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Teacher Not Liable in Sex Between Special Education Students

A Washington state teacher did not violate the due-process rights of a student with developmental disabilities who had sexual encounters in a bathroom with another special education student, a federal appeals court has ruled.

The unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, came in a case in which a mother alleged that the teacher and other school officials failed to protect the 16-year-old female student, identified as A.H.

The student, who has mild mental retardation, had an individualized education plan that required she be supervised at all times she was out of her classroom, in part because of past incidents in which male students had sent her e-mails with graphic sexual references and urging her to take money from her mother's purse.

During A.H.'s sophomore year at Kentridge High School in the Kent, Wash., school district, her teacher began allowing her to use a nearby bathroom. On two occasions, the girl had sex in the bathroom with a male classmate who also had a developmental disability, court papers say.

A.H.'s mother sued the Kent school district, its officials, and the teacher, Francine Wilhelm, under state-law claims such as negligence and failure to protect, and brought a federal civil rights claim against the teacher alleging a violation of A.H.'s 14th Amendment due-process right to bodily integrity by failing to supervise the girl's trips to the bathroom.

A federal district court granted qualified immunity to the teacher, and in a July 11 decision in Patel v. Kent School District, the 9th Circuit court upheld the district court.

The 14th Amendment does not impose a duty on the state to protect an individual from a third party, the court said, unless one of two exceptions applies: when a special relationship exists between the state and the individual, or when the state affirmatively places the individual in danger by acting with deliberate indifference to a known or obvious danger.

Neither exception applied to A.H.'s case, the court said. Joining at least seven other federal circuit courts of appeals, the 9th Circuit panel said compulsory attendance at public school did not create a custodial relationship between the student and the state.

"While we certainly have sympathy for [the mother's] position as a concerned and caring parent, we decline to depart from this persuasive authority," the court said. "Compulsory school attendance and in loco parentis status do not create 'custody' under the strict standard" of the U.S. Supreme Court's 1989 decision in DeShaney v. Winnebago County Department of Social Services.

As to the state-created danger exception, the court said the record did not support a finding that A.H.'s teacher acted with deliberate indifference in failing to supervise her bathroom visits.

"This would be a different case if Wilhelm had known A.H. was about to enter the bathroom with [the male student] or otherwise be alone with him, yet then stood idly by," the court said. "To the contrary, Wilhelm had monitored the developing situation between the two students, and once even rushed out of her classroom to prevent a possible incident between them."

The 9th Circuit noted that the mother could still pursue her state-law claims in the Washington state courts.

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