### REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-50709

JOHN DOE, as Next Friend of

Jane Doe, a Child,

Plaintiff-Appellee,

versus

HILLSBORO INDEPENDENT SCHOOL

DISTRICT, ET AL,

Defendants,

LARRY ZABCIK; JAMES MAASS; TERESA DAVIS;

NORMAN BAKER; RICHARD SEWALL; BILLY SULLINS;

LEON MURDOCH,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Texas, Waco

May 27, 1997

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,

D AVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA

, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The cus todian of the Hillsboro Independent School District

raped a 14-year-old eighth grade student in an empty cla ssroom.

The student through her parents filed this lawsuit under 42 U.S.C.

§ 1983 asserting deprivations of constitutional rights and seeking

money damages for this assault from the Hillsboro Independent1 The individual defendants have also appealed the district

court’s denial of their motions to dismiss claims under Title IX,

20 U.S.C. §§ 1681-1688. Like the panel, we do not read the amended

complaint as attempting to state a Title IX theory against the

individual defendants.

2 School District, as well as its trustees and present and past

superintendents in their individual capacities. The district court

denied motions to dismiss filed by the individual defendants under

Rule 12(b)(6). This appeal of the district court’s denial of

qualified immunity followed. 1 A divided panel of this court

affirmed. We took the case en banc and now reverse.

We conclude that no claim was stated under 42 U.S.C. § 1983

against the individual defendants and that their motions to dismiss

should have been granted.

I

The motions to dismiss targeted the amended complai nt. It

read in relevant part:

5. Jane Doe is a minor child who was, at the time of the

events described, thirteen (13) years old. 6. Near the

end of the 1992-1993 School Year (sometime in May of

1993), Jane Doe was kept after school to do special work

on her studies . . . . 7. Jane Doe stayed after school

. . . . 8. Jane Doe did her studies for a while, but was

asked, by a teacher, to go upstairs in the school

building to retrieve some supplies for the teacher. Jane

Doe did. 9. When she went upstairs, a black male school

district employee, then acting as a custodian, tr apped

Jane Doe in an empty classroom, and raped her. The

school employee also physically assaulted Jane Doe in the

course of the rape causing her bodily injury different

from the sexual assault. 10. Jane Doe did not tell

anyone what had happened to her until the following

Christmas holidays

— when it became apparent that Jane

Doe was pregnant. Jane Doe then told her mother and

father what had happened. 11. The rapist was arrested,

and pleaded guilty. 12. Jane Doe had a healthy baby boy3

in March of 1994 at fourtee n (14) years of age . . . .

19. Other members of the maintenance staff have, on

information and belief, convictions for murder, armed

robbery, cruelty to animals, failure to ID-Fugitive,

unlawful weapons possession, multiple DWI, and drug

offenses

. . . . 21. The Hillsboro Independent School

District

. . . warned new employees to “stay away from

the little girls.”

Plaintiffs contend that the individuals sued here are liable

under two distinct theories. First, plaintiffs urge that “the

amended complaint states a claim for liability based on the custody

of Jane Doe, whereby she was owed some minimum degree of

protecti on,” matching “the contours of liability” that were

outlined in DeShaney v. Winnebago County Dept. of Social Services

,

489 U.S. 189 (1989). Second, plaintiffs would bring themselves

within our decision in Doe v. Taylor Indep. School Dist. , 15 F.3d

443 (5th Cir.) (en banc), cert. denied , 115 S. Ct. 70 (1994). As

we will explain, these theories offer plaintiffs no comfort.

II

A

In DeShaney v. Winnebago County Dept. of Social Services

, the

Supreme Court rejected the contention that government owes a

constitutional duty to protect people from the misdeeds of other

private actors, in the absence of a special relationship. We have

not accepted the argument that school compulsory attendance laws

create such a special relationship between student and school. In

Walton v. Alexander

, 44 F.3d 1297 (5th Cir. 1995)(en banc), we

refused to find a special relationship between a state school for

deaf children and its students who were residents in the school2 In Texas, a child must attend each school day, which is

defined as at least seven hours. The child must attend for the

time the “program of instruction” is provided. S ee Tex. Educ. Code

Ann. §§ 25.082 and 25.083. A child who fails to stay after

completion of the program of instruction does not violate

compulsory attendee laws. The application of the statute in this

case is n ot certain. We are not prepared to say under the

pleadings that Jane Doe was not in the school at the time of the

assault under compulsion of state attendance laws.

4 where they slept and took their meals. It is true that attendance

at the school was not required by state law, and we emphasized the

absence of thi s legal compulsion. It is equally true that poor

students may have had no real alternatives. The year before W alton

we held that, whatever the effect of compulsory attendance, it

ended when compulsory attendance ended. Leffall v. Dallas Indep.

School Dist.

, 28 F.3d 521, 529 (5th Cir. 1994)(“[E]ven though

Steadham may have been compelled to attend school during the day,

any special relationship that may have ex isted lapsed when

compulsory attendance ended.”). S ee also Johnson v. Dallas Indep.

School Dist.

, 38 F.3d 198 (5th Cir. 1994), cert. denied

, 115 S. Ct.

1361 (1995). 2

We decline to hold that compulsory attendance laws alone

create a special relationship giving rise t o a constitutionally

rooted duty of school officials to protect studen ts from private

actors. Much has been written about this issue, and we will not

pause to rehearse fully the arguments again. S ee Seamons v. Snow

,

84 F.3d 1226, 1236 (10th Cir. 1996); Sa rgi v. Kent City Bd. of

Educ.

, 70 F.3d 907, 911 (6th Cir. 1995); Dorothy J. v. Little Rock

School Dist.

, 7 F.3d 729, 732 (8th Cir. 1993); D.R. b y L.R. v.

Middle Bucks Area Vo. Tech. School

, 972 F.2d 1364, 1368-73 (3d Cir.5

1992) (en banc), cert. denied , 113 S. Ct. 1045 (1993); J.O. Alton

Community Unit School Dist. 11

, 909 F.2d 267, 272 (7th Cir. 1990).

We join every circuit court that has considered the issue in

holding that compulsory school attendance, in Texas to attend seven

hours of programmed education on each school day, does not create

the custodial relationship envisi oned by D eShaney

. The

restrictions imposed by attendance l aws upon students and their

parents are not analogous to the restraints of prisons and mental

institutions. The custody is intermittent and the student returns

home each day. Parents remain the primary source for the basic

needs of their children. Finally, we find helpful the rationale of

the S upreme Court’s decision in I ngraham to deny school children

the protections of the Eighth Amendment:

The school child has little need for the pr otection of

the Eighth Amendment. Though attendance may not always

be voluntary, the pub lic school remains an open

institution. Except perhaps when very young, the child

is not physically restrained from leaving school during

school hours; and at the end of the school day, the child

is invariably free to return home. Even while at school,

the child brings with him the suppor t of family and

friends and is rarely apart from teachers and other

pupils who may witness and protest any instances of

mistreatment.

Ingraham v. Wright , 430 U.S. 651, 670 (1977). Refusing to create

a whole new class of constitutional rights does not leave the

student without legal protection. A review of our recent decisions

alone makes that clear. There are concerns pointing in a different

direction. S ee Johnson

, 38 F.3d 198, 203 n.7 (5th Cir. 1994). To

say that compulsory atte ndance laws restrict the freedom of

students and parents in significant ways, however, is not to say6

that this status of students is sufficiently akin to that of

prisoners and persons committed to mental institutions to trigger

a constitutionally rooted duty.

B

Nor does a state-created-danger theory save plaintiffs’

claims. Its narrow compass is reflected by the reality that we

have never sustained liability on this ground. In J ohnson we

observed that “[t]he environment created by the state actors must

be dangerous; they must k now it is dangerous; and, to be liable,

they must have used their authority to create an opportunity that

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

occur." 38 F.3d at 201. S ee al so L .W. v. Grubbs

, 974 F.2d 119

(9th Cir. 1992) (assault of nurse working with known sex offender

under directive of state supervisor), cert. denied

, 113 S. Ct. 2442

(1993); Wood v. Ostrander

, 879 F.2d 583 (9th Cir. 1989) (woman

raped when police impounded car of drunk driver leaving her in high

crime area), cert. denied

, 498 U.S. 938 (1990); W hite v. Rochford

,

592 F.2d 381 (7th Cir. 1979) (children left by police officers

alone in car after arresting driver). Viewed in the light most

favorable to the plaintiffs, the school district placed the student

in the sa me area as a school custodian who had no known criminal

record, sexual or otherwise, with school teachers in the same

building but not in the immediate area. This will not trigger a

duty under a state-created-danger theory, even if we were to adopt

such a th eory. Such post hoc attribution of known danger would

turn inside out this limited exception to the principle of no duty.7 III

Plaintiffs do not urge that the custodian acted under color of

state law. Rather, they assert that the defendants breached a

constitutional duty in failing to protect the child from the rape

by the janitor. The argument is that the defendants are liable if

there was a “pattern of events that would give some warnings"; that

Jane Doe’s pleadings set forth facts that were known, or “learned”

(“‘fondling students, voyeurism, and the like’; warnings to the

custodians to ‘stay away from the little girls’”). The argument

continues that “although the pred ictors do not point to specific

prior incidents of sexual abuse of a specific student, they do

point plainly toward the dangerous combin ation of crime, sex and

violence." The reliance upon D oe v. Taylor concludes with the

assertion that the individual defendants were deliberately

indifferent to these risks by not conducting an adequate check of

employees’ backgrounds.

Unlike Doe v. Taylor , in which a school employee acted under

color of state law, this case requires us to locate the primary

constitutiona l wrong in the board and school officials. The

Supreme Court has recently indicated that municipal authorities can

be liable under § 1983 if a hiring decision “reflects deliberate

indifference to the risk that a violatio n of a particular

constitutional or statutory right will follow the decision.” B oard

of the County Commissione rs of Bryan County v. Brown , ___ S. Ct.

___, ___, 1997 WL 201995, at *9 (Apr. 28, 1997).8

The Bryan County Court declined to announce a bright-line rule

that municipal officials can never be liable under § 1983 for an

isolated hirin g decision that neither constitutes nor directs a

violation of federal law. S ee id. at

___, 1997 WL 201995, at *10.

But the Court warned that liability in such cases will necessarily

be rare: “Only where adequate scrutiny of an applicant’s background

would lead a reas onable policymaker to conclude that the plainly

obvious consequences of the decision to hire the applicant would be

the deprivation of a thir d party’s federally protected right can

the official’s failur e to adequately scrutinize the applicant’s

background constitute ‘deliberate indifference.’” I d. at

___, 1997

WL 201995, at *9. S ee also City of Canton v. Harris

, 489 U.S. 378,

389 (1989) (“[A] municipality can be liable under § 1983 only where

its policie s are the ‘moving force [behind] the constitutional

violation.’” (citing Monnell v. New York City Dept. of Social

Services

, 436 U.S. 658, 694 (1978))); Gonzalez v. Ysle ta Indep.

School Dist.

, 996 F.2d 745, 760-62 (5th Cir. 1993) (finding the

evidence insufficient to establish deliberate indifference where a

school district failed to terminate a teacher with a history of

abusing students sexually).

In Bryan County

, a police officer used excessive force in

extricating a suspect from her vehicle. The plaintiff’s claim of

deliberate indifference in hiring, then, was coupled with

underlying conduct under color of state law. In this case, by

contrast, the janitor did not act under colo r of state law in

raping Doe. Under the facts alleged by Doe, there can be no9

recovery even if the janitor were acting under color of state law.

When the district court afforded Doe the opportunity to amend his

complaint, he could n ot even allege that the custodian who

assaulted his daughter either had a prior record of violent crime

or previously had been reported to the officials for sexual

misbehavior towards students. Even in the context of resisting a

Rule 12 motion to dismiss, plaintiffs have demonstrated an

inability to show a nexus between any failure to check criminal

background and this assault.

The duty articulated in B ryan County does not detract from

DeShaney ’s general rule that municipalities have no duty to protect

citizens from the private actions of fellow citizens. Recognizing

a potential for § 1983 liability ba sed on egregious hiring

decisions does not entail endorsement of the view that defendants

such as the Hillsboro Independent School District have a duty to

protect students from threats from other sorts of third parties.

IV

Plaintiffs ha ve stated no claim against these individuals.

The denial of t he motions to dismiss is reversed. The case is

remanded with instructions to enter judgments for the defendants in

their individual capacities and for further proceedings consistent

with this opinion.

REVERSED and REMANDED.

EDITH H. JONES, Circuit Judge, with whom SMITH, Circuit Judge,

joins, specially concurring:10 I am pleased to concur in Judge Emilio M. Garza’s special

concurrence. I also concur in the majority opinion, which, like

every other fe deral circuit, rejects the plaintiff’s claim that

compulsory school attendance laws give rise to a co nstitutional

special relationship between a student and the school. The special

relationship doctrine has been inferred from the Fourteenth

Amendment due process clause and currently protects those in

involuntary state custody, i.e. prisoners and the mentally ill or

retarded, from mistreatment by third parties. Absent intervention

by the Supreme Court, no such special relationship protects

children in p ublic schools under compulsory attendance laws.

Elsewhere I have noted the incongruity and shallow logic underlying

the distinction between children in publi c schools and those who

are involuntarily confined fu ll-time. J ohnson v. Dallas

Independent School Dist.

, 38 F.3d 198, 203 n.7 (5th Cir. 1994).

Nevertheless, I concur in this en banc outcome not because the

legal distinction has suddenly become persuasive but because there

is no realistic alternative. The Constitution does not compel our

intervention, and there is no assurance that creating a whole new

class of constitutional protections for public school children

would be a successful undertaking. A generation of judicial social

engineering in the prisons and state-run institutional care

facilities has produced dub i ous results that counsel judicial

humility. Thus, while I remain outraged and saddened that public

schools too often fail shockingly to take steps necessary to insure

the students’ safety, emotion must give way to reason. Reform must11

be instituted and guided by our people and their direct

representatives, not by court decrees.

ENDRECORDJACQUES L. WIENER, Jr., Circuit Judge, with whom POLITZ, Chief

Judge, and BENAVIDES and DENN IS, Circuit Judges, join, specially

concurring.

Despite havi ng written the panel majority opinion which was

automatically vacated when we voted to rehear this case en banc, I

nevertheless concur in the opposite result reached in the foregoing

en banc majority opinion and in virtually all of its

pronouncements. More specifically, I concur in the majority

opinion’s analysis of (1) the doctrine of “special state

relationship” in section IIA., (2) the “state-created-danger

theory” in section IIB., and (3) the theory of public school

supervisors’ liability, in section III, for their own “deliberate

indifference” to the rights of public school students to be free

from violation of their bodily integrity as guaranteed by the

Constitution

—— as far, that is, as section III’s analysis goes.

But I am constrained to write this short special concurrence in

l ight of the hiatus I discern in section III’s “deliber ate

indifference” analysis.

The introductory paragraph of section III quotes portions of

the plaintiff’s amended complaint that list post-hiring occurrences

allegedly known or learned

—— but disregarded

—— by school and

school board officials. Inexplicably, though, the majority then

implicitly characterizes the plaintiff’s reliance on Doe v. Taylor

ISD as complaining only of the supervisors’ deliberate indifference

in not conducting adequate pre-hiring background checks. In like3 Emphasis added.

13

manner, the remainder of section III discus ses and analyses

“egregious hiring decisions” 3 and the absence of a legal “duty to

protect studen ts from threats of other sorts of third parties,”

without ever addressing the supervisors’ alleged disregard of posthiring reports.

Although I am in complete agreement with that part of section

III which insists that in the public school context the theory of

deliberate indifferenc e does not impose on supervisors an

affirmative or active “duty to protect,” I am puzzled by the

majority opinion’s failure to mention, much less discuss, the

potential liability of public school supervisors for breach of the

negative or passive duty not to be deliberately indifferent to

post-hiring reports and complaints of misconduct that presages

violations of students’ constitutional rights of bodily integrity.

Doe v. Taylor ISD makes clear that the obligation of public school

supervisors not to be deliberately indifferent to such harbingers

of harm is not grounded in an active duty to protect while at the

same time recognizing the existence of a passive duty not to ignore

or disregard su ch clear predictors of impending constitutional

violations. The failure of today’s majority opinion to address

this aspect of deliberate indifference, choosing instead to discuss

only the pre-hiring background check manifest ation of deliberate

indifference, creates the hiatus to which I refer.

I concede that, like his inability to amend the complaint to

allege facts constituting a nexus between alleged pre-hiring14

deficiencies and Miss D oe’s rape, the plaintiff also found it

impossible to allege facts constituting a sufficient nexus between

the rape of his daughter and the school supervisors’ purported

gross disregard of post-hiring reports and complain ts of sexual

misconduct by members of the school’s custodial staff. The

bothersome void in the majority opinion’s analysis, though, is its

total failure to discuss the facet o f supervisory liability for

breach of the passive or negative duty not to ignore reports of

such misconduct and the potentiality for liability of supervisors

whose deliberate indifference can be shown to provide the required

nexus with the violation of a student’s constitutional right.

This hole in the analysis is easily filled by observing that

nothin g in the majority opinion stands for the proposition that

cognizant p ublic school supervisors enjoy per se immunity from

liability for breach of their duty not to be deliberately

indifferent

—— whether in pre-hiring background checks or in posthiring attention to egregious behavior

—— when such indifference is

shown to have a real nexus with a violation of a student’s bodily

integrity by a third party. In other words, nothing in today’s

majority opinion lessens or curtails the ability of the law to

conclude that public school supervisors, as state actors, are the

actual perpetrators of the violation of a student’s constitutional

right to bodily integrity when ev idence is sufficient to

demonstrate that there is a “real nexus” between the violation

suffered by the student and such supervisors’ deliberate

indifference to reports or complaints of abuse. As to this aspect15

of the instant case, all that our rehearing en banc has

demonstrated is that this particular plaintiff found it impossible

t o allege facts upon which the law could thus deem the Hillsboro

school supervisors to be the actual perpetrators of Miss Doe’s

violation by virtue of their deliberate indifference to her rights,

either in hiring the school custodians or in not heeding reports of

miscreant behavior, regardless of whether the rapist was or was not

acting under color of state law. With this one gap thus bridged,

I concur.

ENDRECORD4 Only one other circuit has definitively held that the

substantive due process right to bodily int egrity includes the

right to be free from rape or sexual abuse. S ee Stoneking v.

Bradford Area Sch. Dist.

, 882 F.2d 720, 727 (3d Cir. 1989) (“[A]

student’s right to bodily integrity, under the Due Process Clause,

[encompasses] a student’s right to be free from sexual assaults by

his or her teachers.”), c ert. denied

, 493 U.S. 1044, 110 S. Ct.

840, 107 L. E d. 2d 835 (1990); cf. Doe By and Through Doe v.

Petaluma City Sch. Dist.

, 54 F.3d 1447, 1451 (9th Cir. 1995)

(citing Taylor , 15 F.3d 443, with approval but as inapplicable to

the case before the court). EMILIO M. GARZA, Circuit Judge, with whom JONES and SMITH, Circuit

Judges, join, specially concurring:

I concur in the excellent opinion of Judge Higginbotham. I

write separately to clarify that my concurrence should no t be

construed as an acceptance of the holding of Doe

, 15 F.3d 443 (5th

Cir.) (en banc), cert. denied

, 513 U.S. 815, 115 S. Ct. 70, 130 L.

Ed. 2d 25 (1994), that rape or sexual abuse is a violation of the

right to bodily integrity under the Fourteenth Amendment.

As I explained in my diss ent to the panel opinion, D oe

, 81

F.3d 1395, 1408 n.2 (5th Cir. 1996) (Garza, J., dissenting), though

I am bound by Fifth Circuit precedent, 4 the Supreme Court has yet

to rule on whether the right to bodily integrity includes the right

to be free fr om rape or sexual abuse. S ee Planned Parenthood v.

Casey

, 505 U.S. 833, 849, 112 S. Ct. 2791, 2806, 127 L. Ed. 2d 352

(1994) (citing cases defining contours of substantive due process

r ight to bodily integrity, including cases involving abortion,

contraception, marriage and procreation). T aylor troubles me

because we failed to heed the Supreme Court’s admonition, stated on

several occasions, that it “has always been reluctant to expand the

concept of substantive due process because the guideposts for-17-

reasonable decisionmaking in this unchartered area are scarce and

open-ended.” C ollins v. City of Harker Heights, Tex.

, 503 U.S.

115, 125, 112 S. Ct. 1061, 1068, 117 L. Ed. 2d 261 (1992); see also

Albright v. Oliver

, 510 U.S. 266, 271-72, 114 S. Ct. 807, 812, 127

L. Ed. 2d 114 (1994) (quoting Collins

, 503 U.S. at 125, 112 S. Ct.

at 1068).

Recently, the Sixth Circuit, sitting en banc

, commented on our

conclusion that the right to bodily integrity includes the right to

be free from sexual assault. The court stated:

A ll of these civil decisions, rather than pointin g to

precedent establishing the right, make assertions such

as: “surely the Constitution protects a schoolchild from

physical abuse . . . by a public schoolteacher,” Doe v.

Taylor Indep. Sch. Dist.

, 15 F.3d 443, 451 (5th Cir.

1994) (en banc); or “the notion that individuals have a

fundamental substantive due process right to bodily

integrity is beyond debate,” Walton v. Alexander

, 44 F.3d

129 7, 1306 (5th Cir. 1995) (Parker, J., concurring).

These broad s tatements are not supported by precedent

indicating that a general constitutional right to be free

from sexual assault is part of a more abstract general

right to “bodily integrity.”

United States v. Lanier

, 73 F.3d 1380, 1388 (6th Cir. 1996) (en

banc) (concluding that “sexua l assaults may not be prosecuted as

violations of a constitutional substant ive due process right to

bodily integrity” under 18 U.S.C. § 242), vacated

,

__ U.S.

__, 117

S. Ct. 1219, 137 L. Ed. 2d 432 (1997). Since the Supreme Court

held in Lanier that the court of appeals applied an incorrect

standard in determining whether prior judicial decisions gave fair

warning that Lanier’s actions violated constitutional rights and

remanded the case for application of the proper standard, we will-18-

have to wait for another day for guidance from the Court in this

area.