The constitutional hall pass: rethinking the gap in section 1983 liability that public schools have enjoyed since DeShaney.

• Author: Sanford, Jeff

1. INTRODUCTION

   On six occasions during the 2007-2008 school year, Tommy Keyes picked up nine-year-old Jane Doe from her elementary school during school hours. (1) On each occasion, the school, despite adopting an official check-out policy that authorized only the adults listed on a student's "Check-Out Form" to pick up that student, released Jane to the unauthorized Keyes. (2) Tragically, the basic fear motivating the policy was realized; Jane was sexually assaulted each time she was released to Keyes. (3)

   Jane's father and grandmother brought suit against Keyes and the Covington County School District. (4) After the district court granted Defendants' motion to dismiss, (5) the Fifth Circuit reversed, holding that Doe's complaint pleaded a facially plausible claim. (6) However, after a successful petition for rehearing en banc, (7) the Fifth Circuit double-backed on its initial ruling and upheld the district court's decision to grant Defendants' motion to dismiss. (8) Notably, in the small window of time before the court revisited the case, the Fifth Circuit's initial ruling garnered academic support. (9)

   The confused saga that is Covington County illustrates a broad, often counter-intuitive area of Due Process jurisprudence. In Covington County and hundreds of similar cases, students seek to hold public schools liable for privately inflicted harm that is in some way traceable to the school. Like Jane's case, this area of law is filled with tragic facts, including galling individual or institutional carelessness. (10)

   This Note aims to examine the inconsistencies that arise when considering the broad immunity from Due Process liability that public schools enjoy under current interpretations of a touchstone Supreme Court decision, DeShaney v. Winnebago County Department of Social Services (11) and 42 U.S.C. [section] 1983 (12) liability. Specifically, this Note argues that the current prevailing application of DeShaney to [section] 1983 claims against public schools is insufficient to address the egregious misconduct committed by public schools and their officials that result in constitutional violations to its students. First, in Part II, this Note discusses DeShaney and examines its role in [section] 1983 liability. Part III surveys the federal courts of appeals' application of DeShaney to claims against public schools and highlights how the two narrowly construed, DeShaney-based exceptions to immunity create a problematic gap in liability for public-school defendants. Finally, Part IV proposes a less formalistic approach to public-school liability based on establishing a balancing test to determine that liability.

2. Section 1983, DeShaney, and the Origin of Its Exceptions

   1. 42 U.S.C. [section] 1983 & DeShaney

      Section 1983 (13) authorizes individuals to sue the state and its officials when they violate that individual's Fourteenth Amendment Due Process rights. (14) This authorization has given rise to a particular claim--the "constitutional tort." (15) Though early indications supported a plaintiff- friendly interpretation of [section] 1983, (16) liability for constitutional torts has been substantially limited to avoid overly burdening the government. (17)

      DeShaney is perhaps the most notorious case to limit the state's liability for claims brought under [section] 1983. (18) Joshua DeShaney was the infant son of divorced parents Melody and Randy DeShaney. (19) After the couple's divorce in 1980, Randy was awarded custody of Joshua. (20) Shortly thereafter, the father and son moved to Winnebago County, Wisconsin. (21) In 1982, the first evidence of Randy's abuse of Joshua surfaced when Randy's second wife told police that Randy would hit Joshua, causing bruising and other marks. (22) A year later, Joshua was admitted to the hospital where the treating physician suspected child abuse. (23) Winnebago County's Department of Social Services ("DSS") immediately obtained a court order that placed Joshua in the hospital's custody and assembled a group to investigate Joshua's situation with his father. (24) The group found insufficient evidence of abuse to keep Joshua in the court's custody but recommended a number of protective measures. (25)

      With charges of child abuse dismissed, Joshua returned to Randy's custody. (26) Only a month later, Joshua again visited the emergency room where treating physicians made yet another report to DSS of suspected child abuse. (27) The DSS once again concluded there was nothing it could do but make monthly visits to Joshua's home. (28) During these visits, the DSS noted several injuries on Joshua and that Randy had failed to comply with the previous DSS recommended protective measures. (29) The caseworker's notes at this time revealed her continuing suspicions of child abuse. (30)

      Emergency room personnel made a third report of suspected child abuse to DSS in November 1983. (31) On two subsequent visits to the DeShaney's home, DSS was deprived of the opportunity to see Joshua because he was "too ill." (32) DSS again failed to act. (33) In March 1984, when Joshua was four years old, the inevitable occurred; Randy beat his son so brutally that Joshua fell comatose and required emergency surgery. (34) Tragically, "Joshua did not die, but he suffered brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded." (35)

      Joshua's mother brought a [section] 1983 action against Winnebago County, the DSS, and some DSS personnel. (36) After summary judgment was granted for the defendants in the district court and affirmed in the Seventh Circuit, (37) the Supreme Court affirmed. (38) In a 6-3 decision, Chief Justice Rehnquist, writing for the majority, held that the DSS's failure to protect Joshua from the highly suspected abuse of his father did not violate Joshua's substantive due process rights. (39) While the Court acknowledged the tragic facts of the case before it, it summarized the issue with language that amounts to "sorry, but our hands are tied." (40) This holding articulates the broader principle of DeShaney: the state owes no affirmative duty to its citizens to protect them from the harms perpetrated by private actors. (41)

   2. DeShaney's Exceptions

      Despite DeShaney's general rule that a state owes no affirmative duty to protect individuals from private harm, two exceptions have surfaced in DeShaney's wake: the "special relationship" exception and the "state-created danger" exception.

      1. Special-Relationship Exception

         Within the DeShaney analysis, the Supreme Court left open an area in which the state may have an affirmative duty to protect individuals if those individuals sit in a particular relationship with the state. (43) This is the so-called "special relationship" exception. (44) In DeShaney, the Court stated, "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." (45) The focus of the special-relationship exception is on whether the state has affirmatively deprived an individual of liberty through "incarceration, institutionalization, or other similar restraint" such that they are incapable of providing for their basic needs and welfare. (46) The Supreme Court has ruled that the state has sufficiently deprived an individual of liberty so that a special relationship is created when it imprisons or involuntarily commits an individual. (47) In DeShaney, the Supreme Court also acknowledged that circuit courts have recognized special relationships giving rise to liability when the state places children in foster homes. (48) There is some suggestion that the relationship must arise involuntarily on the part of the plaintiff, and the qualifying relationships thus far recognized--e.g. prisoner-warden--seem to support this requirement. (49) However, in DeShaney's discussion of special relationships, there is no mention of an involuntary-confinement requirement. (50) Additionally, when a special relationship is found, state actors can be held liable both for affirmative conduct and for failing to act. (51) Under the special-relationship exception, then, a state can be liable for Due Process violations when an individual is harmed by private actors. (52)

      2. State-Created Danger Doctrine

         Another exception that developed after DeShaney arises under the "state-created danger" theory. (53) Under this exception, the state may be liable for private harm inflicted upon individuals if the state somehow created the danger that led to the harm. (54) Before the Court issued its opinion in DeShaney, Judge Posner articulated an early version of this exception in Bowers v. DeVito, (55) There, he stated, "[i]f the state puts a man in a position of danger from private persons and then fails to protect him ... it is as much an active tortfeasor as if it had thrown him into a snake pit." (56) It was not until after DeShaney, however, that federal courts started to shape the contours of a state's affirmative duty to protect individuals who did not have a special relationship with the state.

         Unlike the special-relationship exception, the state-created danger theory has not been uniformly accepted by the federal circuit courts. (58) The First and Fifth Circuits have either never applied the state-created danger theory or have rejected it outright. (59) When the courts that do recognize the exception apply it to the facts of a given case, the results differ substantially. Because the Supreme Court mandated that allegations of negligence alone cannot sustain Due Process claims, (60) the circuit courts have wrestled with determining exactly what kind of state conduct can be subject to [section] 1983 liability. Though the tests differ significantly, it is clear that the state's conduct must meet some stricter standard than mere negligence--for instance, deliberate indifference...