dissenting in part:
I dissent from so much of our judgment as affirms the denial of Lankford’s motion for summary judgment on the basis of qualified immunity.1
So far as concerns Lankford, this is a pure non-feasance case. His inaction was deplorable. He was indecisive, insensitive, inattentive, incompetent, stupid, and weak-kneed. But it was not then clearly established — and, indeed, is not even now — that mere inaction on his part violated the United States Constitution. Lankford, a public high school principal whose position unquestionably involved the exercise of discretion, was accordingly entitled to qualified immunity, as he asserted in his motion for summary judgment. The burden then shifted to the plaintiff “to rebut this defense by establishing that the official’s allegedly wrongful conduct [here, inaction] violated clearly established law.” Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.1992). We do “not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.” Id.
Moreover, it is settled that an official’s violation of state law — no matter how clearly *466established and plain to one in his position— does not deprive him of section 1983 qualified immunity if under the circumstances it was not clearly established that his conduct violated the federal right sued on. Davis v. Scherer, 468 U.S. 183, 193-95, 104 S.Ct. 3012, 3019-20, 82 L.Ed.2d 139 (1984). Further, the federal right must have been clearly established in a sufficiently “particularized” sense so that it was then “clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (emphasis added). See also, e.g., Barts v. Joyner, 865 F.2d 1187, 1194 (11th Cir.1989) (“Harlow's ‘clearly established’ standard demands that a bright line be crossed. The line is not to be found in abstractions — to act reasonably, to act with probable cause, and so forth — but in studying how these abstractions have been applied in concrete circumstances.”); Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir.1987) (“whether the law was clear in relation to the specific facts confronting the public official when he acted”) (emphasis added).2 Finally, as Judge King recently observed in a state actor’s qualified immunity case with at least equally shocking facts, “[t]hat the actions of which Doe complains are egregious, however, does not mean that he has asserted the violation of a federally protected right, as required by 42 U.S.C. § 1983.” Doe v. State of La., 2 F.3d 1412, 1421 (5th Cir.1993) (concurring opinion).
Coach Stroud used, and abused, his position as a teacher to worm his way into the affections of his fifteen-year-old student Jane Doe so that, as the majority says, “she developed a ‘crush’ on Stroud.” As the majority relates, by late fall 1986 Stroud and Doe engaged in “kissing and petting,” and in January 1987 their relationship “escalated to heavy petting and undressing” following an evening rock concert to which Stroud took Doe and some of her friends, including' Stroud’s daughter, also a student at the school. Doe befriended Stroud’s daughter in order to have “a cover” for her relationship with Stroud and “an excuse” for visiting at the Stroud residence.3 Apparently commencing in February 1987, Doe, with her parents’ knowledge and consent, frequently spent the night or weekend there, ostensibly visiting Stroud’s daughter. Stroud would kiss Doe on these occasions, and suggest that they have intercourse. Doe refused until, on the occasion of a visit at Stroud’s residence in late March or early April 1987, when, as the panel opinion says, “she ‘gave into’ Stroud ... sensing that Stroud was getting mad at her for not having sex with him; she was afraid of losing their friendship altogether.” 975 F.2d 137 at 140. Thereafter, Doe continued to frequently visit at the Stroud home, and to engage in sexual intercourse with him there. She also began to sneak out of her house in the middle of the night to meet Stroud, and on these occasions they would go out into the country, or into the school field house, and engage in sexual intercourse. The panel opinion explains that “Doe was reluctant to refuse Stroud’s sexual advances out of fear that he would alienate her completely.” Id.
The majority concludes that by 1987 it was clearly established that public school children “have a liberty interest in their bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment”— more precisely, “the substantive due process component of the Fourteenth Amendment”— against “physical sexual abuse by a school employee.” Expressed at this level of generality, and assuming a not unduly broad definition of “physical sexual abuse,” I agree, provided the employee’s offending action is taken “under color of’ state law. Cf. D.T. by M.T. v. Independent School District No. 16, 894 F.2d 1176 (10th Cir.), cert. denied, 498 *467U.S. 879, 111 S.Ct. 213, 112 L.Ed.2d 172 (1990).4
Just what sort of actions by Stroud violated this right of Doe? The majority opinion is not entirely clear, but seems to say that it is the sexual intercourse and related fondling. Thus, the majority says “the Constitution protects a schoolchild from physical sexual abuse — here, sexually fondling a fifteen-year-old schoolgirl and statutory rape — by a public schoolteacher.” I agree that in 1987 it was clearly established that, where suffieiently immature children are involved, -consensual sexual relations or fondling of private parts by an adult amounted to “physical sexual abuse” for these purposes. However, for that to be actionable under section 1983, not only must the consenting child have been sufficiently immature, but also the physical sexual abuse must have been under color of state law.
It is not clearly established that age fifteen is, per se, sufficiently immature.5 Plainly *468■ Doe was of a sufficient age to bear children. Perhaps that should not be the test and instead arguably a minimum age of sixteen, seventeen, or eighteen would make sense as a bright line for these purposes. But that is not, and was not, clearly established (see note 5, supra).
Nor is it clearly established that Stroud’s physical sexual abuse of Doe was under color of state law. The physical sexual abuse principally relied on by the majority here is the sexual intercourse, and this not only was all consensual, but also took place clearly outside of school hours and not as even a purported part of any school activity. The same is true of the “sexually fondling” or “heavy petting and undressing.”6 None of any of this could be said to even colorably be within the course or scope of Stroud’s employment.7 Nor was Doe’s participation in this sexual activity some sort of “quid pro quo ” for scholastic or other official favors from Stroud, but was rather because she had “developed a ‘crush’ on Stroud” and did not wish to risk “losing their friendship altogether.” 8 This is not to say that Stroud did not use and abuse his position as a teacher, and thus arguably act under color of law, in initially causing Doe to develop a “crush” on him and in worming his way into her affections. But this is not the constitutional wrong that the majority holds that Doe has suffered and for which ' Lankford lacks qualified immunity; that wrong, the “physical sexual abuse— here, sexually fondling a fifteen-year-old schoolgirl and statutory rape,” came later, albeit doubtless in some sense as an ultimate result of the former conduct. Does the causal connection between the earlier “under col- or of law” conduct and the later otherwise purely personal and consensual relationship between this fifteen-year-old girl and Stroud cause the latter conduct to also be “under color of law”?9 In my view, an affirmative answer to that question is not and was not clearly established as a matter of constitutional law.10
*469I turn now to particularly consider the basis on which the majority holds that Lank-ford has failed to establish his entitlement to qualified immunity.
The majority (fn. 3) does not take the position that school officials have “an affirmative duty to protect students from constitutional violations” arising out of a “special relationship” between the state and the students in its public schools analogous to that existing between the state and those in its institutional custody, such as prisoners, as discussed in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 195-98, 109 S.Ct. 998, 1003-1005, 103 L.Ed.2d 249 (1989). Certainly, no such principle can be regarded as clearly established.11
Notwithstanding this disclaimer of a “special relationship” affirmative duty, the majority proceeds to impose on Lankford an affirmative duty — not to fail with deliberate indifference to' act — of the very same kind imposed in favor of prisoners on prison supervisors, respecting protection not only from other inmates, but also from the actions of guards and from various conditions of confinement. See Wilson v. Seiter, — U.S. -, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).
The majority’s decision as to Lankford is not grounded on the assumption that the evidence supports a finding that Lankford took any action or did anything affirmative that played any part in causing Stroud’s physical sexual abuse of Doe. The majority does not contend that Stroud’s physical sexual abuse of Doe came about because Stroud had received Lankford’s tacit or implied approval of such conduct.12 Indeed, the three-part test that the majority devises to determine personal liability of supervisors contains no element of affirmative conduct, communication of condonation or authorization, or the like on the supervisor’s part. Such a test, applied outside of the “special relationship” context, is essentially inconsistent with the Supreme Court’s decision in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Third Circuit so held in Chinchello v. Fenton, 805 F.2d 126, 133 (3rd Cir.1986), stating:
“In Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), the Supreme Court addressed and rejected the argument that a supervising public official has an affirmative constitutional duty to *470supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates. It held that even where a pattern of constitutional violations by subordinates is shown, supervising officials do not violate the constitutional rights of the victims of such misconduct unless they have played an ‘affirmative part’ in that misconduct. Id. at 377, 96 S.Ct. at 607.
In Commonwealth of Pennsylvania v. Porter, 659 F.2d 306 (3d Cir.1981), cert. denied, 458 U.S. 1121, 102 S.Ct. 3509, 73 L.Ed.2d 1383 (1982), this court, sitting in banc, again addressed the issue, of whether there is an affirmative constitutional duty to supervise- We held that to be legally responsible, supervising officials ‘must have played an affirmative role in the deprivation of the plaintiffs’ rights,’ noting that ‘the officials’ misconduct cannot be merely a failure to act. ’ 659 F.2d at 336. Because ‘the Council members’ official actions constitute^] no more than inaction and insensitivity, ’ 659 F.2d at 337, we concluded that they had not violated the plaintiffs’ rights despite their knowledge of a pattern of misconduct by one of their subordinates.”
... Black v. Stephens, 662 F.2d 181 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982) ... held, once again, that while supervising public officials may not in any way authorize, encourage, or approve constitutional torts, they have no affirmative constitutional duty to train, supervise or discipline so as to prevent such conduct.
It is true ... that some Courts of Appeals have been more willing than ours to infer supervisory approval of unconstitutional conduct from inaction on the part of the supervisor.... The courts taking this view, however, have found liability only where there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor’s inaction could be found to have communicated a message of approval to the offending subordinate.” (Footnote omitted; emphasis added).
The Third Circuit reaffirmed the Chinchel-lo analysis of Rizzo and its progeny in Brown v. Grabowski, 922 F.2d 1097, 1119-1120 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991).
Contrary to the implication in the majority opinion, the same principles were affirmed by the Third Circuit in Stoneking v. Bradford Area School District, 882 F.2d 720 (3rd Cir.1989) (Stoneking II), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990), although the panel split as to their application to the particular facts in that case. Stoneking II was a suit by a female public school student complaining that the school’s band director, Wright, “used physical force, threats of reprisal, intimidation and coercion ... to force her to engage in various sexual acts” some of which “occurred in the band room at the school and on trips to band functions.” Id. at 722. The Third Circuit majority held that Smith, the school principal, and Miller, the assistant principal, were not entitled to summary judgment on the basis of qualified immunity, but that the superintendent of the school district, Shuey, was entitled to summary judgment on that basis. Reviewing Rizzo, Chinchello, and related cases, the majority summed up the relevant law as being that “although the mere failure of supervisory officials to act or investigate cannot be the basis of liability,” nevertheless “such officials may not with impunity maintain a custom, practice or usage that communicated condonation or authorization of assaultive behavior.” Id. 882 F.2d at 730.13 The panel majority concluded that there was sufficient evidence for a jury to find that affirmative conduct and policies of Smith and Miller “amounted to a communication of condonation” to Wright and that there was an “affirmative link” between the plaintiffs “injury and policies and practices that Smith and Miller employed and affirmative acts they took in furtherance of them.” Id. *471at 731 (emphasis added).14 On the other hand, Superintendent Shuey was entitled to summary judgment because the case against him amounted to “mere ‘inaction and insensitivity’ on his part” and the court could not “discern from the record any affirmative acts by Shuey on which Stoneking can base a claim of toleration, condonation or encouragement of sexual harassment by teachers.” Id. at 731 (emphasis added).
Similarly, in J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267 (7th Cir. 1990), the court considered a section 1983 complaint against supervisory public school officials, including the principal and superintendent, alleging that one Lester Mann “sexually molested” the plaintiff school children “while employed as a teacher” at their school. Id. at 268. The complaint proceeded on the basis that the defendants had “an affirmative duty to provide for their safety,” but the Court rejected that theory, even though the offending actor was a public school teacher, and held that the complaint was insufficient because it did “not allege that any of the named school defendants participated in any acts of child molestation. In addition, the plaintiffs do not allege that the school defendants promoted school policies that ‘encourage[ed] a climate to flourish where innocent [children] were victimized.’ ” Id. at 271-272, citing Stoneking II.
Likewise, the Sixth Circuit has recognized that mere inaction by a supervisor, even when actually aware of a governmental subordinate’s constitutional violations, does not afford a sufficient basis for liability under section 1983. Thus, in Poe v. Haydon, 853 F.2d 418, 429 (6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989), the Court stated:
“On the issue of § 1983 liability of supervisory personnel, Hays v. Jefferson County, 668 F.2d 869 (6th Cir.), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982), established that a supervisory official’s failure to supervise, control, or train the offending individual is not actionable, unless the supervisor ‘either encouraged the specific incident of misconduct or in some other way directly participated in it.’ Id. at 874. See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93 (1984).
Poe’s sexual harassment claim fails on this latter score. Even assuming the allegations in her complaint are true, she has not averred that ‘any of the supervisory officials who [are] defendants in this case actively participated in or authorized any harassment’ by Henderson. Bellamy, 729 F.2d at 421. At best, she has merely claimed that the appellants were aware of alleged harassment, but did not take appropriate action. This is insufficient to impose liability on supervisory personnel under § 1983. Ibid. ” (Emphasis added). Similar expressions can be found in the
decisions of this Court. See, for example, *472the following from Reimer v. Smith, 663 F.2d 1316, 1323-24 (5th Cir.1981):
“In Wanger v. Bonner, 621 F.2d 675 (5th Cir.1980), we stated that a supervisory official could not be held liable for failing to adopt policies to prevent constitutional violations, but could be held liable if he affirmatively adopted policies which were wrongful or illegal and which caused the alleged deprivation of constitutional rights.6 ...
As Reimer’s footnote 5 observes, Watson, 611 F.2d at 123, specifically relied on Rizzo. Likewise, the similar statement in Wanger that “failure to adopt policies to prevent constitutional violations ... would not be an adequate basis for [a supervisor’s] liability under § 1983,” id., 621 F.2d at 680, was also expressly based on Rizzo. Similarly we stated in Ford v. Byrd, 544 F.2d 194, 195 (5th Cir.1976), that a police chief is “liable for the acts of his subordinates only if he directs, orders, participates in, or approves the acts.” (Emphasis added). And, in Vela v. White, 703 F.2d 147, 153 (5th Cir.1983), the opinion of the district court, which we said “we hereby adopt,” states:
“... a supervisory official cannot be liable merely for failing to adopt policies to prevent constitutional violations; however, he can be held liable if he affirmatively adopts policies which are wrongful or illegal. Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir.1981); Wanger v. Bonner, 621 F.2d 675 (5th Cir.1980). See also Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 48 [46] L.Ed.2d 561 (1976), holding that in the absence of a pervasive pattern of intimidation by the named defendants, supervisory failure to act in the face of a statistical pattern of violations by other officers fails to state a claim cognizable under § 1983.”
As recently as 1992 we stated: “Supervisory officials may be held liable only if: (i) they affirmatively participate in acts that cause constitutional deprivation; or (ii) implement unconstitutional policies that causally result in plaintiffs injury.” Mouille v. Live Oak, Tex., 977 F.2d 924, 929 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2443, 124 L.Ed.2d 660 (1993) (emphasis added).
Our decisions in this area — like those of the other circuits — are, unfortunately, not all of one piece.15 We have said that “personal participation” is not the only basis for imposing section 1983 liability on a supervisor, and that “a supervisory defendant is subject to § 1983 liability when he breaches a duty imposed by state or local law, and this breach causes plaintiffs constitutional injury.” Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976).16 Sims was decided before Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and after Monell we rejected our earlier cases that had “held that where state law would impose vicarious liability, a like cause of action arose under § 1983.” Baskin v. Parker, 602 F.2d 1205, 1207 (5th Cir.1979). Judge Rubin dissented in Baskin, contending that Monell did. not preclude resort to state law for this purpose. Baskin at 1211-1215. Nevertheless, we thereafter from time to time continued to rely on Sims for the proposition that even without personal participation a supervisory official may be held personally liable under section 1983 if he “breached a duty imposed upon him by state and local law and ... this breach caused the plaintiff constitutional injury. Sims v. Adams, 537 F.2d *473829, 831 (5th Cir.1976).” Barksdale v. King, 699 F.2d 744, 746 (5th Cir.1983). See also Lozano v. Smith, 718 F.2d 756, 768 (5th Cir.1983) (same); Bowen v. Watkins, 669 F.2d 979, 988 (5th Cir.1982) (“plaintiffs must show a failure to supervise properly that caused the harm. See Sims v. Adams (5 Cir.1976), 537 F.2d 829.”). So far as these decisions impose personal liability for nonfea-sance and proceed on the basis of there being a duty to act affirmatively, many are consistent with DeShaney in that they involve a “special relationship,” such as that of prison or jail officials to their prisoners. Barksdale and Lozano, for example, fall in this category.17 But reliance on state law duties seems inappropriate, as we observed in Baskin and as indicated by subsequent Supreme Court decisions. See DeShaney, 489 U.S. at 189, 109 S.Ct. at 998 (“A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes. But not ‘all common-law duties owed by government actors were ... constitutionalized by the Fourteenth Amendment.’ ”); Daniels v. Williams, 474 U.S. 327, 334, 106 S.Ct. 662, 667, 88 L.Ed.2d 662 (1986) (“Jailers may owe a special duty of care to those in their custody under state tort law ... but ... we reject the contention that the Due Process Clause of the Fourteenth Amendment embraces such a tort law concept.”); Davis v. Scherer (rejecting breach of state law duties as a basis to deny qualified immunity under section 1983). See also Thompkins v. Belt, 828 F.2d 298, 304 n. 8 (5th Cir.1987) (“... recent Supreme Court decisions call into question the proposition that a breach of duties imposed by state law can form the basis of an action under section 1983”).
The majority’s reliance on City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), is misplaced. To begin with, that case was not decided until some two years after the events here in issue, and the Supreme Court described the “inquiry” before it there, which was “the principal focus” of its decision, as “a difficult one; one that has left this Court deeply divided in a series of cases that have followed Monell....” Id. at 385, 109 S.Ct. at 1203 (footnote omitted). Surely Canton did not represent clearly established law in 1986 or 1987, and hence should not be relied on to deny Lankford qualified immunity.18
Aside from the question of timing, Canton ’s applicability to the personal liability of individual public school supervisors is doubtful. Canton held that in appropriate circumstances a municipality could be liable for constitutional violations resulting from its deliberately chosen training policy for city employees. It is one thing to hold the municipality as a whole liable in such an instance, as the entire corporate entity doubtless has the complete responsibility for and power and control over the training, assignment, and utilization of its employees, and the corporate entity as a whole is the recipient and beneficiary of their services. The case of individual supervisors is distinctly different. Here, for example, Lankford was not the only one in control of or responsible for Stroud; the athletic director and superintendent (and doubtless others) were also involved. Lankford did not hire Stroud and could not fire him, and Stroud did not work for Lankford. Further, when one looks at municipal liability cases of the Canton sort, although the primary focus may be on a policy that consciously elects not to do something — in Canton not to train beyond a certain level — there is also (at least in the absence of a “special relationship”) a concomi*474tant and causal affirmative election and action — in Canton, to have the decision whether arrestees detained in jail required medical care committed to the sole discretion of the inadequately trained shift commander;19 in other cases, to arm police officers and put them on the streets with directions to use their weapons as appropriate.20 Nothing of the kind on the part of Lankford is involved here; he is held liable merely on the basis of inaction. Canton does not support personal liability of an individual supervisor for mere failure to act absent a “special relationship” imposing such a duty.
The majority, in holding Canton to be apposite in this appeal, relies on Sample v. Diecks, 885 F.2d 1099 (3d Cir.1989); Greason v. Kemp, 891 F.2d 829 (11th Cir.1990); Stoneking II; and Jane Doe “A” v. Special School Dist., 901 F.2d 642 (8th Cir.1990). These decisions, however, do not support the majority’s imposition of an affirmative duty on Lankford, much less its denial of qualified immunity to him. To begin with, both Sample and Greason are prison inmate cases, thus involving that sort of “special relationship” where the Constitution does impose an affirmative duty, as recognized in DeShaney, a relationship which the majority disclaims here. Moreover, it is obvious that the majority misreads Sample. There the Third Circuit reversed a judgment against the supervisor following a bench trial, holding that the trial court’s findings did not meet the requirements of Canton for establishing municipal liability.21 Read in context, Sample’s “no less stringent” language quoted by the majority is plainly saying that the section 1983 plaintiff has as least as high a hill to climb to establish a supervisor’s liability on a Canton type theory as to thereby establish a municipality’s liability. To read the statement, as the majority apparently does, to say that the plaintiffs hill for recovery against a supervisor is no higher than for recovery against a municipality renders the statement meaningless in the context in which it was made, namely as an explanation of why the judgment against the supervisor could not stand. Jane Doe A and Stoneking II are similarly inapposite.22
The three-part test devised by the majority to sustain the denial of qualified immunity to Lankford requires absolutely no finding of any affirmative conduct on his part, nor even any actual knowledge of the physical sexual abuse,23 and nevertheless allows a finding that simple inaction by the supervisor “causes” the constitutional injury within the meaning of section 1983, even though this is *475not a “special relationship” case where the Constitution imposes an affirmative duty. In no reasonable sense of the word “causes” can Lankford’s pure inaction — not amounting to tacit or implied condonation or authorization — be said to have “caused” Stroud’s physical sexual abuse of Doe. As the Supreme Court observed in Rizzo, “[sjuch reasoning, however, blurs accepted usages and meanings in the English language in a way which would be quite inconsistent with the words Congress chose in section 1983.” Id. 423 U.S. at 374, 96 S.Ct. at 606.24 For the reasons previously stated, Canton — a municipal liability case where the municipality’s affirmative conduct (arresting and detaining the plaintiff and causing the decision as to her need for medical treatment to be made by unqualified municipal employees) was plainly a cause of the injury in the accepted sense of the word — is not to the contrary.25 Even if it were, its standards should not be retroactively applied to deny qualified immunity here.
I therefore respectfully dissent.
. I concur in the holding that appellant Caplinger, the superintendent, was entitled to qualified immunity.
. See also, e.g., K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir.1990) (although to defeat qualified immunity, a plaintiff need not "point to a previous case that differs only trivially from his case,” nevertheless "[i]t is not enough, to justify denying immunity, that liability in a particular constellation of facts could have been, or even that it was, predicted from existing rules and decisions.... Liability in that particular set [of facts] must have been established at the time the defendant acted.”).
. Doe also had a "cover" boyfriend, a fellow student at the school.
. D.T. involved sexual molestation on June 13 and 14, 1984, by Epps, a teacher employed by the defendant school district, of three boys (ages 11, 11, and 13) who had been in Epps' fifth grade class at a district school, and had been on the school’s fifth grade basketball team coached by him, during the school term that ended at the end of May 1984. The molestation occurred when the boys, with their parents' permission, accompanied Epps, staying at his home overnight, to sell candy to raise funds for a forthcoming basketball camp that was to be operated and directed that summer by another coach of the district and was to be held on school district property. The school district had approved the use of its facilities for the camp, permitted distribution at its schools to students there of fliers and notices concerning the camp, and consented to the use of a school basketball court for fund raising activity for the camp. The school district, however, did not sponsor, organize, or manage the camp. Epps was under contract with the school district and was- paid for the summer months, but had no teaching, coaching, or other duties or functions to perform for the school district during June or July 1984, and would not come báck on duty until August 1984. Suit was brought on behalf of the children under section 1983 against the school district on the ground, inter alia, that it hired Epps with knowledge of or deliberate indifference to the fact that he was a homosexual with a proclivity to molest young boys, and that his hiring was the moving force behind the sexual abuse. The Tenth Circuit reversed a judgment on the jury's verdict for the plaintiffs, holding that as a matter of law "there was no state action involved when the plaintiffs were molested by Epps” and "Epps was not acting under color of state law when he molested the plaintiffs.” Id. at 1192.
. This is so whether one focuses on the sexual intercourse or the sexual fondling.
In Texas, for statutory rape the child must be "younger than 17 years of age.” Tex. Penal Code § 22.011(c)(1). See also id., § 22.011(a)(2). However, in Louisiana Doe would have attained the age of consent for purposes of statutory rape and related offenses. See La.Rev.Stat. 14:43.1 (sexual battery; “where the other person has not yet attained fifteen years of age and is at least three years younger than the offender”); 14:43.3 (oral sexual battery; same); 14:42A(4) (aggravated rape "when the victim is under the age of twelve years”). In several other states, also, Doe would have attained the statutory rape age of consent. See Model Penal Code § 213.1, comment 6 at 323-325 (American Law Institute 1980); 65 Am Jur.2d Rape § 17 ("The age of consent has been fixed at ages varying from 10 to 18 years.”). At common law the age of consent was ten. See Model Penal Code § 213.1, comment 6 at 323. The Model Penal Code uses age ten for statutory rape, id. §§ 213.1(l)(d), 213.2(l)(d), and age sixteen for the lesser felony of "Corruption of Minors and Seduction,” id. § 213.3(l)(a) (sexual intercourse with one less than sixteen years old where the actor is at least four years older) and for the misdemeanor of “Sexual Assault” ("touching ... the sexual or other intimate parts ... for the purpose of arousing or gratifying sexual desire"; where the victim is less than sixteen years old and the actor is at least four years older). See also 18 U.S.C. § 2241(c) ("sexual act with another person who has not attained the age of 12 years”); § 2243(a) ("sexual act with another person who — (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the” offender); § 2244(a) ("sexual contact" an offense, with lesser penalty, where "sexual act" would be punishable under §§ 2241 or 2243); § 2245(2) (“sexual act” defined) & (3) ("sexual contact” defined as “touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks” with harassing or sexual intent). The common law did not recognize consensual sexual batteiy of a minor, but in 1861 by act of Parliament the defense of consent was disallowed "for assaults upon' children under the age of 16.” Model Penal Code § 213.4, comment 1.
At common law, the age of consent for marriage was fourteen for males and twelve for females. 52 Am.Jur.2d Marriage § 14; 55 C.J.S. Marriage § 111. In Texas for many years it was the law that, notwithstanding the statute that precluded issuance of a marriage license without parental consent where the male was under twenty-one or the female was under eighteen, "males over sixteen and females over fourteen may lawfully enter into a contract of marriage,” and that lack of parental consent as called for by
*468referenced licensing statute did not render marriage by a male over sixteen and a female over fourteen "voidable, or invalid in any respect.” Williams v. White, 263 S.W.2d 666, 668 (Tex.Civ. App. — Austin 1954; n.r.e.).
. And certainly Lankford was not on any notice otherwise.
. See, e.g., City of Green Cove Springs v. Donaldson, 348 F.2d 197 (5th Cir.1965), where we held that a police officer’s rape of an arrestee, shortly following completion of his arrest of her, was not within the scope of his employment. We observed, citing- authorities from many jurisdictions:
"It is generally held that liability for an assault by an employee that bears no relation to the real or apparent scope of his employment or to the interest of his employer is not imposed upon the employer under the doctrine of re-spondeat superior." Id. at 202.
This is likewise the law of Texas, Smith v. M System Food Stores, 156 Tex. 484, 297 S.W.2d 112 (Sup. 1957), as we recognized in a recent holding that a police officer’s post-arrest sexual assault of the arrestee was not within the scope of his employment. McLaren v. Imperial Casualty Co., 968 F.2d 17 (5th Cir.1992) (table: unpublished opinion), cert. denied, - U.S. ——, 113 S.Ct. 1269, 122 L.Ed.2d 665 (1993), affirming, 767 F.Supp. 1364 (N.D.Tex.1991).
. Again, Lankford clearly was not on any notice otherwise.
. For example, in the D.T. case, see note 4 supra, the prior teacher/coach — student/player relationship was doubtless a causative factor in the teacher/coach's ability to molest the students within a couple of weeks after the end of the school term in which he had taught and coached them, but his actions were nonetheless held not to be under color of law.
. The special concurrence takes the view that Stroud acted under color of state law in that ”[t]he special attention Stroud gave Doe as her teacher afforded him the opportunity to exert his influence.... He gave her good grades, required of her less work than other students, and allowed her to behave as she liked in his classroom.” As the majority puts it, "all of this attention flattered Doe, and she developed a ‘crush’ on Stroud.” However, as noted in the text, even though Stroud may have acted under color of law in causing Doe to develop a "crush” on him, that did not invade or violate her constitutional liberty interest in "bodily integrity" or to be free from "physical sexual abuse." Certainly there was — and is — no clearly established law to the contrary. The invasion of bodily integrity here the intercourse and sexual fondling — was not a quid pro quo for official favoritism from Stroud (and neither the majority nor the special concurrence claim otherwise), but was consensual if Doe was competent to consent to such conduct. Contrary to the implication of the special concurrence, Doe's age is hence highly relevant, indeed crucial, and it cannot be clearly established that Stroud's "physical sexual abuse” was under-color of law merely because it was an *469eventual outgrowth of the “crush.” No even remotely analogous decision is cited even tending to support such a holding. The approach of the special concurrence would necessarily find a constitutional invasion in the state college professor-adult student setting, where the teacher abused her official position to cause the student to develop a "crush” on her and as an eventual result the two later had consensual sexual relations while the college was in session. Surely it is not clearly established that such wholly consensual sexual relations are under color of law or a violation of the adult student’s right to bodily integrity. We have turned the concept of "clearly established” on its head.
. Post-DeShaney, at least three circuits have held that the public school setting does not give rise to a "special relationship” imposing a due process affirmative duty to protect students. See Maldonado v. Josey, 975 F.2d 727, 730-733 (10th Cir.1992), cert. denied, - U.S. ——, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993); D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1371-72 (3d Cir.1992) (en banc), cert. denied, - U.S. -, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993); J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir.1990).
. I note that there is no evidence Stroud’s earlier unduly familiar conduct with other female students ever involved physical sexual abuse. The majority does not contend that there is any evidence that, apart from Jane Doe, Stroud ever violated any student's constitutional due process right to be free from physical sexual abuse.
The majority does refer to the May 1986 incident in the darkened library copy room when the librarian observed “Stroud lifting the female students onto a table and catching them as they jumped off of the table into his arms." While the librarian may have used the term "child molestation” in discussing this incident with Stroud, her testimony was not that she thought Stroud was sexually molesting the students; she rather stated "I just thought he was being too playful with them, I guess, in a wrong way.” The majority also notes evidence that on or about the same day in October 1987 that Caplinger suspended Stroud, another female student reported to her mother, who advised Caplinger, that “Stroud had grabbed the student’s buttocks in class that day.” There is no evidence of the truth of this allegation, and, in any event, it relates to a matter well after the fact.
Further, there is no evidence that any School District official or employee other than Stroud ever engaged in physical sexual abuse of any student.
. The dissent did not disagree with these principles, but felt that their application to the particular facts there warranted summary judgment in favor of ah the individual supervisor defendants. Id. at 731-32.
. The evidence relied on included testimony by female student and band member Judith Grove Showers that she was "sexually assaulted by Wright in 1979 and reported the incident to Miller and Smith” and that Smith told her it was her fault. Id. at 727. She and her father further testified that thereafter Miller presented her “with the option of recanting her story in front of the band or withdrawing from all band activities ... the band was assembled and she was called before it for this purpose, but fled from the room in tears.” Id. at 728. The Third Circuit observed:
"As the district court noted, it could be inferred that 'the "forced apology” served as a trump card in the hands of Edward Wright,’ who could threaten his other victims with similar treatment if they reported his actions, ... and Stoneking in fact testified that she did not report Wright’s assaults because 1 knew about Judy Grove and what happened.’ " Id.
Moreover, in Stoneking there was also another teacher in the same school who engaged in physical sexual abuse of female students. One victim of this other teacher testified that she promptly reported the incident to Miller and Smith, who told her “it would be her word against the teacher's and that she should not tell her parents.” Id. at 727 (emphasis added). At least five complaints, by different female student victims, were made to Miller and Smith concerning "sexual assaults” by teachers and staff members at the school. Corrective action was not taken. Id. at 728-29. In one of the incidents, Smith suggested to the victim that she might be "framing” the teacher. Id. at 728.
Notwithstanding this showing — and nothing remotely comparable is shown here — the Stoneking II panel was divided in its denial of qualified immunity to the principal and assistant principal, though unanimous in favor of the superintendent.
. This is perhaps not surprising considering the somewhat tortuous development of section 1983 jurisprudence beginning with Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
. In the latter connection, Sims cites only Roberts v. Williams, 456 F.2d 819 (5th Cir.), cert. denied, 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1971); it separately, but perhaps relatedly, cites Anderson v. Nosser, 456 F.2d 835 (5th Cir.), cert. denied, 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89 (1972), and Burton v. Waller, 502 F.2d 1261, 1274-75 n. 6A (5th Cir.1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975). None of these authorities supports the statement as to state law duties quoted in the text.
. What the majority characterizes as holding in Hinshaw v. Doffer, 785 F.2d 1260 (5th Cir.1986), is dicta. What we actually held there was that the defendant chief of police was entitled to a directed verdict of no liability. Id. at 1265-66.
. The majority is similarly in error in denying Lankford qualified immunity on the basis of Jefferson v. Ysleta ISD, 817 F.2d 303 (5th Cir.1987), and Lopez v. Houston ISD, 817 F.2d 351 (5th Cir.1987). The majority holds Lankford may be found liable for failing, between Valentine's Day and late March or early April 1987, to take action so that the Stroud-Doe "relationship might have been derailed at that point." Not only are the cited cases quite inapposite — Jefferson involves tying an eight-year-old student to her desk all day as school discipline and has no discussion of supervisory (or municipal) liability, and Lopez held the supervisors were not liable for the bus driver’s wrongful conduct (which in effect imprisoned the student in the bus while the driver knew he was being beaten) — but neither was handed down until late May 1987.
. Canton assumed, arguendo, that the plaintiff's constitutional right to receive medical care while in detention was violated. The Canton plaintiff, as an arrestee detained in jail, was apparently in the sort of "special relationship" with the City that placed on it the affirmative obligation of protection, a relationship that does not exist here.
. Cf. Languirand v. Hayden, 717 F.2d 220 (5th Cir.1983), a section 1983 suit against the city for injuries suffered when one of its policemen, inadequately trained in weapons use, shot at the plaintiff's car, where we held that city section 1983 liability for failure to train was not made out, and that "if" such a case would lie it would require “at least” evidence of "a pattern of similar incidents in which citizens were injured or endangered by intentional or negligent police misconduct and/or that serious incompetence or misbehavior was general or widespread throughout the police force.” Id. at 227-28.
. The Third Circuit did not address the supervisor's qualified immunity. *475the supervisor — like Lankford here — does not know of the subordinate's physical abuse of the victim, the supervisor may nonetheless be liable if the facts that he did know are ones the Court characterizes as “pointing plainly toward the conclusion that” the sexual abuse was occurring. The supervisor, however, — due to inattention or stupidity — may not have drawn that conclusion, but is nevertheless held liable. Such liability is, in essence, liability based on negligence. In the real world of litigation, that is how these cases will be fought out.
. In Jane Doe A the Eighth Circuit affirmed a summary judgment for all defendants, the School District as well as the individual supervisors. Only in connection with the School District's liability did the Eighth Circuit cite or refer to Canton. Id. 901 F.2d at 646. Canton was not cited at all respecting the individual defendants. Nor did the court address qualified immunity.
In Stoneking II, the Court does cite Canton in its general discussion of liability, id. 882 F.2d at 725, but does not state that it applies to supervisors, and does not refer to it in its discussion of qualified immunity, id. at 726-731, where it notes that "the mere failure of supervisory officials to act or investigate cannot be the basis of liability” but "such officials may not with impunity maintain a custom, practice or usage that communicated condonation or authorization of assaultive behavior.” Id. at 730.
.The majority only requires knowledge of facts "plainly pointing toward the conclusion that” such was occurring. In fact, no one — other than Stroud or Doe — witnessed or otherwise knew of physical sexual abuse of Doe by Stroud or even told Lankford that such was likely occurring. Doe even fooled her parents.
The effect of this standard will almost inevitably be to in practice reduce the purported "deliberate indifference" test to one of negligence. If
. The majority’s attempt (maj. op. fn. 6) to distinguish Rizzo on the basis of Monell is misplaced. Monell — like Canton — was concerned only with municipal liability. Rizzo — like this appeal — was not concerned with municipal liability, but only with whether individual supervisors had violated section 1983 by their inaction in the face of violations by their subordinates. The majority has no power to overrule Rizzo, that right being reserved to the Supreme Court.
. The majority, fortunately, does not adopt the special concurrence's view that if the state legislature had imposed on principals a requirement to investigate or report evidence suggesting that a teacher is involved sexually with a student, then Lankford’s mere "passivity” would suffice to impose section 1983 liability on him for Stroud's conduct even if Lankford were not deliberately indifferent. The special concurrence does not mention any other fault requirement, such as negligence or gross negligence. Apparently, some form of strict liability is contemplated. It is difficult to see how this is consistent with Canton's statement that “a lesser standard of fault” than deliberate indifference should be rejected because it "would result in de facto respondeat superior liability on municipalities,” would "engage the federal courts in an endless exercise of second-guessing,” and "would implicate serious questions of federalism.” Id., 489 U.S. at 390, 109 S.Ct at 1206.
. Apart from abortion-related cases, the Court has not upheld a new substantive due process claim since 1977. Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).
As one prominent treatise states, "The list of rights which the Court has found to be fundamental, and, therefore, worthy of strict judicial scrutiny, is not a long one.” Ronald D. Rotunda and John E. Nowak, 2 Treatise of Constitutional Law § 15.7, at 434 (2d Ed.1992). The "fundamental rights” these scholars list are freedom of association; right to vote; right to interstate travel; right to fair criminal process; procedural due process; right to privacy involving marital decisions; child bearing and child rearing. Id. The Court has also elaborated upon the scope of constitutional protection available to those whose physical "liberty” has been restrained by the state. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Such decisions relate to "liberty” in the traditional sense, i.e., as freedom from physical restraint.
In all of the following cases, by contrast, the Court has rejected novel fundamental rights claims: Albright v. Oliver, supra, (rejecting substantive due process claim for malicious prosecution); Reno v. Flores, - U.S. -, ---, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993) (alien juveniles have no "fundamental” right to be placed with private custodian rather than government institution); Collins v. Harker Heights, — U.S. at -, 112 S.Ct. at 1069 (governmental employer's duty to provide safe working environment for employees is not substantive component of due process); Michael H. v. Gerald D., 491 U.S. at 126, 109 S.Ct. at 2343 (no fundamental right of putative natural father to obtain parental prerogatives where child bom into extant marital family) (plurality opinion); DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 201, 109 S.Ct. 998, 1006, 103 L.Ed.2d 249 (1989) (state has no substantive due process duty to protect a child from father’s violence where state had once taken child into temporary custody); Baker v. McCollan, 443 U.S. 137, 144, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979) (no deprivation of due process where brother mistakenly detained for three days pursuant to search warrant conforming to Fourth Amendment requirements); Paul v. Davis, 424 U.S. at 713-14, 96 S.Ct. at 1166 (claim that state may not publicize record of an arrest is far afield from "right of privacy” cases under substantive due process).