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. 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. Tragically, the basic fear motivating the policy was realized; Jane was sexually assaulted each time she was released to Keyes.
Jane’s father and grandmother brought suit against Keyes and the Covington County School District. After the district court granted Defendants’ motion to dismiss, the Fifth Circuit reversed, holding that Doe’s complaint pleaded a facially plausible claim. However, after a successful petition for rehearing en banc, the Fifth Circuit double-backed on its initial ruling and upheld the district court’s decision to grant Defendants’ motion to dismiss. Notably, in the small window of time before the court revisited the case, the Fifth Circuit’s initial ruling garnered academic support.
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.
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 and 42 U.S.C. § 1983 liability. Specifically, this Note argues that the current prevailing application of DeShaney to § 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 § 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.