concurring.
No sooner does this circuit determine that the state owes children in its custody an affirmative duty of protection, Yvonne L. v. New Mexico Dep’t of Human Servs., 959 F.2d 883, 893 (10th Cir.1992), than the majority here limits that duty to exclude schoolchildren. While I concur in the result reached by the majority opinion, I depart from its analysis at a critical point. Rather than conclude flatly that no affirmative duty exists in this situation, I would follow the analysis set out in Yvonne L., 959 F.2d at 890-93, and hold that a child legally required to attend school and thereby forced into the temporary day-time custody of the state’s agents is constitutionally entitled to some level of protection from harm and care for basic safety. I would nonetheless affirm summary judgment in defendant’s favor because there is no evidence in the record that the teacher was deliberately indifferent to the danger that awaited Mark Maldonado, and thus no issue of material fact with respect to defendant’s breach of a clear affirmative duty.
DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), as the majority recognizes, interprets past Supreme Court precedent as holding that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” Id. at 199-200, 109 S.Ct. at 1005. The idea is simply that the state assumes an obligation to fulfill the “basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety,” id. at 200, 109 S.Ct. at 1005 (emphasis added), of those people whom the state has rendered unable to care for themselves.
In Yvonne L., we followed a number of other courts in concluding that state foster care is a situation in which the state, by shouldering the responsibility to care for *734children, incurs an affirmative constitutional duty to insure their reasonable safety. We held that an affirmative duty to foster children follows from the line of cases imposing such a duty on the state with respect to pretrial detainees, see City of Revere v. Massachusetts General Hosp., 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (duty to provide medical care), mentally disabled people in state institutions, see Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (duty to insure reasonable safety), and prisoners, see Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (duty to provide medical care). We also analogized the situation of children in state foster care to that of juveniles involuntarily placed by the state in a private boarding school, see Milonas v. Williams, 691 F.2d 931 (10th Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1524, 75 L.Ed.2d 947 (1983). On the basis of this line of cases and the above-quoted language from DeShaney, we concluded that “[i]f defendants knew of the asserted danger to plaintiffs or failed to exercise professional judgment with respect thereto, ... and if an affirmative link to the injuries plaintiffs suffered can be shown, then ... defendants violated plaintiffs’ constitutional rights.” Yvonne L., 959 F.2d at 890.
The majority attempts to distinguish the custodial situations described in DeShaney and Yvonne L. from the facts presented here by observing that compulsory attendance laws do not “render the child and his parents unable to care for the child’s basic needs.” Maj. op. at 731. To reach this conclusion, the majority focuses on two circuit court decisions. In J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267 (7th Cir.1990), the Seventh Circuit concluded that a school district is not constitutionally liable for the sexual molestation of students by their teacher because compulsory attendance laws do not create “responsibility for [the students’] entire personal lives.”1 Id. at 272. Following a similar rationale, the Third Circuit held that compulsory attendance laws do not create an affirmative duty to protect high school students from repeated sexual assaults by other students because children in school are still able to meet their own “basic needs.” D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364 (3d Cir.1992) (en banc). Both courts read De-Shaney as finding an affirmative duty to protect only when the state has physical custody of the individual. Under this analysis, school children, as residents in their parents’ homes, are not in custody of the state. Therefore, parents retain responsibility for providing for the children’s basic needs, including protection during school hours. The Third Circuit further stated that, to provide this protection, parents may remove their children from public school in favor of home education or private schools. The Third Circuit also found no custodial relationship stemming from a restraint of the student’s liberty since the student “could, and did, leave the school building every day. The state ... thus did not deny her meaningful access to sources of help.” Id. at 1372.
Much of the Middle Bucks analysis does not support the majority’s opinion here. Unlike the repeated incidents in Middle Bucks and Alton, a sole incident is the basis of Mark Maldonado’s death. No warnings or previous injuries existed to alert Mark’s parents or to allow Mark to “seek help.” Moreover, even if such warnings had existed, the belief that alternatives to public education are easily found is misplaced. “For the vast majority of children of school age, [there] is no choice at all.” Middle Bucks, 972 F.2d at 1380 (Sloviter, C.J., dissenting).
Beyond the stark difference in facts, the basis of the holdings in Alton and Middle Bucks is off the mark. Obviously, a parent does not lose all control over, nor all responsibility for, satisfying a child’s basic needs simply as a result of school attend-*735anee laws. But younger children are incapable of providing for their own basic needs; they depend on parents or other caretakers to provide for them.2 Even older children may be forced by school disciplinary procedures and rules to rely on authority figures at school to protect them from harm. I cannot fathom who, other than a teacher or other school staff member, is capable of ensuring the “reasonable safety” of schoolchildren during the school day and class periods.
A number of district court cases are at odds with the holdings of Alton and Middle Bucks, followed by the majority here, that public school personnel owe no constitutional duty to children in their care. In Pagano v. Massapequa Pub. Schs., 714 F.Supp. 641, 643 (E.D.N.Y.1989), for example, the court held “elementary school students who are required to attend school ... to be owed some duty of care by [school] defendants.” Id. at 643. Similarly, a district court more recently held that a student “was in a custodial relationship” with his teacher, who required the student to run a 350 yard sprint despite his knowledge of the student’s congenital heart defect. Waechter v. School Dist. No. 14-030, 773 F.Supp. 1005, 1009 (W.D.Mich.1991).3 But see Dorothy J. v. Little Bock Sch. Dist., 794 F.Supp. 1405 (E.D.Ark.1992) (following Alton).
Although I believe the state owes a constitutional duty to provide for the reasonable safety of children required to attend school, I would nevertheless affirm the dismissal of the complaint in this case. Because the complaint does not allege that the teacher was deliberately indifferent to the potential danger to Mark Maldonado, it fails to state a breach of the teacher’s duty. See Appellant’s Appendix at 1-6. I do not believe the Constitution requires an elementary school teacher to protect her students from unknown and unforeseen harms, or to follow the minute-by-minute progress of her eleven-year-old charges. Even accepting as true the allegations that the teacher “permitt[ed] him to leave the classroom and remain in the cloakroom unsupervised for [twenty minutes],” id. at 3, there is nothing that suggests either the teacher’s “deliberate indifference” or “failure to exercise professional judgment,” see Yvonne L., 959 F.2d at 893-94. Under the facts as alleged, the teacher did not breach the duty I believe the Constitution imposes.
The ground on which I concur, however, is a far cry from the majority’s holding that no constitutional duty exists in any case. Under the majority’s holding, children suffering all manner of injuries attributable to the knowing inaction of state officials charged with their supervision and care will be unable to pursue federal constitutional claims. We do not adequately discharge our duty to interpret the Constitution by merely describing the facts as “tragic” and invoking state tort law, see maj. op. at 732.4 In my judgment, the Fourteenth Amendment requires that we recognize some affirmative duty on the part of public school teachers to protect students who are in the total care of the school during the period of their compulsory attendance.
. The suggestion in Alton that sexual assault is a matter of one’s "personal life” is as offensive as it is bizarre. No one, to my knowledge, has contended that a school district is to be held constitutionally responsible for all harm that may befall a student, no matter when or where. A school or teacher may nonetheless assume an obligation to protect its students during those hours that a student is on school premises or in a classroom as required by state law.
. Even the Third Circuit recognized the difference between younger and older school children. In discussing whether high school children are in some sort of custody of the school during school hours, the court in Middle Bucks stated: " '[ejxcept perhaps when very young, the child is not physically restrained from leaving school during school hours.’ ” Id. at 1372 (quoting Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 1412, 51 L.Ed.2d 711 (1977) (emphasis added).
. Because the teacher was the direct cause of harm in Waechter, that case could presumably have also been brought under the line of cases following Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). See, e.g., Garcia v. Miera, 817 F.2d 650 (10th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988).
.Such an abdication is particularly disingenuous when, as here, the teacher or other state actor is insulated from state liability under a state tort claims act, see N.M.Stat.Ann. § 41-4-4 (1989).