Schools Need to Check Out the Check-Out Procedures - An Update

 

 Prepared by Kim Hodgman and Katie Anderson

 

The United States Court of Appeal for the Fifth Circuit, sitting en banc (with a full panel), ruled differently than original panel and found that Covington County School District did not have a special relationship with an elementary student who was abused during school hours by a private actor.  Generally, the "State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause."  However, where the governmental body creates a special relationship with the individual, the entity may be liable for failing to protect the individual from violence. 

 

As we originally reported in our August 2011 newsletter, the Fifth Circuit originally opined to expand the special relationship exception to include an elementary student who was checked-out from the school in violation of its check-out policy. A pedophile posing as the child's father checked out the child on six occasions and sexually abused the child each time. The court found that there was a special relationship between the child and the district because of her young age (nine years-old) and the existence of the compulsory attendance requirements. 

 

The Fifth Circuit chose to hear the Covington case en banc, which involves a hearing before all active judges on the bench rather than a panel of three appellate judges.  Sitting en banc, the Fifth Circuit reversed itself and held that no special relationship actually existed between the young child and the district. 

 

Although the facts of the case were horrific, the majority was unconvinced that simply because of her young age or the existence of a compulsory attendance requirement, the government had created the special relationship necessary to hold the district liable for the bad acts of a private actor.  Finding no "special relationship" existed, the court upheld the dismissal of the claim against the district.

 

Although the Fifth Circuit failed to find a special relationship between the district and the child, the tragic facts of the Covington Countycase should act as a wake-up call to schools to carefully reevaluate and enforce student safety policies.  Strasburger & Price recommends that districts consider the suggestions of its August 2011 newsletter including evaluating and updating current check-out policies, training personnel, and periodically reviewing compliance with district policies.  Students will be safer if districts are able to put a check next to these completed steps. 

 

If you have any questions about this article, please e-mail the authors at kim.hodgman@strasburger.com or katie.anderson@strasburger.com.  To learn more about Strasburger's Governmental Practice Group, please click here.
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