WIENER, Circuit Judge:
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).
The question that lies at the core of this appeal is:
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.
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.
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 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."
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 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).
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
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.
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 actively implemented a compulsory
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
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 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.
"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.'"
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.
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."
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.
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 permanent guarantor of an
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:
Notably, this is one such court of appeals.
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.
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.
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."
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.
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"
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 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.
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.
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 seek care for himself.
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" do not prevent parents from providing for the basic needs of their teenage children.
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.
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."
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 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
We also reiterate that DeShaney defined "basic human needs" as "food, clothing, shelter, medical care, and reasonable safety."
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 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.
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.
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
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:
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
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."
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 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,
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.
As the Supreme Court recently reiterated, "The doctrine of qualified immunity
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 committed, Fifth Circuit opinions, including those in Hillsboro and some district court cases,
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
REVERSED in part; AFFIRMED in part; and REMANDED.
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.
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, 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,
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.
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, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (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.
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 for failing to protect an individual from harm inflicted by a private actor. 489 U.S. at 197, 109 S.Ct. 998 ("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
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. Id. at 193, 109 S.Ct. 998. 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. Id. The Supreme Court held that the plaintiffs could not maintain an action under § 1983 because there had been no constitutional violation. Id. at 202, 109 S.Ct. 998. 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." Id. at 196, 109 S.Ct. 998. 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." Id. at 195, 109 S.Ct. 998. Thus, "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197, 109 S.Ct. 998.
The Court noted that this categorical rule is subject to at least one very limited exception.
DeShaney, 489 U.S. at 200, 109 S.Ct. 998. 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
In addition to the circumstances of incarceration and involuntary institutionalization recognized by the Court in DeShaney, we have extended the "special relationship" exception to the placement of children in foster care. Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir. 1990). We reasoned that the state assumes a constitutional duty to care for children under state supervision because "the state's duty to provide services stems from the limitation which the state has placed on the individual's ability to act on his own behalf." Id. We have not extended the DeShaney special relationship exception beyond these three situations, and as I discuss below, we have explicitly held that the state does not create a special relationship with children attending public schools.
We have twice considered en banc whether the "special relationship" exception to the DeShaney rule applies in the context of public schools. Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412 (5th Cir. 1997) (en banc); Walton v. Alexander, 44 F.3d 1297 (5th Cir.1995) (en banc). In both cases, we concluded that a public school does not have a "special relationship" with a student that would require the school to protect the student from harm.
In Walton v. Alexander, a student at the Mississippi School for the Deaf, a residential public school, was sexually assaulted by a fellow student. 44 F.3d at 1299. 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. Id. at 1305. 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." Id. In contrast, the plaintiff "attended [the] school voluntarily with the option of leaving at will." Id.
We next addressed the special relationship exception in Doe v. Hillsboro Independent School District, where we likewise held that the exception did not apply in the context of a public school. 113 F.3d at 1415. The plaintiff student in that case was thirteen years old. She was "kept after school to do special work on her studies" and was sexually assaulted by a school janitor when she was sent to an empty area of the school to retrieve supplies for the teacher. Id. at 1414. We rejected the plaintiff's argument that a special relationship existed between the school and the student due to the fact that school attendance was required by state law, "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." Id. at 1415. We reasoned that "[t]he restrictions imposed by attendance laws upon students and their parents are not analogous to the restraints of prisons and mental institutions" because "[t]he custody is intermittent[,] the student returns home each day, [and] [p]arents remain the primary source for the basic needs of their children." Id.
Both before 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 Fed. Appx. 296, 298-300 (5th Cir.2006) (finding
Under our binding precedent, a public school does not have a DeShaney special relationship with its students requiring the school to ensure the students' safety.
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
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.
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 345. 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.
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 346. 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." Hillsboro, 113 F.3d at 1415. 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 347. 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 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.
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 id. I am 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 345. 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, regardless of the age or competence of the individual. See DeShaney, 489 U.S. at 200, 109 S.Ct. 998 ("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.").
Even more troubling is the majority's seemingly arbitrary distinction between the thirteen- and fourteen-year-old students in Walton and Hillsboro 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 346. 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.
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.
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 348. 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 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
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 340, 341, 347. 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 338, 339, 340, 345, 347, 348. 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.
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:
DeShaney, 489 U.S. at 201, 109 S.Ct. 998 (emphases added). Under the state-created danger theory, a state actor may be liable under § 1983 if the state actor created or knew of a dangerous situation and affirmatively placed the plaintiff in that situation. See, e.g., Carlton v. Cleburne Cnty., 93 F.3d 505, 508 (8th Cir.1996) ("In [the state-created danger] cases the courts have uniformly held that state actors may be liable if they affirmatively created the plaintiffs' peril or acted to render them more vulnerable to danger. In other words, the individuals would not have been in harm's way but for the government's affirmative actions." (internal citation omitted)).
Unlike almost all other circuits, we have never explicitly adopted the theory. See, e.g., McClendon v. City of Columbia, 305 F.3d 314, 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, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See Piotrowski v. City of Houston, 237 F.3d 567, 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, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (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
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." Monell, 436 U.S. at 694, 98 S.Ct. 2018 (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, 105 F.3d 1042, 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 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.
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
(footnotes omitted).
(footnotes 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 350. 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.
