Precedential: Attorney For Appellants
Precedential: Attorney For Appellants
Precedential: Attorney For Appellants
806 (3d Cir. 2000) (en banc). Accordingly, [t]he first step in
evaluating a section 1983 claim is to identify the exact
contours of the underlying right said to have been violated
and to [then] determine whether the plaintiff has alleged a
deprivation of a constitutional right at all. Id. (quoting
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)).
As we noted at the outset, the Morrows 1983 claim
rests on the Due Process Clause of the Fourteenth
Amendment. The Due Process Clause provides that a state
shall not deprive any person of life, liberty, or property,
without due process of law. U.S. Const. amend. XIV, 1.
The Morrows invoke the substantive component of due
process, which protects individual liberty against certain
government actions regardless of the fairness of the
procedures used to implement them. Collins v. City of
Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v.
Williams, 474 U.S. 327, 331 (1986)). Specifically, the
Morrows allege that school officials violated a liberty interest
by failing to protect Emily and Brittany from the threats and
assaults inflicted by fellow students.
Like the District Court, we are sympathetic to the
Morrows plight.
Brittany and Emily were verbally,
physically andno doubtemotionally 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.
We therefore certainly understand why the Morrows
would conclude that the schools response to the abuse
inflicted on their daughters was unfair and unjust.
Nevertheless, our adjudication of the Morrows claims must
be governed by Supreme Court precedent. As we shall
explain, it is also guided by authoritative Supreme Court
dicta.
The Supreme Court has long established that [a]s a
general matter, . . . a States failure to protect an individual
7
proposition that when the State takes a person into its custody
and holds him there against his will, the Constitution imposes
upon it a corresponding duty to assume some responsibility
for his safety and general well-being. DeShaney, 489 U.S. at
199-200.
It is clear from the decision in DeShaney that the
states constitutional duty to protect arises not from the
States knowledge of the individuals predicament or from its
expressions of intent to help him, but from the limitation
which it has imposed on his freedom to act on his own
behalf. Id. at 200. In other words, it is the States
affirmative act of restraining the individuals freedom to act
on
his
own
behalfthrough
incarceration,
institutionalization, or other similar restraint of personal
libertywhich is the deprivation of liberty triggering the
protections of the Due Process Clause, not its failure to act to
protect his liberty interests against harms inflicted by other
means. Id. (emphasis added).
A minor child attending public school most certainly
does not have the freedom of action or independence of an
adult.8 Nevertheless, the Supreme Court has not had occasion
to specifically decide whether that is sufficient to create a
special relationship between public schools and their students
under the Due Process Clause. We have, however, previously
considered the application of the special relationship doctrine
in the public school context. In D.R. v. Middle Bucks Area
Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992), a
sixteen-year-old hearing and communication-impaired
student (D.R.) and a seventeen-year-old classmate (L.H.)
alleged that several male students physically, verbally, and
sexually assaulted them during a graphic arts class during the
school day over a period of several months. The male
students forced them into the classrooms unisex bathroom or
darkroom and physically abused and sexually molested the
plaintiffs multiple times per week. A student teacher was
8
In In re McDonald, we explained:
12
Cir. 1992); Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 568-69
(11th Cir. 1997).10
Accordingly, the Supreme Courts 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. We know of nothing that has
occurred in the twenty years since we decided Middle Bucks
that would undermine this conclusion. We therefore find the
dissents assertion here that factual developments since
Middle Bucks have further undercut its rationale, Fuentes
Dissent 18, unpersuasive. The first two examples our
dissenting colleagues offer of schools exercising greater
control over students include the use of technology tracking
student movement to ensure they are in class11 and the
monitoring of social media activity by students.12 Id. Such
examples merely illustrate new precautionary measures some
schools have undertaken in response to emerging technology.
It is difficult to see how such measures constitute limitations
on a students freedom to act on his own behalf, see
DeShaney, 489 U.S. at 200, that are so severely restrictive as
to equate public school students with prisoners or those who
are involuntarily committed to secure mental institutions.
Similarly, a schools exercise of authority to lock
classrooms in the wake of tragedies such as those that have
10
13
16
contrast, when a minor enters foster care, state actors have the
authority to bypass parental consent by obtaining a court
order authorizing medical treatment. See 55 Pa. Code
3130.91, 3800.19(b); 42 Pa. Stat. Ann. 6357 (stating that the
custodian, to whom legal custody of a child has been given by
the Court of Common Pleas under the Juvenile Act, has the
right to determine the nature of the care and treatment of the
child, including ordinary medical care).16 When a state
agency has custody of a minor child for whom a decree of
termination of parental rights has been entered, the agency
acquires authority to consent to all medical examination or
treatment, including major medical, psychiatric and surgical
treatment of the minor even without obtaining a court order.
See 23 Pa. Stat. Ann. 2521(c).
The dissents citation to Smith v. District of Columbia,
413 F.3d 86 (D.C. Cir. 2005), is also unavailing. In Smith,
the court found a special relationship between the District of
Columbia and an adjudicated delinquent whom the District
had, by affirmative exercise of its police power, placed with
its agent, [an independent living program], through a court
order revocable only by another court order. Id. at 94. The
dissent argues that [l]ike the children in Smith, the Morrows
were technically free to come and go from school after
certain hours but risk[ed] punishment for fail[ing] to obey
[the States] restrictions on [their] . . . freedom while in
school. Fuentes Dissent 13 (alterations in original) (quoting
Smith, 413 F.3d at 94). However, the fact that the juvenile in
Smith enjoyed a degree of freedom of movement while
housed at the independent living program is not
determinative. The states liability arose from the fact that
16
the state, through court order, had removed the juvenile from
the care and custody of his parents and required him to live
under the care and custody of the independent living program,
which was acting as the states agent under a very detailed
contract between the program and the state.
In DeShaney, the Supreme Court expressly noted that
[h]ad the State by the affirmative exercise of its power
removed [the child] from free society and placed him in a
foster home operated by its agents, we might have a situation
sufficiently analogous to incarceration or institutionalization
to give rise to an affirmative duty to protect. DeShaney, 489
U.S. at 201 n.9. That is precisely what happened in Nicini; it
is not what happened here.
Moreover, the Court
acknowledged in DeShaney that several Courts of Appeals
have held, by analogy to Estelle and Youngberg, that the State
may be held liable under the Due Process Clause for failing to
protect children in foster homes. Id. Citing this footnote,
the court in Smith found that the independent living program
there presents a scenario close to the one described in the
DeShaney footnote. Smith, 413 F.3d at 94.
The dissent contends that this focus on who remains
the victims primary caregiver . . . contrast[s] sharply with our
holding in Horton v. Flenory, 889 F.2d 454 (3d Cir. 1989).
Fuentes Dissent 6 n.3. We agree that the facts of Horton are
instructive, but believe that they clearly counsel against
imposing a constitutional duty here.
In Horton, the owner of a nightclub suspected an
employee, Powdrill, of burglarizing the club. The owner and
another employee began interrogating Powdrill about the
burglary. During that interrogation, Powdrill was severely
beaten. The owner was a retired veteran of the local police
department, 889 F.2d at 456, and the township where the club
was located had [a]n official policy of deferring to private
owners with respect to the investigation of crimes in private
clubs. Id. at 458. Nevertheless, the owner did eventually
call police. An officer, who had served on the police force
with the owner, subsequently arrived, but the officer left
Powdrill alone in the owners custody noting that Powdrill
was in good handsdespite observing blood and evidence
of a beating. Id. at 456. After the officer left, Powdrill was
21
Act (now codified at 42 Pa. Cons. Stat. 8541) and are not
subject to tort liability . . . when students are injured in the
course of the school day, even if, assuming arguendo, there
was negligence on the part of the school officials. Auerbach
v. Council Rock Sch. Dist., 459 A.2d 1376, 1378 (Pa.
Commw. Ct. 1983). However, state legislatures retain the
authority to reconsider and change such restrictions in order
to better respond to the kind of bullying that happened here
and that appears to be all too pervasive in far too many of
todays schools. See T.K. v. New York City Dept of Educ.,
779 F. Supp. 2d at 297-98.
For the reasons we have explained, we cannot fashion
a constitutional remedy under the special relationship theory
based on the facts alleged in this case.
B. State-Created Danger
The Morrows alternatively argue that the Defendants
had a duty to protect Brittany and Emily because they created
or exacerbated a dangerous situation. As we explained above,
in Kneipp v. Tedder, 95 F.3d at 1201, we first adopted the
state-created danger theory as a way to establish a
constitutional violation in suits brought under 1983. We
confirmed that liability may attach where the state acts to
create or enhance a danger that deprives the plaintiff of his or
her Fourteenth Amendment right to substantive due process.
Kneipp, 95 F.3d at 1205. To prevail on this theory, the
Morrows must prove the following four elements:
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 defendants acts, or a
member of a discrete class of persons subjected
to the potential harm brought about by the
states actions, as opposed to a member of the
public in general; and
25
For all the reasons set forth above, we will affirm the
District Courts order granting the Defendants Motion to
Dismiss.21
21
548 U.S. 230, 244 (2006) (quoting Rumsey, 467 U.S. at 212).
If its precedents reasoning was clearly wrong, then stare
decisis loses some (though not all) of its force. See Dickerson
v. United States, 530 U.S. 428, 443 (2000) (Whether or not
we would agree with Mirandas reasoning and its resulting
rule[] were we addressing the issue in the first instance, the
principles of stare decisis weigh heavily against overruling it
now.); see also McDonald v. City of Chi., Ill., 130 S. Ct.
3020, 3050 (2010) (Scalia, J., concurring) (Despite my
misgivings about Substantive Due Process as an original
matter, I have acquiesced in the Courts incorporation of
certain guarantees in the Bill of Rights because it is both long
established and narrowly limited. (quotation marks and
citation omitted)).
Perhaps a prior case has become
unworkablethat is, newly discovered facts have
undermined the cases reasoning, subsequent legal
developments have unmoored the case from its doctrinal
anchors, or experience has [otherwise] pointed up the
precedents shortcomings. Pearson v. Callahan, 555 U.S.
223, 233 (2009); Leegin Creative Leather Prods., Inc. v.
PSKS, Inc., 551 U.S. 877, 88788 (2007). And if the
precedent is particularly recent and has not generated any
serious reliance interests, the rigging controlling the sails of
stare decisis carries additional slack. See, e.g., Citizens
United v. FEC, 130 S. Ct. 876, 91213 (2010); Montejo v.
Louisiana, 556 U.S. 778, 793 (2009).
As other courts of appeals have concluded, these same
considerations should guide our own stare decisis analysis.
manufacturers and distributors, the Supreme Court properly
overruled Dr. Miles. Id.
3
United States v. Burwell, 690 F.3d 500, 504 (D.C. Cir. 2012)
(en banc) (applying the Supreme Courts stare decisis factors
in deciding whether to overrule a previous case); United
States v. Sykes, 598 F.3d 334, 338 (7th Cir. 2010) (same);
United States v. Heredia, 483 F.3d 913, 91819 (9th Cir.
2007) (en banc) (same); Shi Liang Lin v. U.S. Dept of
Justice, 494 F.3d 296, 310 (2d Cir. 2007) (en banc) (same);
Glazner v. Glazner, 347 F.3d 1212, 1216 (11th Cir. 2003) (en
banc) (same); Festo Corp. v. Shoketsu Kinzoku Kogyo
Kabushiki Co., 234 F.3d 558, 575 (Fed. Cir. 2000) (en banc)
(same), overruled on other grounds by 535 U.S. 722 (2002);
Stewart v. Dutra Constr. Co., Inc., 230 F.3d 461, 467 (1st Cir.
2000) (same), overruled on other grounds by 543 U.S. 481
(2005); Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1137
38 (5th Cir. 1995) (en banc) (same); McKinney v. Pate, 20
F.3d 1550, 1565 n.21 (11th Cir. 1994) (en banc) (same).
None of these special justifications are present here.
Middle Buckss interpretation of the Supreme Courts
decision in DeShaney v. Winnebago County Department of
Social Services, 489 U.S. 189, 19697 (1989), was correct at
the time it was decided. DeShaney held that substantive due
process does not confer a right to state protection except
when the state affirmatively acts to restrict a persons
freedom to act on his own behalf, through imprisonment,
institutionalization, or other similar restraint of personal
liberty. Id. at 200. In D.R. v. Middle Bucks Area Vocational
Technical School, we interpreted other similar restraint of
personal liberty to require total and involuntary state custody
with no access to private assistance. 972 F.2d 1364, 1371 (3d
Cir. 1992) (en banc) (Institutionalized persons are wholly
4
14
danger; and (3) that the State did not do anything to render
[Joshua] any more vulnerable. Id. at 201.2
Because DeShaney itself did not provide the Middle
Bucks majority with the absolute physical custody
requirement, it relied on our prior decision in Philadelphia
Police to conclude that DeShaney set[] out a test of physical
custody.
Middle Bucks, 972 F.2d at 1370 (citing
Philadelphia Police & Fire Assn v. Philadelphia, 874 F.2d
156, 167 (3d Cir. 1989)). Philadelphia Police had held that
the State is not responsible for harm suffered by mentally
handicapped individuals living at home, but it neither requires
absolute physical custody nor turns on who the primary
caregiver was. See Philadelphia Police, 874 F.2d at 167.
2
Indeed, the case arguably implies that the State could be held
liable for harm suffered by the individual while in temporary
State custody. To be sure, Philadelphia Police and DeShaney
foreclose any argument that the State is responsible for the
safety of school children while in their own homes. But
Philadelphia Police does not bridge the gap between
DeShaney and an absolute physical custody requirement.
Thus, it is clear that Middle Bucks gloss on DeShaney has no
doctrinal foundation.3
B.
As the Supreme Court has observed, [t]he State exerts
great authority and coercive power through mandatory
attendance requirements. Edwards v. Aguillard, 482 U.S.
578, 584 (1987). Reexamining the relationship between
school children and the State in light of our understanding of
DeShaney leads to the inescapable conclusion that a special
relationship may exist under certain specific circumstances.
In Pennsylvania, attending school is obligatory for
children between the ages of eight and seventeen. 24 Pa. Stat.
Ann. 13-1326, 1327(a). Parents who fail to comply with
these mandates face punishment as severe as imprisonment.
Id. 1333(a)(1).4 Once the State compels attendance, it has
considerable power over the childs well-being as a matter of
both law and fact. Pennsylvanias in loco parentis statute
gives school officials the same authority as to conduct and
behavior over the pupils attending . . . school . . . as the[ir]
parents. Id. 13-1317. And [t]he rights and liabilities
arising out of an in loco parentis relationship are . . . exactly
the same as between parent and child. T.B. v. L.R.M., 786
A.2d 913, 916-17 (Pa. 2001).
This may be an
understatement.
A parent may punish a child for
incorrigibility, but he may not, like the State, initiate
juvenile delinquency proceedings. 24 Pa. Stat. Ann. 131338.
The States first intrusion into the lives of its citizens in the
school context may be considered to be when it enrolls all
parents as the funders of public schools via taxation.
10
11
12
13
14
15
16
C.
Todays majority does not quarrel with the foregoing
or fully reject the dissenters reasoning in Middle Bucks.
Majority Op. at 11-12 (instead calling the Middle Bucks
dissent compelling). Nevertheless, the Court refuses to
revisit Middle Bucks, asserting that the matter has been settled
by dictum in a decision of the Supreme Court. But neither
that comment nor principles of stare decisis preclude us from
revisiting Middle Bucks or control the outcome of this case.
1.
In Vernonia School District 47J v. Acton, the Supreme
Court upheld under the Fourth Amendment a school policy
requiring athletes to submit to drug tests. The Court relied on
the lowered expectations of privacy that students have in
schools, because they are committed to the temporary
custody of the State. 515 U.S. 646, 654 (1995). The Court
commented that it did not mean to 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.
Id. at 655 (citing DeShaney, 489 U.S. at 200). Seizing on this
language, the majority concludes that it is difficult to
unconstitutional to refuse to protect from harm school
children whose liberty the State restricts on its own accord.
See DeShaney, 489 U.S. at 199 (If it is cruel and unusual
punishment to hold convicted criminals in unsafe conditions,
it must be unconstitutional . . . to confine the involuntarily
committedwho may not be punished at allin unsafe
conditions. (citation omitted)).
17
18
19
20
21
14
22
15
23
24
25
26
27
28
29
30
31
32
Conclusion
33
1384 (Sloviter, C.J., dissenting); Oral Arg. Audio Tr. 26:3927:08 (Ambro, J.). But there exist sufficient evidentiary and
procedural protections to assuage any concerns that a limited
review of Middle Bucks will open the floodgates to all schoolrelated litigation. See Middle Bucks, 972 F.2d at 1384
(Sloviter, C.J., dissenting). And to plead a plausible special
relationship cause of action, the student must clear another
hurdle by pointing to other circumstances beyond the
restraints imposed ordinarily by compulsory schooling laws.
Run-of-the-mill schoolyard fights, isolated or random acts of
violence, or matters where a school played no part in
exacerbating the threat, would likely not be covered.
But regardless of the efficacy of these devices, we
ought not refuse to grant relief that is warranted simply to
stem future litigation. While turning away the Morrows may
be convenient as a matter of management of judicial
resources or as a matter of school policy, it is neither
expedient nor sound as a matter of constitutional law. The
majority avers that students and concerned parents may seek
redress from their legislatures, but concedes that the law as it
exists today, at least in Pennsylvania, immunizes schools
from such suits. See Majority Op. at 25 (citing Auerbach v.
Council Rock Sch. Dist., 459 A.2d 1376, 1378 (Pa. Commw.
Ct. 1983)). Perhaps students may seek redress under other
federal statutes for certain instances of pervasive or racemotivated harassment.22 But these limited remedies will not
22
See, e.g., Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655
(2d Cir. 2012) (permitting cause of action to proceed against
school district under Title VI for permitting plaintiff to be
bullied on account of race); Shore Regional High Sch. Bd. of
Educ. v. P.S., 381 F.3d 194 (3d Cir. 2004) (recognizing claim
34
be available for all cases, and we should not require that the
level of attacks reach frightening extremes before school
officials are required to intervene. When claims like these
fall through the cracks, 1983 seems less than the powerful
tool to vindicate constitutional rights it was designed to be.
Black v. Indiana Area Sch. Dist., 985 F.2d 707, 715 (3d Cir.
1993) (Scirica, J., concurring).
Most ironically, todays victory may be pyrrhic for
school officials. To the detriment of schools ability to
manage their own affairs, concerned parents could seek
greater control and awareness over the moment-to-moment
safety of their children, knowing that the school officials to
whom they entrust their children are under no legal obligation
to protect them from harm. Some parents may even take
unilateral acts to protect their children. See, e.g., Ryan
Raiche, Parents of boy who brought butcher knife to school
say it was to defend himself from bullies, ABC Action News
WFTS-TV, Jan. 14, 2013, http://shar.es/jEG8P. At worst,
schools may be unwittingly encouraging the law of the jungle
to be the reigning norm. We hope this is not the case.
It cannot be denied that schools both create and
regulate the conditions to which students are subject during
the school day. When a State interrupts even temporarily the
against school based on the Individuals with Disabilities
Education Act). Notably, the existence of alternative causes
of action further undercuts implicit reliance on a desire to
shield school officials from suits as a reason to depart from
sound constitutional principles. Bullying-related suits will
continue as long as the issue is in the public eye regardless of
todays decision.
35
36