In a case one judge called “heart-wrenching,” a federal appeals court has ruled that an Ohio school district and several school employees cannot be held liable under the U.S. Constitution for a 5th-grader’s sexual assault of a kindergartner on a school bus. The older student had been required to sit near the younger child at the front of the bus, ostensibly to be in closer view of the bus driver, after a past discipline incident.
A federal constitutional claim for “state-created danger” is available “only in rare circumstances involving what the Supreme Court has described as truly ‘egregious’ and ‘outrageous’ conduct,” but “the conduct of the school employees in this case does not meet that high bar,” said a unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati.
“The Constitution does not empower federal judges to remedy every situation we find heart-wrenching,” the appeals court said in its April 1 decision in Doe v. Jackson Local School District.
The case was brought by the parents of the kindergarten girl identified in court papers as Minor Doe. On her schoolbus, she and other younger students sat in the front, while older elementary students sat in the back. In September 2016, the 5th grader identified in court papers as C.T. lit a match and threw it over the head of another student and out the window.
C.T. faced discipline for the incident which included being assigned to the front row of the bus, next to a kindergarten boy. Doe sat alone on the afternoon ride home in the seat directly behind the bus driver, which hampered the driver’s visibility, court papers say.
In November 2016, Doe informed her parents that C.T. had moved across the aisle to her seat and did “something really gross” to her. The opinion says C.T. forced Doe to perform an unspecified sexual act several times.
Doe’s parents reported the assault to the police and to school officials. Bus video footage confirmed the assault, and C.T. was immediately suspended, was later expelled, and later pleaded guilty to gross sexual imposition.
The Does sued the Jackson Local district along with the principal, three other administrators, and the bus driver, alleging they violated the girl’s 14th Amendment right to substantive due process by failing to prevent C.T.'s sexual assault.
A trial court issued summary judgment to the defendants, ruling that the district and employees were not culpable for the assault because they did not act with deliberate indifference. Even if the defendants were culpable, the Does could not recover damages unless they could show that a constitutional violation was the result of a policy or custom. That is the standard required for municipal liability under a 1978 U.S. Supreme Court decision, Monell v. New York City Department of Social Services.
On appeal to the 6th Circuit, the Does challenged only the ruling that the defendants did not act with deliberate indifference. The appeals court analyzed the appeal under the Supreme Court’s 1989 decision in DeShaney v. Winnebago County Department of Social Services, which held that social workers did not violate due process when they negligently failed to prevent a father from abusing his son.
The appeals court said that several past discipline incidents involving C.T., including lying and bullying besides match-lighting, were insufficient to put officials on notice that the boy might commit a sexual assault. And the response to C.T.'s match-lighting—moving him to the front of the bus—was designed to keep him in closer supervision.
The principal “chose a discipline that, it’s safe to say, regularly occurs in schools across this country: If a child misbehaves on a bus, the child gets moved to the front of the bus,” the court said.
“The Constitution simply does not require a school to treat an 11-year-old as a violent sexual predator based on a history of lying, bullying, or playing with matches,” the court concluded. “While C.T.'s sexual assault of Minor Doe undoubtedly shocks the conscience, the school employees’ responses to C.T.'s earlier actions do not. And it is their conduct that is at issue here.”
A version of this news article first appeared in The School Law Blog.