dissenting.
A school teacher, school administrator, or anyone else acting under color of state law clearly violates the Constitution if he or she sexually abuses a student. That principle is not helpful here, however, because this suit does not involve a claim against Wright. Accordingly, the court’s opinion attempts to establish that school officials owe a “constitutional duty to investigate” any complaint regarding conduct, presumably by anyone, that might possibly pose a threat to the “personal bodily integrity” of school children within their jurisdiction and a resulting constitutional duty to protect from harm any child whom that investigation might have disclosed to be at risk. While I have substantial reservations about the soundness of this legal conclusion, this appeal provides no occasion to embrace or reject it. The appellants are entitled to immunity unless it should have been readily apparent to them based on the previously decided cases that their failure to do more about the 1979 complaint concerning Wright would violate the constitutional rights of one in Stonek-ing’s position. The court has found no case from which its “constitutional duty to investigate” is “readily apparent” and that should be the end of the matter. Even assuming that the court’s analysis is ultimately determined to have merit, the Supreme Court has made it crystal clear that public officials must not be required to predict the advance of constitutional law at their peril.
We have held that a state official has an affirmative duty to protect another from third parties if, but only if, a “special relationship” exists between the two. We have found such a relationship between employees of a state social services agency and a child placed by the agency whom the employees know to be in jeopardy. Estate of Bailey by Oare v. County of York, 768 F.2d 503 (3d Cir.1985). While the Supreme *605Court has not yet put its imprimatur on the “special relationship” doctrine, a number of other Courts of Appeals have embraced it and, for present purposes, we may accept it, arguendo, as clearly established law. See, e.g., Jensen v. Conrad, 747 F.2d 185, 193-95 (4th Cir.1984) (reviewing prior case-law on “special relationship” doctrine and stating guidelines for “special relationship” analysis, but holding defendant state and county social services agency officials entitled to immunity from suit alleging failure to protect abused children because the law as it affected them was not clearly established at the time of the alleged wrongdoing), cert. denied 470 U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985); Taylor v. Ledbetter, 818 F.2d 791, 797-98 (11th Cir.1987) (in banc) (analogizing to prison context, finding that a special relationship exists between state foster care agency officials and foster children); cf. DeShaney v. Winnebago County Dep’t of Social Services, 812 F.2d 298, 303 (7th Cir.1987) (recognizing special relationship in prison context, but finding “no basis in the language of the due process clauses or the principles of constitutional law for a general doctrine of ‘special relationship’ ”), cert. granted — U.S. —, 108 S.Ct. 1218, 99 L.Ed.2d 419 (1988); Harpole v. Arkansas Dep’t of Human Services, 820 F.2d 923, 926 (8th Cir.1987) (agreeing with Seventh Circuit that special relationship concept is applicable only in prison or prison-like environments). Neither this court nor any other federal court of appeals has held, however, that a special relationship exists between a school administrator and students within his or her jurisdiction.
The court’s argument for finding a special relationship is quite properly based on analogy. The analogies employed, however, are not sufficiently close to the situation before us to make the court’s conclusion “readily apparent” to reasonable school administrators. While school attendance is mandatory, for example, the relationship between a superintendent of a public school district and high school students within the district is clearly distinguishable from that between a social worker and her five-year old ward or that between a jailer and his incarcerated charge. Indeed, the differences between the warden-prisoner relationship and the relationship of school officials to schoolchildren were recognized by the Supreme Court in Ingraham v. Wright:
The prisoner and the schoolchild stand in wholly different circumstances, ...
The schoolchild 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 the 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.
The openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth Amendment protects the prisoner.
430 U.S. 651, 670, 97 S.Ct. 1401, 1412, 51 L.Ed.2d 711 (1976). The same characteristics distinguish the situation of the schoolchild from that of the foster child. As the Eleventh Circuit said in Taylor v. Ledbetter, in the course of finding an analogy between the situation of a foster child and that of a prisoner,
Ingraham v. Wright ... is not a bar to this holding.... In Ingraham, the Court discussed the cost of providing additional benefits and safeguards to school children threatened with punishment. It found the cost of benefits and additional safeguards high and the risk of harm to school children low. In the foster home setting, recent events lead us to believe that the risk of harm to children is high.... Children in foster homes, unlike children in public schools, are isolated; no persons outside the home setting are present to witness and report mistreatment. The children are helpless. Without the investigation, su*606pervision, and constant contact required by statute, a child placed in a foster home is at the mercy of the foster parents.
818 F.2d at 797.
Because of these distinctions, I would be reluctant to deny immunity to these defendants even if the plaintiff were Ms. Grove and Wright’s assault on her had followed her complaint about him. We need not decide that issue, however. It is one thing to hold that a public school administrator has a duty to protect a particular student within his or her jurisdiction whom he or she knows to be in particular jeopardy. It is another to hold that there is an affirmative duty to protect an individual in a position like that of Stoneking, whom the administrator had no reason to believe was any more at risk from sexually aggressive teachers than her female classmates.1 The court points to nothing that should have made the leap between these two propositions apparent to these school administrators. Indeed, authorities relied upon by the court suggest that there is no duty to protect in the absence of notice that a particular individual is in peril. In Jensen v. Conrad, for example, the court described its prior caselaw on special relationships as having held such relationships existed “with respect to inmates in the state’s prisons or patients in its mental institutions whom the state knows to be under specific risk of harm from themselves or others in the state’s custody or subject to its effective control.” 747 F.2d at 193 (emphasis supplied). And in Estate of Bailey, we held that a special relationship and concomitant affirmative constitutional duty arises where a state social services agency is aware that a particular child has been abused. See also Wood v. Ostrander, 851 F.2d 1212, 1216-19 (9th Cir.1988) (holding that a police officer was not entitled to qualified immunity where he had arrested Wood’s male companion, taken the car keys, and left Wood stranded in a high-crime area five miles from her home at 2:30 a.m., and reasonably should have been aware of the danger to Wood); White v. Rochford, 592 F.2d 381, 383-86 (7th Cir.1979) (holding that police officers were not entitled to qualified immunity where they had arrested the uncle of three minor children, leaving the children stranded in the car on a busy eight-lane expressway, and could not have avoided knowing of the danger to the children).
Because the court here holds the defendant officials personally liable in damages for the commission of a constitutional tort that is established as such only by the opinion in this case, I respectfully dissent.
. To say, as does the court, that Stoneking "was a member of a known and identifiable class of potential victims — female students in general, and female band members in particular” serves neither to cabin the newly-created liability nor to bring this case within the scope of a precedent of which these school administrators should have known.