A public high school didn’t violate the Fourteenth Amendment rights of two students when it failed to quell a bully, an en banc panel of the U.S. Court of Appeals for the Third Circuit held.
In Morrow v. Balaski, a case out of the Western District of Pennsylvania, the appeals court revisited precedent it established 20 years ago and, in a split opinion, held that it got it right the first time around.
The majority of the court in the split opinion affirmed the district court’s holding that the school’s responsibility to the students, a pair of sisters, didn’t rise to the level of a "special relationship" that would trigger a constitutional duty to protect.
When the trial court in the Western District ruled on the case, it relied on a 1992 en banc opinion from the Third Circuit in a case involving allegations of brutal sexual abuse among students in a graphic arts class. Although the appeals court characterized the facts of that case as "horrific," it held that the school couldn’t be held to a constitutional duty to protect the victim students from the aggressor students because it didn’t have a "special relationship" that would impose the duty. That opinion was captioned D.R. v. Middle Bucks Area Vocational Technical School.
"The Supreme Court’s dictum in [the 1995 case Vernonia School District 47J v. Acton] 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," Third Circuit Chief Judge Theodore McKee wrote on behalf of the majority in Morrow.
"We know of nothing that has occurred in the 20 years since we decided Middle Bucks that would undermine this conclusion," he said.
The majority looked to two U.S. Supreme Court opinions. First was the 1989 DeShaney v. Winnebago County Department of Social Services opinion, in which the high court carved out a single narrow exception to the general rule that the due process clause of the Fourteenth Amendment doesn’t obligate the government to protect individuals from each other. In DeShaney, a case where a boy who had once been removed from his father’s care by the social services system was beaten so badly by his father that he suffered brain damage, the Supreme Court created the "special relationship" exception. That exception recognizes a duty of care on the part of the state when it takes a person into custody against his or her will.
That relationship exists between the state and incarcerated or involuntarily committed citizens, but the U.S. Supreme Court hasn’t specifically addressed whether or not it would apply to the relationship between a school and its students. In the 1995 Vernonia decision, the high court ruled in a suit that alleged a school district’s policy of required drug testing for athletes violated the Fourth Amendment. McKee quoted dicta in that decision stating: "’We do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional "duty to protect."’"
The dicta is important, McKee reasoned, because "short of an actual holding on the precise issue here, it is difficult to imagine a clearer or more forceful indicator of the court’s own interpretation of DeShaney and the special relationship exception recognized there as applied to public schools."
Three years before the Supreme Court ruled in Vernonia, the Third Circuit issued its opinion in Middle Bucks while the window for interpreting the parameters of the "special relationship" in the school context was still open. With that decision, the Third Circuit forecast the Supreme Court’s thinking.
The Third Circuit ruled that Pennsylvania’s compulsory attendance laws and the school’s exercise of in loco parentis over its students while they were in the building didn’t restrain students’ liberty to such a degree that they could be considered in the custody of the state for the purposes of the Fourteenth Amendment.
"Our conclusion was largely informed by the fact that ‘parents remain the primary caretakers, despite their [children's] presence in school,’" McKee said, quoting from Middle Bucks.
"Although the doctrine of in loco parentis certainly cloaks public schools with some authority over school children … that control, without more, is not analogous to the state’s authority over an incarcerated prisoner or an individual who has been involuntarily committed to a mental facility," McKee said.
Albert Torrence, who has a law practice in Beaver County and represented the sisters and their parents, had advocated for a limited extension of the substantive due process clause of the Fourteenth Amendment to cover circumstances when the school has actual knowledge of the harm, as was the case here, he said.
The court declined to make that extension, but Torrence is considering applying for certification to the U.S. Supreme Court.
The Third Circuit’s "opinion does not come as a surprise," he said, explaining that he understood the state of the law in the circuit going into the case.
Torrence noted the court in this split opinion doesn’t seem content with its ruling. He pointed to the first sentence of the majority’s opinion: "As is so often the case, the issues in this appeal arise from unsettling facts presented by sympathetic plaintiffs." It was a sentiment repeated several times in the opinion.
Judges Dolores Sloviter, Anthony Scirica, Marjorie O. Rendell, D. Brooks Smith, D. Michael Fisher, Michael A. Chagares, Thomas Hardiman and Joseph A. Greenaway Jr. joined McKee in the majority.
Judges Julio M. Fuentes, Kent A. Jordan, Thomas I. Vanaskie and Richard Nygaard dissented.
Judge Thomas L. Ambro joined the dissent on the Fourteenth Amendment issue, but joined the majority in its denial of the sisters’ argument that the school had a duty to protect them under the state-created danger theory.
John J. Hare, of Marshall Dennehey Warner Coleman & Goggin, represented the school district along with Charles Craven, who has since retired. Hare declined to comment.
(Copies of the 83-page opinion in Morrow v. Balaski, PICS No. 13-1268, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •