Public school has no constitutional duty to protect students from abuse by fellow students under conditions alleged. School has no "special relationship" with students giving rise to constitutional duty to protect them from harm from other students.

High school students Brittany and Emily Morrow and their parents Bradley and Diedre Morrow brought this action against Blackhawk School District and Blackhawk High School's Assistant Principal, Barry Balaski, claiming Brittany and Emily were verbally, physically and emotionally tormented by a fellow student who was adjudicated delinquent based on her actions against the Morrow sisters. When the Morrows requested that the defendants do something to protect Brittany and Emily from the persistent harassment and bullying, school officials responded by suggesting that the Morrows consider moving to a different school rather than removing the bully from the school. The Morrows ultimately removed their children from their school due to ongoing harassment by the fellow student. Thereafter, the Morrows brought suit alleging that school officials denied them substantive due process under the Fourteenth Amendment by not protecting Brittany and Emily.

The District Court dismissed the complaint based on the reasoning set forth in its earlier decision in D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992) (en banc). There, the court concluded that a school did not have a "special relationship" with students that would give rise to a constitutional duty to protect them from harm from other students given the alleged facts. After analyzing subsequent decisions issued by other Circuits in the interim, The Third Circuit affirmed the District Court's decision and held that the allegations of the plaintiffs failed to establish any special relationship or that a "state-created danger" caused the harassment of the Morrow sisters. A special relationship did not arise from compulsory school attendance laws or the in loco parentis authority and discretion that schools necessarily exercise over students, nor from the school's failure to do more to protect the sisters. The Third Circuit also rejected the plaintiffs' claims under the "state-created danger" theory, and which, if proven, can impose an affirmative duty to protect if the state's own actions create the very danger that causes the plaintiff's injury. The school's actions (or inaction) in disciplining the harassing student did not amount to affirmative conduct, and the school certainly did not give the harassing student authority to harass or bully the Morrow children. The requirement of an actual affirmative act "is not intended to turn on semantics of act and omission. Instead, the requirement serves to distinguish cases where officials might have done more from cases where officials created or increased the risk itself."

Case Law Alerts, 3rd Quarter 2013