District May Be Liable in Student’s Sexual Assault, Court Rules

By Mark Walsh — August 09, 2011 2 min read

A school district is potentially liable in a federal civil rights suit for failing to protect a 4th grade student from sexual assault by a man who checked the girl out of school without authorization, a federal appeals court has ruled.

A panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled 2-1 that the Covington County, Miss., school district had a special relationship with the 9-year-old student during the school day and a duty to protect her from the man who checked her out by claiming to be her father, and once even signing the girl out as her mother.

The court revived the family’s lawsuit alleging that the school district violated the girl’s substantive due process rights by being deliberately indifferent to her safety. It ordered a trial court to re-examine whether the family’s allegations are true.

The lawsuit filed on behalf of a student identified as Jane Doe alleges that on six occasions during the 2007-08 school year, Covington Elementary School released the girl to a man who took her from the school and sexually assaulted her. The district had a compulsory check-out policy, with parents filling out a form listing adults authorized to check out their children. The man was not authorized to check out Jane Doe, court papers say. The Associated Press reports that the man was convicted of sexual battery in the assaults and is serving a 10-year prison term.

A federal district court dismissed the family’s suit, ruling that the school did not have a special relationship with the 4th grader resulting in a duty to protect her from harm.

But in its Aug. 5 decision in Doe v. Covington County School District, the 5th Circuit panel held that there was a special relationship, especially in light of the girl’s age and the district’s alleged failure to comply with its own checkout policy.

The majority cited language from the U.S. Supreme Court’s 1989 decision in DeShaney v. Winnebago County Department of Social Services. In that case, the high court held that there was no special relationship between government social workers and a child who was severely beaten by his father after the social workers had investigated reports of abuse and declined to remove the child from his home.

The court went on in DeShaney to say that the government agency could have had a duty to protect the child from private violence if it had taken an affirmatively active role in the child’s care.

The 5th Circuit court majority said that while compulsory-attendance laws do not by themselves create a special relationship between schools and children, the age of the girl in this case and the school’s alleged actions in “forcing” her into the custody of the man who molested her created such a relationship.

“The school’s deliberate 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,” the court said.

Writing in dissent, U.S. Circuit Judge Carolyn Dineen King said the majority’s decision was an “unwarranted expansion of the ‘special relationship’ exception to the general rule that state actors are not required to protect individuals from private harm.”

“The majority ... elevates a school employee’s careless mistake—failing to ensure that [the assailant] was authorized to take Jane from the school—into a constitutional violation,” King said.

A version of this news article first appeared in The School Law Blog.

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