Court re-examines suit against Covington schools

Published 3:20 pm Friday, September 30, 2011

A federal appeals court in New Orleans will hear oral arguments in a lawsuit that claims a 9-year-old girl was checked out of a south Mississippi school six times by an unauthorized man who then raped her.

The lawsuit filed in 2008 by the girl’s father and paternal grandmother said a Covington County elementary school failed to verify Tommy Keyes’ identity when he took the girl from campus in 2007 and 2008. The school district denies the accusation.

A federal judge in Mississippi dismissed the lawsuit. Then, in August, a three-judge panel of the 5th U.S. Court of Appeals reinstated it.

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In an order filed Monday and released Wednesday, the full 5th Circuit Court agreed to hear the school district’s appeal of the reinstatement. The court said oral arguments will be scheduled later.

The lawsuit said the 6-foot-2-inch Keyes allegedly signed the check-out sheet on one occasion as the girl’s mother but usually signed her father’s name.

The lawsuit said Keyes “brutally and viciously raped, sodomized and molested” the girl each time he checked her out of school. Keyes brought the girl back to school and checked her in after the alleged attacks, the lawsuit said.

The girl is listed as Jane Doe in court records. The Associated Press, which generally does not identify victims of sexual crimes, is not reporting her relatives’ names to protect the identity of the child.

Keyes, 37, was convicted of sexual battery in the assaults and has been serving a 10-year prison sentence since 2009, according to the Mississippi Department of Corrections website.

U.S. District Judge Keith Starrett dismissed the lawsuit in 2009, basing his ruling on the legal reasoning that the girl had no constitutional guarantee of protection at the school under the circumstances in this case. He also ruled that the education officials named as individual defendants in the lawsuit had immunity.

The 5th Circuit panel voted 2-1 in August to reinstate the portion of the lawsuit against the school, but not against the individual education officials. 

The primary charge in the lawsuit is that the school’s check-out policy failed to protect the girl from a predator. But much of the legal maneuvering so far has involved arguments about whether a constitutional violation occurred and whether a school can be held responsible in such a case.

At the beginning of school, guardians fill out a form in which they list people who have permission to check out a child. The lawsuit said that Keyes was not on the list of people approved to check out the girl and that school officials didn’t ask for identification to compare with the list.

Attorneys for the girl’s family have said the case would set a frightening legal precedent for parents if a court ultimately decides that an elementary school has no constitutional duty to prevent a student from leaving with an unauthorized person.

The two appeals judges who voted to reinstate the lawsuit said the school had a “special relationship” with the girl and a duty to protect her because of her young age and other factors. In a dissenting opinion, Judge Carolyn Dineen King said the school’s failure to check Keyes’ identity did not amount to a constitutional violation.

Rick Norton, an attorney for the school district, has said King’s dissent was correct.

The lawsuit sought at least $78 million in compensatory damages from the school district and other individuals and entities and at least $143 million in punitive damages. It also sought at least $200 million in damages from Keyes.