REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-50709
JOHN DOE, as Next Friend of
Jane Doe, a Child,
Plaintiff-Appellee,
versus
HILLSBORO INDEPENDENT SCHOOL
DISTRICT, ET AL,
Defendants,
LARRY ZABCIK; JAMES MAASS; TERESA DAVIS;
NORMAN BAKER; RICHARD SEWALL; BILLY SULLINS;
LEON MURDOCH,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas, Waco
May 27, 1997
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA,
DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
The custodian of the Hillsboro Independent School District
raped a 14-year-old eighth grade student in an empty classroom.
The student through her parents filed this lawsuit under 42 U.S.C.
§ 1983 asserting deprivations of constitutional rights and seeking
money damages for this assault from the Hillsboro Independent
School District, as well as its trustees and present and past
superintendents in their individual capacities. The district court
denied motions to dismiss filed by the individual defendants under
Rule 12(b)(6). This appeal of the district court’s denial of
qualified immunity followed.1 A divided panel of this court
affirmed. We took the case en banc and now reverse.
We conclude that no claim was stated under 42 U.S.C. § 1983
against the individual defendants and that their motions to dismiss
should have been granted.
I
The motions to dismiss targeted the amended complaint. It
read in relevant part:
5. Jane Doe is a minor child who was, at the time of the
events described, thirteen (13) years old. 6. Near the
end of the 1992-1993 School Year (sometime in May of
1993), Jane Doe was kept after school to do special work
on her studies . . . . 7. Jane Doe stayed after school
. . . . 8. Jane Doe did her studies for a while, but was
asked, by a teacher, to go upstairs in the school
building to retrieve some supplies for the teacher. Jane
Doe did. 9. When she went upstairs, a black male school
district employee, then acting as a custodian, trapped
Jane Doe in an empty classroom, and raped her. The
school employee also physically assaulted Jane Doe in the
course of the rape causing her bodily injury different
from the sexual assault. 10. Jane Doe did not tell
anyone what had happened to her until the following
Christmas holidays — when it became apparent that Jane
Doe was pregnant. Jane Doe then told her mother and
father what had happened. 11. The rapist was arrested,
and pleaded guilty. 12. Jane Doe had a healthy baby boy
1
The individual defendants have also appealed the district
court’s denial of their motions to dismiss claims under Title IX,
20 U.S.C. §§ 1681-1688. Like the panel, we do not read the amended
complaint as attempting to state a Title IX theory against the
individual defendants.
2
in March of 1994 at fourteen (14) years of age . . . .
19. Other members of the maintenance staff have, on
information and belief, convictions for murder, armed
robbery, cruelty to animals, failure to ID-Fugitive,
unlawful weapons possession, multiple DWI, and drug
offenses . . . . 21. The Hillsboro Independent School
District . . . warned new employees to “stay away from
the little girls.”
Plaintiffs contend that the individuals sued here are liable
under two distinct theories. First, plaintiffs urge that “the
amended complaint states a claim for liability based on the custody
of Jane Doe, whereby she was owed some minimum degree of
protection,” matching “the contours of liability” that were
outlined in DeShaney v. Winnebago County Dept. of Social Services,
489 U.S. 189 (1989). Second, plaintiffs would bring themselves
within our decision in Doe v. Taylor Indep. School Dist., 15 F.3d
443 (5th Cir.) (en banc), cert. denied, 115 S. Ct. 70 (1994). As
we will explain, these theories offer plaintiffs no comfort.
II
A
In DeShaney v. Winnebago County Dept. of Social Services, the
Supreme Court rejected the contention that government owes a
constitutional duty to protect people from the misdeeds of other
private actors, in the absence of a special relationship. We have
not accepted the argument that school compulsory attendance laws
create such a special relationship between student and school. In
Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995)(en banc), we
refused to find a special relationship between a state school for
deaf children and its students who were residents in the school
3
where they slept and took their meals. It is true that attendance
at the school was not required by state law, and we emphasized the
absence of this legal compulsion. It is equally true that poor
students may have had no real alternatives. The year before Walton
we held that, whatever the effect of compulsory attendance, it
ended when compulsory attendance ended. Leffall v. Dallas Indep.
School Dist., 28 F.3d 521, 529 (5th Cir. 1994)(“[E]ven though
Steadham may have been compelled to attend school during the day,
any special relationship that may have existed lapsed when
compulsory attendance ended.”). See also Johnson v. Dallas Indep.
School Dist., 38 F.3d 198 (5th Cir. 1994), cert. denied, 115 S. Ct.
1361 (1995).2
We decline to hold that compulsory attendance laws alone
create a special relationship giving rise to a constitutionally
rooted duty of school officials to protect students from private
actors. Much has been written about this issue, and we will not
pause to rehearse fully the arguments again. See Seamons v. Snow,
84 F.3d 1226, 1236 (10th Cir. 1996); Sargi v. Kent City Bd. of
Educ., 70 F.3d 907, 911 (6th Cir. 1995); Dorothy J. v. Little Rock
School Dist., 7 F.3d 729, 732 (8th Cir. 1993); D.R. by L.R. v.
Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1368-73 (3d Cir.
2
In Texas, a child must attend each school day, which is
defined as at least seven hours. The child must attend for the
time the “program of instruction” is provided. See Tex. Educ. Code
Ann. §§ 25.082 and 25.083. A child who fails to stay after
completion of the program of instruction does not violate
compulsory attendee laws. The application of the statute in this
case is not certain. We are not prepared to say under the
pleadings that Jane Doe was not in the school at the time of the
assault under compulsion of state attendance laws.
4
1992) (en banc), cert. denied, 113 S. Ct. 1045 (1993); J.O. Alton
Community Unit School Dist. 11, 909 F.2d 267, 272 (7th Cir. 1990).
We join every circuit court that has considered the issue in
holding that compulsory school attendance, in Texas to attend seven
hours of programmed education on each school day, does not create
the custodial relationship envisioned by DeShaney. The
restrictions imposed by attendance laws upon students and their
parents are not analogous to the restraints of prisons and mental
institutions. The custody is intermittent and the student returns
home each day. Parents remain the primary source for the basic
needs of their children. Finally, we find helpful the rationale of
the Supreme Court’s decision in Ingraham to deny school children
the protections of the Eighth Amendment:
The school child has little need for the protection of
the Eighth Amendment. Though attendance may not always
be voluntary, the public school remains an open
institution. Except perhaps when very young, the child
is not physically restrained from leaving school during
school hours; and at the end of the school day, the child
is invariably free to return home. Even while at school,
the child brings with him the support of family and
friends and is rarely apart from teachers and other
pupils who may witness and protest any instances of
mistreatment.
Ingraham v. Wright, 430 U.S. 651, 670 (1977). Refusing to create
a whole new class of constitutional rights does not leave the
student without legal protection. A review of our recent decisions
alone makes that clear. There are concerns pointing in a different
direction. See Johnson, 38 F.3d 198, 203 n.7 (5th Cir. 1994). To
say that compulsory attendance laws restrict the freedom of
students and parents in significant ways, however, is not to say
5
that this status of students is sufficiently akin to that of
prisoners and persons committed to mental institutions to trigger
a constitutionally rooted duty.
B
Nor does a state-created-danger theory save plaintiffs’
claims. Its narrow compass is reflected by the reality that we
have never sustained liability on this ground. In Johnson we
observed that “[t]he environment created by the state actors must
be dangerous; they must know it is dangerous; and, to be liable,
they must have used their authority to create an opportunity that
would not otherwise have existed for the third party’s crime to
occur." 38 F.3d at 201. See also L.W. v. Grubbs, 974 F.2d 119
(9th Cir. 1992) (assault of nurse working with known sex offender
under directive of state supervisor), cert. denied, 113 S. Ct. 2442
(1993); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989) (woman
raped when police impounded car of drunk driver leaving her in high
crime area), cert. denied, 498 U.S. 938 (1990); White v. Rochford,
592 F.2d 381 (7th Cir. 1979) (children left by police officers
alone in car after arresting driver). Viewed in the light most
favorable to the plaintiffs, the school district placed the student
in the same area as a school custodian who had no known criminal
record, sexual or otherwise, with school teachers in the same
building but not in the immediate area. This will not trigger a
duty under a state-created-danger theory, even if we were to adopt
such a theory. Such post hoc attribution of known danger would
turn inside out this limited exception to the principle of no duty.
6
III
Plaintiffs do not urge that the custodian acted under color of
state law. Rather, they assert that the defendants breached a
constitutional duty in failing to protect the child from the rape
by the janitor. The argument is that the defendants are liable if
there was a “pattern of events that would give some warnings"; that
Jane Doe’s pleadings set forth facts that were known, or “learned”
(“‘fondling students, voyeurism, and the like’; warnings to the
custodians to ‘stay away from the little girls’”). The argument
continues that “although the predictors do not point to specific
prior incidents of sexual abuse of a specific student, they do
point plainly toward the dangerous combination of crime, sex and
violence." The reliance upon Doe v. Taylor concludes with the
assertion that the individual defendants were deliberately
indifferent to these risks by not conducting an adequate check of
employees’ backgrounds.
Unlike Doe v. Taylor, in which a school employee acted under
color of state law, this case requires us to locate the primary
constitutional wrong in the board and school officials. The
Supreme Court has recently indicated that municipal authorities can
be liable under § 1983 if a hiring decision “reflects deliberate
indifference to the risk that a violation of a particular
constitutional or statutory right will follow the decision.” Board
of the County Commissioners of Bryan County v. Brown, ___ S. Ct.
___, ___, 1997 WL 201995, at *9 (Apr. 28, 1997).
7
The Bryan County Court declined to announce a bright-line rule
that municipal officials can never be liable under § 1983 for an
isolated hiring decision that neither constitutes nor directs a
violation of federal law. See id. at ___, 1997 WL 201995, at *10.
But the Court warned that liability in such cases will necessarily
be rare: “Only where adequate scrutiny of an applicant’s background
would lead a reasonable policymaker to conclude that the plainly
obvious consequences of the decision to hire the applicant would be
the deprivation of a third party’s federally protected right can
the official’s failure to adequately scrutinize the applicant’s
background constitute ‘deliberate indifference.’” Id. at ___, 1997
WL 201995, at *9. See also City of Canton v. Harris, 489 U.S. 378,
389 (1989) (“[A] municipality can be liable under § 1983 only where
its policies are the ‘moving force [behind] the constitutional
violation.’” (citing Monnell v. New York City Dept. of Social
Services, 436 U.S. 658, 694 (1978))); Gonzalez v. Ysleta Indep.
School Dist., 996 F.2d 745, 760-62 (5th Cir. 1993) (finding the
evidence insufficient to establish deliberate indifference where a
school district failed to terminate a teacher with a history of
abusing students sexually).
In Bryan County, a police officer used excessive force in
extricating a suspect from her vehicle. The plaintiff’s claim of
deliberate indifference in hiring, then, was coupled with
underlying conduct under color of state law. In this case, by
contrast, the janitor did not act under color of state law in
raping Doe. Under the facts alleged by Doe, there can be no
8
recovery even if the janitor were acting under color of state law.
When the district court afforded Doe the opportunity to amend his
complaint, he could not even allege that the custodian who
assaulted his daughter either had a prior record of violent crime
or previously had been reported to the officials for sexual
misbehavior towards students. Even in the context of resisting a
Rule 12 motion to dismiss, plaintiffs have demonstrated an
inability to show a nexus between any failure to check criminal
background and this assault.
The duty articulated in Bryan County does not detract from
DeShaney’s general rule that municipalities have no duty to protect
citizens from the private actions of fellow citizens. Recognizing
a potential for § 1983 liability based on egregious hiring
decisions does not entail endorsement of the view that defendants
such as the Hillsboro Independent School District have a duty to
protect students from threats from other sorts of third parties.
IV
Plaintiffs have stated no claim against these individuals.
The denial of the motions to dismiss is reversed. The case is
remanded with instructions to enter judgments for the defendants in
their individual capacities and for further proceedings consistent
with this opinion.
REVERSED and REMANDED.
EDITH H. JONES, Circuit Judge, with whom SMITH, Circuit Judge,
joins, specially concurring:
9
I am pleased to concur in Judge Emilio M. Garza’s special
concurrence. I also concur in the majority opinion, which, like
every other federal circuit, rejects the plaintiff’s claim that
compulsory school attendance laws give rise to a constitutional
special relationship between a student and the school. The special
relationship doctrine has been inferred from the Fourteenth
Amendment due process clause and currently protects those in
involuntary state custody, i.e. prisoners and the mentally ill or
retarded, from mistreatment by third parties. Absent intervention
by the Supreme Court, no such special relationship protects
children in public schools under compulsory attendance laws.
Elsewhere I have noted the incongruity and shallow logic underlying
the distinction between children in public schools and those who
are involuntarily confined full-time. Johnson v. Dallas
Independent School Dist., 38 F.3d 198, 203 n.7 (5th Cir. 1994).
Nevertheless, I concur in this en banc outcome not because the
legal distinction has suddenly become persuasive but because there
is no realistic alternative. The Constitution does not compel our
intervention, and there is no assurance that creating a whole new
class of constitutional protections for public school children
would be a successful undertaking. A generation of judicial social
engineering in the prisons and state-run institutional care
facilities has produced dubious results that counsel judicial
humility. Thus, while I remain outraged and saddened that public
schools too often fail shockingly to take steps necessary to insure
the students’ safety, emotion must give way to reason. Reform must
10
be instituted and guided by our people and their direct
representatives, not by court decrees.
ENDRECORD
11
JACQUES L. WIENER, Jr., Circuit Judge, with whom POLITZ, Chief
Judge, and BENAVIDES and DENNIS, Circuit Judges, join, specially
concurring.
Despite having written the panel majority opinion which was
automatically vacated when we voted to rehear this case en banc, I
nevertheless concur in the opposite result reached in the foregoing
en banc majority opinion and in virtually all of its
pronouncements. More specifically, I concur in the majority
opinion’s analysis of (1) the doctrine of “special state
relationship” in section IIA., (2) the “state-created-danger
theory” in section IIB., and (3) the theory of public school
supervisors’ liability, in section III, for their own “deliberate
indifference” to the rights of public school students to be free
from violation of their bodily integrity as guaranteed by the
Constitution —— as far, that is, as section III’s analysis goes.
But I am constrained to write this short special concurrence in
light of the hiatus I discern in section III’s “deliberate
indifference” analysis.
The introductory paragraph of section III quotes portions of
the plaintiff’s amended complaint that list post-hiring occurrences
allegedly known or learned —— but disregarded —— by school and
school board officials. Inexplicably, though, the majority then
implicitly characterizes the plaintiff’s reliance on Doe v. Taylor
ISD as complaining only of the supervisors’ deliberate indifference
in not conducting adequate pre-hiring background checks. In like
manner, the remainder of section III discusses and analyses
“egregious hiring decisions”3 and the absence of a legal “duty to
protect students from threats of other sorts of third parties,”
without ever addressing the supervisors’ alleged disregard of post-
hiring reports.
Although I am in complete agreement with that part of section
III which insists that in the public school context the theory of
deliberate indifference does not impose on supervisors an
affirmative or active “duty to protect,” I am puzzled by the
majority opinion’s failure to mention, much less discuss, the
potential liability of public school supervisors for breach of the
negative or passive duty not to be deliberately indifferent to
post-hiring reports and complaints of misconduct that presages
violations of students’ constitutional rights of bodily integrity.
Doe v. Taylor ISD makes clear that the obligation of public school
supervisors not to be deliberately indifferent to such harbingers
of harm is not grounded in an active duty to protect while at the
same time recognizing the existence of a passive duty not to ignore
or disregard such clear predictors of impending constitutional
violations. The failure of today’s majority opinion to address
this aspect of deliberate indifference, choosing instead to discuss
only the pre-hiring background check manifestation of deliberate
indifference, creates the hiatus to which I refer.
I concede that, like his inability to amend the complaint to
allege facts constituting a nexus between alleged pre-hiring
3
Emphasis added.
13
deficiencies and Miss Doe’s rape, the plaintiff also found it
impossible to allege facts constituting a sufficient nexus between
the rape of his daughter and the school supervisors’ purported
gross disregard of post-hiring reports and complaints of sexual
misconduct by members of the school’s custodial staff. The
bothersome void in the majority opinion’s analysis, though, is its
total failure to discuss the facet of supervisory liability for
breach of the passive or negative duty not to ignore reports of
such misconduct and the potentiality for liability of supervisors
whose deliberate indifference can be shown to provide the required
nexus with the violation of a student’s constitutional right.
This hole in the analysis is easily filled by observing that
nothing in the majority opinion stands for the proposition that
cognizant public school supervisors enjoy per se immunity from
liability for breach of their duty not to be deliberately
indifferent —— whether in pre-hiring background checks or in post-
hiring attention to egregious behavior —— when such indifference is
shown to have a real nexus with a violation of a student’s bodily
integrity by a third party. In other words, nothing in today’s
majority opinion lessens or curtails the ability of the law to
conclude that public school supervisors, as state actors, are the
actual perpetrators of the violation of a student’s constitutional
right to bodily integrity when evidence is sufficient to
demonstrate that there is a “real nexus” between the violation
suffered by the student and such supervisors’ deliberate
indifference to reports or complaints of abuse. As to this aspect
14
of the instant case, all that our rehearing en banc has
demonstrated is that this particular plaintiff found it impossible
to allege facts upon which the law could thus deem the Hillsboro
school supervisors to be the actual perpetrators of Miss Doe’s
violation by virtue of their deliberate indifference to her rights,
either in hiring the school custodians or in not heeding reports of
miscreant behavior, regardless of whether the rapist was or was not
acting under color of state law. With this one gap thus bridged,
I concur.
ENDRECORD
15
EMILIO M. GARZA, Circuit Judge, with whom JONES and SMITH, Circuit
Judges, join, specially concurring:
I concur in the excellent opinion of Judge Higginbotham. I
write separately to clarify that my concurrence should not be
construed as an acceptance of the holding of Doe, 15 F.3d 443 (5th
Cir.) (en banc), cert. denied, 513 U.S. 815, 115 S. Ct. 70, 130 L.
Ed. 2d 25 (1994), that rape or sexual abuse is a violation of the
right to bodily integrity under the Fourteenth Amendment.
As I explained in my dissent to the panel opinion, Doe, 81
F.3d 1395, 1408 n.2 (5th Cir. 1996) (Garza, J., dissenting), though
I am bound by Fifth Circuit precedent,4 the Supreme Court has yet
to rule on whether the right to bodily integrity includes the right
to be free from rape or sexual abuse. See Planned Parenthood v.
Casey, 505 U.S. 833, 849, 112 S. Ct. 2791, 2806, 127 L. Ed. 2d 352
(1994) (citing cases defining contours of substantive due process
right to bodily integrity, including cases involving abortion,
contraception, marriage and procreation). Taylor troubles me
because we failed to heed the Supreme Court’s admonition, stated on
several occasions, that it “has always been reluctant to expand the
concept of substantive due process because the guideposts for
4
Only one other circuit has definitively held that the
substantive due process right to bodily integrity includes the
right to be free from rape or sexual abuse. See Stoneking v.
Bradford Area Sch. Dist., 882 F.2d 720, 727 (3d Cir. 1989) (“[A]
student’s right to bodily integrity, under the Due Process Clause,
[encompasses] a student’s right to be free from sexual assaults by
his or her teachers.”), cert. denied, 493 U.S. 1044, 110 S. Ct.
840, 107 L. Ed. 2d 835 (1990); cf. Doe By and Through Doe v.
Petaluma City Sch. Dist., 54 F.3d 1447, 1451 (9th Cir. 1995)
(citing Taylor, 15 F.3d 443, with approval but as inapplicable to
the case before the court).
reasonable decisionmaking in this unchartered area are scarce and
open-ended.” Collins v. City of Harker Heights, Tex., 503 U.S.
115, 125, 112 S. Ct. 1061, 1068, 117 L. Ed. 2d 261 (1992); see also
Albright v. Oliver, 510 U.S. 266, 271-72, 114 S. Ct. 807, 812, 127
L. Ed. 2d 114 (1994) (quoting Collins, 503 U.S. at 125, 112 S. Ct.
at 1068).
Recently, the Sixth Circuit, sitting en banc, commented on our
conclusion that the right to bodily integrity includes the right to
be free from sexual assault. The court stated:
All of these civil decisions, rather than pointing to
precedent establishing the right, make assertions such
as: “surely the Constitution protects a schoolchild from
physical abuse . . . by a public schoolteacher,” Doe v.
Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir.
1994) (en banc); or “the notion that individuals have a
fundamental substantive due process right to bodily
integrity is beyond debate,” Walton v. Alexander, 44 F.3d
1297, 1306 (5th Cir. 1995) (Parker, J., concurring).
These broad statements are not supported by precedent
indicating that a general constitutional right to be free
from sexual assault is part of a more abstract general
right to “bodily integrity.”
United States v. Lanier, 73 F.3d 1380, 1388 (6th Cir. 1996) (en
banc) (concluding that “sexual assaults may not be prosecuted as
violations of a constitutional substantive due process right to
bodily integrity” under 18 U.S.C. § 242), vacated, __ U.S. __, 117
S. Ct. 1219, 137 L. Ed. 2d 432 (1997). Since the Supreme Court
held in Lanier that the court of appeals applied an incorrect
standard in determining whether prior judicial decisions gave fair
warning that Lanier’s actions violated constitutional rights and
remanded the case for application of the proper standard, we will
-17-
have to wait for another day for guidance from the Court in this
area.
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