The Limits of Your “Duty”

1. The Limits of Your “Duty” Jim Walsh

2. Moral Duty v. Legal Duty • What follows is a depressing story and a poor reflection on public education. • The fact that the court ruled in favor of the school district and its employees will likely surprise many educators. • The case is an excellent example of the distinction between MORAL and LEGAL duties.

3. What Happened • Jane Doe was a 9-year old in Covington County Schools. We don’t know anything else about her. • Six times in the 2007-08 school year, Jane was released during the school day to Tommy Keyes. • Mr. Keyes was not listed on the “Permission to Check Out” form.

4. And Then? • On each of these six occasions, Mr. Keyes sexually assaulted Jane, and then returned her to the school. • Jane sued the district, the superintendent, the board, the board president, Mr. Keyes and unnamed others.

5. Up the Judicial Ladder • Federal district court dismissed the school and all of the individual school defendants from the case. No liability under federal law. • A panel of the 5th Circuit reversed that decision. • The case was then accepted for en banc review by the entire 5th Circuit—18 judges.

6. The Decision • By 16-2 vote, the Court agreed with the district court—dismissing the case against the district and its employees and board members. • Court ruled there was no liability for this under federal law. • How can this be????

7. Let’s Go Back • In 1989, the Supreme Court held that a county could not be held liable, under the U.S. Constitution, for the failure to protect a child from abuse inflicted by his father. • The Court held that the child’s constitutional rights were not violated. This is because his injuries were inflicted by a private party—not the government.

8. DeShaney v. Winnebago County • That was the DeShaney case. It created the general rule that the constitution does not create a DUTY for the government to protect us from harm, even violence, inflicted by private parties. • If there is no DUTY there is no RIGHT. I do not have a constitutional right to be protected from harm. • There was one exception.

9. Special Relationship • DeShaney held that the government DOES have a constitutional duty to protect a person from harm when the government creates a “special relationship” with an individual. • This happens when the government takes custody of the person, through incarceration or involuntary commitment.

10. Special Relationship and Public Schools • Since the DeShaney case (1989) there have been numerous cases in which plaintiffs have tried to extend the “special relationship” theory to the public school. • This is based on compulsory attendance laws and the fact that parents are not present at the school. Age and disability are often factored in as well.

11. How Is That Theory Working? • Courts have overwhelmingly rejected the notion that compulsory attendance laws, even when applied to very young or significantly disabled students, create a “special relationship.” • This includes Circuit Court decisions in the 1st, 3rd, 4th, 6th, 7th, 8th, 9th, 10th and 11th Circuits.

12. What About Fifth Circuit? • This case is the third time that the en banc 5th Circuit has rejected the “special relationship” theory in the public school setting. • “We now hold that the student did not have a DeShaney special relationship with her school, and her school therefore had no constitutional duty to protect her from harm inflicted by a private actor.”

13. State Created Danger Theory • Jane Doe also alleged that the school should be liable under the “state-created danger” theory of liability. • Some Circuits have approved this theory, but the 5th has not, and refused to do so here.

14. How to Think About This…. • The court is charged with defining the scope of your LEGAL duties—not your moral or professional duties. • This case only alleged a violation of the U.S. Constitution—so that is all that the court could look at. • Fundamental principle: the Constitution restricts governmental action—not private actors.

15. Liability in This Case • If the facts in the case as alleged are true, then Mr. Keyes is liable for civil and criminal violations. • Mississippi state law could create liability for the school or the individuals in the school. The court made note of this: see next slide….

16. Quote from the Court “In affirming the dismissal of the Does’ complaint, we do not suggest that schools have no obligation to insure that their students remain safe from acts of private violence. State law provides the appropriate legal framework to address Jane’s injury.”

17. Harrumph! • This issue “has been before this en banc court three times and three times we have said the same thing.” • “There is no room—not an inch—for confusion.” • “No further panel of this court should require us to iterate these clear statements of the law a fourth time.”

18. The Case • Doe v. Covington County School District, ___ F.3d ___ (5th Cir. en banc, 2012). • Decided March 23, 2012.

19. Contact Jim Walsh Walsh, Anderson, Gallegos, Green and Treviño, P.C. P.O. Box 2156 Austin, Texas 78768 Phone: (512) 454-6864 Fax: (512) 467-9318 Email: jwalsh@wabsa.com Web: www.WalshAnderson.com Twitter: http://twitter.com/JWalshtxlawdawg

20. The information in this handout was created by Walsh, Anderson, Gallegos, Green and Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.