A recent ruling by a three-judge panel of the Fifth Circuit Court of Appeals represents a marked departure from established precedent concerning school district liability.
During the 2007-08 academic year, nine-year-old Jane Doe, an elementary school student in Mississippi’s Covington County, was allegedly checked out of school on six different occasions by an adult who, according to the school’s policy then in force, should not have been permitted to do so. As a result of the school’s failure to enforce its own policy, Jane Doe was subjected to grievous sexual abuse in each of the six instances.
In a split decision, the Fifth Circuit’s panel determined that a “special relationship” existed between the school and Jane Doe. According to the majority’s findings, Doe was too young to defend herself and was entirely limited in her own freedom by the school district; thus, the district was liable for the damages done her by a third party.
“This case alters the landscape for section 1983 claims against school districts,” says Carole Callaghan, an attorney with Austin’s Walsh, Anderson, Brown, Gallegos & Green. Section 1983 provides individuals a mechanism whereby they can obtain damages against governmental entities, Callaghan explains.
“In 1989, the Supreme Court held that, generally, governmental entities…could not be held liable for the actions of private actors—such as student-on-student violence. The Court set out two limited exceptions: when there was a state-created danger; and when a ‘special relationship’ existed between the governmental entity and the plaintiff.” According to Callaghan, “In Covington, the Fifth Circuit held, for the first time, that a school district may create a ‘special relationship’ with a student that is sufficient to subject the district to section 1983 liability based on the actions of a private actor.”
The Court determined that two criteria must be met for a school to have created a special relationship. “First, the student would have to be of a ‘very young age.’” (Callaghan clarified that the Court declined to establish a “bright line” rule regarding what constitutes such an age, but said they suggested a thirteen-year-old, in cases of sexual abuse, might not be so young.)
“Second, the Court held that the school district must ‘affirmatively’ act to place the student in harm’s way. In Covington, the district permitted a man who was not the child’s parent, and not on the approved sign-out list, to check the child out of school,” Callaghan explains. “The Court held that the district’s action of ‘forcing’ the child into the sole custody of the man amounted to an ‘affirmative’ act sufficient to create a special relationship.”
The dissenting opinion, said Callaghan, appeared to be crafted in such a way as to make possible a re-hearing of the case before the full court, and to establish the grounds by which the U.S. Supreme Court could grant certiorari: “One of the key issues that the Supreme Court looks for in determining which cases to consider is whether the opinion creates a circuit split on an important federal or constitutional issue.” In her dissent, Callaghan notes, Judge King of the Fifth Circuit went to great pains to articulate the “myriad” ways the majority’s decision conflicted with settled law.
Callaghan sounded a cautious note when asked how the decision would impact liability claims on school districts in the near future, emphasizing that the decision “presented a narrow set of circumstances under which a ‘special relationship’ between a school district and its students could be found.” Until other courts have chimed in, she suggested, it’s unlikely that liability would be determined in cases factually dissimilar from Doe v. Covington. “However,” said Callaghan, “it’s very likely that there will be an initial increase in section 1983 claims based on private actions… For the foreseeable future, school districts should do everything possible to protect themselves from liability.”
Asked how to so protect themselves, Callaghan responded: “At a minimum…districts [should] reassess their check-out procedures—especially in elementary schools—and make sure that all relevant personnel are appropriately trained. Additionally, districts should consider examining their elementary school policies to determine if there are any other vulnerabilities.” For example, districts should examine their volunteer policies, and make sure that all elementary school volunteers have been thoroughly vetted in some manner. Access to elementary school campuses by non-district personnel should also be evaluated and limited to situations in which the volunteer spends as little non-supervised time as possible with students.
Read more about this case in the September 2011 issue of Texas School Administrators’ Legal Digest.
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