DeShaney in the Circuits (III): The Fifth Circuit En Banc Holds the Line
Affirmative Duty Issues After DeShaney v. Winnebago County, 489 U.S. 189 (1989)
DeShaney issues continue to arise in the circuits in all-too-often tragic circumstances. I came across the following Fifth Circuit en banc decision as I was preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012), published by West.
Doe ex rel Magee v. Covington County School Dist.
A panel of the Fifth Circuit addressed this question: “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?” The panel answered in the affirmative as a matter of first impression in the circuit. Doe ex rel Magee v. Covington County School Dist., 649 F.3d 335, 338 (5th Cir. 2011) , reh’g en banc granted and rev’d, 675 F.3d 849 (5th Cir. 2012)(en banc).
The plaintiffs, the father and grandmother of a nine-year-old girl, on whose behalf they acted, sued a county school district, board of education, school officials and others in connection with the repeated release of the girl into the custody of an unauthorized adult for the purpose of facilitating his taking her off school premises, where he raped her. The defendants thereby allegedly acted with deliberate indifference to her safety. The Fifth Circuit panel determined that there was a special relationship in this case between the school and the child because it repeatedly handed her over to the unauthorized adult during school hours, surrendering to him the school’s statutory full and exclusive custody over her. The school isolated her from her teachers and classmates without any school supervision and against her will and that of her grandmother (her legal guardian). It thus failed in its duty “to protect her from such a quintessential and widely known threat to young children as pedophilia.” Accordingly, the plaintiffs’ complaint survived the defense motion to dismiss under Rule 12(b)(6).
However, because this was a case of first impression in the circuit, the individual defendants sued in their individual capacities were protected by qualified immunity: the law was not clearly established when these events occurred in 2007. Indeed, some Fifth Circuit decisions at the time may have suggested that schools could never be in a special relationship with their students.
Judge King dissented, arguing that the panel got the special relationship issue wrong: “Our en banc court, and every other circuit to consider the issue, has unequivocally concluded that public school students do not have such a [protected liberty interest in remaining safe at school] under the Constitution. … 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….”
The En Banc Decision
Thereafter, the Fifth Circuit en banc reversed this aspect of the panel’s decision. It declared:
We now hold that the student did not have a DeShaney special relationship with her school, and her school therefore had no constitutional duty to protect her from harm inflicted by a private actor. We also hold that the student has failed to state a claim under the state-created danger theory or under a municipal liability theory.
The Fifth Circuit en banc emphasized that it continued in its refusal to adopt the state-created danger theory because the plaintiffs’ allegations did not support this theory: they did not allege that the school knew about an immediate danger to the girl’s safety, as would be required under a state-created danger theory. The Fifth Circuit en banc then observed that because of its conclusion that due process was not violated, there was no need to address qualified immunity.
Judge Jolly specially concurred, pointing out that the Fifth Circuit strictly construed DeShaney. Judge Higgonson concurred in the judgment, stating that the problem in this case revolved around causation and the language of § 1983. Judges Wiener and Dennis, dissented, arguing that there was indeed a special relationship here and that the defendants acted with deliberate indifference.
1. When I lecture to federal judges and lawyers, I always mention that DeShaney issues will simply not go away. Magee is yet another example.
2. The circuits often experience great difficulty in drawing the appropriate lines around the two ways in which the DeShaney no-affirmative-duty rule can be end-run: through (1) a special relationship or (2) danger-creation.
3. In Magee, the Fifth Circuit en banc was simply not going to depart from the general rule that public schools do not have a special relationship with their students for affirmative duty purposes.
4. In addition, the Fifth Circuit en banc adhered to its position of not recognizing the danger-creation exception to DeShaney.