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Dismissed: School Lacks 'Special Relationship' in Child Rape Case

By Robyn Hagan Cain on March 30, 2012 | Last updated on March 21, 2019

The Fifth Circuit Court of Appeals made a great argument for homeschooling last week: Schools are not constitutionally required to protect students from rapists.

We’re not talking about teachers and principals taking extraordinary measures to wrest kids away from bad guys. The school in this case released a nine-year-old girl to Tommy Keyes — who was not authorized to sign her out from school — at least six times. Keyes took the girl from the school, raped her, and returned her to school. (He is now in prison.)

The girl's family sued the school district, alleging that the Covington County School District violated the girl's substantive due process rights through deliberate indifference to her safety. The student, (called "Jane Doe" in the lawsuit), claimed that school officials never consulted her "Permission to Check Out" form, nor requested identification from Keyes, before letting him take her from the school.

U.S. District Judge Keith Starrett dismissed the complaint, finding that a student has no constitutional guarantee of protection at school under the circumstances in the case, and that individually-named school officials were entitled to qualified immunity. A three-judge appellate panel reinstated the case against the school district last year. The Fifth Circuit Court of Appeals, sitting en banc, dismissed the case again last week.

The Fifth Circuit was outraged by the school's role in the case, but outrage, alone, does not establish the basis for constitutional violation. Here, the court found that Doe had not established the requisite "special relationship" to bring her claim.

Fifth Circuit Judge Carolyn Dineen King, writing for the majority, said, "Public schools do not take students into custody and hold them there against their will in the same way that a state takes prisoners, involuntarily committed mental health patients and foster children into its custody. Without a special relationship, a public school has no constitutional duty to ensure that its students are safe from private violence," reports the Times-Picayune.

The two judges who originally voted to reinstate the case against the school district -- Judges Jacques Wiener and James Dennis -- dissented from the majority, reasoning, "To contend that it is primarily up to parents to prevent public schools from handing off their nine-year-old girls to unknown men during the course of the school day would be outrageous." The dissenters also criticized that "the majority never addresses just what it is that Jane's parents conceivably could have done, or should have done, to safeguard her in this situation."

Did the majority get it wrong? We see a number of similarities between the public school-student relationship and the state-foster child relationship. Should Doe ask the Supreme Court to revive her deliberate indifference claim?

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