Just yesterday, I received another call from a distraught parent whose child has been subjected to repeated taunts and threats at one of New York's public schools on account of her race. I was asked, "Can't we sue the school for violation of our daughter's civil rights?"

I told them the truth.

"No," I said. "While what happened to your daughter is terrible, inappropriate and most distressing, you will probably lose a lawsuit suing the school district for violating her civil rights."

A recent decision by a Federal appeals court in Pennsylvania (the U.S. Supreme Court declined only recently to hear the appeal of this split decision) illustrates the difficulty with these claims rather nicely.

In Morrow v. Balaski, et al., the plaintiff-students were repeatedly tormented, bullied, threatened and assaulted by a number of fellow students at the school, and as a result, secured a protective order against those students. The school failed to implement measures to assure that the protective order was followed. Instead, the school, unwilling - or unable - to stem the bullying, suggested to the plaintiffs' parents that they consider switching the plaintiffs to a different school.

In affirming the trial court's dismissal of the plaintiffs' Federal § 1983 claim under the Due Process Clause of the Fourteenth Amendment, the appeals court conceded that they were deeply troubled by the facts of the case, but nevertheless felt constrained to dismiss the claim, stating:

"[T]he 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 and—no doubt—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. 
"We therefore certainly understand why the Morrows would conclude that the school‟s 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. 
"The Supreme Court has long established that “[a]s 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.” DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189, 197 (1989). The Due Process Clause forbids the state itself from depriving “individuals of life, liberty, or property without due process of law,‟ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” Id. at 195.
Practically speaking, unless the plaintiffs were able to show that there was a "special duty" to them that was assumed by the school - and, as a general rule, it has been held that such a duty is not normally assumed by the schools - the 1983 claim will fail.


Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer