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Miss. School May Be Liable in 4th Grader's Rape: 5th Cir. Rules

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By Stephanie Rabiner, Esq. on August 12, 2011 6:50 AM

In a potentially important ruling for those seeking to improve school safety, the 5th Circuit has ruled that Covington Elementary School in Mississippi may be held liable for the off-campus sexual assault of a 4th grader known only as Jane Doe.

The school allegedly released the 9-year-old to the unauthorized man on six different occasions, violating its own policy by failing to check his credentials against an approved list provided by Jane's guardians.

Her parents allege that this failure violated the girl's substantive due process rights to personal safety.

While ordinarily state actors are not required to protect a private citizen against private violence, "when the State takes a person into its custody and holds him there against his will" a special relationship is created wherein the government assumes responsibility for the person's safety.

The 5th Circuit found that a special relationship existed in this case because Jane was legally required to attend school without the protection of her guardian, and, at the young age of 9, the school was wholly responsible for her safety, assuming the duty to protect her.

If the allegations are true, it further found that Covington Elementary School then acted with deliberate indifference towards Jane's safety when, without checking his identity, it "forced" the young girl to go with her abuser on multiple occasions.

A showing of deliberate indifference is required for a plaintiff to recover under the "special relationship" theory.

While this ruling should make schools think twice about releasing students to unauthorized persons, it unfortunately does not mean that all elementary school children in the 5th Circuit have a constitutional right to remain safe at school.

The court made sure to explain a special relationship requires more than compulsory school attendance laws, pointing out that Covington Elementary School took an affirmative action by placing Jane in the custody of her abuser, removing her from school grounds.

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