ConLawProfBlog recently wrote about a 5th Circuit Case where a divided court found the “special relationship” test satisfied in DeShaney.

In its opinion earlier this month, the Fifth Circuit recognized that DeShaney made clear that as a general matter, a State’s failure to protect an individual against private violence is not a violation of the Fourteenth Amendment’s Due Process Clause, with the only exception being when the State has a “special relationship” with the person.  In DeShaney, the Court found that no such “special relationship existed even when state social workers investigated a case of child abuse, repeatedly, but returned the child to the father’s custody and the father beat the child into a comatose state.

As the Fifth Circuit majority phrased the issue in Doe, it was considering whether there are “circumstances under which a compulsory-attendance, elementary public school has a “special relationship” with its nine year-old students such that it has a constitutional “duty to protect” their personal security.”

The Fifth Circuit found that such circumstances do exist in the allegations of Doe’s complaint, which the trial court had dismissed under DeShaney.   The fact that she was nine years old was indeed important to the court, for it “made Jane wholly dependent on the School for her safety,” and the school, according to the court, “thus assumed the duty to protect her.”

I think this case from Missouri may fall under the same rubric:

 A lawsuit filed against a Missouri school district alleges that officials failed to protect a female student from repeated sexual assaults from a male student, and at one point expelled her for reporting the alleged attacks.

A rape examination proved that the girl was telling the truth, and the male student pleaded guilty to charges related to the attack, the suit alleges.
The lawsuit, filed in July, alleges that the girl was a special education student at a Missouri middle school in the 2008-2009 school year when she told officials about harassment, sexual assaults and a rape by a male student.

School officials told her that her story was not credible, and told her mother that she had recanted the story, the suit alleges.

The suit alleges that school officials made the girl write an apology letter and deliver it to the boy — without consulting with the girl’s mother.

She was then expelled for the rest of the school year and reported to juvenile authorities for allegedly filing a false crime report.

She was allowed to come back to school the next year and her mother urged school officials to protect her from the male student. School officials denied the request, the suit alleges.

“During the 2009-2010 school year, (the girl) was terrified that she would be sexually harassed, assaulted , or raped again at school, and was unable to sleep many nights,” the suit says.

Though she tried to avoid the boy, she was harassed again. She did not report this because she was scared that school officials would not believe her.

In February 2010, the same boy grabbed her, dragged her to the back of the school library and raped her again, the suit alleges.

“School officials approached (the girl’s) claims with the same skepticism as the year before, even going so far as to state that they had ‘already been through this,’ ” the suit states.

The girl’s mother took her to a child advocacy center that confirmed that a sexual assault occurred and DNA evidence found in the girl matched the male student, the suit alleges.

A special education student might have that special type of relationship to rise to the level of a 14th amendment violation.

Stay tuned