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The Fifth Circuit Court of Appeals heard oral arguments yesterday in an en banc rehearing of Doe v. Covington County School District, a case in which a plaintiff claims that a Mississippi school violated her civil rights by releasing her to an adult who raped her, despite the fact that the man was not on a list of approved adults who could check her out of school.
The hearing focused on whether the school had an affirmative duty to protect the plaintiff based on the special relationship created by the school's compulsory attendance policy, and whether the school's actions constituted deliberate indifference under the Fourteenth Amendment.
During the 2007-2008 school year, Tommy Keyes, an unauthorized stranger, checked nine-year-old plaintiff Jane Doe out of her elementary school and raped her at least six times, reports the Associated Press.
Doe claims that the Covington County School District violated her substantive due process rights by being deliberately indifferent to her safety. According to the lawsuit, the school affirmatively deprived Doe of her liberty to care for herself by surrendering her to Keyes. Doe alleges that school officials never consulted her "Permission to Check Out" form, nor requested identification from Keyes, before letting him take her from the school. The school's official policy stated that the school did not have to check identification when releasing a student.
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, reports the AP. The Fifth Circuit Court of Appeals reversed the district court and reinstated Doe's claim in May.
William Whitehead, the school district's attorney, appealed that decision, arguing, "Jane Doe had no constitutional right to affirmative protection from the injuries inflicted by Tommy Keyes," reports the Clarion-Ledger. According to Williams, affirmative obligations are only imposed when a private actor is inflicting the harm, either through a special relationship or a state-created danger. Since Keyes was a private actor, Williams says that Doe had no constitutional right to affirmative protection from the school.
Judge Stephen Higginson, the newest addition to the Fifth Circuit Court of Appeals, seemed particularly bothered by the fact the school released Doe to Keyes on one occasion when Keyes identified himself in the school check-out log as Doe's mother. Higginson asked Williams "Why doesn't that allegation in the complaint establish deliberate indifference?"
Williams responded that Doe had to demonstrate the school's deliberate indifference to a constitutional right or duty, rather than deliberate indifference to an injury, to move forward with a federal claim.
The Fifth Circuit Court of Appeals did not issue a ruling in the case after yesterday's hearing. Regardless of the Fifth Circuit's ruling on the school's duty to protect Doe, it is likely that Doe will recover from the school district for her injuries; Doe's attorney acknowledged to the court that Doe is also suing the school district in Mississippi state court.