Whether the state-created danger doctrine, unanimously recognized by ten federal circuits, constitutes a clearly established right under the Fourteenth Amendment such that public school officials may be held liable under 42 U.S.C. § 1983 for deliberately leaving a disabled student alone with a student with a documented history of sexual misconduct, resulting in sexual assault

No question identified. : 3. This case concerns an important issue: Whether the state-created danger doctrine was “clearly established” when ten circuits unanimously recognized the doctrine, and whether the doctrine should be clearly established going forward. 4. In 2019, M.F. was thirteen years old and a public school student in the Fort Bend Independent School District. M.F’. has several cognitive and physical disabilities, and she has the cognitive ability of a fouror five-year-old. She attended school under an Individualized Education Program (IEP) that was designed, among other purposes, to ensure her safety. Also attending M.F’.’s school was R.R., a student with a well-known and documented history of severe behavioral problems, including repeated sexual misconduct. Despite her IEP, M.F. was left alone with R.R. and was sexually assaulted. The school district was aware of the assault almost immediately after it occurred. Two months after that first assault, M.F. was once again left alone at the same time that R.R. was allowed to wander the school alone. While M.F. was in the girls’ bathroom, R.R. entered the bathroom, climbed under the stall, and sexually assaulted M.F. again. After an investigation, the Texas Education Agency found that the Fort Bend Independent School District violated both M.F.’s and R.R.’s IEPs. 5. Applicant filed suit on M.F.’s behalf under 42 U.S.C. § 1983, alleging several school officials and the school district created or increased a danger to M.F. and acted with deliberate indifference in violation of the Fourteenth Amendment. Believing they were entitled to qualified immunity, the individual defendants moved to dismiss. The district court denied the motion, but, on interlocutory appeal, the Fifth Circuit reversed and dismissed the suit. The Fifth Circuit found that the individual defendants were entitled to qualified immunity because “the state-created danger theory of liability was not clearly established in [the Fifth Circuit].” Slip. op. at 6-7. 6. The Fifth Circuit recognized that “a majority of [its] sister circuits had adopted the state-created danger theory of liability in one form or another,” but rejected the notion that “the mere fact that a large number of courts had recognized the existence of a right to be free from state-created danger” could render the rule clearly established. Slip op. at 9-10. The court found that the defendants were entitled to qualified immunity, but the court did not directly adopt or refute the state-created danger theory of liability. The court noted that while “the state-created danger doctrine is not clearly established in our circuit, we have not categorically ruled out the doctrine either,” slip op. at 8, leaving the overarching question of whether the state-created danger doctrine exists in the Fifth Circuit unanswered. 7. Judge Wiener concurred in the decision, but “disagree[d] with [the court’s] refusal to rehear this case en banc and join the ten other circuits that have now adopted the state-created danger cause of action.” Slip op. at 14. Judge Wiener noted it was “well past time for this circuit to be dragged screaming into the 21st century by joining all those other circuits that have now unanimously recognized the state-created danger cause of action.” Id. 8. Judges Higginson and Douglas, joined by Judges Stewart, Elrod, Haynes, and Graves, filed an opinion dissenting from the denial of rehearing en banc.' The ' Judge Wiener was on the three-judge panel but not eligible to vote on whether to take this case en banc, due to his Senior status. See Slip op. at 15 n.1; see also Fisher v. Moore, dissenting judges noted that the Fifth Circuit’s refusal to take the case en banc, despite ten other circuits definitively recognizing a state-created danger doctrine, “is a disservice to injured plaintiffs who are forced to litigate in endless uncertainty about their federal rights.” Slip op. at 15. The dissent also advised that “(litigants should continu