Dear Superintendent:
The Fifth Circuit Court of Appeals in Breen v. Texas A&M University issued a landmark decision involving public employees. I have attached a copy of the decision for your review.
Until Monday, the Fifth Circuit had never expressly adopted the state-created danger theory, i.e., liability can exist when the government created a dangerous environment that resulted in an individual being injured.
In fact, a different panel of judges for the Fifth Circuit expressly rejected this theory as recently as December 2006 in Longoria v. State of Texas. The Breen case centers around the Texas A&M bonfire collapse that killed 12 students and injured 27 others. The plaintiffs claimed that the University and its officials created a dangerous environment for students, and were deliberately indifferent to their safety by encouraging the unqualified and inexperienced students to build the bonfire without adequate supervision by University personnel. The plaintiffs claimed the University and its officials were liable under 42 U.S.C. § 1983 for violating the student’s substantive due process rights to bodily integrity.
The plaintiff’s Section 1983 claims were predicated on a state-created danger theory. In order to recover under a state-created danger claim, the plaintiff must show that the harm to the plaintiff resulted because (1) the defendant’s actions created or increased the danger to the plaintiff and (2) the defendant then acted with deliberate indifference toward the plaintiff.
As with any other § 1983 claim, a governmental employee is entitled to qualified immunity unless his or her conduct was objectively unreasonable in light of the clearly established law at the time of his or her actions. The clearly established law requirement ensures the defendant has fair notice that his or her conduct violates a plaintiff’s constitutional right.
In the Texas A&M case, the Court held that the state-created danger theory was not clearly established law in the Fifth Circuit at the time of the accident. Therefore, the defendants were entitled to qualified immunity.
I expect that this decision will be reconsidered by all the Fifth Circuit Justices at an En Banc hearing since there appears to be direct conflict with the Longoria opinion. However, until this opinion is vacated, you are now on notice that the Fifth Circuit has expressly adopted the state-created danger theory. This means that if an employee creates a situation that places a student, employee or community member at risk of injury, the employee can potentially be held liable under the state-created danger theory.
Potential state-created danger theories include leaving a child on a bus, allowing a child to remain in contact with a known sexual harasser, or allowing students to play on potentially dangerous playgrounds. A school district could be liable if someone is injured as a result of policy or custom.
This case warrants school districts evaluating current practices that may result in injuries to students, employees and community members. It remains to be seen how creative plaintiffs’ lawyers might seek to exploit this ruling. In any event, the Fifth Circuit has warned you.