Still no “state-created danger” theory in the 5th Circuit…

Today’s Daily Dawg is largely a rerun of a post from April 13th of this year.  It’s newly relevant because of a recent development in this case.  The 5th Circuit granted qualified immunity to some educators in a student-to-student sexual harassment case.  There was a strong dissent.  When I wrote this up back in April, I predicted that some judges would seek to have the case reviewed “en banc” meaning that all of the 5th Circuit judges would be involved, not just a panel of three. Sure enough, there was a request for rehearing en banc, but it failed to get enough votes. So the original decision stands.  That makes my April 13th Daily Dawg relevant again, so here’s the write up. 

The judge who wrote the concurring opinion said that “it is well past time for this circuit to be dragged screaming into the 21st century by joining all of the other circuits that have now recognized the state-created danger cause of action.” 

What’s this about? 

It doesn’t make sense unless you understand that governmental entities and their employees are well protected from liability claims.  Consider the options for the parent of a student who suffered some serious injury while attending a public school. 

*A standard state law tort claim against the district based on negligence is unlikely to succeed. The district is immune from tort liability unless the injury arose from the negligent use or operation of a motor vehicle. 

*A similar claim against the teachers and administrators will run into claims of immunity provided by the Texas Education Code. Unless a motor vehicle was involved, or the teacher was excessive or negligent in the use of force in a disciplinary context, the parents are probably out of luck. 

*Claims against the district under federal law will not succeed unless the plaintiff can show that the school’s policy or longstanding custom actually caused the injury. That’s rarely the case.

*So then you might consider a claim under federal law against individual school employees.  That’s when the doctrine of “qualified immunity” arises.

The parent of a student with a disability in Fort Bend ISD sued two teachers, the assistant principal, the principal, and the “manager” of the special education program. The facts alleged are grim, to say the least.  The opening lines of the 5th  Circuit’s opinion lay it out:

A disabled public school student was sexually assaulted by another student with known violent tendencies.  Despite knowing of this attack, the victim’s teachers let both her and her aggressor wander the school unsupervised, and she was again assaulted by the very same student.

The parents alleged that their girl had been deprived of her rights to Due Process under the 14th Amendment.  They alleged that the five school employees should be held liable due to the “state-created danger” doctrine.  All five school employees moved for dismissal of this claim because they enjoyed “qualified immunity.”  Pursuant to that legal doctrine, the school employees were immune unless they violated legal standards that were, at the time, “clearly established.”  The 5th Circuit held that all five FBISD employees were entitled to qualified immunity. The 14th Amendment claims were dismissed.

The court’s ruling was based on the fact that the “state-created danger” theory of liability has never been approved by the 5th Circuit.  The court reasoned that a legal theory that has not been accepted is certainly not one that is “clearly established.”  That concurring judge I mentioned above agreed with the outcome of this case, but urged the court to join the many circuits that do permit suits alleging “state-created danger” as a viable theory: the 3rd, 4th, 6th, 7th, 8th, 9th, 10th, and the D.C. Circuit. 

We probably have not heard the last of this case.  Some of the judges will seek an “en banc” review which would be the proper vehicle for the 5th Circuit to reverse course and allow suits alleging “state-created danger.”  Moreover, this ruling only applies to the Due Process claim. There is also a claim under Title IX, which the court noted “may well provide [the student] a remedy.”

It’s Fisher v. Moore, decided by the 5th Circuit on March 16, 2023. 

On July 14th, the 5th Circuit reported that the decision would not be reviewed en banc. So it stands. The teachers and administrators are immune from liability and the “state-created danger” theory of liability is still a non-starter in the 5th Circuit. 


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