* In addition tothese Defendants-Appellees, the Plaintiffs-Appellantsoriginally 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 ClerkNo. 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, ofPlaintiff-AppellantJane 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 o f Education, its president, and other persons, in their official and individual capacities (collectively, the “Education Defendants”), aswell asother 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 ofnot only that which the complaint alleges and asserts but—ofequal 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, theNo. 09-60406

2 See Doev. 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 ofstate 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 student from an assault on school groundsafter thecloseofthe

school day, by a teacher, coach, janitor, or any other such state ac tor who was hired by theschool. 2Third, the Does have not complained that a non-compulsory school failed to protect a student from an assault on school grounds during the school day by a private actor—as, for example, another student at school, or a visitor to the school, or even an uninvited person who furtively comes onto the school grounds and spirits the student away. 3 Thus, the instant case is distinguishable from the significant “special relationship” cases that this court, sitting en banc, has previously decided. Finally, and perhaps most i mportantly 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 ofa citizen arewholly inappositeand 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 substantiveNo. 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 ofher liberty to care for herself by forcing her into the sole custody of an unauthorized adult, Defendant Tommy Keyes, for theSchool’s known and intended purpose offacilitating his taking her offofthe 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 ofthe School, to the exclusion ofeven 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 ofthe presence ofher legal guardian and without any ability to leave; and Jane’s exclusive confinement by the School, entirely without the protection ofher legal guardian, in combination with her very young age, made Jane w holly dependent on the School for her safety. The School thus assumed the duty to protect her, then allegedlyviolated the Due ProcessClause 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 exclusiveNo. 09-60406

7 The dissent accuses us of “re-character[izing] the allegations in the Does’ complaint and paint[ing] a picturesuggesting thatJanewas‘forced’ by school employeesintothe‘custody’ ofKeyes” when “thecomplaint specifically assignsa more passiveroletotheschool employees.” Dissent at 2. The dissent, however, misreads the Does’ allegation, which states that the School “allow[ed] the Defendant, T ommy 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 Doesallege that the School allowed Keyestotake 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 Scho ol’s supervision (and against her and her legal guardian’s will). 7 In other words, even if the School did not already have a duty to protect very young students like nine-year-old Jane while on school grounds during the school day, it certainly did assume a duty to protect her when it affirmatively delivered her from the School’s exclusive custody into the sole custody of Keyes, further depriving her of her liberty by isolating her from the people she trusted and the surroundings she knew. The School then allegedly violated its due-process duty to protect Jane by acting with deliberate indifference to her safety when it intentionally placed her in Keyes’s custody for the explicit purpose of his taking her offcampus, 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 horrificsexual abuse alleged here was committed by a private actor. But, the Does have not alleged that Keyesviolated Jane’sconstitutional rights by sexually abusing her—and properly so, as private violence does not in and ofitselfamount toa constitutional violation. Rather, the Does have alleged that (1) the School so restricted little Jane’s liberty that it assumed a duty toprotect her from unsafeconditions, and (2) the School violatedNo. 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 the Doesthat theSchool’scheck-out policy wasthe “moving force” ofJane’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 student that itviolated by itsaffirmative 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 thequestion posed is addressed in the framework thusconstructed, 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 employeeschecked her back on tothe school grounds. According to the Does’ complaint, the School had formally adopted andNo. 09-60406

9 There is no indication in the Does’ complaint that the School’syoung pupils—alone or even through their legal guardians—could opt out of this check-out policy. 7 actively implemented a c ompulsory9 check-out policy, one express aspect of which was the creation and maintenance ofa “Permission to Check-Out Form” (the “Form”) for eac

h student, which listed by name the only adults who were authorized to take that particular student offofthe School’s campus during the school day. At all relevant times, however, the School’s check-out policy did not includea requirement or directivetotheSchool’semployeesthat theyverify 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 theSchool’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 ofJane to Keyes and allowing him to take her away from the School. I f they had, allege the Does, they would have discovered that “Tommy Keyes” was never authorized by Jane’s legal guardian tocheck Jane out ofthe School: His namewas not listed on her Form; hewas 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. T he Does advanced constitutional claims under §§ 1983 and 1985 as well asNo. 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 Bustosv. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quoting Truev. Robles, 571 F.3d 412, 417 (5th Cir. 2009)).

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

13 SeegenerallyAshcroftv. Iqbal , 129S. Ct. 1937 (2009). Leatherman v. TarrantCounty Narcotics Intelligenceand 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 distric

t 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 ofthe complaint. 12 We will not addressor assumewhat the plaintiffmay or may not find through discovery. Rather, the plaintiffmust allegesufficient facts tosuggest a plausibleground for relief. 13 “A claim has facial plausibility when the plaintiffpleads factual contentNo. 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 AtlanticCorp. 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, seee.g., Morgan v. Swanson, 610 F.3d 877, 882 (5th Cir. 2010), and we dosoagain 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 inferenc e 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 ofabuse 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
se vere brain damage and fell into a life-threatening coma. 1 6 The child and his mother then filed a § 1983 action against thestatesocial workers, asserting that they failed in their duty to protect the child, thus violating his substantive dueprocess rights. 17No. 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 ofthe Due Process Clause.”18 The Court identified an exception to this general rule, however, specifying that the State does have a duty to protect citizensagainst privateviolencewhen theState hasa “special relationship” with that citizen: [W]hen the State takes a person into its custody and holds him there agai nst his will, the Constitution imposes upon it a corresponding duty toassumesome responsibility for hissafety and general well-being. The rationalefor this princ iple is simple enough: when the state by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unabletocarefor 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 toact on hisown 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 therewas nospecial relationship between thesocial workersand thechild. Even though “the State once took temporary custody of [the child],” “when it returned him to his father’s custody, it placed him in noworse 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 of fered himNo. 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 f unctionaries 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 ofAppeals 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 ofappeals. 24 We have recognized that, when the State places a chi l d 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 mustNo. 09-60406

26 Walton, 44 F.3d at 1299.

27 Id. (emphasis added). 12 necessarily consider whether the School’s repeated acts ofdelivering nine-yearold Jane into the exclusive custody of Keyes—on the School’s premises, for the purpose of his taking her aw ay from the School’s premises—during the school day, amounted to (1) affirmative actson the part ofthe State, asopposed tostate inaction, and (2) a deprivation ofJane’s liberty sufficient to impose on the School
a duty toprotect 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 deafwhere hewas under twenty-four-hour supervision and wassubject tostrict 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 aff irmatively 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 theNo. 09-60406

28 Id. at 1305. As such, we did not need to confront the effect ofcompulsory 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 hewasassaulted. 28Wewent on tonote, 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 plaintiffofthe 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 Doev. Hillsboro Independent School District that
a compulsory-attendance middle school did not have a special relationship with its thirteen-year-old student whowas sexually abused by a janitor on the school grounds af

ter the close of the school day. 30 In that particular context, we “decline[d] to hold that compulsory attendance laws alone create a special relationship giving rise to a constitutionally rooted duty of school officials to protect studentsfrom privateactors.”31 In determining that public school custody of students (at least tho se 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 theNo. 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 thejanitor 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 offamily and friends and is rarely apart from teachers and other pupils who may w itness 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 studentsare not “physically restrained from leaving,” and (3) the students are not apart from teachers and classmates who might help protect them. Astheemphasized 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 ifhe (1) is “very young,” (2) is “physically restrained” by (and unable to leave) the school’s custody, and (3) is secluded or kept “apart from teachers and other pupils who may witness and protest any instances of mistreatment.”33 3. Under the Detailed Facts Alleged in the Does’ Complaint, the School Had a Special Relationship with Jane Taking these cases into consideration, we accept that 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, J ane 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-ol d Jane from her teachersNo. 09-60406

34 The dissent asserts broadly that, “[u]nder our binding precedent, a publicschool 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 ofthe 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 publicschool’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 moredependent 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 ofwhich 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 i ncarcerate that adult, thereby wholly depriving him of any ability to fend orNo. 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 ofthe 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. Seealso DeShaney, 489 U.S. at 199 (“[T]he substantive component ofthe 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 asan appropriate professional would consider reasonable to ensure [the incompetent adult’s] safety and tofacilitate his ability tofunction 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 basicneeds 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 publicelementary school has a duty toprovidefor 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

39Thedissent referstothedistinction 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 ofconsenting tosexual activity with adults, the fact that they have reached puberty generally translates into lower criminal penaltiesfor those who engage in sexual activity with victims in this category. Because the age ofconsent in the majority ofstates 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

. & E THICS 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 themselvesagainst threatening adults. Nine-year-old children like Jane virtually never possess the will or f ortitude to protest or challenge adult authority figures, particularly those whose authority is apparently endorsed by thevery personsor institutionssuch children trust. Neither aresuch youngsters generally apprised of or able to recognize threats to their safety, which is why they are never permitted toleavetheschool grounds by themselves—unlikeolder 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. 39No. 09-60406

wrong

. . . . Likewise, rel igions and courts have treated fourteen-year-old adolescentsasfar moreaccountable than younger children for their actionsand, in many cases, assign culpability. . . . [P]hysicians generally acknowledge that adolescents are differentially equipped to make medical decisionsfrom thirteen years to adulthood.

. . . In most states, adolescents may seek and obtain sexual and reproductive health information and services without the permission ofor 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, likeall elementary-school children, are picked up by or delivered to their parents at the end of the school day, we are satisfied that this has nothing todowith theduty owed tosuch very young studentswhile they are in thecompulsory custody oftheir elementary schoolsduring thecourse 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, donot 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 toJane’s very young age, the School’s adherence to its express check-out policy in checking Jane out to Keyes was an affirmative exercise ofthe 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 placeNo. 09-60406

41 DeShaney, 489 U.S. at 201 n.9 (emphases added). 19 her in theabsolutecustody and control ofKeyesoffcampus. The Doesallegethat 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 deliberateactsoftheSchool constitute precisely the kind of“affirmative exercise ofState 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 ofhis 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 ofhis legal guardian and, on the other hand, a publicschool actively placing a nine-year-old student in the custody ofan 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 ofa private actor, as the “agent” or “delegee” ofthe custodial state subdivision. Again, this is not to say that Keyes was actingNo. 09-60406

42 Id. at 200 (emphasis added).

43 Dissent at 8.

44 Id. at 11. 20 under color ofstate 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 checkingyoungJaneout toan unauthorized adult, rendered Janeand 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 howJane’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 E xercise 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 totalityNo. 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 theeven morerestrictiveand 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 H orton 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 uphel d the jury verdict, explaining that the jury could have found from the evidence: (1) that [the city] had an official policy ofletting 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 pow er 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 ofstate law, [the sergeant] left the investigation of the burglary in [the club owner’s] “good hands”; (3) that [the sergeant] facilitated [the c lub 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 aw are [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 custo dy, [the club owner’s] further investigation ofthe burglary was pursued by methodswhich for [the suspect] proved to be fatal. 50 This combination ofalleged 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 conclusionNo. 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 f

acilitated 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 complai nts and had internal safety meetingsabout itsexpresscheck-out policy, sotheSchool 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)Janewas in Keyes’scustody, and theSchool’s repeated allowanc e 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 passiveroleofthe 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 hisofficial status toconfirm 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, [thesergeant] wasa participant in thecustodywhich 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, ifproved, would suggest that the School used its official status toconfirm that Keyes was free to continue checking Jane out ofschool and to exercise full and complete custody over her during the school day, taking her from the School toanywhere hewanted—despite thefactsthat (1) Keyeswas not listed on Jane’s Form asan adult authorized by Jane’s legal guardian to takecustody ofher, and (2) the School either f

ailed 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 torestrain her liberty further by handing her over to Keyesand giving him carte blanc

he to continue his full and exclusive control ofJane away from theNo. 09-60406

54 See id. (“[The private club owner] was given carte blanche to continue his custodial interrogation as a part ofhis 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 ofHorton isconspicuously absent from the dissent’s analysis with the exc eption of one footnote in which the dissent attempts to distinguish Horton on the basis of that case’s alternative bar to rel ief, which is irrelevant to this analysis, see id. at 18 n.8.

56 Originally, when the Third Circuit affirmed thejury 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.” I d. 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 Horton 55 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 reasonablesafety. We must nowdeterminewhether theclaim in the Does’ complaint that the Scho ol 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 tothevictim’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 ofwhich wasa Form to be used in ensuring that only persons authorized by the legal guardians ofthe pupil could check him out, thenNo. 09-60406

58 The dissent asserts that “[w]ithout any reason to believe that the school employee releasing Jane knewthat Keyeswas 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 tocare for her basichuman 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 Keyeswas 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 beJane’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: In theface—and disregard—ofitsown checkout form, theSchool allowed an unauthorized man to take a nine-year-old girl out of its custody on six different occasions over a period of four months.

59 (emphasis added). 26 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 complaintsand inquiriesand/or had internal discussionsand safety meetingsconcerning checkout policiesand procedures and access to students under their care and control by unauthorized individuals. The complaints, inquiries, discussions, and/or meetings show that the Education Def

endants 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 ofthe case, we conclude that the School did act with deliberate indifference toJane’s safety by checking her out to an unauthorized adult (whom they did not know) without verifying his identity toconfirm that hewasauthorized byJane’s legal guardian tocheck her out ofschool when they had actual knowledgeofthesubstantial risk to Jane’s personal security created by this polic y. The School’s deliberateNo. 09-60406

60 Meadows v. Lake Travis I ndep. 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 ofpre-pubescent children in general and nineyear-old girls in particular is hardly an unknown threat. We learned in a recent appeal, 60for example, ofa nationwide program employing an electronictracking 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 scho

ol 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, ifthe School’s policy was deficient as alleged, the School’s indifference toJane 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 toJane’s personal security, thus violating her substantivedue-process rights under the Fourteenth Amendment.No. 09-60406

61 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlowv. 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 nolonger 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 ofa constitutional right. Second, ifthe 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 of

ficial’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 ofa compulsoryattendance publicelementary school is necessarily in a special relationship with that school when it places her in theabsolutecustody ofan 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 beenNo. 09-60406

64 See, e.g., Doev. 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 Hillsboroand somedistrict 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 ofthe 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 circuit toconsider 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 namesofthe peoplewith exclusive permission to“check out” Janefrom 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 toJane 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 ofher 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 hewas 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’sconstitutional 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 “f orcing” her to leave with him. More importantly, as I will explain below, nowhere in the complaint do the Does allege that the School or i ts employees had actual knowledge that Keyes was not authorized to take Jane from the School. They simply allege that school employeesdid 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 toreleasestudents 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, J r., 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 that theory. The court thus determined that the “primary question” was whether the Does could state a claim based on a spec ial 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 ofa private actor orNo. 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 createsa “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 ofSocial 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. I d. 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. I d. The Supreme Court held that the plaintiffs could not maintain an action under § 1983 because there had been no constitutional violation. I d. at 202. The Court noted that the Fourteenth Amendment was enacted to “protect the people from the State, not toensure that the State protect[s] them from each other.” I d. at 196. The Fourteenth Amendment “forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its languagecannot fairly beextended 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.” I d. 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 ofColumbus, 136 F.3d 1055, 1066 (6th Cir. 1998); Rossv. 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); U hlrig v. Harder, 64 F.3d 567, 572–73 (10th Ci r. 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.” I d. at 199–200. In such instances, “the Constitution i mposes upon it a corresponding duty to

assume some responsibility for his safety and general well-being.” I d. at 200. That “special relationship” existswhen theState incarceratesa 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 that it renders him unable tocarefor 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 ofthe 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 theNo. 09-60406

36 state assumes a constitutional duty to care for children under state supervision because “thestate’sduty toprovideservices 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 Ci r. 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 publicschool, 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 ofthe students’ day-to-day needs, we held that the school had not created a special relationship with the plaintiffstudent. I d. 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 plaintiffoftheability or opportunity toprovide for his own care and safety.” I d. 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 ofa public school. 113 F.3d at 1415. The plaintiff student in that casewas thirteen years old. She was “kept after school to do special workNo. 09-60406

37 on her studies” and wassexually assaulted by a school janitor when shewassent 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.” I d. 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 bancdecisions, no panel ofthis court hasever recognized a special relationship between a public school and its students. See Doev. 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 studentwhen studentwasallowed to leavewith 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 Inde p. 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 theschool day by a boy whowas 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 parki ng lot during a school dance). Under our binding precedent, a public school does not have a DeShaney special relationship with itsstudents requiring thesc hool 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 I ngraham 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 ofthe 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 ofduties 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’sguardiansvoluntarily sent her topublicschool and they were free to remove her f

rom 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 CircuitsNo. 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, publicschools do not place the same restraints

on students’ liberty asdoprisonsand state mental health institutions. H asenfus

v. LaJeune

sse , 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 hisclassmates); Doev. ClaiborneCnty., Tenn., 103 F.3d 495, 510 (6th Cir. 1996) (fourteen-year-old student sexually assaulted by

an athletic coach offschool 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. KentSch. Dist., — F.3d —, 2011 WL 2684939, at *6–7 (9th Cir. July 11, 2011) (devel opmentally disabled high school student was sexually assaulted by a classmatewhen shewas permitted touse restroom alone
even though her parents specifically requested that she be under adult supervision at all timesdue toher disability); Maldonadov. Josey, 975 F.2d 727, 732–733 (10th Cir. 1992) (eleven-year-old bo y died of accidental strangulation in an unsupervised cloakroom adjacent tohisclassroom); Wykev. Polk Cnty. Sch. Bd., 129 F.3d 560, 569 (11th Cir. 1997) (thirteen-year-old boy committed suicideNo. 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 fi nd 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.” I ngraham, 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 ofeach reason must result in a school that isa 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). Astheforgoing casesdemonstrate, 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 fellowstudent, 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 i nterest. According to the majority, the stars have aligned and created just the right set ofcircumstances 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. 3No. 09-60406

is no less an open institution ifa 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 ofcontrol 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 nospecial 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 wi ll or fortitude to challenge adult figures,” publ ic 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 prec edent 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 oftheir children.” H illsboro, 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 offood, clothing, shelter, medical care, and reasonable safety for their minor children. Thus, the fact that all publicschool students return toNo. 09-60406

4 The majority implies several times that the School had “exclusive” custody ofJane. 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 ofany kind toJane. 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 studentsarenecessarily morerestrictivethan thosegoverning middleschool and high school students. Majority Op. at 17 (“[Nine-year-old children] are never permitted to leave the school grounds by themselves—unlikeolder teenage studentswho 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 Doev. 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 somehowmorecompulsory than ifshewerea teenager, which distinguishes this

case from Walton and our other cases holding that compulsory attendance laws
are insufficient to create a special relationship because the School had “compulsory custody” of Jane. 4 Majority Op. at 18. But Jane’s young age does not alter the voluntary nature of her attendance at the School. While it may be true that elementary school students are subject to more rules during the school day, their attendance at school is no more or less mandatory than teenagers’ attendance. 5 In Walton, we held that there was no special relationship in part because the plaintiff student voluntarily attended a residential school for deaf children. Jane’s attendance at her school was no less voluntary. The fact that Jane’s parentssent her toa publicelementary 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, J ane was subject to the exact same Mississippi compulsory education laws as the plaintiffin 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 publicschool. 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 todistinguish this casefrom 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 ofcare sufficient tocreate 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 point is 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. I d. at *2. The student’s parents had requested that she remain under adult supervision at all times because her disability prevented her from recognizing dangerous situations and caused her to be overly friendly with others. I d. at *1. Nevertheless, the student’s teacher allowed her to use the restroom alone in order to foster her development. I d. at *2. The Ninth Circuit held that compulsory scho ol attendance laws do not create a “special relationship” between publicschools and students that would require schools to protect the students from harm. I d. at *7. Of particular import to this case, the Ninth Circuit alsorejected thestudent’scontention that theschool was required toprotect against her “special vulnerabilities.” I d. The court reasoned that “[i]n the case ofa 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. I d. Under the Ninth Circuit’s reasoning, a special relationship does not depend on thecharacteristicsofthe 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 troubl ing is the majority’s seemingly arbitrary distinction between the thirteen- and fourteen-year-old students in Walton and HillsboroNo. 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 ofor 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 otherwisethe majority declaresthat “[n]ine-year-old children likeJane virtually never possess the will or f ortitude to protest or challenge adult authority figures” and that “such youngsters [are not] generally apprised of or able torecognize threats totheir 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 traitsfor constitutional purposes. 6 Do schools need to evaluate the maturity ofeach 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 not taking intoconsideration, thefact that “parents have even greater involvement” in the education ofspecial education students). A constitutional duty to protect a student from harm should not depend on the maturity ofthe student, a factor not in thecontrol ofthestate; rather, it dependsNo. 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 ofcompulsory 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 thedecisionsofevery other circuit tohaveconsidered this issue, dictate that in almost every circumstanceschoolsaresimply not constitutionally required to ensure students’ safety. Despite her young age, Jane was not attending the School through the “affirmative exercise ofState 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, ifa child is asyoung asJane, a publicschool may create a special relationship with thestudent, and assumea duty tocare 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 anNo. 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 restrictingJane’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 itNo. 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] wasdeliberately indifferent tothat 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 H orton v. Flenory, 889 F.2d 454 (3d Cir. 1989), this case is distinguishable. In Horton, the court concluded that the plaintiffwas in de facto police custody because “[the city] delegated to [the club owner] its traditional police functions.” I d. 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 knewofthe danger of leaving the plaintiffalone with the club 48 would assume a constitutional duty tocare for that student isan unprecedented expansion of the Fourteenth Amendment. 7 The majority implicitly suggeststhat theSchool 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. 8No. 09-60406

owner. 889 F.2d at 457. Here, the majority suggeststhat “theSchool wasaware that nine-year-old Jane’ssafety was threatened by (and Jane had reason to be fearful of) its checking her out to Keyeswithout verifying his identity.” Majority Op. at 23. However, the complaint alleges that the School was aware ofthe risk ofharm, 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 J ane that imposed on the School a constitutional duty toprotect 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 noworse position than that in which hewould 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 ac tor 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

50 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 recogni zed, 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 ofSocial 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. ofCnty. 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 beNo. 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 knowit isdangerous”; 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.” J ohnson 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 ofrestricting 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 ofthe 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. SeeMajority Op. at 20. The majority never suggests that the School undertook to provide for all ofJane’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 l iability is available under Monell because the School promulgated a policy—the ineffective student check-out policy—thatwasthe 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 (emphasisadded). 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 ineffectivecheck-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 handsofKeyes 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 ofallowing Jane to be placed in a dangerous situation. As demonstrated above, these acts, or non-acts, do not give rise to aNo. 09-60406

52 constitutional violation under either the special relationship exception or the state-created danger theory. Therefore, the School cannot be liable under Monell because the check-out policy was not the moving force behind a constitutional violation. III. CONCLUSION In concluding that the Does havefailed tostate 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 toa consti tutional 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’sjudgment dismissing the Does’ complaint for failure to state a claim under § 1983.