On six separate occasions, a nine-year-old child was released from her school during the school day into the custody of an unidentified adult male, who then raped her and returned her to school.’ In Doe v. Covington County School District, the Fifth Circuit held that the student (“Jane Doe”) had not established a constitutional claim against the school district because she lacked a special relationship with the school district under DeShaney v. Winnebago County Department of Social Services.2 While the decision comports with Fifth Circuit and sister circuit precedent, it is premised on a flawed characterization of the school environment and an excessively narrow reading of DeShaney that seems motivated more by a desire to limit liability than an actual analysis of the case at hand. Unless and until the Supreme Court overrules the extremely narrow reading of the DeShaney special relationship exception that is consistently applied in all circuits that have addressed the issue, public schools will be essentially immune from 42 U.S.C. § 1983 actions, no matter how egregious the school’s inaction toward the student’s safety when threatened by outside actors.
Lindsey Hovland, Due Process – Fifth Circuit Incorrectly Holds School Lacks Deshaney Special Relationship with Students, 66 SMU L. Rev. 385 (2013)