                               REVISED
              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                          No. 94-50709




JOHN DOE, as Next Friend of
Jane Doe, a Child,
                                          Plaintiff-Appellee,

                               versus

HILLSBORO INDEPENDENT SCHOOL
DISTRICT, ET AL,
                                         Defendants,
LARRY ZABCIK; JAMES MAASS; TERESA DAVIS;
NORMAN BAKER; RICHARD SEWALL; BILLY SULLINS;
LEON MURDOCH,
                                         Defendants-Appellants.




          Appeals from the United States District Court
             for the Western District of Texas, Waco


                          May 27, 1997
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA,
DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     The custodian of the Hillsboro Independent School District

raped a 14-year-old eighth grade student in an empty classroom.

The student through her parents filed this lawsuit under 42 U.S.C.

§ 1983 asserting deprivations of constitutional rights and seeking

money damages for this assault from the Hillsboro Independent
School District, as well as its trustees and present and past

superintendents in their individual capacities. The district court

denied motions to dismiss filed by the individual defendants under

Rule 12(b)(6).    This appeal of the district court’s denial of

qualified immunity followed.1     A divided panel of this court

affirmed.   We took the case en banc and now reverse.

     We conclude that no claim was stated under 42 U.S.C. § 1983

against the individual defendants and that their motions to dismiss

should have been granted.



                                 I

     The motions to dismiss targeted the amended complaint.      It

read in relevant part:

     5. Jane Doe is a minor child who was, at the time of the
     events described, thirteen (13) years old. 6. Near the
     end of the 1992-1993 School Year (sometime in May of
     1993), Jane Doe was kept after school to do special work
     on her studies . . . . 7. Jane Doe stayed after school
     . . . . 8. Jane Doe did her studies for a while, but was
     asked, by a teacher, to go upstairs in the school
     building to retrieve some supplies for the teacher. Jane
     Doe did. 9. When she went upstairs, a black male school
     district employee, then acting as a custodian, trapped
     Jane Doe in an empty classroom, and raped her.        The
     school employee also physically assaulted Jane Doe in the
     course of the rape causing her bodily injury different
     from the sexual assault.     10. Jane Doe did not tell
     anyone what had happened to her until the following
     Christmas holidays — when it became apparent that Jane
     Doe was pregnant.    Jane Doe then told her mother and
     father what had happened. 11. The rapist was arrested,
     and pleaded guilty. 12. Jane Doe had a healthy baby boy

     1
        The individual defendants have also appealed the district
court’s denial of their motions to dismiss claims under Title IX,
20 U.S.C. §§ 1681-1688. Like the panel, we do not read the amended
complaint as attempting to state a Title IX theory against the
individual defendants.

                                 2
      in March of 1994 at fourteen (14) years of age . . . .
      19. Other members of the maintenance staff have, on
      information and belief, convictions for murder, armed
      robbery, cruelty to animals, failure to ID-Fugitive,
      unlawful weapons possession, multiple DWI, and drug
      offenses . . . . 21. The Hillsboro Independent School
      District . . . warned new employees to “stay away from
      the little girls.”

      Plaintiffs contend that the individuals sued here are liable

under two distinct theories.           First, plaintiffs urge that “the

amended complaint states a claim for liability based on the custody

of   Jane   Doe,    whereby    she   was    owed   some   minimum    degree   of

protection,”       matching   “the   contours      of   liability”   that   were

outlined in DeShaney v. Winnebago County Dept. of Social Services,

489 U.S. 189 (1989).          Second, plaintiffs would bring themselves

within our decision in Doe v. Taylor Indep. School Dist., 15 F.3d

443 (5th Cir.) (en banc), cert. denied, 115 S. Ct. 70 (1994).                 As

we will explain, these theories offer plaintiffs no comfort.



                                       II

                                       A

      In DeShaney v. Winnebago County Dept. of Social Services, the

Supreme Court rejected the contention that government owes a

constitutional duty to protect people from the misdeeds of other

private actors, in the absence of a special relationship.              We have

not accepted the argument that school compulsory attendance laws

create such a special relationship between student and school.                In

Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995)(en banc), we

refused to find a special relationship between a state school for

deaf children and its students who were residents in the school

                                       3
where they slept and took their meals.          It is true that attendance

at the school was not required by state law, and we emphasized the

absence of this legal compulsion.           It is equally true that poor

students may have had no real alternatives. The year before Walton

we held that, whatever the effect of compulsory attendance, it

ended when compulsory attendance ended.           Leffall v. Dallas Indep.

School Dist., 28 F.3d 521, 529 (5th Cir. 1994)(“[E]ven though

Steadham may have been compelled to attend school during the day,

any   special   relationship   that       may   have   existed   lapsed   when

compulsory attendance ended.”).       See also Johnson v. Dallas Indep.

School Dist., 38 F.3d 198 (5th Cir. 1994), cert. denied, 115 S. Ct.

1361 (1995).2

      We decline to hold that compulsory attendance laws alone

create a special relationship giving rise to a constitutionally

rooted duty of school officials to protect students from private

actors.   Much has been written about this issue, and we will not

pause to rehearse fully the arguments again.           See Seamons v. Snow,

84 F.3d 1226, 1236 (10th Cir. 1996); Sargi v. Kent City Bd. of

Educ., 70 F.3d 907, 911 (6th Cir. 1995); Dorothy J. v. Little Rock

School Dist., 7 F.3d 729, 732 (8th Cir. 1993); D.R. by L.R. v.

Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1368-73 (3d Cir.

      2
         In Texas, a child must attend each school day, which is
defined as at least seven hours. The child must attend for the
time the “program of instruction” is provided. See Tex. Educ. Code
Ann. §§ 25.082 and 25.083.      A child who fails to stay after
completion of the program of instruction does not violate
compulsory attendee laws. The application of the statute in this
case is not certain.      We are not prepared to say under the
pleadings that Jane Doe was not in the school at the time of the
assault under compulsion of state attendance laws.

                                      4
1992) (en banc), cert. denied, 113 S. Ct. 1045 (1993); J.O. Alton

Community Unit School Dist. 11, 909 F.2d 267, 272 (7th Cir. 1990).

We join every circuit court that has considered the issue in

holding that compulsory school attendance, in Texas to attend seven

hours of programmed education on each school day, does not create

the   custodial     relationship   envisioned     by     DeShaney.        The

restrictions imposed by attendance laws upon students and their

parents are not analogous to the restraints of prisons and mental

institutions.     The custody is intermittent and the student returns

home each day.     Parents remain the primary source for the basic

needs of their children. Finally, we find helpful the rationale of

the Supreme Court’s decision in Ingraham to deny school children

the protections of the Eighth Amendment:

      The school child has little need for the protection of
      the Eighth Amendment. Though attendance may not always
      be voluntary, the public school remains an open
      institution. Except perhaps when very young, the child
      is not physically restrained from leaving school during
      school hours; and at the end of the school day, the child
      is invariably free to return home. Even while at school,
      the child brings with him the support of family and
      friends and is rarely apart from teachers and other
      pupils who may witness and protest any instances of
      mistreatment.

Ingraham v. Wright, 430 U.S. 651, 670 (1977).          Refusing to create

a whole new class of constitutional rights does not leave the

student without legal protection. A review of our recent decisions

alone makes that clear. There are concerns pointing in a different

direction.    See Johnson, 38 F.3d 198, 203 n.7 (5th Cir. 1994).           To

say   that   compulsory   attendance   laws   restrict    the   freedom   of

students and parents in significant ways, however, is not to say


                                   5
that this status of students is sufficiently akin to that of

prisoners and persons committed to mental institutions to trigger

a constitutionally rooted duty.

                                    B

     Nor   does   a    state-created-danger   theory   save   plaintiffs’

claims.    Its narrow compass is reflected by the reality that we

have never sustained liability on this ground.            In Johnson we

observed that “[t]he environment created by the state actors must

be dangerous; they must know it is dangerous; and, to be liable,

they must have used their authority to create an opportunity that

would not otherwise have existed for the third party’s crime to

occur."    38 F.3d at 201.     See also L.W. v. Grubbs, 974 F.2d 119

(9th Cir. 1992) (assault of nurse working with known sex offender

under directive of state supervisor), cert. denied, 113 S. Ct. 2442

(1993); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989) (woman

raped when police impounded car of drunk driver leaving her in high

crime area), cert. denied, 498 U.S. 938 (1990);        White v. Rochford,

592 F.2d 381 (7th Cir. 1979) (children left by police officers

alone in car after arresting driver).         Viewed in the light most

favorable to the plaintiffs, the school district placed the student

in the same area as a school custodian who had no known criminal

record, sexual or otherwise, with school teachers in the same

building but not in the immediate area.        This will not trigger a

duty under a state-created-danger theory, even if we were to adopt

such a theory.        Such post hoc attribution of known danger would

turn inside out this limited exception to the principle of no duty.


                                    6
                                     III

     Plaintiffs do not urge that the custodian acted under color of

state law.     Rather, they assert that the defendants breached a

constitutional duty in failing to protect the child from the rape

by the janitor.      The argument is that the defendants are liable if

there was a “pattern of events that would give some warnings"; that

Jane Doe’s pleadings set forth facts that were known, or “learned”

(“‘fondling students, voyeurism, and the like’; warnings to the

custodians to ‘stay away from the little girls’”).                The argument

continues that “although the predictors do not point to specific

prior incidents of sexual abuse of a specific student, they do

point plainly toward the dangerous combination of crime, sex and

violence."     The reliance upon Doe v. Taylor concludes with the

assertion    that    the    individual     defendants      were   deliberately

indifferent to these risks by not conducting an adequate check of

employees’ backgrounds.

     Unlike Doe v. Taylor, in which a school employee acted under

color of state law, this case requires us to locate the primary

constitutional wrong in the board and school officials.                      The

Supreme Court has recently indicated that municipal authorities can

be liable under § 1983 if a hiring decision “reflects deliberate

indifference    to    the   risk   that    a   violation    of    a   particular

constitutional or statutory right will follow the decision.” Board

of the County Commissioners of Bryan County v. Brown, ___ S. Ct.

___, ___, 1997 WL 201995, at *9 (Apr. 28, 1997).


                                      7
     The Bryan County Court declined to announce a bright-line rule

that municipal officials can never be liable under § 1983 for an

isolated hiring decision that neither constitutes nor directs a

violation of federal law.    See id. at ___, 1997 WL 201995, at *10.

But the Court warned that liability in such cases will necessarily

be rare: “Only where adequate scrutiny of an applicant’s background

would lead a reasonable policymaker to conclude that the plainly

obvious consequences of the decision to hire the applicant would be

the deprivation of a third party’s federally protected right can

the official’s failure to adequately scrutinize the applicant’s

background constitute ‘deliberate indifference.’” Id. at ___, 1997

WL 201995, at *9.   See also City of Canton v. Harris, 489 U.S. 378,

389 (1989) (“[A] municipality can be liable under § 1983 only where

its policies are the ‘moving force [behind] the constitutional

violation.’” (citing Monnell v. New York City Dept. of Social

Services, 436 U.S. 658, 694 (1978))); Gonzalez v. Ysleta Indep.

School Dist., 996 F.2d 745, 760-62 (5th Cir. 1993) (finding the

evidence insufficient to establish deliberate indifference where a

school district failed to terminate a teacher with a history of

abusing students sexually).

     In Bryan County, a police officer used excessive force in

extricating a suspect from her vehicle.      The plaintiff’s claim of

deliberate    indifference   in   hiring,   then,   was   coupled   with

underlying conduct under color of state law.         In this case, by

contrast, the janitor did not act under color of state law in

raping Doe.     Under the facts alleged by Doe, there can be no


                                   8
recovery even if the janitor were acting under color of state law.

When the district court afforded Doe the opportunity to amend his

complaint,       he   could    not    even    allege     that       the   custodian   who

assaulted his daughter either had a prior record of violent crime

or   previously       had    been    reported    to    the    officials      for   sexual

misbehavior towards students.             Even in the context of resisting a

Rule    12   motion     to    dismiss,       plaintiffs       have    demonstrated     an

inability to show a nexus between any failure to check criminal

background and this assault.

       The duty articulated in Bryan County does not detract from

DeShaney’s general rule that municipalities have no duty to protect

citizens from the private actions of fellow citizens.                       Recognizing

a    potential    for   §     1983    liability       based    on    egregious     hiring

decisions does not entail endorsement of the view that defendants

such as the Hillsboro Independent School District have a duty to

protect students from threats from other sorts of third parties.

                                         IV

       Plaintiffs have stated no claim against these individuals.

The denial of the motions to dismiss is reversed.                           The case is

remanded with instructions to enter judgments for the defendants in

their individual capacities and for further proceedings consistent

with this opinion.

       REVERSED and REMANDED.



EDITH H. JONES, Circuit Judge, with whom SMITH, Circuit Judge,

joins, specially concurring:


                                             9
             I am pleased to concur in Judge Emilio M. Garza’s special

concurrence.       I also concur in the majority opinion, which, like

every other federal circuit, rejects the plaintiff’s claim that

compulsory school attendance laws give rise to a constitutional

special relationship between a student and the school. The special

relationship      doctrine      has     been   inferred    from    the   Fourteenth

Amendment due process clause and currently protects those in

involuntary state custody, i.e. prisoners and the mentally ill or

retarded, from mistreatment by third parties.                Absent intervention

by    the   Supreme    Court,    no     such   special    relationship        protects

children     in   public     schools     under    compulsory      attendance     laws.

Elsewhere I have noted the incongruity and shallow logic underlying

the distinction between children in public schools and those who

are    involuntarily         confined     full-time.         Johnson     v.     Dallas

Independent School Dist., 38 F.3d 198, 203 n.7 (5th Cir. 1994).

Nevertheless, I concur in this en banc outcome not because the

legal distinction has suddenly become persuasive but because there

is no realistic alternative.            The Constitution does not compel our

intervention, and there is no assurance that creating a whole new

class of constitutional protections for public school children

would be a successful undertaking. A generation of judicial social

engineering       in   the   prisons     and     state-run   institutional        care

facilities has produced dubious results that counsel judicial

humility.     Thus, while I remain outraged and saddened that public

schools too often fail shockingly to take steps necessary to insure

the students’ safety, emotion must give way to reason. Reform must


                                          10
be   instituted   and   guided   by    our   people   and   their   direct

representatives, not by court decrees.




ENDRECORD




                                      11
JACQUES L. WIENER, Jr., Circuit Judge, with whom POLITZ, Chief

Judge, and BENAVIDES and DENNIS, Circuit Judges, join, specially

concurring.




     Despite having written the panel majority opinion which was

automatically vacated when we voted to rehear this case en banc, I

nevertheless concur in the opposite result reached in the foregoing

en   banc    majority     opinion     and    in     virtually      all   of     its

pronouncements.         More specifically, I concur in the majority

opinion’s     analysis    of    (1)   the    doctrine       of   “special     state

relationship”      in   section    IIA.,    (2)   the   “state-created-danger

theory” in section IIB., and (3) the theory of public school

supervisors’ liability, in section III, for their own “deliberate

indifference” to the rights of public school students to be free

from violation of their bodily integrity as guaranteed by the

Constitution —— as far, that is, as section III’s analysis goes.

But I am constrained to write this short special concurrence in

light   of   the   hiatus   I     discern   in    section    III’s   “deliberate

indifference” analysis.

     The introductory paragraph of section III quotes portions of

the plaintiff’s amended complaint that list post-hiring occurrences

allegedly known or learned —— but disregarded —— by school and

school board officials.         Inexplicably, though, the majority then

implicitly characterizes the plaintiff’s reliance on Doe v. Taylor

ISD as complaining only of the supervisors’ deliberate indifference

in not conducting adequate pre-hiring background checks.                    In like
manner,    the    remainder     of    section       III   discusses   and   analyses

“egregious hiring decisions”3 and the absence of a legal “duty to

protect students from threats of other sorts of third parties,”

without ever addressing the supervisors’ alleged disregard of post-

hiring reports.

     Although I am in complete agreement with that part of section

III which insists that in the public school context the theory of

deliberate       indifference        does    not    impose    on   supervisors    an

affirmative or active “duty to protect,” I am puzzled by the

majority opinion’s failure to mention, much less discuss, the

potential liability of public school supervisors for breach of the

negative or passive duty not to be deliberately indifferent to

post-hiring reports and complaints of misconduct that presages

violations of students’ constitutional rights of bodily integrity.

Doe v. Taylor ISD makes clear that the obligation of public school

supervisors not to be deliberately indifferent to such harbingers

of harm is not grounded in an active duty to protect while at the

same time recognizing the existence of a passive duty not to ignore

or disregard such clear predictors of impending constitutional

violations.       The failure of today’s majority opinion to address

this aspect of deliberate indifference, choosing instead to discuss

only the pre-hiring background check manifestation of deliberate

indifference, creates the hiatus to which I refer.

     I concede that, like his inability to amend the complaint to

allege    facts    constituting       a     nexus   between   alleged   pre-hiring

     3
          Emphasis added.

                                            13
deficiencies and Miss Doe’s rape, the plaintiff also found it

impossible to allege facts constituting a sufficient nexus between

the rape of his daughter and the school supervisors’ purported

gross disregard of post-hiring reports and complaints of sexual

misconduct    by   members   of    the     school’s    custodial      staff.   The

bothersome void in the majority opinion’s analysis, though, is its

total failure to discuss the facet of supervisory liability for

breach of the passive or negative duty not to ignore reports of

such misconduct and the potentiality for liability of supervisors

whose deliberate indifference can be shown to provide the required

nexus with the violation of a student’s constitutional right.

     This hole in the analysis is easily filled by observing that

nothing in the majority opinion stands for the proposition that

cognizant public school supervisors enjoy per se immunity from

liability    for    breach   of    their      duty   not   to    be   deliberately

indifferent —— whether in pre-hiring background checks or in post-

hiring attention to egregious behavior —— when such indifference is

shown to have a real nexus with a violation of a student’s bodily

integrity by a third party.          In other words, nothing in today’s

majority opinion lessens or curtails the ability of the law to

conclude that public school supervisors, as state actors, are the

actual perpetrators of the violation of a student’s constitutional

right   to   bodily      integrity    when      evidence    is    sufficient    to

demonstrate that there is a “real nexus” between the violation

suffered     by    the   student     and      such    supervisors’      deliberate

indifference to reports or complaints of abuse.                 As to this aspect


                                         14
of   the   instant   case,   all   that    our   rehearing   en   banc   has

demonstrated is that this particular plaintiff found it impossible

to allege facts upon which the law could thus deem the Hillsboro

school supervisors to be the actual perpetrators of Miss Doe’s

violation by virtue of their deliberate indifference to her rights,

either in hiring the school custodians or in not heeding reports of

miscreant behavior, regardless of whether the rapist was or was not

acting under color of state law.         With this one gap thus bridged,

I concur.



ENDRECORD




                                    15
EMILIO M. GARZA, Circuit Judge, with whom JONES and SMITH, Circuit

Judges, join, specially concurring:



     I concur in the excellent opinion of Judge Higginbotham.    I

write separately to clarify that my concurrence should not be

construed as an acceptance of the holding of Doe, 15 F.3d 443 (5th

Cir.) (en banc), cert. denied, 513 U.S. 815, 115 S. Ct. 70, 130 L.

Ed. 2d 25 (1994), that rape or sexual abuse is a violation of the

right to bodily integrity under the Fourteenth Amendment.

     As I explained in my dissent to the panel opinion, Doe, 81

F.3d 1395, 1408 n.2 (5th Cir. 1996) (Garza, J., dissenting), though

I am bound by Fifth Circuit precedent,4 the Supreme Court has yet

to rule on whether the right to bodily integrity includes the right

to be free from rape or sexual abuse.    See Planned Parenthood v.

Casey, 505 U.S. 833, 849, 112 S. Ct. 2791, 2806, 127 L. Ed. 2d 352

(1994) (citing cases defining contours of substantive due process

right to bodily integrity, including cases involving abortion,

contraception, marriage and procreation).      Taylor troubles me

because we failed to heed the Supreme Court’s admonition, stated on

several occasions, that it “has always been reluctant to expand the

concept of substantive due process because the guideposts for

     4
          Only one other circuit has definitively held that the
substantive due process right to bodily integrity includes the
right to be free from rape or sexual abuse.      See Stoneking v.
Bradford Area Sch. Dist., 882 F.2d 720, 727 (3d Cir. 1989) (“[A]
student’s right to bodily integrity, under the Due Process Clause,
[encompasses] a student’s right to be free from sexual assaults by
his or her teachers.”), cert. denied, 493 U.S. 1044, 110 S. Ct.
840, 107 L. Ed. 2d 835 (1990); cf. Doe By and Through Doe v.
Petaluma City Sch. Dist., 54 F.3d 1447, 1451 (9th Cir. 1995)
(citing Taylor, 15 F.3d 443, with approval but as inapplicable to
the case before the court).
reasonable decisionmaking in this unchartered area are scarce and

open-ended.”   Collins v. City of Harker Heights, Tex., 503 U.S.

115, 125, 112 S. Ct. 1061, 1068, 117 L. Ed. 2d 261 (1992); see also

Albright v. Oliver, 510 U.S. 266, 271-72, 114 S. Ct. 807, 812, 127

L. Ed. 2d 114 (1994) (quoting Collins, 503 U.S. at 125, 112 S. Ct.

at 1068).

     Recently, the Sixth Circuit, sitting en banc, commented on our

conclusion that the right to bodily integrity includes the right to

be free from sexual assault.   The court stated:

     All of these civil decisions, rather than pointing to
     precedent establishing the right, make assertions such
     as: “surely the Constitution protects a schoolchild from
     physical abuse . . . by a public schoolteacher,” Doe v.
     Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir.
     1994) (en banc); or “the notion that individuals have a
     fundamental substantive due process right to bodily
     integrity is beyond debate,” Walton v. Alexander, 44 F.3d
     1297, 1306 (5th Cir. 1995) (Parker, J., concurring).
     These broad statements are not supported by precedent
     indicating that a general constitutional right to be free
     from sexual assault is part of a more abstract general
     right to “bodily integrity.”

United States v. Lanier, 73 F.3d 1380, 1388 (6th Cir. 1996) (en

banc) (concluding that “sexual assaults may not be prosecuted as

violations of a constitutional substantive due process right to

bodily integrity” under 18 U.S.C. § 242), vacated, __ U.S. __, 117

S. Ct. 1219, 137 L. Ed. 2d 432 (1997).    Since the Supreme Court

held in Lanier that the court of appeals applied an incorrect

standard in determining whether prior judicial decisions gave fair

warning that Lanier’s actions violated constitutional rights and

remanded the case for application of the proper standard, we will




                               -17-
have to wait for another day for guidance from the Court in this

area.




                              -18-
