Doe v. Hillsboro ISD

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, ET AL.,

Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Texas

April 23, 1996

Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges:

WIENER, Circuit Judge:

After his daughter was assaulted and raped by a Hillsboro

(Texas) Middle School (School) custodian, Plaintiff-Appellee John

Doe (Doe), on behalf of his minor child, Jane Doe (Jane), brought

this suit under 42 U.S.C. § 1983 and Title IX of the Education
Amendments of 19721 against Defendants-Appellants Hillsboro

Independent School District (District), as well as its board

members, its supervisor, and the School's maintenance staff

manager, individually. Doe alleged, inter alia, that the District

and the individual defendants (School Officials) hired convicted

criminals and then failed to supervise them adequately. These acts

and omissions, concludes Doe, caused a deprivation of the

constitutional rights of his minor daughter, Jane. The School

OfficialsSQbut not the DistrictSQfiled a motion2 seeking dismissal

for failure to state a claim and, in connection with the § 1983

claims, based on qualified immunity as well. The district court

denied the motion. We dismiss in part; affirm in part; and reverse

and remand for further proceedings.

I

FACTS AND PROCEEDINGS

A. INTRODUCTION

Doe filed this lawsuit, as next friend of Jane, asserting

§ 1983 and Title IX claims against the District,3 and only § 1983

1
20 U.S.C. §§ 1681-88.
2
The District was not a party to this motion and is not a
party to this appeal.
3
Title IX reads in pertinent part, as follows:

No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance . . . .

20 U.S.C. § 1681(a).

2
claims against (1) the District's board members;4 (2) Billy

Sullins, its manager of the Transportation and Maintenance

Department (Manager); and (3) Leon Murdoch, its Superintendent

(Superintendent). In his First Amended Complaint, Doe alleged

facts which, at this early stage in the litigation, we must accept

as true.5

B. THE FACTS ALLEGED IN THE COMPLAINT

At the time of the relevant events, Jane was 13 years old and

a student at the School. In May 1993 at her teacher's behest, Jane

remained after school for additional academic work. Jane perceived

that she would benefit from this additional work and felt

"compelled to stay after school pursuant to the actual or apparent

(and perceived) authority of her instructors." Jane's after-school

studies were interrupted by her teacher who asked Jane to go

upstairs and retrieve some additional supplies.

During this errand, a male custodian (Custodian) employed by

the District, chased Jane into an empty classroom, locked the

classroom door, and proceeded to assault and rape her. Jane did

not disclose these events to anyone until Christmas, when her

parents demanded that she explain her physical condition: Jane, it

seems, was pregnant. The family went to the police who arrested

4
The members of the Board include Larry Zabcik, James Maass,
Teresa Davis, Carol Beyer, Roy Young, Norman Baker, Richard Sewall.
5
This appeal involves the review of a denial of a Rule
12(b)(6) motion to dismiss on the basis of qualified immunity. All
well-pleaded facts must be accepted as true and viewed in the light
most favorable to the plaintiff. Campbell v. City of San Antonio,
43 F.3d 973, 975 (5th Cir. 1995).

3
the Custodian. Shortly after his arrest, the Custodian pleaded

guilty to rape.

Even though Texas law requires school districts to investigate

the criminal record of each prospective employee,6 the School

Officials did not investigate the criminal histories of any of its

prospective employees.7 In 1993, the school year in question, at

least one-third of the School's maintenance staff (Staff) had

criminal records. The criminal records of the Staff included

convictions for murder, armed robbery, unlawful weapons possession,

multiple DWIs, drug offenses, failure to ID a fugitive, and cruelty

to animals. The Custodian had a criminal record prior to pleading

guilty to raping Jane, although the precise contents of his record

were unknown at the time the complaint was drafted and filed.

Additionally, during the 1993 school year, the School

Officials received reports that members of the Staff had sexually

abused students at the School. These reports included incidents of

6
The Texas Education Code reads, in pertinent part, as
follows:

(a) A school district shall obtain criminal history
record information that relates to an applicant to
whom an offer of employment is being considered by
the district . . . .

Tex. Educ. Code Ann. § 21.917 (West 1987 & 1995 Supp.)
7
Doe also alleges, in the alternative, that if the Defendants
did check the criminal histories of prospective employees, then
they were deliberately indifferent in hiring known criminals for
the maintenance staff in a middle school. As we review the facts
alleged in the complaint in the light most favorable to Doe, we
will assume for the purposes of this appeal that the Defendants
failed altogether to investigate the criminal histories of
prospective employees.

4
"fondling students, voyeurism, and the like." The School Officials

neither verified nor investigated these reports; instead, the Staff

was told to "stay away from the little white girls."

In his complaint, Doe contends that both the inadequate hiring

procedures and the failure to investigate reports of sexual abuse

demonstrate the School Officials' deliberate indifference to Jane's

constitutional rights. Doe concludes that, as a direct result of

the School Officials' acts and omissions, Jane's constitutional

right to bodily integrity was violated: The Custodian, an

unsupervised criminal with the keys to the schoolhouse, had raped

her.

C. THE MOTIONS TO DISMISS

The School Officials (but not the District) responded by

filing motions, under Rule 12(b)(6), requesting the court to

dismiss Jane's Title IX and § 1983 claims. The district court

dismissed Doe's initial complaint without prejudice, but suggested

that he refile his complaint to allege (if possible) that Jane's

assailant had a criminal record. Following the court's suggestion,

Doe amended his complaint to contain allegations that the Custodian

had a criminal record, albeit the details of that record were not

specified.

The School Officials renewed their motions to dismiss all of

Doe's claims. The district court denied the renewed motion to

dismiss the § 1983 claim, stating that "the Court is persuaded

Plaintiff has adequately stated a claim for relief." The court

neither commented nor ruled on the Title IX claim. The School

5
Officials timely filed this interlocutory appeal.

II

DISCUSSION

A. JURISDICTION

Before addressing the pleadings complained of in this appeal,

we examine the basis for our jurisdiction.8 On appeal, the School

Officials challenge two aspects of the district court's order:

First, they insist that "this Court must dismiss the Title IX

claims . . . ." In like manner, they contend that the § 1983

claims against them should have been dismissed, based on qualified

immunity. We conclude that we do not have jurisdiction to review

any aspect of Jane's Title IX claim; however, we do have

jurisdiction to review the "purely legal" aspects of Jane's § 1983

claim to the extent of the pleadings in Doe's complaints.

1. Title IX Claim

The district court does not appear to have ruled on the School

Officials' motion to dismiss Jane's Title IX claim against them.

The apparent reason for not ruling is that, despite the fact that

Doe never asserted a Title IX claim against the School Officials,9

8
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987) ("This
Court must examine the basis of its jurisdiction, on its own
motion, if necessary.").
9
Doe has asserted a Title IX claim against the District only.
See Franklin v. Gwinnet County Public Schools, 503 U.S. 60 (1992)
(holding that Title IX affords the full range of remedies to
plaintiff's suing a school system receiving federal funds). He has
not asserted a Title IX claim against the School Officials in their
individual capacities. Although we have yet to address the issue,
the district courts in this circuit have held that a Title IX claim
may not be asserted against an individual. See Leija v. Cantuillo
Indep. Sch. Dist., 887 F.Supp. 947, 953 (W.D. Tex. 1995); Bowers v.

6
they alone moved to dismiss "the Title IX claim against them." In

response, the district court neither granted nor denied their

motion--presumably, it simply ignored the Title IX motion.

Believing erroneously that their motion to dismiss the putative

Title IX claim against them had been denied, the School Officials

appealed to us, insisting that the district court should have

granted that motion. Even though the district court properly

ignored his issue, we address it in the interest of clarity.

As a general matter, we do not have interlocutory jurisdiction

over denials of motions to dismiss: Such pretrial orders are not

"final decisions" for the purposes of 28 U.S.C. § 1291.10 Even if

we assume arguendo that the district court's failure to comment on

the Title IX claim constituted a denial of the School Officials'

motion, we would not have jurisdiction to review such non-final

pretrial orders in the Title IX context.

Baylor University, 862 F.Supp 142, 145-46 (W.D. Tex. 1994)(citing
Doe By And Through Doe v. Petaluma City Sch. Dist., 830 F.Supp 1560
(N.D.Cal. 1993)); see also Slaughter v. Waubonsee Community
College, 1994 WL 663596, at *3 (N.D. Ill. 1994)("[T]he Court
concludes that an action for individual liability cannot be brought
pursuant to Title IX . . . .); Seamons v. Snow, 1994 WL 560448, at
*3 (N.D. Utah 1994)("Although the Supreme Court has found that
Title IX provides a damages remedy, that remedy is available only
when the suit is brought against an 'education program or activity
receiving Federal financial assistance,' not in suits against
individuals."(citations omitted)). Moreover, nothing in Jane's
complaint suggests that she is asserting a Title IX violation
against the School Officials through § 1983.
10
See Sorey v. Kellett, 849 F.2d 960, 961 (5th Cir. 1988)
("Under 28 U.S.C. § 1291, the courts of appeals have jurisdiction
over 'final decisions' of the district courts. Ordinarily, this
section precludes review of a district court's pretrial orders
until appeal from the final judgment.").

7
 Additionally, even if we were to take the next step and assume

further that we have interlocutory jurisdiction to review such an

order in the Title IX context, we would still lack personal

jurisdiction over the relevant party. The only party against whom

Jane has asserted a claim under Title IX is the District, but the

District is not a party to this appeal. Obviously we cannot

dismiss a claim against a party who has not appealed. Thus, we

hold that we lack appellate jurisdiction over both the Title IX

issue and the District as the relevant party. In so doing,

however, we neither express nor imply an opinion on the sufficiency

of Doe's Title IX complaint against the District; we simply dismiss

the Title IX facet of this appeal for lack of appellate

jurisdiction and remand this particular claim for further

proceedings.

2. Section 1983 Claims

Jane's § 1983 claims are another matter altogether. In

Mitchell v. Forsyth,11 the Supreme Court held that "a district

court's denial of a claim of qualified immunity, to the extent that

it turns on an issue of law, is an appealable 'final decision'

within the meaning of 28 U.S.C. § 1291 notwithstanding the absence

of a final judgment."12 Recently, in Johnson v. Jones,13 the Supreme

11
472 U.S. 511 (1985).
12
Id. at 530; see also Hale v. Townley, 45 F.3d 914, 918 (5th
Cir. 1995) ("An appellate court has jurisdiction to review an
interlocutory denial of qualified immunity only to the extent that
it 'turns on an issue of law.' " (quoting Mitchell, 472 U.S. at
530)).
In Mitchell, the Court held that a district court's order
denying a defendant's motion for summary judgment was an

8
Court made clear that our interlocutory jurisdiction under Mitchell

begins and ends with the "purely legal" aspects of qualified

immunity.14 In Johnson, the Supreme Court reiterated the dichotomy

in the grounds for denying a motion for summary judgment based on

qualified immunity: "(a) a determination about pre-existing

'clearly established' law, or (b) a determination about 'genuine'

issues of fact for trial."15 The Court then held that we have

jurisdiction over the former, a purely-law-based denial of

qualified immunity, but that we have no jurisdiction over the

latter, a genuine-issue-of-fact-based denial of qualified

immunity.16

Unlike Johnson, which was reviewed at the summary judgment-

level, the instant case involves the complaint-level denial of a

motion to dismiss under Rule 12(b)(6). In the Rule 12(b)(6)

context, there can never be a genuine-issue-of-fact-based denial of

qualified immunity, as we must assume that the plaintiff's factual

immediately appealable collateral order under Cohen v. Beneficial
Indus. Loan Corp., where (1) the defendant was a public official
asserting a defense of immunity, and (2) the issue appealed
concerned whether or not certain given facts showed a violation of
clearly established law. Mitchell, 472 U.S. at 528.
13
Johnson v. Jones, 115 S.Ct. 2151 (1995).
14
Id. at 2156 (holding that "a defendant, entitled to invoke
a qualified immunity defense, may not appeal a district court's
summary judgment order insofar as that order determines whether or
not the pretrial record sets forth a 'genuine' issue of fact for
trial")(emphasis added).

15
Id. at 2158.
16
Id. at 2159.

9
allegations are true.17 Thus, denials of motions to dismiss on the

basis of qualified immunity are always "purely legal" denials.18

Accordingly, under Mitchell and Johnson, we have interlocutory

jurisdiction to determine whether Jane has stated a claim under

§ 1983. And, if so, whether it is immune to dismissal at this

stage on grounds of qualified immunity.

B. STANDARD OF REVIEW

A district court's ruling on a Rule 12(b)(6) motion is subject

to de novo review.19 A motion to dismiss requires the court to test

the formal sufficiency of the statement of the claim for relief.20

All well-pleaded facts must be accepted as true and viewed in the

light most favorable to the plaintiff.21 The issue is not whether

a plaintiff will ultimately prevail but whether he is entitled to

offer evidence to support his claims. Accordingly, we will not

dismiss a complaint unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which

17
See Campbell, 43 F.3d at 975.
18
Jefferson v. Ysleta Indep Sch. Dst., 817 F.2d 303, 304 (5th
Cir. 1987)(holding that the denial of a Rule 12(b)(6) motion to
dismiss based on qualified immunity "poses solely a question of law
. . . .").
19
Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.), cert.
denied, 115 S.Ct. 189 (1994); Jackson v. City of Beaumont Police
Dept., 958 F.2d 616, 618 (5th Cir. 1992).
20
5A Charles A. Wright & Arthur R. Miller, Federal Practice
And Procedure § 1356, at 294 (1990).
21
Campbell, 43 F.3d at 975.

10
would entitle him to relief.22

C. ELLIOTT V. PEREZ AND THE HEIGHTENED PLEADING REQUIREMENT

Before turning to the sufficiency of Doe's complaint, we must

determine whether any statements therein should be excluded as

conclusionary. The School Officials assert that Doe's complaint is

"a paragon of poetic license" and fails to satisfy the heightened

pleading requirement of Elliott v. Perez.23 We disagree.

The School Officials speciously "cherry pick" paragraphs from

Doe's complaint to quote to us, then assert that the whole

complaint is conclusionary. When examined in isolation, the

particular paragraphs selectively quoted by the School Officials do

appear conclusionary; but when those quoted paragraphs are read in

pari materiae with the factual allegations contained in the

preceding dozen-plus paragraphs of Doe's complaint, it becomes

obvious that the School Officials have self-servingly quoted only

parts of the complaint. In short, the quoted paragraphs do not

fairly represent the complaint as a whole. We conclude that when

Doe's complaint is read in its entirety it is seen to plead Jane's

claims with more than enough particularity to meet the requirements

set forth in Elliott.

22
Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th
Cir. 1994).
23
751 F.2d 1472 (5th Cir. 1985)(the complaint must "state with
factual detail an particularity the basis for the claim which
necessarily includes why the defendant-official cannot successfully
maintain the defense of immunity."). A majority of the Fifth
Circuit has held that the heightened pleading of Elliott survived
Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163 (1993). See Schultea v. Wood, 47
F.3d 1427, 1430 (5th Cir. 1995)(en banc).

11
D. HAS DOE STATED A CLAIM UNDER § 1983?

To state a claim under § 1983, "a plaintiff must (1) allege a

violation of rights secured by the Constitution or laws of the

United States and (2) demonstrate that the alleged deprivation was

committed by a person acting under color of state law."24 The

District's arguments to the contrary notwithstanding, only the

first prong is at issue in this appeal.25 At the Rule 12(b)(6)

level our sole question is whether Doe has alleged a violation of

a right secured by the Constitution.

E. JANE'S RIGHT TO BODILY INTEGRITY

In this circuit, "a supervisory school official can be held

personally liable for a subordinate's violation of an elementary or

secondary school student's constitutional right to bodily integrity

in a physical sexual abuse case," when "the official, by action or

inaction, demonstrates a deliberate indifference to [a student's]

24
Leffall, 28 F.3d at 525 (citations omitted); accord Resident
Council of Allen Parkway Village v. United States Dep't of Hous. &
Urban Dev., 980 F.2d 1043, 1050 (5th Cir.), cert. denied, 114 S.Ct.
75 (1993).
25
The School Officials insist that the "under color of state
law" element is lacking because either (1) the Custodian did not
act "under color of state law" or (2) because none of the School
Officials actually participated in the rape. Neither of these
contentions has merit. First, the Custodian, a state employee who
was "on the clock" when he raped Doe at the School was a state
actor. Second, the School Officials' hiring policies as well as
their supervisory actions and decisions are "under color of state
law." An official's actions do not cease to be under color of
state law merely because the official acts beyond the scope of the
authority granted by state law. See United States v. Classic, 313
U.S. 299, 326 (1941) ("Misuse of power, possessed by virtue of
state law and made possible only because the wrongdoer is clothed
with the authority of state law, is taken 'under color of' state
law.").

12
constitutional rights that results in the molestation of school

children."26 In the complaint, Doe alleges two factually distinct

but legally related claims under § 1983: First, Doe contends that

the School Officials' inadequate hiring procedures--failing to

check criminal histories of prospective Staff employees--led them

to hire criminals, one of whom caused Jane's injuries. Second, Doe

alleges the School Officials' failure to supervise the custodial

staff--ignoring repeated reports that members of the Staff were

sexually abusing school children--led to additional sexual abuse,

specifically Jane's being raped by the Custodian. We will analyze

the elements of each of these types of claims to determine whether,

as a formal matter of pleading, Doe has alleged in his complaint

facts sufficient to survive a motion to dismiss.

1. The Hiring Policy: Inadequate?

To prove that a hiring policy violated her rights under

§ 1983, Jane must show that (1) the hiring procedures were

inadequate; (2) the school officials were deliberately indifferent

in adopting the hiring policy; and (3) the inadequate hiring

policy directly caused the plaintiff's injury.27 With the awareness

that stating a claim and proving it present substantially different

tasks, we hold that Doe has stated a claim that the School

Officials' hiring policies and procedures were inadequate and

26
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir.
1994)(en banc), cert. denied, 115 S.Ct. 70 (1995).
27
Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir.)
(citing City of Canton v. Harris, 489 U.S. 378 (1989)), cert.
denied, 113 S.Ct. 79 (1992).

13
caused a violation of Doe's constitutional rights.

First, Doe's allegations that the School Officials failed to

investigate the criminal records of prospective employees satisfies

the inadequacy element. Common sense recommendsSQand state law

demandsSQthat, in the interest of the safety of school children,

school officials investigate the criminal histories of prospective

school employees.28 The School Officials' total abdication of this

responsibility constitutes a facially inadequate hiring process.

Second, the hiring inadequacies alleged here reveal a

deliberate indifference to Doe's welfare. A hiring process

demonstrates "deliberate indifference," when it constitutes such

recklessness or gross negligence as to amount to conscious

indifference to the plaintiff's constitutional rights.29 The School

Officials cite two cases for the proposition that, at most, their

hiring procedures represent merely negligent hiring practices.30

The School Officials, however, disregard, or at least overlook, the

following footnote in one of those cases:

[I]f a section 1983 claim may arise from egregious hiring
practices . . . we would . . . require a plaintiff to
establish actual knowledge of the seriously deficient
character of an applicant or a persistent, widespread

28
See Tex. Educ. Code Ann. § 21.917.
29
See Wassum v. City of Bellaire, Tex., 861 F.2d 453, 456 (5th
Cir. 1988).
30
See Stokes v. Bullins, 844 F.2d 269 (5th Cir.
1988)(questioning prospective police officer on background and
checking local criminal record, but not ordering a National Crime
Center Information Report, was not deliberate indifference in the
hiring process); Wassum, 861 F.2d at 456 (failure to check
employment record for more than five years amounted to negligence,
not deliberate indifference in the hiring process).

14
 pattern of hiring policemen, for instance, with a
background of unjustified violence.31

Just as the histories of prospective police officers must be

scrutinized routinely for violence or unlawful conduct in the

interest of the public's safety, the criminal histories of

prospective school employees must be scrutinized in the interest of

students' safety.

Doe has alleged that one-third of the School's Staff in 1993

were convicted criminals, many of them violent criminals. Surely

the District's hiring and giving the schoolhouse keys to even one

convicted murderer constitutes the hiring of an applicant with

"seriously deficient character." When that is multiplied to the

point that a significant fraction of the custodial staffSQhere,

one-thirdSQconsists of convicted criminals, "a persistent,

widespread pattern" of hiring school employees with a background of

crime and violence is manifested. Doe has satisfied the second

element of his hiring claim.

Third, a jury could reasonably conclude that when school

officials hire a staff, one-third of whom are violent criminals,

give those criminals the keys to the schoolhouse, and place them in

constant contact with students, there is a "real nexus" nexus

between the hiring of these criminals-cum-custodians and the

constitutional injuries suffered by victims like Jane.32 We

31
Stokes 844 F.2d at 275 n.9 (emphasis added); see also
Wassum, 861 F.2d at 456 (quoting this passage with approval).

See Doe v. Raines Indep. Sch. Dist., 66 F.3d 1402, 1407-08
(5th Cir. 1995).

15
conclude that Doe has alleged a sufficient causal connection

between the hiring process and Jane's injuries to defeat a motion

to dismiss.

In sum, the egregious nature of the criminal records alleged,

and the sheer number of Staff members alleged to have criminal

records, move Jane's inadequate hiring claim beyond mere negligence

and into the realm of a constitutional tort. Although surviving

summary judgment, much less proving these allegations by a

preponderance of the evidence, may be a daunting task, we cannot

say "that it appears beyond doubt that the plaintiff can prove no

set of facts in support of her claim that would entitle her to

relief."33

2. Supervision: Deliberate Indifference?

To plead a valid failure-to-supervise claim, Doe must allege

facts sufficient to present the following elements: (1) the

defendants learned of facts or a pattern of inappropriate sexual

behavior by subordinates pointing plainly toward the conclusion

that the subordinates were sexually abusing the students; (2) the

defendants demonstrated deliberate indifference toward the

constitutional rights of the student by failing to take action that

was obviously needed to prevent or stop the abuse; and (3) such

failure caused a constitutional injury to the student.34 We

conclude that Doe has alleged facts that, when accepted as true and

33
Leffall, 28 F.3d at 524.
34
See Hagan v. Houston Indep. Sch. Dist., 51 F.3d 48, 51 (5th
Cir. 1995)(citing Taylor, 15 F.3d at 454).

16
viewed in the light most favorable to Doe, satisfy these three

elements.

First, Doe alleges that the School Officials received repeated

reports that Staff members had sexually abused students. Although

these reports do not appear to have identified individual employees

or students by name, Doe's allegations that the School Officials

responded to these reports with ostrich-like avoidance satisfies

the first element. At this early pleading stage, it is unnecessary

to produce specific names and exact dates. Doe has alleged that

the School Officials received a number of reports plainly pointing

to the inescapable conclusion that Staff members were sexually

abusing students. These allegations are sufficient to merit at

least limited discovery. After limited discovery, however, if the

evidence cannot sustain the weight of these allegations, summary

judgment presents an effective and efficient tool to terminate the

inquiry and the case at a sufficiently early and minimally

burdensome stage. Although Doe has not alleged that "X School

Official" plainly knew that "Y Staff member" was sexually abusing

"Z student," we conclude that allegations that School Officials

ignored repeated reports that Staff members sexually abused

students are sufficient to survive a motion to dismiss.

On the second "deliberate indifference" element, Doe alleges

that the School Officials (1) knew or should have known that one-

third of the Staff members had criminal records, (2) received

reports that Staff members were sexually abusing students, and (3)

did absolutely nothing about it. Such inaction rises to the level

17
of total abdication of the duty to protect school children from

sexual abuse by state actors, and, if proved, would demonstrate

deliberate indifference to Jane's constitutional rights. Moreover,

a jury could reasonably conclude that such deliberate indifference

was the proximate cause of Jane's being raped. Accordingly, with

respect to Jane's failure-to-supervise claim, we conclude that

Doe's complaint sufficiently alleges that the School Officials

caused a deprivation of Jane's constitutional rights "under color

of state law."

3. Other Theories of Liability Only Confuse the Issue

In the process of stating the above described deficient hiring

and failure-to-supervise claims, Doe indiscriminately jumbles into

the complaint the language and elements of two other § 1983

theories of liability: (1) the state-created danger doctrine and

(2) the DeShaney35 special-relationship doctrine. As both of these

doctrines apply only when a third-party inflicts the harm, both of

these theories are legal "dead ends" here.

a. State-Created Danger Doctrine

Regarding the state-created danger theory, other circuits have

held that when a state actor knowingly places a person in danger,

the Due Process Clause of the Constitution renders such state actor

accountable for the foreseeable injuries that result from his

conduct, whether or not the victim was in formal "custody."36 In

35
DeShaney v. Winnebego County Dep't of Social Servs.,
489 U.S. 189 (1989).
36
Johnson v. Dallas Indep. Sch. Dist, 38 F.3d 198 (5th Cir.
1994), cert. denied, 115 S.Ct. 1361 (1995).

18
attempting to apply this doctrine to the instant case, we encounter

two flaws: First, although at least once in the past we assumed

arguendo that such a claim is recognized in this circuit, we have

yet to recognize this theory of liability squarely.37 Second,

Jane's case does not arise under one of the factual situations in

which other circuits have applied (and we have assumed) this

doctrine. Generally, the state-created danger doctrine applies

only when the state actor creates the dangerous situation in which

a third-party causes the harm.38 In the instant case the custodian

who caused the harm was himself a state actor, not a third party,

so even assuming arguendo that the state-created danger theory were

recognized in this circuit, Doe's effort to employ the state-

created danger doctrine would fail.

b. Special Relationship Doctrine

In like manner, a special-relationship claim under DeShaney39

37
Leffall, 28 F.3d at 530 ("We have found no cases in our
circuit permitting § 1983 recovery for a substantive due process
violation predicated on a state-created danger theory . . . .");
see also Johnson 38 F.3d 198.
In Johnson, the court assumed arguendo, that such a cause of
action existed to determine whether a student, who was killed by a
stray bullet shot by a non-student during a school fight, had
stated a claim under § 1983 against the school principal and the
school district. Ultimately, the court held that these facts,
albeit tragic, are not an example of when "deliberate, callous
decisions to interpose a [student] in the midst of a criminally
dangerous environment."
38
Johnson, 38 F.3d at 201 ("[T]he environment must be
dangerous; they must know that it is dangerous; and to be liable,
they must have used their authority to create an opportunity that
would not ave otherwise for the third party's crime to
occur.")(emphasis added).
39
489 U.S. 189 (1989).

19
is applicable only to harm inflicted by third parties. In Leffall,

we stated that "[t]he special relationship doctrine is properly

invoked in cases involving harms inflicted by third parties, and it

is not applicable when it is the conduct of a state actor that has

allegedly infringed on a person's constitutional rights."40 Again,

the Custodian was a state actor; consequently, the special

relationship doctrine is unavailable to Doe.

F. QUALIFIED IMMUNITY

The School Officials assert that even if Doe has stated a

claim against them, they can invoke qualified immunity to require

the dismissal of Jane's § 1983 claims. We disagree. Qualified

immunity shields public officials from exposure to extensive

discovery, trial, and liability for alleged constitutional torts if

their questioned conduct does not violate clearly established law

effective at the time of the alleged tort.41 The qualified immunity

determination requires a two-step analysis: (1) whether the

plaintiff has alleged a violation of a constitutional right,42 and

(2) whether the constitutional right allegedly violated was clearly

established at the time the events in question occurred.43 As the

preceding analysis demonstrates that Doe's pleadings are sufficient

40
28 F.3d at 529. (emphasis added).
41
Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
42
Id. at 305 (citing Siegert v. Gilley, 500 U.S. 226, 232
(1991)).
43
Id. at 305-306 (citing Creighton v. Anderson, 483 U.S. 635,
641 (1987)).

20
to satisfy the first prong of the qualified immunity analysis, we

need only address the second.

At least since 1987, the law has been clearly established that

(1) school children do have a liberty interest that is protected by

the Due Process Clause of the Fourteenth Amendment and (2) physical

sexual abuse by a school employee violates that interest.44 As the

events here in question occurred in 1993, the School Officials

cannot avail themselves of the shelter of qualified immunity, at

least not at the pleadings stage. Accordingly, we affirm the order

of the district court to the extent that it held that Doe has

stated an inadequate-hiring claim and a failure-to-supervise claim

under § 1983 against the School Officials.

III

THE DISSENT

In closing, we feel constrained to address briefly our

colleague's dissent. We begin by noting his candid acknowledgment

that the roots of his disaffection run deeper than this case, i.e.,

that his larger disagreement derives from this court's en banc

holding in Taylor.45 There is little that we can say or do to

address this concern; for, as the dissent also acknowledges, Taylor

is the law in this circuit and we are bound to follow it, like it

44
Taylor, 15 F.3d at 455 ("The 'contours' of a student's
substantive due process right to be free from sexual abuse and
violations of her bodily integrity were clearly established in
1987.").
45
See Dissent, infra at -- n.2. (school children have a
constitutional right to bodily integrity and sexual abuse violates
a school child's right to bodily integrity).

21
or not.

Turning to issues that we can address today, we perceive a

fundamental error in the dissent's "state action" inquiry when it

mistakenly focuses on the rapist (Custodian), rather than on the

defendant School Officials who instituted and conducted the process

that put Doe in harm's way, in the person of the Custodian. This

circuit held as early as 1981 that "[t]he right to be free of

state-occasioned damage to a person's bodily integrity is protected

by the fourteenth amendment guarantee of due process."46 By

inquiring whether rape falls within the Custodian's scope of

employment, the dissent misperceives the fundamental question that

we must address in this appeal: Was the violation of Doe's right

to bodily integrity occasioned by state action? In this opinion,

we hold nothing more than that Doe has adequately pled that the

School Officials (as distinguished from the Custodian, who is not

even a defendant in this action) acted under color of state law

when, over time and with deliberate indifference, they inadequately

hired and indifferently supervised a custodial staff one-third of

whom are criminals. We do not, as the dissent suggests by its

"parade of horribles," implySQmuch less holdSQthat "every

intentional tort committed by a state official or employee could

result in a constitutional violation, actionable under § 1983."

In this Rule 12(b)(6) appeal, we examine the pleadingsSQand

only the pleadingsSQto determine whether, by (1) ignoring state law

that mandates pre-hiring background checks, (2) hiring a custodial

46
Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981).

22
staff of whom one-third are criminals, and (3) ignoring or

suppressing prior reports of sexual molestation and other crimes by

members of that staff, the School Officials were deliberately

indifferent to Doe's constitutional right to bodily integrity.

Then, as the dissent agrees, we determine whether there was a "real

nexus" between the activity out of which the violation occurred and

the duties and obligations of the School Officials.47

We have done precisely that. The relevant activities out of

which the violations occurred were the hiring and supervision

practices of the School Officials, not the janitorial and

maintenance activities of the Custodian. The Officials' duties

comprise the hiring and supervision of the District's employees,

including the custodial staff. Thus, the correct color-of-law or

state-actor inquiry in this case is whether there was a "real

nexus" between the School Officials' hiring and supervising

practices and the violation of Doe's rights. In other words, were

the violations state-occasioned? To focus on whether the Custodian

raped Doe in the course of his employment is to follow the

proverbial red herring.

It is in the foregoing framework that we respectfully but

strongly disagree with the dissent: It is not a "far leap"SQif

indeed it is a leap at allSQfrom Taylor to hold that the hiring of

a custodial staff rife with criminals, giving them the keys to the

schoolhouse, and authorizing them to roam the halls when and where

vulnerable students are likely to be encountered, and, despite

47
Raines, 66 F.3d at 1407-08.

23
prior reports of sexual abuse, to do so in the absence of adequate

supervision, obviously does create a "real nexus" between the rape

of Doe and the deliberately indifferent performances of the School

Officials' duties and obligations.

Certainly, the set of school personnel who are potential state

actors is not so narrowly limited, as the dissent would instruct,

that it includes only classroom teachers and athletic coaches;

rather that set circumscribes the entire spectrum of school

employees, and even independent contractors, whom the School

Officials through their hiring, contracting, and supervising

responsibility, place on a collision course with public school

students. We neither hold nor imply the ludicrous conclusion that

the course and scope of a school custodian's employment could ever

include rape; we do, however, hold that when a school employee is

rightfully on the premises, during school hours, ostensibly

performing his assigned duties, andSQpredictablySQfinds himself

alone with a student, constitutional deprivations perpetrated by

that school employee on the person of that student might be found

to have occurred in the course of employment.

But, again, that simply is not the pertinent question; rather,

the question is whether the School Officials who hired and then

failed to supervise the Custodian, thereby creating the

circumstances that brought him in contact with Doe, did so under

color of state law. At this threshold pleading phase of the case,

Doe's allegations are more than sufficient to demonstrate that they

did, thereby stating a cause of action sufficient to avoid a

24
qualified immunity dismissal under Rule 12(b)(6).

IV

CONCLUSION

For the forgoing reasons, the School Officials' interlocutory

appeal of the district court's putative refusal to dismiss Jane's

Title IX claim is DISMISSED for want of jurisdiction. The district

court's order denying the School Officials' motion to dismiss

Jane's § 1983 claims, however, is affirmed and those claims are

remanded for further proceedings.

DISMISSED, in part; AFFIRMED, in part; and REMANDED.

EMILIO M. GARZA, Circuit Judge, dissenting:

Today we are faced with yet another tragic case involving the

sexual assault of a child by a school employee. Despite the

horrific nature of this case, I dissent from the majority's holding

that the school officials are not entitled to qualified immunity.48

The question before us is not whether a school janitor should be

punished for committing rape))clearly he should. Rather, we are

confronted with the question of whether he is a state actor

pursuant to Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451-52

(5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 70, 130 L. Ed.

2d 25 (1994). The majority argues that it is irrelevant whether

the custodian was a state actor when he raped Jane. Instead, the

majority concludes that the school officials violated Jane's right

to bodily integrity because they "instituted and conducted the

I concur in Parts I, II. A., B., and E.3a. and b. of the majority
opinion.

-25-
process that put [Jane] in harm's way." The majority's decision

creates a new cause of action and an unwarranted expansion of Doe

v. Taylor, from which I dissent.

Doe alleges that the Hillsboro Independent School District and

several school officials are liable under 42 U.S.C. § 1983 for the

violation of her right to bodily integrity under a supervisory

theory of liability. Doe v. Taylor held that "a supervisory school

official can be held personally liable for a subordinate's

violation of an elementary or secondary school student's

constitutional right to bodily integrity in a physical sexual abuse

case," when "the official, by action or inaction, demonstrates a

deliberate indifference to [a student's] constitutional rights that

results in the molestation of school children." Id. at 454. The

school officials counter that they are entitled to qualified

immunity for their actions. "The defense of qualified immunity

protects a public official from liability in the performance of his

duties unless he violates a clearly established statutory or

constitutional right of another known to or knowable by a

reasonable person." Jefferson v. Ysleta Indep. Sch. Dist., 817

F.2d 303, 305 (5th Cir. 1987). Therefore, the first step in

analyzing whether a defendant is entitled to qualified immunity, is

to determine whether the plaintiff has alleged a constitutional

violation. Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402,

1404 (5th Cir. 1995) (citing Blackwell v. Barton, 34 F.3d 298, 301

(5th Cir. 1994)).

Before determining whether a supervisory official can be held
liable under § 1983, we must first find that (1) a rights violation

occurred (2) under color of state law. Doe v. Rains County Indep.

Sch. Dist., 66 F.3d 1402, 1407 (5th Cir. 1995). Jane Doe alleges

that her Fourteenth Amendment right to bodily integrity was

violated. She relies on our decision in Taylor, 15 F.3d 443, which

stated that "bodily integrity is necessarily violated when a state

actor sexually abuses a schoolchild." (emphasis added).49

Therefore, to state a claim under § 1983 based on a violation

Although bound by Fifth Circuit precedent, I note that the Supreme
Court has yet to rule on whether the right to bodily integrity includes the right
to be free from sexual assault. See Planned Parenthood v. Casey, ___ U.S. ___,
___, 112 S. Ct. 2791, 2806, 127 L. Ed. 2d 352 (1994) (citing cases defining the
contours of the substantive due process right to bodily integrity). I find this
troubling because the Court has stated on several occasions that it "has always
been reluctant to expand the concept of substantive due process because the
guideposts for responsible decisionmaking in this unchartered area are scarce and
open-ended." Collins v. City of Harker Heights, Texas, 503 U.S. 115, ___, 112
S. Ct. 1061, 1068, 117 L. Ed. 2d 261 (1992); Albright v. Oliver, ___ U.S. ___,
___, 114 S. Ct. 807, 812, 127 L. Ed. 2d 114 (1994).
I also note that only one other circuit has definitively held that the
substantive due process right to bodily integrity includes the right to be free
from sexual abuse or rape. 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).
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, 1996 WL 21177, *7 (6th Cir. Jan. 23, 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).

-27-
of her Fourteenth Amendment right to bodily integrity, Jane must

establish (1) that a state actor (2) sexually abused her (3) under

color of state law. However, "in § 1983 suits alleging a violation

of the Due Process Clause of the Fourteenth Amendment, we have

collapsed the state action and color of state law inquiries into a

single" step because the inquires are identical. Rains, 66 F.3d at

1406; Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S. Ct.

2744, 2749, 73 L. Ed. 2d 482 (1982) (stating that the "color of

state law" requirement under § 1983 and the "state action"

requirement of the Fourteenth Amendment are identical). Therefore,

Jane will simply have to prove that she was deprived of her

protected liberty or property interest, here her right to bodily

integrity, under color of state law. Rains, 66 F.3d at 1406. This

will require us to determine whether the custodian was acting under

color of state law when he sexually assaulted Jane. If we find

that the custodian did not act under color of state law when he

sexually assaulted Jane, then Jane will not have been deprived of

a constitutional right, and the school officials cannot be liable

as supervisors under § 1983. See id. at 1407 ("After finding that

(1) a rights violation occurred (2) under color of state law, only

then do we ask a third and final question: Who are the state actors

responsible for the constitutional violation" other than "the

immediate perpetrator?").

The majority fails to adequately address the color of state

law requirement, despite its conclusion that Doe has alleged a

-28-
violation of a constitutional right. The majority first states

that the "color of state law" requirement is not at issue in this

appeal,50 but nevertheless, concludes that the plaintiff satisfied

the "color of state law" requirement under § 1983, because the

Custodian was a state employee who was "on the clock" when he raped

Jane Doe. Even more confusing, the majority opines that to focus

on whether the Custodian was a state actor is "to follow the

proverbial red herring." Instead, the majority concludes that once

we find that the school officials acted under color of state law,

then they are liable for violations that were proximately caused by

their actions. This has never been the law of the Fifth Circuit.

See Rains, 66 F.3d at 1407 (noting that there must be an underlying

constitutional violation before a court can consider who besides

"the immediate perpetrator" can be held liable under § 1983).

I can perceive of no difference between the majority's

analysis and that employed under the state-created danger theory,

which the majority specifically rejected in Part E.3.a.51 The

In making this assertion, the majority relies on the fact that
although the district court denied the defendants' motion to dismiss for failure
to state a claim and qualified immunity, only the qualified immunity defense is
subject to interlocutory appeal. Jefferson v. Ysleta Independent School Dist.,
817 F.2d 303, 304 (5th Cir. 1987). However, the majority's approach ignores the
fact that to establish a constitutional violation, Doe must prove state action
which is identical to proving "color of state law" under § 1983. Rains, 66 F.3d
at 1406.

The majority's analysis is also similar to that employed under
the special relationship theory of liability. The special relationship theory
imposes on the state "affirmative obligations of care and protection . . . when
the state "'takes a person into its custody and holds him there against his
will.'" Johnson, 38 F.3d at 202 (quoting DeShaney v. Winnebago County Dept. of
Social Serv's., 489 U.S. 189, 199-200, 109 S. Ct. 998, 1005-06, 103 L. Ed. 2d 249
(1989)). Where a special relationships exists, the state can be liable for harm
inflicted by a private party. See DeShaney, 489 U.S. at 199-200, 109 S. Ct. at

-29-
state-created danger theory holds state actors liable for the

foreseeable injuries that result from their conduct when they

"knowingly place a person in danger." Johnson v. Dallas Indep.

Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994). To be liable under

this theory, the state actor must create a dangerous environment;

"they must know it is dangerous; and . . . they must have used

their authority to create an opportunity that would not otherwise

have existed for the third party's crime to occur. Put otherwise,

the defendants must have been at least deliberately indifferent to

the plight of the plaintiff." Id. at 201. The Fifth Circuit has

not "yet predicated relief on a state-created danger theory."

Johnson, 38 F.3d at 201.

In this case, the majority concludes that because the school

officials were deliberately indifferent in instituting and

conducting the process that "put Doe in harm's way," they are

liable for her injuries under § 1983. In reaching this conclusion,

1005-06 (citing Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d
28 (1982) as holding that Fourteenth Amendment requires state to use reasonable
measures to protect involuntarily committed mental patients from themselves and
others). The majority explicitly rejects the special relationship theory in this
case, stating that the doctrine only applies in cases where third parties inflict
the harm. Since the custodian was a state actor, the majority concludes, the
special relationship theory is not applicable in this case. However, as
indicated earlier, this conclusion is difficult to reconcile with the majority's
assertion in Part III that "In this opinion, we hold nothing more than that Doe
has adequately pled that the School Officials (as distinguished from the
Custodian, who is not even a defendant in this action) acted under color of state
law." To the extent that the majority opinion does not hold that the custodian
was a state actor or acting under color of state law, yet the state is still
liable for the harm he inflicted, this is similar to the duty of care and
protection required in special relationship cases. However, this is disturbing
since neither the Fifth Circuit nor the majority opinion has ever held that a
special relationship exists between the state and public school students.
Johnson, 38 F.3d at 2003; see also Walton v. Alexander, 44 F.3d 1297, 1305 (5th
Cir. 1995) (en banc) (holding that there is no "special relationship" when a
student voluntarily resides at a state school).

-30-
the majority focuses on the dangerous environment that the school

officials were deliberately indifferent in creating. The majority

alleges that the officials created this environment by inadequately

hiring and indifferently supervising a custodial staff one-third of

whom were criminals, "giving them the keys to the schoolhouse, and

authorizing them to roam the halls when and where vulnerable

students are likely to be encountered, and despite prior reports of

sexual abuse, to do so in the absence of adequate supervision."

Given this dangerous environment, the majority concludes that there

is "obviously" a "'real nexus' between the rape of Doe and the

deliberately indifferent performances of the School Officials'

duties and obligations." According to the majority, the school

officials, therefore, acted under color of state law and are liable

under § 1983 for the harm that Doe suffered regardless of whether

the person who raped her was a state actor. The majority, in

essence, concludes that the school officials, not the custodian,

violated Jane's right to bodily integrity.

This interpretation is a complete abrogation of Doe v. Taylor.

On the one hand, the majority accepts Taylor's bodily integrity

theory, but on the other hand, it rejects the premise))that to

constitute a constitutional violation, it must be an employee state

actor who sexually assaults the student. Taylor specifically found

that the Taylor Doe's right to bodily integrity was violated by a

person acting under color of state law. Taylor, 15 F.3d at 452

n.4. The court stated that a "real nexus" existed between the

-31-
teacher's duties and obligations as a teacher and the activity out

of which the violation occurred. Id. It was only after the court

established that Doe had suffered a violation of her right to

bodily integrity by a person acting under color of state law, the

teacher/coach, that the court proceeded to address which, if any,

supervisory officials could also be liable to Doe under § 1983.

The majority today skips this first step, implicitly creating a new

cause of action similar to the state-created danger theory.

I respectfully dissent from the majority opinion on this issue

and would hold that because the custodian was not a state actor

when he raped Jane, there is no underlying constitutional violation

for which to hold the supervisory officials liable under § 1983.

Not all unlawful actions taken by state officials are taken under

color of law. When acting pursuant to a general grant of

authority, a state official acts under "color of state law" either

when he acts within that general grant of authority or when he

exceeds the general grant of authority given. See id. at 485

(Garza, J. dissenting) (citing relevant case law). However, a

state official does not act under "color of state law" when he acts

in the complete absence of any authority. Id.; see Monroe v. Pape,

365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961) (searches of

homes); Fee v. Herndon, 900 F.2d 804 (5th Cir.) (classroom

discipline), cert. denied, 498 U.S. 908, 111 S. Ct. 279, 112 L. Ed.

2d 233 (1990); see also Barney v. City of New York, 193 U.S. 430,

433-38, 24 S. Ct. 502, 503, 48 L. Ed. 737 (1904) (holding that

-32-
there is no state action when the offending act was not authorized

by the state and was forbidden by the state legislature).

The Supreme Court has employed different standards for

determining state action, but has emphasized that it is necessarily

a fact intensive inquiry. Lugar, 457 U.S. at 939, 102 S. Ct. at

2755. In determining state action and color of state law in the

context of public schools, federal courts have focused on whether

there was a "real nexus" between the school employee's duties and

obligations to the school and the activity out of which the

violation occurs. Rains, 66 F.3d at 1406-07; Taylor, 15 F.3d at

452 n.4; D.T. by M.T. v. Indep. Sch. Dist. No. 16, 894 F.2d 1176,

1188 (10th Cir.), cert. denied, 498 U.S. 879, 111 S. Ct. 213, 112

L. Ed. 2d 172 (1990). It is a far leap from the school teacher in

Taylor, who used his position and authority as a teacher to

sexually abuse a student, to a custodian who, lacking any authority

over the students, commits an atrocious crime on the school

premises. In Taylor, the school district established the

relationship between the teacher and the student which the teacher

used to coerce the Taylor Doe into having sexual relations with

him. See Taylor, 15 F.3d at 452 n.4 (describing ways in which

teacher/coach used his position to effectuate the sexual assault);

id. at 461-62 (Higginbotham, J., concurring) (explaining why the

teacher's actions were under color of state law). In this case,

the school district did not establish a relationship between the

custodian and Jane Doe which he was able to use to sexually assault

-33-
her. The school district neither placed the custodian in a

position of authority over Doe, nor did the district grant him any

official influence over her that he could use to coerce her into

having sexual relations with him. In raping Jane Doe, the

custodian committed an act of violence which was completely outside

the scope of any authority he may have held in his position as a

custodian at the school. Despite the fact that the custodian may

have been legitimately on the school premises, nothing about the

crime that he committed bore any relation to his status as a state

employee.

If the custodian's actions constitute state action, then every

intentional tort or criminal act committed by a state official or

employee could result in a constitutional violation, actionable

under § 1983. The Supreme Court has rejected this approach. See

Parratt v. Taylor, 451 U.S. 527, 544, 101 S. Ct. 1908, 1917, 68 L.

Ed. 2d 420 (1981) (concluding that the drafters of the Fourteenth

Amendment did not intend the Amendment to be "'a font of tort law

to be superimposed upon whatever systems may already be

administered by the States'") (quoting Paul v. Davis, 424 U.S. 693,

701, 96 S. Ct. 1155, 1160, 47 L. Ed. 2d 405 (1976)); Baker v.

McCollan, 443 U.S. 137, 146, 99 S. Ct. 2689, 2695, 61 L. Ed. 2d 433

(1979) ("Section 1983 imposes liability for violations of rights

protected by the Constitution, not for violations of duties of care

arising out of tort law."). By shifting the focus from the

individual state actor to the supervisory officials, the majority

-34-
has made the school officials liable for private conduct that

proximately results from the officials' actions. The Supreme Court

has also rejected this approach. See DeShaney, 489 U.S. at 197,

109 S. Ct. at 1004, 103 L. Ed. 2d 249 (stating that "a State's

failure to protect an individual against private violence simply

does not constitute a violation of the Due Process Clause").

Because the actions of the custodian in this case fall

completely outside of the scope of his employment with the school

district, and are proscribed by the state of Texas, I would hold

that the custodian was not a state actor when he raped Doe.

Therefore, Doe has not alleged a constitutional violation, and the

defendants are entitled to qualified immunity.52

For the foregoing reasons, I would also dissent from the majority's
opinion in Part II. C holding that Doe's amended complaint meets the heightened
pleading requirement of Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985). The
complaint states that the custodian was a state actor because he was a school
employee and because he was able to accomplish the assault solely because of the
actions and omissions of the School Officials. This does not constitute
"detailed facts supporting the contention that the plea of immunity cannot be
sustained." Id. at 1482. I would therefore hold that Doe also failed to satisfy
the heightened pleading requirement, and thus that her complaint should be
dismissed.

-35-