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Full Appeals Court To Hear Case on Duty To Protect Pupils

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The full U.S. Court of Appeals for the Fifth Circuit has agreed to rehear a closely watched Texas case concerning the duty of school officials to protect students from such harms as sexual assault.

In a rare move, the Fifth Circuit court decided to rehear the case after the U.S. Supreme Court had already denied a petition for review of a three-judge panel's decision in Doe v. Taylor Independent School District.

"It is highly unusual for a circuit court to grant rehearing after the Supreme Court has denied'' review of a case, said David Feldman, the lawyer for the Taylor school district and its officials, who were sued by a female student over her alleged sexual assualt by a teacher.

Last October, the Fifth Circuit panel ruled unanimously that under the due-process clause of the 14th Amendment, public school administrators "have a duty to protect schoolchildren from hazards of which the school officials know or should know.''

"School superintendents and principals have a duty to police the halls of our public schools to insure that schoolchildren, who are obliged to attend, have an opportunity to learn and study in a school environment free from sexual molestation and harassment,'' said the opinion by senior Circuit Judge Irving L. Goldberg. The panel sent the young woman's lawsuit back for trial.

Administrators Concerned

The October ruling alarmed school administrators and school lawyers nationwide since it was the first time a federal appellate court had recognized a duty by school officials to protect students from harm based on state compulsory-attendance laws.

Three other federal appellate courts have reached opposite conclusions on that question. (See Education Week, Dec. 2, 1992.)

Two school officials appealed the panel's ruling to the Supreme Court late last year.

In a friend-of-the-court brief, the National School Boards Association argued that the ruling could "significantly expand liability of local school boards and school officials for alleged negligence of school administrators in failing to protect students.''

The High Court in January declined to review the Doe ruling. But despite the apparent conflict, the High Court also let stand two rulings in which federal appeals courts said that school officials do not have a special duty to protect students from harm. Those appeals were D.R. v. Middle Bucks Area Vocational Technical School and Maldonado v. Josey.

Rehearing Set for May

Mr. Feldman said that neither party in the Texas case requested the rehearing by the full Fifth Circuit court. It was evidently granted after an unidentified judge on the court engaged in some in-house lobbying, he said.

The full Fifth Circuit has vacated the opinion by the three-judge panel in the case, issued last October.

The court will hear arguments in the rehearing during the week of May 24, Mr. Feldman said.

The Fifth Circuit, which is based in New Orleans, has jurisdiction over Louisiana, Mississippi, and Texas.

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