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Media Alerts - Morrow v. Balaski - Third Circuit
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June 6, 2013
  Morrow v. Balaski - Third Circuit
Headline: Court denies constitutional relief against the state for students abused in public schools by fellow students

Area of Law: Constitutional Law, Substantive Due Process

Issue Presented: Whether public schools have a duty under the Fourteenth Amendment to protect students from abuse inflicted by fellow students

Brief Summary: The Plaintiff Appellants, Brittany and Emily Morrow and their parents, sued the Defendants, Blackhawk School District and its assistant principal, Barry Balaski, under 42 U.S.C. § 1983 and a supplemental state law claim for "negligence and/or gross or willful misconduct." The Plaintiffs alleged that they were bullied by fellow students through a series of threats, assaults, and acts of racial intimidation. At one point, one of the bullies was even subject to two restraining orders. After a lack of response by the Defendants, the Plaintiffs had to change schools. The Third Circuit affirmed dismissal of the suit based on Third Circuit precedent that the state's compulsory school attendance requirement did not create a special relationship subjecting the school to liability for the acts of fellow students; and that the Defendants' inaction did not create or make the situation worse sufficient to hold the Defendants liable on a state-created danger theory.

Extended Summary: The issue presented to the Third Circuit was whether public schools have a constitutional duty under the Fourteenth Amendment to protect students from abuse inflicted by fellow students. The Plaintiff Appellants, Brittany and Emily Morrow and their parents, sued the Defendants, Blackhawk School District and its assistant principal, Barry Balaski, under 42 U.S.C. § 1983 and a supplemental state law claim for "negligence and/or gross or willful misconduct." The Plaintiffs claimed that they were bullied by fellow students in the form of a series of threats, assaults, and acts of racial intimidation. They claimed, as a result of the lack of response by the Defendants, the Plaintiffs had to change schools.

The District Court dismissed the Plaintiffs' constitutional claim for failure to state a claim. The District Court found that no "special relationship" existed to give rise to the duty for the Defendants to protect the Plaintiffs from other students. Furthermore, the District Court held that the Defendants were not liable because the injury was not caused by any affirmative acts by the Defendants. The District Court, after dismissing the Plaintiffs' constitutional claim, also refused to hear the supplemental state law claim.

On appeal, the Plaintiffs again alleged that the Defendant violated the substantive due process clause of the Fourteenth Amendment which "protects individual liberty against 'certain government actions regardless of the fairness of the procedures used to implement them.'" The Third Circuit stated that it was sympathetic towards the Plaintiffs' situation, noting that the Plaintiffs were both verbally and physically abused. When the Plaintiffs asked the Defendants for help, they were simply advised to change schools. However, the Third Circuit cited to the Supreme Court, stating 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." The due process clause only prevents acts by the state that deprive "individuals of life, liberty, and property without 'due process of law.'"

The Supreme Court however did carve out a narrow exception, the "special relationship" exception, where "the state takes a person into its custody and holds him there against his will." Another exception created is where "the state's own actions create the very danger that caused the plaintiff's injury."

In discussing the "special relationship" doctrine, the Third Circuit followed its own precedent. The "special relationship" doctrine's duty to protect arises out of a state's deprivation of liberty, not its failure to act to protect the plaintiff against other private parties, despite the knowledge of the harm or the expressed intent to help. Here the Third Circuit further noted that it has already decided that, even though public schools limit a child's freedom and state law may compel attendance, such circumstances alone simply do not create the type of physical custody necessary for the exception. The Court also relied on Supreme Court dicta from Vernonia School District which suggested that public schools as a general matter do not have the type of physical custody of their students necessary for the special relationship exception.

The Third Circuit however recognized the possibility that under special and narrow circumstances, depending on the relationship between a particular school and a particular student, such a special relationship may exist. However, the Court held that the case here did not fall into that special category, despite the repeated assaults and violence. The Third Circuit noted that such narrow circumstance must be so significant as to forge a different kind of relationship between the student and a school than is inherent under the traditional in loco parentis authority, for example the emergency need for a school lockdown in the case of a shooting. Here, the facts that the bullies were violent, with one subjected to two restraining orders, did not give rise to that narrow scenario.

The majority rejected the argument that the Defendants' decision to enforce school policies that prevented the Plaintiffs from seeking redress was enough to create a special relationship. The majority also rejected the dissent's argument that schools are akin to foster care placements, which are subject to the special relationship doctrine. Foster care involves children who are dependent on the state to meet their basic needs and the state has a continuing responsibility for the child's well being. But public school children primarily depend on their parents for care and protection, not the state. The Third Circuit reiterated that the "due process clause is not a surrogate for local tort law or state statutory and administrative remedies" and rejected the idea that any special relationship existed in the current case.

Alternatively, the Plaintiffs argued on appeal that they stated a claim because the Defendants created or exacerbated a dangerous situation. For the Plaintiffs to prevail under this theory, they had to show: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's act as opposed to a victim of the general public; and (4) the defendant affirmatively used its authority to create the danger or make a situation worse.

Here, the Defendants argued that the Plaintiffs failed on the last element. The Defendants claimed that the Plaintiffs had not shown that they affirmatively acted in a way that made the situation or the Plaintiffs' injury worse. The Plaintiffs on appeal argued to the contrary, that by suspending one of the bullies and then letting her back into school, the Defendants affirmatively made the situation worse.
The Third Circuit rejected the Plaintiffs' argument because it found that the suspension actually temporary alleviated the problem and that permitting the student to return after the suspension was over was not an affirmative act. The Third Circuit also rejected the dissent's argument that choosing not to expel a student was an affirmative act. Therefore, the Third Circuit found that the Defendants did not affirmatively create or make the situation worse.

A dissent, joined by five judges, argued that the Defendants were subject to the special relationship exception, noting that schools have near absolute control over students' conduct while they are at school. Four judges in dissent also argued that the state-created danger was sufficiently pleaded because of the Defendants' deliberate indifference to the risk to the Plaintiffs, given the Defendants' knowledge of the restraining orders and their failure to follow the school's own disciplinary code. The dissent argued that, rather than focusing on whether the state affirmatively acted, the key should be whether the state's conduct put the Plaintiffs in more danger.

The Third Circuit affirmed the District Court's decision to dismiss the Plaintiffs' Fourteenth Amendment claim. See the full opinion here: http://www.ca3.uscourts.gov/opinarch/112000p.pdf
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En Banc: En Banc: McKEE, Chief Judge, SLOVITER, SCIRICA,RENDELL, AMBRO,FUENTES,SMITH, FISHER,CHAGARES,JORDAN,HARDIMAN, GREENAWAY, JR.,VANASKIE and NYGAARD, Circuit Judges

Argument Date: 10/10/2012

Date of Issued Opinion: 06/05/2013

Docket Number: No. 11-2000

Decided: Affirmed

Case Alert Author: Tien Cheng

Counsel: Albert A. Torrence, Esq. (ARGUED) Attorney for Appellants; Charles W. Craven, Esq. (ARGUED) John J. Hare, Esq., Teresa O. Sirianni, Esq. Marshall, Dennehey, Warner, Coleman & Goggin, Attorneys for Appellees

Author of Opinion: Chief Judge McKee

Circuit: Third Circuit

Case Alert Circuit Supervisor: Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 06/06/2013 12:00 PM     3rd Circuit  

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