Section 1983 and Sex Abuse in Schools: Making a Federal Case Out of it
73 Pages Posted: 12 Apr 2007
In 1989, the Supreme Court held in DeShaney v. Winnebago County Department of Social Services that unless a vulnerable child was in "custody," the state had no constitutional duty to protect his or her safety from danger by third parties. Whatever one thinks of this distinction (criticized by this author in previous articles), one would have thought that when a fifteen-year old child is sexually assaulted in school by a teacher or in a residential school for the deaf by another child, these circumstances would satisfy the "custody" standard. In 1994 and 1995, respectively, with the same judge writing the opinions, the Fifth Circuit successfully evaded the issue in the teacher case (Doe v. Taylor Independent School District) but found by contrast that DeShaney controlled the result in the school for the deaf case (Walton v. Alexander).
This article examines the problem of sexual abuse in schools through the prism of the dialogue between federal and state law. Since the 1961 decision in Monroe v. Pape, it has been a truism of Section 1983 law that the civil rights statute "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." Indeed, overlap between constitutional law and ordinary tort law is more the norm than the exception in Section 1983. The other side to the dialogue between federal and state law, however, is federalism. Section 1983 clearly should not take over the entire field of state law, even when the harm is inflicted by a state actor. The civil rights statute is designed to vindicate federal interests, mostly derived from the U.S. constitution, and not simply to provide another arena for the pursuit of state tort claims. Section 1983 jurisprudence, therefore, is both an exercise in line-drawing between the constitution and ordinary tort, as well as in dialogue between common law and federal law.
In order to find that a constitutional claim has been properly invoked, this article asks about the triggering "liberty interest" under the due process clause. By contrast to the "liberty interest" involved in the corporal punishment in schools case, the sex abuse cases create what this article calls the Ingraham dilemma. In Ingraham v. Wright (1977), the Court recognized that paddling infringes on a school child's liberty interest. Since there was an educational purpose, however, the Court declined to find a constitutional violation. There can never be any educational justification for sexually molesting a school child. Following this reasoning to its logical conclusion, a teacher's sexual abuse of a child violates her substantive due process rights. Despite some strange reasoning on the Fifth Circuit, there is ample justification to make a federal case out of this kind of imposition. Just because "sex" is involved, moreover, that analysis does not change. Set in the context of sexual harassment, the injury's constitutional nature becomes even clearer.
The article also attempts to reconcile supervisory liability with the personal fault doctrine of Section 1983 in this context. When are school officials responsible for conduct that they knew about? There is no vicarious liability permitted under Section 1983. The article suggested a form of "notice liability" for finding a supervisor individually liable for sexual abuse by a teacher or other school official with power and authority over a student. This notice liability would require proof of personal responsibility by the supervisor. It incorporates forseeability and causation. If the supervisor has sufficient notice of the likelihood of constitutional harm, he must respond. Person liability will only be imposed on a supervisor who knew or should have known there was a problem, but did nothing to remediate. Unfortunately, in subsequent cases, the Supreme Court has not taken this route.
Keywords: Sex Abuse in Schools, Section 1983, Due Process, Supervisory Liability, Civil Rights
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