A Pennsylvania school district cannot be held liable for the bullying of a high school student by one of her peers, despite the fact that school officials re-admitted the perpetrator after she had been found delinquent and then continued to bully the victim, a federal appeals court has ruled.
The full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, expressed sympathy for the victim and her family but said that under well-established precedents they could not prevail under two distinct theories in holding the district and one of its administrators legally responsible for the bullying.
The court held 9-5 that despite compulsory education laws the school did not have a “special relationship” with its students that would give rise to a duty to protect them from harm from other students. And it ruled 10-4 that legal injuries to the victims were not the result of actions taken by administrators under a “state-created danger” theory of liability.
“Parents in [the victim’s] position should be able to send their children off to school with some level of comfort that those children will be safe from bullies,” the 3rd Circuit majority said in its lengthy June 5 decision in Morrow v. Balaski. “Nonetheless, the Constitution does not provide judicial remedies for every social ill.”
The case involves Brittany Morrow, who in early 2008 at Blackhawk High School in Beaver County, Pa., began facing bullying from a schoolmate that included “racially motivated” threats and physical assaults, court papers say. In one incident, the perpetrator attacked Brittany in the lunchroom and because Brittany defended herself, she was suspended along with her attacker.
For that and other incidents, the perpetrator was charged in juvenile court with assault, making terroristic threats, and harassment. She was adjudicated delinquent and ordered to have no contact with Brittany. The perpetrator was nevertheless allowed to return to Blackhawk High. In the fall of 2008, she allegedly boarded Brittany’s school bus and threatened her, and later elbowed her in the face at a high school football game.
The Morrows say in their suit that when they brought those incidents to the attention of school administrators, the officials suggested they might want to consider another school for their daughters. (Brittany’s sister, Emily, had also faced some bullying at the school, according to the suit.) The parents removed their daughters from Blackhawk High in October 2008. They later sued the Blackhawk school district and an assistant principal for violations of their 14th Amendment substantive-due-process rights, seeking damages that weren’t specified in the 3rd Circuit’s opinion.
A federal district court dismissed the suit, ruling that a 1992 3rd Circuit precedent that is well known in education law circles (D.R. v. Middle Bucks Area Vocational Technical School) established that there is no special relationship between public schools and their students. The district court also rejected the state-created danger theory.
Writing for the 3rd Circuit majority, Chief Circuit Judge Theodore A. McKee noted that the 1992 decision had been based on the U.S. Supreme Court’s 1989 ruling in DeShaney v. Winnebago County Department of Social Services, which held that “as a general matter, ... a state’s failure to protect an individual against private violence simply does not constitute a violation of the due process clause.”
Since then, McKee said, the Supreme Court has clarified that the DeShaney principle applies in the public school context, in dicta, or language not crucial to the decision at hand, in its 1995 decision in Vernonia School District v. Acton. That case upheld random drug testing of student athletes.
“The Supreme Court’s dictum in Vernonia as well as the consensus from our sister circuit courts of appeals both reinforce our conclusion that public schools, as a general matter, do not have a constitutional duty to protect students from private actors,” McKee said. “We know of nothing that has occurred in the 20 years since we decided Middle Bucks that would undermine this conclusion.”
As for the state-created danger theory, McKee said the Morrows’ suit seeks “to redefine clearly passive inaction as affirmative acts” by school administrators and thus must fail.
In the main dissent, Judge Julio M. Fuentes said the majority’s result was “wrong as a matter of law.”
Schools exercise more control over student’s lives today than when Middle Bucks was decided, he said, such as by monitoring students’ use of social media both inside and outside of school, and by being able to lock students in classrooms for safety reasons in the age of school shootings.
“When a state ... steps into the shoes of [the] parent, and restricts the ability of the child to defend herself from a specific threat, the state ought to be seen as incurring a narrow, concomitant responsibility to act as one would expect the child’s parents to act: to protect the child from that danger,” Fuentes said. “When a school creates an atmosphere in which serious violence is tolerated and brings no consequence, it acts in a manner that renders all students more vulnerable.”
(Hat Tip to How Appealing.)
A version of this news article first appeared in The School Law Blog.