*

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.

REVISED AUGUST 29, 2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60406

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

United States Court of Appeals

Fifth Circuit

F I L E D

August 5, 2011

Lyle W. Cayce

Clerk
No. 09-60406

1 See 489 U.S. 189, 203 (1989).

2

Before KING, WIENER, and DENNIS, Circuit Judges.

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 nineyear-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
No. 09-60406

2 See Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1416 (5th Cir. 1997) (en banc).

3 See Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995) (en banc).

4 See Becerra v. Asher, 105 F.3d 1042, 1047 (5th Cir. 1997); Doe v. Taylor Indep. Sch.

Dist., 15 F.3d 443, 450 (5th Cir. 1994) (en banc).

5 See Hillsboro, 113 F.3d at 1416 (“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

Does have not complained that a compulsory-attendance public school failed to

protect a teenage studentfrom an assault on school grounds after the close ofthe

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 mostimportantly 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
No. 09-60406

6 Youngberg v. Romeo, 457 U.S. 307, 315 (1982) (quoting Ingraham v. Wright, 430 U.S.

651, 673 (1977)).

4

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.”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 withoutthe 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 DueProcess 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
No. 09-60406

7 The dissent accuses us of “re-character[izing] the allegations in the Does’ complaint

andpaint[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.” Id. (emphasis added). 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

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).7In 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 notin and of itself amountto 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
No. 09-60406

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-createddanger theory, also alleged therein. Neither do we address the alternative theory of liability

advanced by theDoes thatthe 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

Jane’s substantive due-process rights by being deliberately indifferent to her

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 studentthatit 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 specialrelationship 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
No. 09-60406

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

actively implemented a compulsory9check-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 thatthey 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
No. 09-60406

10 The district court appears to have inadvertently included all DefendantsAppellees—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., 599 F.3d 458, 461 (5th Cir. 2010) (quoting True v. Robles,

571 F.3d 412, 417 (5th Cir. 2009)).

12 McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir. 1992).

13 See generally Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Leatherman v. Tarrant County

Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993), does not affect our analysis

8

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 whatthe plaintiff may or may not find through discovery.

Rather,the plaintiff must allege sufficientfacts to suggest a plausible ground for

relief.13 “A claim has facial plausibility when the plaintiff pleads factual content
No. 09-60406

in this case. That case held that federal courts may not apply a heightened pleading standard

in municipal liability cases. Id. at 166. Iqbal does not require a heightened pleading standard.

Rather, it re-articulates Rule 8’s notice pleading. See Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 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, 610 F.3d 877, 882 (5th Cir. 2010), and we do so again today.

14 Iqbal, 129 S. Ct. at 1949 (citation omitted).

15 489 U.S. at 192-93.

16 Id. at 193.

17 Id.

9

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 againstthe state social workers, asserting that

they failed in their duty to protect the child, thus violating his substantive dueprocess rights.17
No. 09-60406

18 Id. at 197.

19 Id. at 199-200 (citation omitted and emphases added).

20 Id. at 200 (emphases added).

10

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

permanent guarantor of an individual’s safety by having once offered him
No. 09-60406

21 Id. at 201.

22 Id. at 203 (emphases added).

23 Id. at 201 n.9.

24 Griffith v. Johnston, 899 F.2d 1427, 1439-40 (5th Cir. 1990).

25 Hernandez v. Tex. Dep’t of Protective and Regulatory Servs., 380 F.3d 872, 880 (5th

Cir. 2004).

11

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

Accordingly, as we address the facts alleged in Does’ complaint, we must
No. 09-60406

26 Walton, 44 F.3d at 1299.

27 Id. (emphasis added).

12

necessarily consider whether the School’s repeated acts of delivering nine-yearold 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 ofthe State, as opposed to state

inaction, and (2) a deprivation of Jane’s liberty sufficientto 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 subjectto 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

relationship with the school because he voluntarily attended the school for the
No. 09-60406

28 Id. at 1305. 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 Id. (emphasis in original).

30 113 F.3d at 1414.

31 Id. at 1415 (emphasis added).

13

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.30In 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

to return home. Even while at school, the child brings with him the
No. 09-60406

32 Id. (emphasis added and quotation marks omitted) (citing Ingraham, 430 U.S. at

670).

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). Id. at 1416.

14

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 Hada Special Relationship with

Jane

Taking these cases into consideration, we accept that compulsoryattendance 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
No. 09-60406

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 Hillsboro, 113 F.3d at

1415.

15

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
No. 09-60406

35 Estelle v. Gamble, 429 U.S. 97, 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 DeShaney, 489 U.S. at 198-99 (“[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 Estelle, 429 U.S. at 103-04) (quotation marks and citation omitted)).

37 Youngberg, 457 U.S. at 324. See also DeShaney, 489 U.S. at 199 (“[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 Hillsboro, 113 F.3d at 1415.

16

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,” compulsoryattendance, 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.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.
No. 09-60406

39The dissent refers to the distinction between pre-pubescent nine-year-old, elementaryschool 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.

Courts have treated seven-year-olds as capable of distinguishing right from

17

It cannot be debated that nine-year-old children have no real ability to

fend for themselves againstthreatening 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, elementaryschool 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
No. 09-60406

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., id. (“Sexual development 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

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

thatthis has nothing to do with the duty owed to such very young students while

they are in the compulsory custody oftheir 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
No. 09-60406

41 DeShaney, 489 U.S. at 201 n.9 (emphases added).

19

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 ofthe 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
No. 09-60406

42 Id. at 200 (emphasis added).

43 Dissent at 8.

44 Id. at 11.

20

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 outto 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
No. 09-60406

45 889 F.2d 454 (3d Cir. 1989).

46 Id. at 455-56.

47 Id. at 456.

48 Id. at 456-57.

49 Id. at 455.

21

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; 
No. 09-60406

50 Id. at 457.

51 Id. at 458. 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.” Id. (citation omitted). That analysis is not directly relevant here.

22

(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 ofthe 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

The factors that the Horton court considered in reaching its conclusion
No. 09-60406

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

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 offcampus 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 aboutits 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; 

(7) during that continued custody, Keyes brutally raped, sodomized,
No. 09-60406

53 Horton, 889 F.2d at 458 (emphases added).

24

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 ofthe 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 suggestthatthe 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 notlisted 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
No. 09-60406

54 See id. (“[The private 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 id. at 18 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 ofthe Court’s then-recent opinion in DeShaney. Horton, 889 F.2d at 455.

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.” Id. at 458. As explained, the Third Circuit answered in the

affirmative.

57 Hernandez, 380 F.3d at 880 (citations omitted).

25

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.”57The 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

persons authorized by the legal guardians of the pupil could check him out, then
No. 09-60406

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. Id. at 1. Moreover,

we are not talking about a one-time instance of the School’s failing to verify Keyes’s identity:

Inthe face—anddisregard—ofits own checkoutform,the School allowed anunauthorizedman

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

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 ofthe substantial risk

to Jane’s personal security created by this policy. The School’s deliberate
No. 09-60406

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

(unpublished).

27

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 nineyear-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.
No. 09-60406

61 Pearson v. Callahan, 555 U.S. 223, 231 (2009)(quoting Harlow v.Fitzgerald, 457 U.S.

800, 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.” Id. at 236.

63 Id. at 232 (internal citations omitted).

28

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 compulsoryattendance 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
No. 09-60406

64 See, e.g., Doe v. Sabine Parish Sch. Bd., 24 F. Supp. 2d 655, 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 Walton, 44 F.3d at 1299)).

29

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 it should

return to this court.
No. 09-60406

30

REVERSED in part; AFFIRMED in part; and REMANDED.
No. 09-60406

31

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 circuitto 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 ofthe 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,
No. 09-60406

32

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.
No. 09-60406

33

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 (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 thattheory. 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
No. 09-60406

34

for failing to protect an individual from harm inflicted by a private actor. 489

U.S. at 197 (“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. Id. at 193.

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. The Court noted that the Fourteenth Amendment was enacted to “protect

the people from the State, notto ensure thatthe State protect[s] them from each

other.” Id. at 196. The Fourteenth Amendment “forbids the State itself to

deprive individuals of life, liberty, or property without ‘due process of law,’ but

its language cannotfairly 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. 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. 
No. 09-60406

1 Several courts of appeals have recognized a second limited exception, the so-called

“state-created danger” theory. See, e.g., Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996);

Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998); Ross v. United States, 910

F.2d 1422, 1431 (7th Cir. 1990); Carlton v. Cleburne Cnty., 93 F.3d 505, 508 (8th Cir. 1996);

Wood v. Ostrander, 879 F.2d 583, 589–90 (9th Cir. 1989); Uhlrig v. Harder, 64 F.3d 567,

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

McClendon v. City of Columbia, 305 F.3d 314, 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.

35

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.” Id. at 199–200. In

such instances, “the Constitution imposes upon it a corresponding duty to

assume some responsibility for his safety and general well-being.” Id. at 200.

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

v. Gamble, 429 U.S. 97 (1976), or involuntarily commits someone to an

institution, Youngberg v. Romeo, 457 U.S. 307 (1982). The Court reasoned that

when the State by its affirmative exercise of its power so restrains

an individual’s liberty thatit 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.

DeShaney, 489 U.S. at 200. 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.” Id.

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
No. 09-60406

36

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.

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., 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 ofthe 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
No. 09-60406

37

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 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 eighteenyear-old special education student who was sexually assaulted by another

special education student); Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198,

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., 28 F.3d 521, 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’
No. 09-60406

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, 430 U.S. 651, 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 Hillsboro, 113 F.3d at 1415.

38

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 DeShaney, 489 U.S. at

199–200; Griffith, 899 F.2d at 1439. 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., 15 F.3d 443, 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
No. 09-60406

39

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, 175 F.3d 68, 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., 972 F.2d 1364, 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) (tenyear-old student assaulted by his classmates); Doe v. Claiborne Cnty., Tenn., 103

F.3d 495, 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, 909

F.2d 267, 272–73 (7th Cir. 1990) (teacher sexually molested two “school-age

children”); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 734 (8th Cir. 1993)

(mentally retarded high school boy was sexually assaulted by another mentally

retarded student); Patel v. Kent Sch. Dist., — F.3d —, 2011 WL 2684939, 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 alltimes due to her disability); Maldonado v. Josey, 975 F.2d 727,

732–733 (10th Cir. 1992) (eleven-year-old boy died of accidental strangulation

in an unsupervised cloakroom adjacentto his classroom); Wyke v.Polk Cnty. Sch.

Bd., 129 F.3d 560, 569 (11th Cir. 1997) (thirteen-year-old boy committed suicide
No. 09-60406

3 The majority also contorts a statement made by the Supreme Court in a wholly

different context in Ingraham v. Wright, 430 U.S. 651 (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.” Ingraham, 430 U.S. at 670. 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 schoolthat is a closed institution. Yet the Court did not suggest that a public school

40

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
No. 09-60406

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, 515 U.S. 646, 655 (1995) (citing DeShaney, 489 U.S. at

200).

41

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.” 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 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
No. 09-60406

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 arenecessarily more restrictive thanthose 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.

42

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.5In 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.
No. 09-60406

43

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 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,
No. 09-60406

44

regardless of the age or competence of the individual. See DeShaney, 489 U.S.

at 200 (“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 pointis the Ninth Circuit’s recent decision

in Patel v. Kent School District, 2011 WL 2684939. There, a developmentally

disabled student had several sexual encounters with a classmate in a restroom

adjacent to her classroom. Id. at *2. The student’s parents had requested that

she remain under adult supervision at alltimes because her disability prevented

her from recognizing dangerous situations and caused her to be overly friendly

with others. Id. at *1. Nevertheless, the student’s teacher allowed her to use

the restroom alone in order to foster her development. Id. at *2. 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. Id. at *7. Of particular import to this case, the

Ninth Circuit also rejected the student’s contention thatthe school was required

to protect against her “special vulnerabilities.” Id. The court 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. Id. Under the Ninth Circuit’s reasoning, a special relationship does not

depend on the characteristics ofthe 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
No. 09-60406

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 prepubescent at the time of the abuse in this case, nor is there any indication that the thirteenyear-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.

45

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, 2011 WL 2684939, 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 Bucks, 972

F.2d at 1371–72 (noting, but nottaking into consideration,the factthat“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 notin the control ofthe state; rather, it depends
No. 09-60406

46

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 DeShaney, 489 U.S.

at 200.

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 circuitto have considered this issue,

dictate thatin 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
No. 09-60406

47

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
No. 09-60406

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, 889 F.2d 454 (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.” Id. at 458. 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, 114 F.3d 51, 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

48

would assume a constitutional duty to care for that student is an unprecedented

expansion of the Fourteenth Amendment.7

The majority implicitly suggests thatthe 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
No. 09-60406

owner. 889 F.2d at 457.

Here,the majority suggests that“theSchool 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.

49

C. The Does’ Remaining Theories of Liability

Having concluded that the School had no special relationship with Jane

thatimposed 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 . . . .

DeShaney, 489 U.S. at 201 (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)).
No. 09-60406

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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 (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 (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
No. 09-60406

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 itis 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., 38 F.3d 198, 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.

51

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 statecreated 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.” Monell, 436 U.S. at 694

(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
No. 09-60406

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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 thatthe 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.