Take it or Leave it: Court Says Students Must Endure Bullying or Switch Schools

Beginning in 2008, two female students at Blackhawk High School in Chippewa, Pennsylvania were subjected to a series of threats and physical assaults by a fellow female student.  The assaults included an attempt to throw one of the girls down a flight of stairs.  Both girls were threatened and struck in the neck.  The parents of the two victims turned to school officials for help.  
School officials relayed the instances of aggression to authorities, and the perpetrator was eventually charged in juvenile court with assault, making terroristic threats, and harassment.  After being adjudicated delinquent and ordered to have no further contact with the victim-students, the aggressor was allowed to return to Blackhawk High.  The bullying continued.  The parents of the two victim-students brought the continued bullying to the attention of school officials.  The officials suggested that the parents consider another school for their daughters.  The parents removed their daughters from the school and subsequently sued the Blackhawk school district and an assistant principal for violations of their 14th Amendment substantive-due-process rights.  A ruling on the case, Morrow v. Balaski, was issued on June 5, 2013 by an en banc panel of the U.S. Court of Appeals for the Third Circuit.  Morrow v. Balaski, 11-2000, 2013 WL 2466892 (3d Cir. June 5, 2013).
In Morrow, the U.S. Court of Appeals for the Third Circuit held that schools have no constitutional duty to protect students from bullies.  Writing for the majority, Chief Circuit Judge Theodore A. McKee noted that the Third Circuit’s decision in D.R. v. Middle Bucks Area Vocational Technical School and the Supreme Court’s rulings in DeShaney v. Winnebago County Department of Social Services and Vernonia School District 47J v. Acton had set a clear precedent: there is no special relationship between public schools and their students.  DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995); D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364 (3d Cir. 1992).
In DeShaney, a suit was brought against a Wisconsin social services agency by the mother of a boy who was beaten and sustained brain damage after his abusive father was given custody of him.  DeShaney 489 U.S. 189 (1989).  The court held that the state did not owe its citizens a constitutional duty to protect them from harm.  Id.  The court did, however, note that there could be limited exceptions where a state's duty to protect might exist.  Id.  Since the DeShaney holding, lower courts have struggled to define these exceptions.  Id.  
In Vernonia, a student and his parents brought action against a school district, challenging the district’s policy of requiring drug tests for athletes.  Vernonia 515 U.S. 646 (1995).  The Supreme Court held that although the tests were searches under the Fourth Amendment, they were reasonable in light of the schools' interest in preventing teenage drug use.  Id.  In his Morrow decision, Judge McKee quoted dicta from the Vernonia opinion, stating, “[w]e 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.’”  Morrow, 2013 WL 2466892 (3d Cir. June 5, 2013) (quoting Vernonia 515 U.S. at 655).
In D.R., the Third Circuit held that Pennsylvania's compulsory attendance laws and the school's exercise of in loco parentis over its students while they were in the building did not 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.  D.R., 972 F.2d 1364 (3d Cir. 1992).  The case involved allegations of sexual abuse among students in a graphic arts class.  Id.  Although the appeals court characterized the facts of that case as “horrific,” it held that the school did not violate the victim-students’ rights because the school did not have a special relationship that would impose a constitutional duty to protect.  Id.  
In a strong dissent in Morrow v. Balaski, Judge Julio M. Fuentes stated that the majority's holding was “wrong as a matter of law.”  Morrow, 2013 WL 2466892 (2013).  Schools, he explained, exercise more control over students’ lives today than when Middle Bucks was decided.  Id.  Schools monitor students' use of social media both inside and outside of the classroom, and they have the power to lock students in school buildings for safety reasons in this age of school shootings.  Id. 
“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.  Id. at 35.  "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."  Id.  Although the status of the law appears settled after Morrow v. Balaski, Judge Fuentes’ dissent proposes the possibility that one day schools may be constitutionally bound to protect their students.  Until that time, victim-students pursuing protection from in-school bullies may have no choice but to switch schools.
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