Happening Today: Education Week Leadership Symposium. Learn more and register.

Courts Spurred To Rethink Schools’ Liability To Protect Students From Harm

By Mark Walsh — December 02, 1992 8 min read

SCOTTSDALE, ARIZ.--School-law experts meeting here last month say a recent decision by a federal appeals court has improved the odds that the U.S. Supreme Court will answer a question of growing concern to them: Does the U.S. Constitution impose a duty on school officials to protect students from harm?

In October, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled unanimously that, under the due-process clause of the 14th Amendment, Texas public school administrators “have a duty to protect schoolchildren from hazards of which the school officials know or should know,’' in this case from sexual abuse by a teacher.

Moreover, the court said that children harmed by such negligence have a right to sue the officials for money damages under a Reconstruction-era civil-rights law.

In reaching its decision, the Fifth Circuit Court broke with at least three other federal appellate courts on the matter, making it more likely that the High Court will agree to tackle the issue, according to participants at the annual convention here of the National Organization on Legal Problems of Education.

Most school officials hope the Court will reject the stance taken by the Fifth Circuit Court because it could expose them to expensive damage awards they can ill afford, especially in the current economic climate.

In addition, officials say they fear that a ruling that they must shield students from harm while at school will eventually give way to rulings holding them responsible for forms of harm to children that are less directly connected to schools.

“At some point, it seems that threats from violence off the streets might subject officials to individual liability,’' said Kelly Frels, a Houston lawyer whose firm represents school districts.

“If the courts open that up and use the same theory’’ to hold officials responsible for averting danger to children from sources over which they have no direct control, “this could become an enormous problem for school districts,’' said Ivan Gluckman, the director of legal services for the National Association of Secondary School Principals.

But advocates for children who claim they were harmed while at school argue that the federal civil-rights law at issue needs to be broadened to force school officials to correct or prevent constitutional violations.

“This kind of litigation is the only way we are going to be able to protect our children from the conscious indifference of school officials,’' said Brian D. East, an Austin, Tex., lawyer who is representing the alleged victim in the Texas case.

Mr. East also pointed out that a federal-court remedy is needed because most states provide some degree of immunity to school officials from state lawsuits charging negligence or other torts.

Theory of Liability

Several analysts here said a growing number of federal judges seem inclined to provide sex-abuse victims with the means to recover damages from school officials who ignore evidence of abuse.

“The courts seem to be crafting a theory of liability for these [repeated] instances of sex crimes in schools,’' said Richard Fossey, an associate professor at Louisiana State University.

The Supreme Court addressed a related issue earlier this year in its ruling in Franklin v. Gwinnett County Public Schools. In that case, the High Court held that student victims of sex discrimination, including sex abuse, can recover compensatory damages under Title IX, the federal law barring sex bias in schools that accept federal funding. (See Education Week, March 4, 1992.)

Before that ruling, few students who were sexually abused in schools and pursued their claims in federal courts had sued under Title IX, in part because it was unclear that they could collect damages.

Most chose instead to sue under Section 1983, a post-Civil War law that provides for compensatory and punitive damages to redress a violation of a person’s constitutional rights by a government official or someone acting under government sanction.

The rub for students, however, has been persuading federal judges to agree that sex abuse or another type of harm that could have been prevented by a school official violated the child’s “substantive’’ right to due process under the 14th Amendment.

Most courts have concluded that, although state laws force children to attend school, they do not create a “custodial’’ relationship between school officials and students akin to the relationship, for example, between the administrators of a state mental hospital and its patients. Thus, school officials have no duty under the U.S. Constitution to protect children from harm, these courts have held.

Recent Rulings

In at least four recent rulings, including three this year, federal appellate courts have addressed the question of public schools’ duty to protect students from harm:

  • In an Illinois case involving alleged sexual abuse of students by a teacher, the U.S. Court of Appeals for the Seventh Circuit ruled in 1990 that “the government, acting through local school administrations, has not rendered its schoolchildren so helpless that an affirmative constitutional duty to protect arises.’' The case was J.O. v. Alton Community Unit School District.
  • The U.S. Court of Appeals for the 10th Circuit reached a similar conclusion in September in a New Mexico case involving the accidental strangulation of a 5th-grade student whose bandana became caught in a school cloakroom.

A three-judge panel in the case, Maldanado v. Josey, split 2 to 1 on the issue of a school’s duty to protect children. The dissenting judge held that “a child legally required to attend school and, thereby, forced into the temporary daytime custody of the state’s agents is constitutionally entitled to some level of protection from harm and care for basic safety.’'

  • The full U.S. Court of Appeals for the Third Circuit ruled 7 to 5 in August that, because Pennsylvania’s compulsory-attendance law does not create a custodial relationship between school officials and students, the officials were not liable for failing to protect two female students from alleged sexual assaults by male students at a vocational school.

The dissenting judges in D.R. v. Middle Bucks Area Vocational Technical School said that a special relationship requiring a duty of protection did arise because of the compulsory-attendance law, the power of schools to control student behavior, and the low maturity level of the majority of students.

The D.R. decision has been appealed to the Supreme Court.

  • In October, the Fifth Circuit Court reached the opposite conclusion of the three other appellate courts.

In Doe v. Taylor Independent School District, the court held 3 to 0 that compulsory-attendance laws place schoolchildren in the “functional custody’’ of school officials during school hours.

“Parents, guardians, and the children themselves have little choice but to rely on the school officials for some measure of protection and security while in school and can reasonably expect that the state will provide a safe school environment,’' the court said.

“To hold otherwise would call into question the constitutionality of compulsory-attendance statutes,’' the court said, “for we would be permitting a state to compel parents to surrender their offspring to the tender mercies of school officials without exacting some assurance from the state that school officials will underake the role of guardian that parents might not otherwise relinquish, even temporarily.’'

David Feldman, a Houston lawyer representing the Taylor school district, said last week that the Fifth Circuit Court’s decision would be appealed to the High Court within a matter of days.

High Court’s View

The Supreme Court has not ruled directly on whether schools have a constitutional duty to protect students from harm.

But in a 1989 case that was watched closely by educators, the Court held that the 14th Amendment’s due-process clause does not impose an affirmative duty on the state to protect its citizens. However, when the state enters into a “special relationship’’ with citizens by restraining their freedom to act in their own behalf, it may be held liable for failing to protect them from injury.

Such relationships exist between the state and prisoners or institutionalized mental patients, the Court held in DeShaney v. Winnebago County Department of Social Services.

In that case, the High Court rejected a Section 1983 claim against a county agency for brain damage suffered by a child while in his father’s custody after the child-protection agency received reports that the child was being abused by the man.

The Court found no “special relationship’’ in the DeShaney case because the boy was not in the agency’s custody when the injuries occurred. The Court hinted, however, that a foster-care situation might create such a relationship.

Several lawyers say there is a strong chance the High Court will review either the Pennsylvania or the Texas sex-abuse cases in order to resolve the conflict among the appeals courts.

Mr. Feldman, the lawyer for the school district in the Texas case, said districts want to see the Fifth Circuit Court’s ruling reversed for several reasons.

The recent Title IX case, Franklin v. Gwinnett County, “is adequate to cover the waterfront’’ for victims of sexual abuse in schools, he said. “Under Section 1983, there is going to be greater liability [for schools] because of punitive damages.’'

The ruling in the Taylor case also would make it more difficult for school officials to win summary dismissal of civil-rights lawsuits based on sovereign-immunity doctrine, Mr. Feldman said.

Thomas B. Rutter, a Philadelphia lawyer who represents the alleged victims in the D.R. case and who agrees that High Court review is likely, notes that the four cases have resulted in a 12 to 9 split among appeals court judges over the duty-to-protect question.

“This is an issue of great importance to schools and children,’' Mr. Rutter said. “The fear of financial loss often causes administration to change behavior.’'

A version of this article appeared in the December 02, 1992 edition of Education Week as Courts Spurred To Rethink Schools’ Liability To Protect Students From Harm