Doe v. Covington County Sch. Dist.

• Decision Date: 05 August 2011
• Docket Number: No. 09–60406.,09–60406.
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

649 F.3d 335

271 Ed. Law Rep. 63

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.

No. 09–60406.

United States Court of Appeals, Fifth Circuit.

Aug. 5, 2011.

Christopher Eugene Fitzgerald (argued), Hendren, Hollingsworth & Fitzgerald, Benjamin Geoffrey Harrison, B. Geoffrey Harrison, P.A., Ocean Springs, MS, for Plaintiffs–Appellants.Rick D. Norton, Joseph A. O'Connell, III (argued), William A. Whitehead, Jr., Bryan Nelson, P.A., Hattiesburg, MS, for Defendants–Appellees.Appeal from the United States District Court for the Southern District of Mississippi.Before KING, WIENER, and DENNIS, Circuit Judges.WIENER, Circuit Judge:

I. PERSPECTIVE

Plaintiff–Appellant Daniel Magee is the father and next friend, and Plaintiff–Appellant Geneva Magee is the grandmother, guardian, and next friend, of Plaintiff–Appellant Jane Doe (collectively the “Does”). Individually and on behalf of nine-year-old Jane Doe (“Jane”), the Magees sued, inter alia, the Covington County [Mississippi] School District, its Board of Education, its president, and other persons, in their official and individual capacities (collectively, the “Education Defendants”), as well as other known and unknown persons, under 42 U.S.C. §§ 1983 and 1985, alleging violations of Jane's Fourteenth Amendment substantive due-process rights (and various state law violations).

A. Question Presented

The question that lies at the core of this appeal is:

Are there circumstances under which a compulsory-attendance, elementary public school has a “special relationship” with its nine-year-old students such that it has a constitutional “duty to protect” their personal security?

B. Context

The framework in which the question thus posed must be answered is a construct of not only that which the complaint alleges and asserts but—of equal importance—that which the complaint does not allege or assert.

First, the Does have not complained that a school passively “stood by and did nothing” when “suspicious circumstances” indicated that it should have protected a student from his legal guardian, distinguishing this case from the seminal Supreme Court case of DeShaney v. Winnebago County.¹ Second, the Does have not complained that a compulsory-attendance public school failed to protect a teenage student from an assault on school grounds after the close of the school day, by a teacher, coach, janitor, or any other such state actor who was hired by the school.² Third, the Does have not complained that a non-compulsory school failed to protect a student from an assault on school grounds during the school day by a private actor—as, for example, another student at school, or a visitor to the school, or even an uninvited person who furtively comes onto the school grounds and spirits the student away.³ Thus, the instant case is distinguishable from the significant “special relationship” cases that this court, sitting en banc, has previously decided.

Finally, and perhaps most importantly to understanding their claim in the right context, the Does have not complained that a school employee or other individual acting under color of state law physically abused a student. ⁴ The constitutional violation alleged here is not a violation by a state actor of Jane's substantive due-process right to be free from sexual abuse and violations of her bodily integrity. Accordingly, cases involving a state actor's violation of the bodily integrity of a citizen are wholly inapposite and easily distinguishable from the instant case—a distinction that this court sitting en banc has previously recognized.⁵

To be clear, what the Does have alleged is that Jane's school, the Covington County Elementary School (the “School”), violated her substantive due-process rights by being deliberately indifferent to nine-year-old Jane's safety when the School affirmatively deprived Jane of her liberty to care for herself by forcing her into the sole custody of an unauthorized adult, Defendant Tommy Keyes, for the School's known and intended purpose of facilitating his taking her off of the School's grounds. The constitutional right at issue here is the “right to personal security,” which the Supreme Court has repeatedly said “constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause.”⁶

Specifically, the Does have alleged in minute detail that the School had a special relationship with (1) Jane, a pre-pubescent nine-year-old, fourth-grade student, (2) at the compulsory-attendance elementary public school, (3) in the full and sole legal custody and control of the School, to the exclusion of even her legal guardian, (4) during school hours (not at the end of the day when the School normally relinquishes its state-ordered custody)—under which relationship the School assumed responsibility for her personal safety and general well-being. The School's duty to protect Jane arises from the School's total limitation on Jane's freedom to act on her own behalf: Jane was required to attend the School throughout the entire school day, out of the presence of her legal guardian and without any ability to leave; and Jane's exclusive confinement by the School, entirely without the protection of her legal guardian, in combination with her very young age, made Jane wholly dependent on the School for her safety. The School thus assumed the duty to protect her, then allegedly violated the Due Process Clause by being deliberately indifferent to her safety.

The Does further allege that the School had a special relationship with Jane because it repeatedly handed her over to Keyes during school hours, surrendering to Keyes the School's statutorily obtained, full and exclusive custody over her, and then allowing him to take her away from the School's campus to some unknown location, and isolating her from her teachers and classmates, without the School's supervision (and against her and her legal guardian's will).⁷ In other words, even if the School did not already have a duty to protect very young students like nine-year-old Jane while on school grounds during the school day, it certainly did assume a duty to protect her when it affirmatively delivered her from the School's exclusive custody into the sole custody of Keyes, further depriving her of her liberty by isolating her from the people she trusted and the surroundings she knew. The School then allegedly violated its due-process duty to protect Jane by acting with deliberate indifference to her safety when it intentionally placed her in Keyes's custody for the explicit purpose of his taking her off campus, without verifying his identity as an identified adult authorized to check her out of the School.

Assuming as we must at this initial Rule 12(b)(6) phase of the case that the allegations of the Does' complaint are true, we conclude that they have alleged a constitutional violation and that their complaint should not have been dismissed by the district court. True, the horrific sexual abuse alleged here was committed by a private actor. But, the Does have not alleged that Keyes violated Jane's constitutional rights by sexually abusing her—and properly so, as private violence does not in and of itself amount to a constitutional violation. Rather, the Does have alleged that (1) the School so restricted little Jane's liberty that it assumed a duty to protect her from unsafe conditions, and (2) the School violated Jane's substantive due-process rights by being deliberately indifferent to her safety. In those contexts, it matters not that Jane's rapist was a private actor; what does matter is that the School, an institution of the State, had a special relationship with its nine-year-old student that it violated by its affirmative acts of checking her out to an unknown and unauthorized adult, thereby involuntarily confining her, against her will, in his custody and thereby failing in its duty to protect her from such a quintessential and widely known threat to young children as pedophilia.

When the question posed is addressed in the framework thus constructed, the Does' complaint survives the Education Defendants' Rule 12(b)(6) motion. We therefore reverse the district court's dismissal of the Does' action, based on that court's holding of the absence of any duty of the Education Defendants to protect Jane, and we remand for further proceedings incorporating the special-relationship analysis as hereafter clarified.⁸

II. FACTS & PROCEEDINGS

A. Facts

The Does' complaint precisely alleges that, during the 2007–2008 school year, cognizant personnel at the School deliberately released Jane to Keyes during the school day on at least six different occasions: September 12, 2007, September 27, 2007, October 12, 2007, November 6, 2007, December 11, 2007, and January 8, 2008. Each time that Keyes checked Jane out of the School, he brutally raped, sodomized, and molested her and then returned her to the School, where the School's employees checked her back on to the school grounds.

According to the Does' complaint, the School had formally adopted and actively implemented a compulsory⁹ check-out policy, one express aspect of which was the creation and maintenance of a “Permission to Check–Out Form” (the “Form”) for each student, which listed by name the...