Court dismisses all but civil rights claims from the suit of a student with disabilities who was sexually assaulted by a school custodian

The son of David and Melinda Cooper attended South Brunswick High School. During the 2005–6 and 2006–7 school years, Collis Hewett, a custodian employed by the Brunswick County Board of Education, sexually molested him. Hewett removed the boy from class with written permission from the school’s main office and then molested him in the custodial closet. He was discovered when surveillance video caught him taking the boy into the closet. Hewett pled guilty to seven counts of sex offense and is incarcerated at the time of this publication.

The Coopers filed suit against the board alleging federal civil rights claims under 42 U.S.C. § 1983 as well as various other federal and state claims. The board moved to dismiss the Coopers’ claims before trial.

The federal court for the Eastern District of North Carolina allowed the Section 1983 claims but dismissed all the others.

The Coopers alleged that the board violated their son’s constitutional rights to (1) be free from sexual assaults, (2) receive educational services (when the custodian removed him from class), and (3) receive educational services in an open and safe environment. These rights are cognizable claims under Section 1983, the court began. However, the Fourth Circuit has held that under Section 1983 a school board cannot be held liable for the safety of its students unless a “special relationship” exists. The court in this case found that the Coopers had alleged sufficiently special circumstances to justify taking these claims to trial: the board, by giving Hewett written permission to remove the Coopers’ son from the classroom, may have created a danger from which they had a duty to protect him.

The court did grant the board’s motion to dismiss the state law claims because of sovereign immunity. The court also dismissed the Coopers’ state constitutional claims, finding that although their state law tort claims were barred by immunity, they still constituted available state law remedies sufficient to prohibit claims brought directly under the state constitution. [Editor’s note: this opinion was issued slightly more than a month before the N.C. Supreme Court’s ruling in Craig v. New Hanover County Board of Education, digested under the heading "Where county school board did not waive immunity from suits involving sexual abuse, student may bring claim directly under the state constitution," also posted February 2010.]  As to the rest of the federal law claims, the court found that the Coopers had failed to allege facts sufficient to allow them to go to trial.