the Education Defendants, acting in loco parentis, rendered Jane all the more
helpless by separating her from any possible succor that her teachers and
classmates might provide and then actively delivering her to Keyes for the
intended purpose of his taking her away from school grounds.
      The Does assert that a nine-year-old girl is rendered entirely helpless
when she is repeatedly isolated from her classmates and her teachers and then
helplessly forced into the custody of an adult stranger—an adult with the
apparent imprimatur of the very school that she had been taught to trust
without question—in the middle of the school day. We are convinced that, as
alleged, these repeated deliberate acts of the School constitute precisely the kind
of “affirmative exercise of State power” contemplated in DeShaney. We are fully
aware, of course, that in DeShaney the Supreme Court held that there was no
special relationship when the State passively allowed a child to remain in the
custody of his own natural father. But, the Court went on to make the point that
had the state social workers actively assayed to place the child in the custody of
a foster parent (a state-licensed, non–natural parent, private actor), the social
workers might have had a duty to protect the child from private violence
imposed by that private actor.41 Thus, while there is no comparison between, on
the one hand, social workers passively standing by while a child is returned to
the custody of his legal guardian and, on the other hand, a public school actively
placing a nine-year-old student in the custody of an unauthorized private actor
during school hours, the Court’s analysis in DeShaney explicitly contemplated
that the State could very well have a special relationship with a child whom it
actively placed in the sole custody of a private actor, as the “agent” or “delegee”
of the custodial state subdivision. Again, this is not to say that Keyes was acting


      41
           

n.9 (emphases added).

                                            19
  Case: 09-60406           Document: 00511563892     Page: 20   Date Filed: 08/05/2011



                                          No. 09-60406

under color of state law; we only point out that the DeShaney Court recognized
that, if the State had custody of a child and then affirmatively placed him in a
non–legal guardian, private actor’s custody, it might have a special relationship
with that child, and it would violate the Constitution if it was deliberately
indifferent to that child’s personal security when it handed him over to that
private actor.
      We also reiterate that DeShaney defined “basic human needs” as “food,
clothing, shelter, medical care, and reasonable safety.”42 The dissent concludes
that “[t]he School did not restrain Jane’s liberty to the extent that neither she
nor her guardians were unable to provide for her basic needs.”43 While this may
be true as to food, clothing, shelter, and medical care, we are convinced that the
School, by checking young Jane out to an unauthorized adult, rendered Jane and
her legal guardian unable to provide for her reasonable safety. The dissent
advances the generalization that, “[n]o matter the age of the child, parents are
the primary providers of food, clothing, shelter, medical care, and reasonable
safety,”44 but it notably fails to explain exactly how Jane’s legal guardian could
have otherwise provided for Jane’s reasonable safety on the six occasions that
the School checked Jane out to Keyes.
                c.      Based on Jane’s Very Young Age and the
                        School’s “Affirmative Exercise of State
                        Power,” the School Had a Duty to Protect
                        Jane
      We are satisfied that by itself Jane’s status as a nine-year-old girl
attending a compulsory-attendance elementary school could distinguish the
instant case from Walton, Hillsboro, and our other school cases. But, the totality


      42
           

(emphasis added).
      43
           Dissent at 8.
      44
           

                                              20
  Case: 09-60406            Document: 00511563892    Page: 21   Date Filed: 08/05/2011



                                          No. 09-60406

of the alleged circumstances of the School’s expressly adopted check-out
policy—by virtue of which the School actively and knowingly (not passively or
inadvertently) forced Jane into the even more restrictive and unfettered custody
of Keyes, not at the end but during the school day, when the School was
otherwise obligated to care for Jane—convinces us that the School did indeed
have a duty to protect her from precisely the kind of injuries that she suffered.
      Our conclusion is consistent with that reached by the Third Circuit under
a closely analogous set of facts in Horton v. Flenory.45 There, a private club
owner detained a man whom he suspected of burglary and began to interrogate
and beat the suspect before the police arrived.46 When a police sergeant arrived
at the club, he too interrogated the suspect, but then departed, leaving the
suspect in the club owner’s custody pursuant to a police-department policy of
allowing private clubs to detain and interrogate suspected burglars in the
absence of the police.47 Following the sergeant’s departure, the club owner
continued to beat the suspect, who died later that night.48 The estate of the
suspect filed a wrongful death action against the city and the sergeant in his
official capacity. The case was tried to a jury, which found in favor of the
suspect’s estate, and the city and the sergeant appealed.49 The Third Circuit
upheld the jury verdict, explaining that the jury could have found from the
evidence:
      (1) that [the city] had an official policy of letting private clubs police
      themselves;


      45
           

(3d Cir. 1989).
      46
           

      47
           

      48
           

      49
           

                                              21
  Case: 09-60406          Document: 00511563892       Page: 22     Date Filed: 08/05/2011



                                       No. 09-60406


       (2) that, acting pursuant to that policy and under color of state law,
       [the sergeant] left the investigation of the burglary in [the club
       owner’s] “good hands”;

       (3) that [the sergeant] facilitated [the club owner] in carrying out
       the police function of interrogating [the suspect], by [leaving the
       club] and by suggesting in [the suspect’s] presence that any further
       investigation would be done by [the club owner];

       (4) that [the sergeant] was aware [the suspect] had already been
       mistreated and was in fear;

       (5) that [the suspect] requested that he be taken from the [club] but
       [the sergeant] did not do so;

       (6) that [the suspect] was in custody in the [club], and the denial of
       his request to be taken from the club confirmed both to [the club
       owner] and to [the suspect] that the police department approved of
       his continued custody there;

       (7) that during that continued custody, [the club owner’s] further
       investigation of the burglary was pursued by methods which for [the
       suspect] proved to be fatal.50
This combination of alleged facts, reasoned the Third Circuit, was “sufficient by
itself to prevent judgment notwithstanding the verdict” because it established
that the State, through the sergeant’s actions as endorsed by the police
department’s official policy, had a DeShaney special relationship with the
suspect when it delegated its exclusive lawful custody of the suspect to the
non–state actor club owner.51



       50
            

       51
           

The court also went on to analyze, as “a further bar to relief,” whether
from the evidence, the jury could have found that the State delegated to the club owner “its
traditional police functions,” and thereby was “responsible for a private action if the private
actor [ ] exercised coercive power with significant encouragement, overt or covert, from the
state.” 

That analysis is not directly relevant here.

                                              22
  Case: 09-60406      Document: 00511563892       Page: 23     Date Filed: 08/05/2011



                                     No. 09-60406

      The factors that the Horton court considered in reaching its conclusion
apply with equal vigor to the instant case. In fact, our conclusion, based on the
detailed facts alleged in the Does’ complaint, that the School had a special
relationship with Jane (and a corresponding duty not to place her in the sole off-
campus custody of a private actor with deliberate indifference to whether that
actor was authorized by her legal guardian to have such custody of her) is
supported by all of the Horton factors:
      (1) the School had an official policy of letting any private actor take
      custody of its nine-year-old students, regardless of whether the
      student’s parents had specifically authorized that actor to do so;

      (2) acting pursuant to that policy and under color of state law, the
      School’s officials repeatedly allowed Keyes to take Jane away from
      the School during the school day, leaving her completely in Keyes’s
      “good hands”;

      (3) the School facilitated Keyes in taking full and sole custody of
      Jane, by allowing Keyes to take her away from the School and by
      implying to Jane that he had a right to do so;

      (4) the School had received complaints and had internal safety
      meetings about its express check-out policy, so the School was aware
      that nine-year-old Jane’s safety was threatened by (and Jane had
      reason to be fearful of) its checking her out to Keyes without
      verifying his identity;52

      (5) Jane’s legal guardian affirmatively requested—using the Form
      provided by the School pursuant to its check-out policy—that only
      specified private actors (not including Keyes) be allowed to check
      her out, but the School still checked Jane out to Keyes six times;

      (6) Jane was in Keyes’s custody, and the School’s repeated allowance
      of her to be taken into Keyes’s custody confirmed both to Keyes and
      to Jane that the School approved of his continued custody of her;


      52
        That said, the Does do not allege that the School was aware that Jane had already
been sexually abused when the School repeatedly checked her out to Keyes.

                                           23
  Case: 09-60406        Document: 00511563892          Page: 24   Date Filed: 08/05/2011



                                      No. 09-60406

      (7) during that continued custody, Keyes brutally raped, sodomized,
      and molested Jane.
      We reach the same conclusion as did the Third Circuit, that the
combination of facts alleged in the Does’ complaint establishes that the School
had a special relationship with Jane that is sufficient to require reversal of the
district court’s Rule 12(b)(6) dismissal. The Third Circuit emphasized:
      Unlike the passive role of the neglectful social workers in DeShaney,
      the role of the state actor here, [the sergeant], could be found from
      the evidence to be anything but passive. Evidence which could be
      credited suggests that he used his official status to confirm that [the
      private club owner] was free to continue the custodial interrogation
      even though [the suspect] was in fear for his safety and wanted to
      leave. Clearly, [the sergeant] was a participant in the custody which
      led to the victim’s death.53
      The same can be said for the instant case: Unlike the passive role of the
neglectful social workers in DeShaney, the School eventually could be found from
the evidence discovered to be anything but passive. Facts are alleged here,
which, if proved, would suggest that the School used its official status to confirm
that Keyes was free to continue checking Jane out of school and to exercise full
and complete custody over her during the school day, taking her from the School
to anywhere he wanted—despite the facts that (1) Keyes was not listed on Jane’s
Form as an adult authorized by Jane’s legal guardian to take custody of her, and
(2) the School either failed to use its own check-out Form to verify that Keyes
was authorized or failed to verify that he was the person he claimed to be. We
are thus convinced that, even if the School did not have a special relationship
with Jane solely because of her very young age and compulsory attendance, it
most certainly did have a special relationship with Jane once it affirmatively
acted to restrain her liberty further by handing her over to Keyes and giving him
carte blanche to continue his full and exclusive control of Jane away from the

      53
           

(emphases added).

                                            24
  Case: 09-60406         Document: 00511563892         Page: 25     Date Filed: 08/05/2011



                                        No. 09-60406

School and away from everyone else whom she knew and trusted.54 Our
conclusion is thus supported by the Third Circuit’s analysis in Horton55 and was
apparently anticipated by the Supreme Court.56
       3.       Deliberate Indifference
       Because we are satisfied that the Does have alleged facts sufficient to
establish that the School had a special relationship with Jane, the Education
Defendants had a correlative duty not to be deliberately indifferent to ensuring
Jane’s reasonable safety. We must now determine whether the claim in the Does’
complaint that the School acted with deliberate indifference to Jane’s right to
personal security is facially plausible.
       We have stated that, “[t]o act with deliberate indifference, a state actor
must consciously disregard a known and excessive risk to the victim’s health and
safety.”57 The Does allege that the Education Defendants consciously disregarded
the known risk to Jane’s safety by affirmatively enacting and maintaining a
check-out policy at the core of which was a Form to be used in ensuring that only



       54
          See 

club owner] was given carte blanche to continue his custodial
interrogation as a part of his investigation into a burglary, because it was the official policy
of the [city’s police department] to defer to private law enforcement with respect to private
clubs.”).
       55
          Although the dissent states that “a discussion of decisions from other circuits” is
“[c]onspicuously absent” from our analysis, dissent at 9, a discussion of Horton is
conspicuously absent from the dissent’s analysis with the exception of one footnote in which
the dissent attempts to distinguish Horton on the basis of that case’s alternative bar to relief,
which is irrelevant to this analysis, see 

n.8.
       56
         Originally, when the Third Circuit affirmed the jury verdict in favor of the plaintiffs
in Horton, the Supreme Court vacated the judgment and remanded the case for further
consideration in light of the Court’s then-recent opinion in DeShaney. 

.
On remand, the Supreme Court specifically presented the question “whether the evidence
[summed up above] suffice[d] to permit a finding that [the suspect] was in state custody at the
time of his fatal beating.” 

As explained, the Third Circuit answered in the
affirmative.
       57
            

(citations omitted).

                                               25
  Case: 09-60406        Document: 00511563892         Page: 26      Date Filed: 08/05/2011



                                       No. 09-60406

persons authorized by the legal guardians of the pupil could check him out, then
repeatedly checking Jane out to an adult without verifying his claimed identity
as her father or—astonishingly, her mother—on six different occasions over a
period of months.58 The Does allege further that the Education Defendants had
“actual knowledge” of the risk associated with their express check-out policy’s
feature of not verifying the identity of the adults who sought to check out the
School’s nine-year-old students during the school day and take them off of the
School’s campus:
       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.59
Accepting these alleged facts as true, as we must do at this stage of the case, we
conclude that the School did act with deliberate indifference to Jane’s safety by
checking her out to an unauthorized adult (whom they did not know) without
verifying his identity to confirm that he was authorized by Jane’s legal guardian
to check her out of school when they had actual knowledge of the substantial risk


       58
          The dissent asserts that “[w]ithout any reason to believe that the school employee
releasing Jane knew that Keyes was not authorized to take her from school, we simply cannot
infer that the School had knowledge that it was restricting Jane’s liberty or restricting her or
her guardian’s ability to care for her basic human needs.” Dissent at 17 (emphasis in original).
With respect, we believe that there is very good reason to believe that the School had to know
that Keyes was not who he said he was when he checked Jane out as her mother. The School’s
disregarding the fact that Keyes could not physically be Jane’s mother yet giving Jane over
to him anyway is more than just a “careless mistake,” as the dissent alleges. 

Moreover, we are not talking about a one-time instance of the School’s failing to verify Keyes’s
identity: In the face—and disregard—of its own checkout form, the School allowed an
unauthorized man to take a nine-year-old girl out of its custody on six different occasions over
a period of four months.
       59
            (emphasis added).

                                              26
  Case: 09-60406    Document: 00511563892     Page: 27    Date Filed: 08/05/2011



                                  No. 09-60406

to Jane’s personal security created by this policy. The School’s deliberate
indifference as exhibited in its maladministration of its own check-out policy,
directly and actively created a known substantial risk to Jane’s safety—which
tragically materialized into her repeated sexual abuse by Keyes.
      The potential sexual assault of pre-pubescent children in general and nine-
year-old girls in particular is hardly an unknown threat. We learned in a recent
appeal,60 for example, 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. This
program was designed with the express purpose of combating the threat posed
by pedophiles to very young children like Jane. 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
across 10 states. Our belabored point is that today’s ubiquitous awareness by
schools and school boards (and even the Department of Justice) of the
omnipresent threat posed by deviant adults preying on very young
schoolchildren—and the progressive policies that were already being adopted
and implemented around the country to deal with that threat well before the
incidents alleged in this case—dispel any conceivable doubt that, if the School’s
policy was deficient as alleged, the School’s indifference to Jane personal safety
had to have been deliberate.
      We conclude then that the discrete allegations of the Does’ complaint,
which we must assume to be true, are sufficient to establish that the Education
Defendants acted with deliberate indifference to Jane’s personal security, thus
violating her substantive due-process rights under the Fourteenth Amendment.

      60
         Meadows v. Lake Travis Indep. Sch. Dist., 397 F. App’x 1 (5th Cir. 2010)
(unpublished).

                                       27
     Case: 09-60406        Document: 00511563892        Page: 28   Date Filed: 08/05/2011



                                           No. 09-60406

C.      Qualified Immunity
        As the Supreme Court recently reiterated, “The doctrine of qualified
immunity protects government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’”61 The Court has
provided (though no longer mandates62) a two-step inquiry to determine whether
government officials are entitled to qualified immunity:
        First, a court must decide whether the facts that a plaintiff has
        alleged make out a violation of a constitutional right. Second, if the
        plaintiff has satisfied this first step, the court must decide whether
        the right at issue was “clearly established” at the time of
        defendant’s alleged misconduct. Qualified immunity is applicable
        unless the official’s conduct violated a clearly established
        constitutional right.63
        We hold today that the alleged facts do indeed make out a violation of
Jane’s substantive due-process rights by virtue of the School’s special
relationship with her. We hold further, however, that because—before today—we
have not expressly held that a very young child in the custody of a compulsory-
attendance public elementary school is necessarily in a special relationship with
that school when it places her in the absolute custody of an unauthorized private
actor, we cannot say that the conduct of the School’s officials and employees
violated a constitutional right that was clearly established at the time of their
alleged misconduct. In 2007, when these violations are alleged to have been


        61
         Pearson v. Callahan, 

, 231 (2009) (quoting Harlow v. Fitzgerald, 

, 818 (1982)).
        62
          In Pearson, the Court specifically held “while the [two-step] sequence [ ] is often
appropriate, it should no longer be regarded as mandatory. The judges of the district courts
and the courts of appeals should be permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.” 

        63
             

(internal citations omitted).

                                                  28
  Case: 09-60406       Document: 00511563892          Page: 29      Date Filed: 08/05/2011



                                       No. 09-60406

committed, Fifth Circuit opinions, including those in Hillsboro and some district
court cases,64 might very well have implied that such schools could never be in
a special relationship with its students. Even though today we clarify this
circuit’s position regarding the extent to which a school, by its affirmative
exercise of power, may well enter into a special relationship with a very young
student, those Education Defendants sued in their individual capacities did not
have the guidance of today’s decision in 2007. Accordingly, we affirm the
dismissal of the Does’ special-relationship claims against those Education
Defendants who were sued in their individual capacities.
                                   IV. CONCLUSION
       The Does have pleaded a facially plausible claim that the School 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. Accordingly,
we (1) reverse the district court’s grant of the Education Defendants’
Rule 12(b)(6) motion, (2) affirm that court’s qualified-immunity dismissal of the
Does’ special-relationship claims against those Education Defendants sued in
their individual capacities, and (3) remand to the district court for further
proceedings consistent herewith. As this panel’s remand is limited to the extent
of the further proceedings to be conducted by the district court consistent with
this opinion, the panel retains cognizance of this case when and if is should
return to this court.


REVERSED in part; AFFIRMED in part; and REMANDED.

       64
          See, e.g., Doe v. Sabine Parish Sch. Bd., 

, 661 (W.D. La. 1998) (“In
applying DeShaney, the Fifth Circuit has held that the type of ‘special relationship’ that
entitles a citizen to enjoy a clearly established constitutional right to state protection from
known threats of harm by private actors does not apply to the student/public-school
relationship and ‘only arises when a person is involuntarily confined or otherwise restrained
against his will pursuant to a governmental order or by the affirmative exercise of state
power.’” (quoting 

)).

                                              29
  Case: 09-60406    Document: 00511563892     Page: 30    Date Filed: 08/05/2011



                                  No. 09-60406

KING, Circuit Judge, dissenting:
      To state a claim under 42 U.S.C. § 1983, the Does must allege that Jane
was deprived of a liberty or property interest protected by the Fourteenth
Amendment. The majority concludes that under the circumstances present in
this case Jane, and other elementary schoolchildren, have a constitutionally
protected liberty interest in remaining safe at school. Our en banc court, and
every other circuit to consider the issue, has unequivocally concluded that public
school students do not have such an interest under the Constitution. Despite
clear and binding precedent to the contrary, the majority today holds that a
public school may create a constitutional “special relationship” with a student
when it allows her to leave the school with an adult unauthorized to take her.
The majority thus elevates a school employee’s careless mistake—failing to
ensure that Keyes was authorized to take Jane from the School—into a
constitutional violation. The majority’s decision is an unwarranted expansion
of the “special relationship” exception to the general rule that state actors are
not required to protect individuals from private harm; therefore, I respectfully
dissent.
                              I. BACKGROUND
      To be sure, the facts pleaded in the complaint, which we assume to be true
at this stage of the litigation, recount a horrifying tale.      Stripped of the
majority’s rhetorical flourish, the Does’ complaint alleges the following facts:
Nine-year-old Jane Doe attended an elementary school in Covington County,
Mississippi (the “School”) during the 2007–2008 school year. At some point,
Jane’s guardians filled out a “Permission to Check-Out Form,” on which they
listed the names of the people with exclusive permission to “check out” Jane from
school during the school day. On six separate occasions between September
2007 and January 2008, school employees allowed a man named Tommy Keyes,
who allegedly bore no relation to Jane and was not listed on her check-out form,

                                       30
  Case: 09-60406    Document: 00511563892     Page: 31    Date Filed: 08/05/2011



                                  No. 09-60406

to take Jane from school. On these occasions, Keyes took Jane from school,
sexually molested her, and returned her to school without the knowledge or
consent of her parents or guardians. Each time Keyes took Jane from school, he
simply signed her out as her father, and on one 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 defendants permitted school
employees to release Jane to Keyes without first verifying that he was who he
said he was or whether he was among those people listed on her check-out form.
      The majority re-characterizes the allegations in the Does’ complaint and
paints a picture suggesting that Jane was “forced” by school employees into the
“custody” of Keyes. In actuality, however, the complaint specifically assigns a
more passive role to the school employees. The Does allege 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. The
School therefore “allowed” Jane to leave with Keyes, rather than “forcing” her
to leave with him. More importantly, as I will explain below, nowhere in the
complaint do the Does allege that the School or its employees had actual
knowledge that Keyes was not authorized to take Jane from the School. They
simply allege that school employees did not check Keyes’s identification or verify
that he was among the adults listed on Jane’s check-out form.
      Furthermore, contrary to the majority’s suggestion, the Does’ complaint
does not allege that the school’s check-out policy required school employees to
release a student to any adult asking for her release. Rather, the complaint
alleges that the policy permitted school employees to release students to parents
without checking their identification. The policy thus delegated to school
employees the discretion to release a student without verifying the adult’s
identity against the check-out authorization form.



                                       31
  Case: 09-60406     Document: 00511563892     Page: 32   Date Filed: 08/05/2011



                                  No. 09-60406

      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,
“Defendants”).     The Does also named Tommy Keyes and other unnamed
defendants in their official and individual capacities. The Does asserted claims
under 42 U.S.C. §§ 1983, 1985, and 1986, as well as various state law causes of
action.
      On Defendants’ motion, the district court dismissed the Does’ federal
claims for failure to state a claim and declined to exercise 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, 

(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 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 Defendants, and concluded that the
claim was foreclosed by Fifth Circuit precedent. For the following reasons, I
would affirm the district court’s judgment dismissing the Does’ § 1983 claims.
                               II. DISCUSSION
A. DeShaney and the “Special Relationship” Exception
      The majority’s decision purports to be guided by the Supreme Court’s
decision in DeShaney. In that case, the Supreme Court stated in no uncertain
terms that state actors cannot be held liable for the actions of a private actor or

                                        32
  Case: 09-60406    Document: 00511563892      Page: 33   Date Filed: 08/05/2011



                                  No. 09-60406

for failing to protect an individual from harm inflicted by a private 

(“As a general matter, then, we conclude that a State’s failure to
protect an individual against private violence simply does not constitute a
violation of the Due Process Clause.”). The Court also recognized that this
general principle is subject to at least one very limited exception—when the
state creates a “special relationship” with an individual—but that exception has
never been extended to public schoolchildren.
      1.    DeShaney Recognizes a Limited Duty to Protect
      In DeShaney, Joshua DeShaney and his mother sued the Winnebago
County Department of Social Services and various individual defendants when
Joshua was severely beaten by his father after being returned to his father’s
custody following an investigation of allegations of child abuse. 

Joshua and his mother alleged that the Department and its employees had
violated his substantive due process rights by failing to protect Joshua from his
father’s violence even though they knew that he faced a very real danger of
harm. 

Court held that the plaintiffs could not maintain an
action under § 1983 because there had been no constitutional violation. 

The Court noted that the Fourteenth Amendment was enacted to “protect
the people from the State, not to ensure that the State protect[s] them from each
other.” 

The Fourteenth Amendment “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.”

Thus, “a State’s failure to protect an individual against private
violence simply does not constitute a violation of the Due Process Clause.” 

                                        33
  Case: 09-60406       Document: 00511563892         Page: 34     Date Filed: 08/05/2011



                                       No. 09-60406

       The Court noted that this categorical rule is subject to at least one very
limited exception.1 A state may create a “special relationship” with a particular
citizen, requiring the state to protect him from harm, “when the State takes a
person into its custody and holds him there against his will.” 

In
such instances, “the Constitution imposes upon it a corresponding duty to
assume some responsibility for his safety and general well-being.” 

.
That “special relationship” exists when the State incarcerates a prisoner, Estelle
v. Gamble, 

(1976), or involuntarily commits someone to an
institution, Youngberg v. Romeo, 

(1982). The Court reasoned that
       when the State by its 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.

. 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.” 

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, 

, 1439 (5th Cir. 1990). We reasoned that the


       1
          Several courts of appeals have recognized a second limited exception, the so-called
“state-created danger” theory. See, e.g., Kneipp v. Tedder, 

, 1211 (3d Cir. 1996);
Kallstrom v. City of Columbus, 

, 1066 (6th Cir. 1998); Ross v. United States, 

, 1431 (7th Cir. 1990); Carlton v. Cleburne Cnty., 

, 508 (8th Cir. 1996);
Wood v. Ostrander, 

, 589–90 (9th Cir. 1989); Uhlrig v. Harder, 

,
572–73 (10th Cir. 1995). We have to date declined to recognize the this theory. See, e.g.,
McClendon v. City of Columbia, 

, 325 (5th Cir. 2002) (en banc). The majority
similarly purports not to address the “slippery slope” of the state-created danger theory.
Majority Op. at 6 n.8.

                                             34
  Case: 09-60406    Document: 00511563892       Page: 35   Date Filed: 08/05/2011



                                  No. 09-60406

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.” 

not extended the DeShaney special relationship exception beyond these
three situations, and as I discuss below, we have explicitly held that the state
does not create a special relationship with children attending public schools.
      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., 

(5th Cir. 1997) (en banc); Walton v.
Alexander, 

(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.
      In Walton v. Alexander, a student at the Mississippi School for the Deaf,
a residential public school, was sexually assaulted by a fellow 

. 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 plaintiff student. 

In so
holding, we reasoned that the special relationship exception applies only “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.” 

the plaintiff “attended [the] school voluntarily with the
option of leaving at will.” 

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 

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

                                        35
  Case: 09-60406    Document: 00511563892      Page: 36   Date Filed: 08/05/2011



                                  No. 09-60406

on her studies” and was sexually assaulted by a school janitor when she was sent
to an empty area of the school to retrieve supplies for the teacher. 

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, “declin[ing] 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.” 

. 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.” 

and after our en banc decisions, no panel of this court has ever
recognized a special relationship between a public school and its students. See
Doe v. San Antonio Indep. Sch. Dist., 197 F. App’x 296, 298–300 (5th Cir. 2006)
(finding no “special relationship” between school and thirteen-year-old special
education student when student was allowed to leave with her “uncle,” who later
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., 

,
202–03 (5th Cir. 1994) (no special relationship between a high school and a
student shot and killed in school hallway during the school day by a boy who was
not a student but had gained access to the school); Lefall v. Dallas Indep. Sch.
Dist., 

, 529 (5th Cir. 1994) (no special relationship between a high
school and a student fatally wounded by a gunshot fired in the school parking
lot during a school dance).
      Under our binding precedent, a public school does not have a DeShaney
special relationship with its students requiring the school to ensure the students’

                                        36
  Case: 09-60406       Document: 00511563892         Page: 37     Date Filed: 08/05/2011



                                       No. 09-60406

safety.2 Public schools do not take students into custody and hold them there
against their will in the same way that a state takes prisoners, mental health
patients, and foster children into its custody.            See 

–200; 

. Without a “special relationship,” a public
school has no constitutional duty to ensure the safety of the students attending
the school. 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.” Doe v. Taylor Indep. Sch. Dist., 

, 450
(5th Cir. 1994) (en banc) (citation and internal quotation marks omitted). The
question posed to us is whether the School, through its affirmative exercise of
state power, assumed a constitutional duty to protect Jane. I am compelled by
our precedent, and by the Supreme Court’s guidance in DeShaney, to conclude
that the School did not assume that duty. Although education is compulsory in
Mississippi, Jane’s guardians voluntarily sent her to public school and they were
free to remove her from the School at any time. The School did not restrain
Jane’s liberty to the extent that neither she nor her guardians were unable to
provide for her basic needs. Because the School had no duty to ensure Jane’s
safety, Jane had no constitutional liberty interest in being safe at school. The
Does have therefore failed to state a claim under § 1983 for a constitutional
violation under the “special relationship” exception.
       3.     Special Relationships in Other Circuits


       2
          The majority asserts that in Hillsboro we “indicated that youth, among other
circumstances, may create a special relationship between a public compulsory-attendance
school and its students.” Majority Op. at 15 n.34. Aside from quoting language in Ingraham
v. Wright, 

, 670 (1977), which I address below, we referred broadly to “students,”
and we made no indication that our opinion applied only to middle- or high-school students.
See 

.

                                             37
  Case: 09-60406    Document: 00511563892     Page: 38    Date Filed: 08/05/2011



                                  No. 09-60406

      Conspicuously absent from the majority’s opinion is a discussion of the
decisions from other circuits. Like our court, each circuit to address the issue
has concluded that compulsory attendance laws do not create a “special
relationship” between public schools and their students because even though
school attendance is compulsory, public schools do not place the same restraints
on students’ liberty as do prisons and state mental health institutions. Hasenfus
v. LaJeunesse, 

, 71 (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., 

, 1371–72 (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 Educ., 3 F. App’x 25, 31 (4th Cir. 2001) (ten-
year-old student assaulted by his classmates); Doe v. Claiborne Cnty., Tenn., 

, 510 (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, 

, 272–73 (7th Cir. 1990) (teacher sexually molested two “school-age
children”); Dorothy J. v. Little Rock Sch. Dist., 

, 734 (8th Cir. 1993)
(mentally retarded high school boy was sexually assaulted by another mentally
retarded student); Patel v. Kent Sch. Dist., — F.3d —, 

, at *6–7
(9th Cir. July 11, 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, 

,
732–733 (10th Cir. 1992) (eleven-year-old boy died of accidental strangulation
in an unsupervised cloakroom adjacent to his classroom); Wyke v. Polk Cnty. Sch.
Bd., 

, 569 (11th Cir. 1997) (thirteen-year-old boy committed suicide



                                       38
     Case: 09-60406    Document: 00511563892         Page: 39     Date Filed: 08/05/2011



                                       No. 09-60406

a few days after an unsuccessful attempt and school officials never told his
parents of the attempt).
        As the forgoing cases demonstrate, other circuits have addressed this issue
under a wide variety of circumstances. The claims have involved children as
young as ten, children with developmental disabilities, and children left alone
without supervision. Yet, invariably, each circuit has held that public schools
do not have a constitutional duty to protect students from harm, whether that
harm is inflicted by a school employee, a fellow student, or the student himself.
The majority thus makes ours the only circuit to recognize such a duty.
B.      The Majority’s Theory of Liability
        Against this backdrop, and the many decisions to the contrary, the
majority concludes that Jane had a constitutionally protected liberty interest.
According to the majority, the stars have aligned and created just the right set
of circumstances that expose the School to constitutional liability. The majority
relies on two factors for its conclusion that the School created a “special
relationship” with Jane that required the School to protect her from harm: (1)
Jane’s “very young, prepubescent age”; and (2) that the School affirmatively
acted to “force” Jane into “Keyes’s exclusive off-campus custody.” Majority Op.
at 14–15. Neither of these factors provides a basis to conclude that the School
assumed a constitutional duty to protect Jane. The majority both exaggerates
the allegations in the Does’ complaint and ignores the contours of the “special
relationship” exception to create a cause of action where none exists.3

        3
          The majority also contorts a statement made by the Supreme Court in a wholly
different context in Ingraham v. Wright, 

(1977), into a suggestion that the Court
would find a special relationship in this case. Majority Op. at 13–14. 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.” 

. The Court then listed a number of reasons why
schools are open institutions, and the majority assumes that the converse of each reason must
result in a school that is a closed institution. Yet the Court did not suggest that a public

                                             39
  Case: 09-60406        Document: 00511563892          Page: 40     Date Filed: 08/05/2011



                                        No. 09-60406

       1.     Jane’s Young Age
       The majority reasons that Jane’s young age distinguishes this case from
the many others in which we have held that schools have no special relationship
with their students. The majority suggests that because nine-year-old children
“are never permitted to leave the school grounds by themselves,” and because
they “virtually never possess the will or fortitude to challenge adult figures,”
public schools are constitutionally required to ensure their safety during the
school day. Majority Op. at 17. Neither contention is sufficient to distinguish
this case.
       The majority contends that, because of her age, the School placed greater
restrictions on Jane’s liberty and that these additional age-appropriate
restrictions were sufficient to create a special relationship. Our en banc
precedent directly contravenes the majority’s contention. 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.” 

. This is as much true for elementary students as it is for high
school students. Nevertheless, the majority states that the fact that elementary
school students return to their parents’ care at the end of each school day “has
nothing to do with the duty owed to such very young students while they are in
the compulsory custody of their elementary schools during the course of the
school day.” Majority Op. at 18. 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, the fact that all public school students return to


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 opinion 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, 

, 655 (1995) (citing 

).

                                               40
  Case: 09-60406       Document: 00511563892          Page: 41     Date Filed: 08/05/2011



                                       No. 09-60406

their parents’ care at the end of each day has everything to do with the duty
owed to them by the school.
       The majority also contends that Jane’s attendance at the School was
somehow more compulsory than if she were a teenager, which distinguishes this
case from Walton and our other cases holding that compulsory attendance laws
are insufficient to create a special relationship because the School had
“compulsory custody” of Jane.4 Majority Op. at 18. But Jane’s young age does
not alter the voluntary nature of her attendance at the School. While it may be
true that elementary school students are subject to more rules during the school
day, their attendance at school is no more or less mandatory than teenagers’
attendance.5 In Walton, we held that there was no special relationship in part
because the plaintiff student voluntarily attended a residential school for deaf
children. Jane’s attendance at her school was no less voluntary. The fact that
Jane’s parents sent her to a public elementary school, rather a residential school
for deaf children, does not alter the voluntary nature of Jane’s attendance at
that school.



       4
         The majority implies several times that the School had “exclusive” custody of Jane.
The complaint does not allege this fact and it is simply untrue. Jane’s parents were free to
retrieve her from the School at any time; they were not “excluded” from the School or
prevented from providing care of any kind to Jane. This is in stark contrast to the “exclusion”
her parents would encounter if Jane were incarcerated, institutionalized, or placed in foster
care.
       5
          The majority appears to have assumed that the rules and restrictions governing
elementary school students are necessarily more restrictive than those governing middle
school and high school students. Majority Op. at 17 (“[Nine-year-old children] are never
permitted to leave the school grounds by themselves—unlike older teenage students who
regularly come and go on their own, during, before, and after school hours.”). While these
assumptions may be intuitive, the record is devoid of any evidence or factual allegations
regarding the level of freedom accorded to elementary school students vis à vis older students
while they are at school. Indeed, the high school in Doe v. San Antonio Independent School
District had in place “a non-discretionary release policy that provided that a student may only
be released to a parent or legal guardian, a police authority, or a person who a parent had
designated by written request.” 197 F. App’x at 298.

                                              41
  Case: 09-60406    Document: 00511563892       Page: 42   Date Filed: 08/05/2011



                                  No. 09-60406

      In fact, Jane was subject to the exact same Mississippi compulsory
education laws as the plaintiff in Walton. Mississippi requires parents to enroll
their children in school until age seventeen. Miss. Code Ann. § 37-13-91(3).
Parents may fulfill this obligation in any number of ways, only one of which is
to enroll their children in public school. See 

not unaware 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.
      Jane’s immaturity is also insufficient to distinguish this case from Walton
and Hillsboro. The majority holds that “there is a continuum of restrictions that
the State must impose on a private citizen to trigger a special relationship,”
suggesting that we ought to examine an individual’s characteristics to determine
whether the state has assumed a duty to care for her. Majority Op. at 15. This
approach is unsupported by precedent. Far from a continuum of restrictions, 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 cases of incarceration, institutionalization, and foster care, the
state has 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,

                                        42
  Case: 09-60406    Document: 00511563892      Page: 43   Date Filed: 08/05/2011



                                  No. 09-60406

regardless of the age or competence of the individual. See 

(“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.”).
      Particularly instructive on this point is the Ninth Circuit’s recent decision
in Patel v. Kent School District, 

. There, a developmentally
disabled student had several sexual encounters with a classmate in a restroom
adjacent to her classroom. 

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 be overly friendly
with others. 

Nevertheless, the student’s teacher allowed her to use
the restroom alone in order to foster her development. 

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. 

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.” 

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. 

Ninth Circuit’s reasoning, a special relationship does not
depend on the characteristics of the individual. Therefore, Jane’s young age and
immaturity do not warrant a special relationship for anything less than a total
restriction on her liberty such as placement in foster care or involuntary
institutionalization.
      Even more troubling is the majority’s seemingly arbitrary distinction
between the thirteen- and fourteen-year-old students in Walton and Hillsboro

                                        43
   Case: 09-60406       Document: 00511563892           Page: 44      Date Filed: 08/05/2011



                                         No. 09-60406

and nine-year-old students like Jane. Without citation to any evidence in the
record or otherwise the majority declares that “[n]ine-year-old children like Jane
virtually never possess the will or fortitude to protest or challenge adult
authority figures” and that “such youngsters [are not] generally apprised of or
able to recognize threats to their safety.” Majority Op. at 17. If thirteen-year-old
children do have these traits, but nine-year-old children do not, we are left to
wonder when, exactly, children acquire these traits for constitutional purposes.6
Do schools need to evaluate the maturity of each student to determine whether
the school has a “special relationship” with that student? What about mentally
disabled students? In other cases involving children with a variety and range
of limitations, courts have not considered a student’s particular characteristics
as a factor in the analysis. See, e.g., Patel, 

, at *1 (noting that
the plaintiff “had difficulty maintaining an appropriate physical distance from
other people, refraining from talking about personal or embarrassing things, and
conveying an age-appropriate understanding of etiquette”); Middle 

–72 (noting, but not taking into consideration, the fact that “parents
have even greater involvement” in the education of special education students).
A constitutional duty to protect a student from harm should not depend on the
maturity of the student, a factor not in the control of the state; rather, it depends

       6
          I do not suggest, as the majority seems to believe, that there are no developmental
differences between nine-year-old students like Jane and thirteen-year-old students like the
plaintiff in Hillsboro, but the majority curiously implies that puberty is the point at which
schools no longer have a constitutional duty to protect young students. Majority Op. at 17
n.39. First, there is no allegation in the complaint to suggest that Jane actually was pre-
pubescent at the time of the abuse in this case, nor is there any indication that the thirteen-
year-old plaintiff in Hillsboro was at a different developmental stage than Jane. Second, the
majority points to no evidence that the onset of puberty is linked to whether a child
“possess[es] the will or fortitude to protest or challenge adult authority figures” or is “apprised
of or able to recognize threats to [her] safety.” Majority Op. at 17. While I abhor the thought
that another child will endure the abuse that Jane has suffered, a court faced with a similar
plaintiff who is between the ages of nine and thirteen is left with no guidance under the
majority’s opinion to determine whether the school had a constitutional duty to protect that
child.

                                               44
  Case: 09-60406    Document: 00511563892      Page: 45   Date Filed: 08/05/2011



                                  No. 09-60406

on the level of care the state has affirmatively undertaken to provide, a factor
that is 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 care, and reasonable safety” for the students
they educate by virtue of compulsory attendance laws. See 

.
      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 in almost every circumstance schools are simply not constitutionally
required to ensure students’ safety. Despite her young age, Jane was not
attending the School through the “affirmative exercise of State power”; she was
attending the School because her parents voluntarily chose to send her there.
Moreover, Jane’s young age did not prevent her parents from caring for her or
providing for any of her basic needs.
      2.    Allowing Jane to Leave with Keyes
      The majority holds that, if a child is as young as Jane, a public school may
create a special relationship with the student, and assume a duty to care for that
student, “if the State had custody of a child and then affirmatively placed him
in a non-legal guardian, private actor’s custody.” Majority Op. at 20. In so
holding, the majority equates the School’s act of releasing Jane to Keyes with a
state’s act of placing a child in foster care, in that the School placed her in the
custody of an adult who was not her parent and during which custody her
parents could not care for her basic needs. 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

                                        45
  Case: 09-60406    Document: 00511563892     Page: 46    Date Filed: 08/05/2011



                                  No. 09-60406

affirmative act, but what is missing is any allegation that the school employee
actually knew that Keyes was unauthorized to take Jane from school. Instead,
the complaint alleges that the school employees were “deliberately indifferent”
to the risk that Keyes was unauthorized; it does not allege that the school
employees had actual knowledge that Keyes was unauthorized. The School’s
“deliberate indifference” is insufficient to create a special relationship between
the School and Jane.
      Implicit in the Supreme Court’s holding that a state may create a special
relationship through an “affirmative exercise of its power” is the state actor’s
knowledge that it 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 undoubtedly 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 restricted the student’s liberty to any degree because the adult
taking the student from school may or may not be authorized. Under the
majority’s opinion, an employee’s failure to check the adult’s identification will
not always result in a corresponding duty to ensure the student’s safety; rather,
that duty arises only when that failure results in the child being released to an
unauthorized adult. Without any reason to believe that the school employee
releasing Jane knew that Keyes was not authorized to take her from school, we
simply cannot infer that the School had knowledge that it was restricting Jane’s
liberty or restricting her or her guardian’s ability to care for her basic human
needs.   That a public school could assume a duty without having actual
knowledge that it was restricting a student’s liberty to such a degree that it




                                       46
   Case: 09-60406       Document: 00511563892           Page: 47      Date Filed: 08/05/2011



                                         No. 09-60406

would assume constitutional a duty to care for that student is an unprecedented
expansion of the Fourteenth Amendment.7
       The majority implicitly suggests that the School did have actual knowledge
that Keyes was not authorized to take Jane from the School by referring to
Keyes as an “unknown and unauthorized adult,” an “unauthorized stranger,”
and an “adult stranger.” Majority Op. at 6, 7, 19. There are absolutely no facts
in the complaint to suggest that Keyes was a stranger or unknown to either the
school employees or to Jane. The majority also states several times that Jane
was “forced” to leave the School with Keyes “against her will.” Majority Op. at
4, 5, 6, 15, 18, 19, 21. The majority’s colorful language twists the facts as alleged
in the complaint.         The complaint contains no suggestion that the school
employees had to force Jane to leave against her will; it alleges that Jane was
“allowed” to leave with Keyes. The complaint therefore does not allege facts
from which we can even infer that the School had actual knowledge that Keyes
was not authorized to take Jane from school.8

       7
          The majority states that if a school creates a special relationship with a student, “[the
school] would violate the Constitution if [the school] was deliberately indifferent to that child’s
personal security when it handed him over to [a] private actor.” Majority Op. at 20. This
statement appears to suggest, illogically, that the same act that creates the special
relationship can also violate the duty of care owed to the student. This confuses the act of
creating a special relationship with the violation of the duty to protect once the special
relationship is created. 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 allegation of deliberate
indifference may be sufficient to violate a constitutional duty, but it is not sufficient to create
the constitutional duty.
       8
          For this reason, even if we were to subscribe to the Third Circuit’s decision in Horton
v. Flenory, 

(3d Cir. 1989), this case is distinguishable. In Horton, the court
concluded that the plaintiff was in de facto police custody because “[the city] delegated to [the
club owner] its traditional police functions.” 

There is no question that suspects in
police custody are in a special relationship with the state requiring the state to ensure their
reasonable safety. See, e.g., Scott v. Moore, 

, 53–54 (5th Cir. 1997) (en banc). In
Horton, the police officer who left the plaintiff in the custody of the club owner knew that the
plaintiff “had already been mistreated and was in fear” and thus knew that the plaintiff’s
liberty had been restricted and knew of the danger of leaving the plaintiff alone with the club

                                               47
     Case: 09-60406    Document: 00511563892          Page: 48      Date Filed: 08/05/2011



                                       No. 09-60406

C.      The Does’ Remaining Theories of Liability
        Having concluded that the School had no special relationship with Jane
that imposed on the School a constitutional duty to protect her from harm, I turn
to the Does’ remaining theories of liability. The Does also assert that liability
can be predicated on the “state-created danger” theory of liability.                     After
DeShaney, some circuits used the following language in the Court’s opinion to
provide a 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 . . . .

(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., 

, 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.”
(internal citation omitted)).

.

        Here, the majority suggests that “the School was aware that nine-year-old Jane’s safety
was threatened by (and Jane had reason to be fearful of) its checking her out to Keyes without
verifying his identity.” Majority Op. at 23. However, the complaint alleges that the School was
aware of the risk of harm, not that the School knew it was releasing Jane to an unauthorized
adult. Again, an allegation that the School was deliberately indifferent to the risk may be
sufficient to allege a violation of a constitutional duty imposed by a special relationship, but
it is not enough to create such a duty.

                                              48
  Case: 09-60406    Document: 00511563892     Page: 49   Date Filed: 08/05/2011



                                 No. 09-60406

      Unlike almost all other circuits, we have never explicitly adopted the
theory. See, e.g., McClendon v. City of Columbia, 

, 325 (5th Cir.
2002) (en banc). The district court in this case acknowledged that this circuit
has never expressly recognized the state-created danger theory, but held that
even if the theory were recognized, the Does had failed to properly plead facts
that amounted to a constitutional violation. The court held that the Does had
not alleged that Defendants knew that their policy would allow Jane to be
checked out of school by an unauthorized adult and sexually assaulted;
therefore, they had not alleged that Defendants were deliberately indifferent to
a known danger. I agree that the Does have not sufficiently stated a claim under
the state-created danger theory because they did not plead that Defendants
knew their policy would lead to a constitutional violation. Such knowledge is
required before Defendants may be subject to municipal liability under Monell
v. Department of Social Services, 

(1978). See Piotrowski v. City of
Houston, 

, 579 (5th Cir. 2001) (holding that to establish municipal
liability under Monell, a plaintiff must allege that a facially innocuous policy
“was promulgated with deliberate indifference to the ‘known or obvious
consequences’ that constitutional violations would result” (quoting Bd. of Cnty.
Comm’rs of Bryan Cnty., Okl. v. Brown, 

, 407 (1997)).
      Of course, this assumes that a state actor can be held liable under the
state-created danger theory in this circuit. Even if the factual allegations were
sufficient, we still must find that Jane was deprived of a constitutional right
when the school released her to Keyes, i.e., when the school placed her in a
dangerous situation. Given that this circuit has studiously avoided recognizing
the state-created danger theory as a valid cause of action, I am certainly not
prepared at this point to conclude that Jane had a constitutional right not to be




                                       49
  Case: 09-60406       Document: 00511563892          Page: 50      Date Filed: 08/05/2011



                                       No. 09-60406

released to Keyes.9 Therefore, I would affirm the district court’s judgment
dismissing the Does’ complaint for failure to state a claim under the state-
created danger theory.
       The Does also assert that municipal liability is available under Monell
because the School promulgated a policy—the ineffective student check-out
policy—that was the moving force behind Jane’s injury. In asserting this theory,
the Does ignore the principle that a municipality may be liable only if its policy
was “the moving force of [a] constitutional violation.” 

(emphasis added). We have stated time and again that “[w]ithout an underlying
constitutional violation, an essential element of municipal liability is missing.”
Becerra v. Asher, 

, 1048 (5th Cir. 1997). Thus, even if the
ineffective check-out policy was the moving force 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 private actors
cannot commit constitutional violations. 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 allowing Jane to be placed in a dangerous



       9
          I note that the majority’s standard for creating a “special relationship” in this case
is strikingly similar to the standard under the state-created danger theory. Although we have
never adopted the state-created danger theory as a basis for liability, we have articulated the
elements of such liability: (1) “[T]he environment created by the state actors must be
dangerous”; (2) “they must know it is dangerous”; and (3) “they must have used their authority
to create an opportunity that would not otherwise have existed for the third party’s crime to
occur.” Johnson v. Dallas Indep. Sch. Dist., 

, 201 (5th Cir. 1994). The distinction
between a constitutional special relationship and a state-created danger is that, in creating
a special relationship, the state assumes an ongoing duty to provide for all of an individual’s
basic needs as a result of restricting the individual’s liberty, whereas under the state-created
danger theory a state actor assumes a duty to protect an individual from harm by virtue of the
state actor having placed that individual in harm’s way, i.e., to provide for the individual’s
safety. Under the majority’s opinion, the School had a duty to protect Jane from harm because
it placed her in a potentially harmful situation when it released her to Keyes. See Majority
Op. at 20. The majority never suggests that the School undertook to provide for all of Jane’s
basic needs.

                                              50
  Case: 09-60406    Document: 00511563892      Page: 51   Date Filed: 08/05/2011



                                  No. 09-60406

situation. As demonstrated above, these acts, or non-acts, do not give rise to a
constitutional violation under either the special relationship exception or the
state-created danger theory. Therefore, the School cannot be liable under Monell
because the check-out policy was not the moving force behind a constitutional
violation.
                              III. CONCLUSION
      In concluding that the Does have failed to state a claim for a constitutional
violation, I do not suggest that schools ought to allow students to leave with
unauthorized adults. The question is simply whether the school’s failure to
check Keyes’s identity and be sure 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 me to conclude that it does not. In addition, the state-created
danger theory does not provide a basis for liability. For these reasons, I would
affirm the district court’s judgment dismissing the Does’ complaint for failure to
state a claim under § 1983.




                                        51