In the fall 2011 edition of MBM Education News, our office presented a detailed summary as to how state-created danger claims place school districts at risk.  State-created danger claims are also surfacing more frequently in situations involving student complaints of bullying and harassment and school district responses to those complaints.  Recent federal court cases addressed such claims and provide additional guidance to school districts in addressing similar student complaints of bullying. 

In Morrow v. Blackhawk School District, the United States District Court for the Western District of Pennsylvania was called upon to consider whether a state-created danger existed afterBrittany and Emily Morrow’s complaints of repeated harassment by other students, including physical altercations, did not result in their expulsion by theSchool District.  Ultimately, one of the harassers was adjudicated delinquent in Juvenile Court and was ordered to have no contact, direct or indirect, with Brittany whom she had physically attacked.  The School District had a Policy that prohibits “engaging in conduct prohibited by the criminal code of theCommonwealth ofPennsylvania on school grounds or at school facilities” and that “these acts are clearly criminal in nature and are so serious that they always require administrative action resulting in the immediate removal from school.”  Despite these Policies, Brittany and Emily claimed that the School District “acted to allowAnderson to remain in school following her conviction of a crime in violation of the Disciplinary Code.”

However, in analyzing the state-created danger claim under Section 1983, the Court held that Brittany and Emily had failed to establish an affirmative act by the School District which created the danger or that made them more vulnerable to danger had the School District not acted at all.  The thrust of Brittany and Emily’s complaint focused on theSchool District’s “omission” in not expelling the other student or otherwise protecting them from harassment and bullying.  The creation of the danger alleged by Brittany and Emily was the failure of theSchool Districtto utilize its authority to expel the other student.  The Court held that while it was sympathetic to the situation, Brittany and Emily had not stated a cause of action under current Third Circuit case law.  TheSchool District’s knowledge of the Juvenile Court Order did not create an affirmative duty to protect Brittany and Emily.  Therefore, the Court granted theSchool District’s Motion to Dismiss.

In Kirby v. Loyalsock Township School District, a recent United States District Court for the Middle District of Pennsylvania case, the Court granted the School District’s Motion for Summary Judgment and dismissed the claims of a student who alleged violation of her constitutional rights to free association, equal protection and due process violations on the basis that school officials failed to discipline students who were bullying her.  In her senior year, Molly Kirby quit the basketball team because of her claims of constant harassment by other teammates.  Each time the student complained of harassment, the District undertook investigations and offered solutions to her, which she rejected.  She then argued in the complaint that the School District violated her First Amendment right to freedom of association when “the lack of any punishment for the bullies” caused her to quit the basketball team, not attend senior night, not attend the senior class trip and not attend graduation.  The Court held that her friendships with her classmates and basketball teammates were not legally sufficient to come within the protection of the First Amendment.

The student claimed that she was denied equal protection because those who conducted investigations into her complaints were different from the administrators who conducted investigations into other students’ complaints.  However, she failed to indentify any other similarly-situated student whose complaint was investigated differently than hers.  Therefore, the Court rejected this argument.  With regard to her due process violation claims, the Court determined that she did not have a protected property interest in participating in extracurricular activities.  Based on the above, the Court granted theSchool District’s Motion for Summary Judgment and dismissed the Complaint.

While the above cases continue to shed light on how the Court will address state-created danger claims against school districts arising within the context of harassment and bullying complaints, the facts of each case clearly stress the importance of timely responses by the school district, documentation of the results of those investigations and any actions taken.  Clearly, Courts are consistent in their decisions that there is no liability without an affirmative action.  However, all actions or decisions not to act should be fully supported by the District’s investigation and application of its Policies.

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Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.