I. Back to School
Imagine you are in high school again. As if that is not horrifying enough, imagine that you are the target of another student’s physical and verbal bullying. The bully constantly harasses you—chasing you around the school shouting racial epithets, phoning you to threaten physical violence, calling you out on social media, and culminating in a lunchroom confrontation of which you want no part. After being attacked in this one-sided affair, your principal tells you that you are being suspended for three days pursuant to the school’s “zero tolerance” policy for being “involved” in the physical altercation. After returning to school, the bully hunts you with an even stronger fervor. At one point your bully attempts to push you down a flight of stairs. You get elbowed in the throat for showing up at your high school’s football game. Your bully even takes the wrong bus route home just to torment you. Eventually the assistant principal informs your parents that the school can no longer guarantee your safety and that you, not the bully, should change schools. How would you feel? Frightened? Betrayed? Insecure? This was the reality of Brittany Morrow during her time at Blackhawk High School in Beaver County, Pennsylvania.
The Morrows filed a 42 U.S.C. § 1983 civil rights suit against the school’s assistant principal, Barry Balaski, alleging a violation of their daughter’s Fourteenth Amendment right to substantive due process. To bring a claim under § 1983, the plaintiff must allege a violation of her constitutional rights or the laws of the United States by a person acting under the color of state law. The Morrows argued that the assistant principal’s failure to protect Brittany from harassment amounted to a violation of her liberty interests accounted for in the Fourteenth Amendment’s Due Process Clause. The Third Circuit reasoned that in order to state a claim under § 1983, the Morrows had to prove that a “special relationship” existed between Brittany and Assistant Principal Balaski, or that his affirmative conduct was actionable as a “state-created danger.”
II. No Help From Above
The seminal Supreme Court case regarding “special relationships” is DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs. The case involves the tragic story of a young boy, Joshua, who was repeatedly beaten by his father.After a beating that sent Josh to the hospital with several bruises and abrasions, the county’s social services department convened an ad hoc “child protection team” to review Joshua’s case consisting of “a pediatrician, psychologist, police detective, the county’s lawyer, several [Winnebago County Department of Social Services (DSS)] caseworkers, and various hospital personnel.” Despite their efforts, the team determined there was insufficient evidence to keep the boy under the custody of the court and recommended that the Wisconsin juvenile court dismiss the case, returning the boy to his father. Upon his return, Joshua’s father attacked and brutally beat him and caused permanent brain damage. The Supreme Court affirmed the grant of summary judgment on Joshua’s § 1983 claim alleging that he was denied liberty without due process by DSS.
DeShaney did, however, carve out the “special relationship” exception. This exception applies “when the State takes a person into its custody and holds him there against his will,” and in such a situation, the Constitution imposes on the State an affirmative duty of care and protection with respect to certain individuals. Typically, the special relationship exception is invoked in cases involving prisoners and involuntarily-committed psychiatric patients.And while some students may feel that school is like prison, historically, the exception fares poorly when plaintiffs use it to attempt to establish a special relationship between public schools and their students. Nonetheless, the Morrows argued that because in Pennsylvania attending school is compulsory for children between the ages of eight and seventeen, and because the school exercises in loco parentis authority over its students, a special relationship is created between school officials and their pupils. In furtherance of the “state-created danger” argument, the Morrows claimed that the assistant principal and other school officials owed Brittany a duty of protection because their actions exacerbated her already-dangerous situation.
The Third Circuit faced a similar case in 1992. Two female high school students sued Middle Bucks Area Vocational Technical School, as well as the school district and several school officials individually, under § 1983 and other statutes after they were “physically, verbally and sexually molested” by male students in the school’s unisex bathroom and darkroom. The girls reported that “the sexual molestation consisted of offensive touching of their breasts and genitalia, sodomization, and forced acts of fellatio”; they were also forced to watch similar acts performed on other students. This allegedly occurred two to four times per week for a period of five to six months. The Third Circuit dismissed the girls’ claims that a special relationship existed between themselves and the school officials by ruling that the girls had “substantial freedom to act,” and that parents still have the primary duty of meeting their child’s “basic human needs.”
In a compelling dissent, former Chief Judge Sloviter advocated for a more functional approach to custody. She argued:
I believe that we are free to decide . . . that the state compulsion that students attend school, the status of most students as minors whose judgment is not fully mature, the discretion extended by the state to schools to control student behavior, and the pervasive control exercised by the schools over their students during the period of time they are in school, combine to create the type of special relationship which imposes a constitutional duty on the schools to protect the liberty interests of students while they are in the state’s functional custody.
In a separate dissent, Judge Becker argued that although there should not be a bright-line rule to impose a constitutional duty on schools to protect the liberty interests of their students, the circumstances in Middle Buckscreated a unique case and that he would have no problem determining that there was duty of protection owed to the girls.
III. Old Habits Die Hard
Despite the availability of other analyses, the Third Circuit dismissed the Morrows’ case, echoing the logic of Middle Bucks. In a post-Middle Bucks decision, the Supreme Court, in Vernonia School District 47J v. Acton stated that the subjects of a school policy requiring student athletes to submit to random drug testing were, “(1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.” In dicta, the Court went on to say, “[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.’” The Third Circuit used the Middle Bucks precedent, in combination with the dicta from Vernonia and decisions from other circuits, to justify the conclusion that “public schools, as a general matter, do not have a constitutional duty to protect students from private actors.”
The court, however, did not cut off the possibility that under exceptional and limited circumstances, a special relationship could arise “between a particular school and particular students.” The circumstances the court proposed are constrained to instances where the relationship between the student and school is different from the relationship created inherently under the traditional paradigm. The court left it to the various state legislatures to reconsider how to address bullying in schools and dismissed the Morrows’ case, leaving them with no constitutional remedy.
IV. A New Hope
In a spirited dissent, Judge Fuentes picks up the flag that was carried by Chief Judge Sloviter and Judge Becker in Middle Bucks. Judge Fuentes would hold that the school assumed a special relationship with Morrow to keep her safe from her bully because the school compelled attendance, applied extensive control over the student and the threat, and enforced a zero tolerance policy that prevented Morrow from protecting herself. He further pointed out that there is nothing to conclude that an “all-or-nothing approach” must be taken when evaluating relationships between schools and students. In response to the majority’s argument, Judge Fuentes notes that although the ultimate responsibility for the child remains with the parent, while the student is in school, the parents’ ability to protect their student-child is severely curtailed and school officials may be the only people the student can go to for help. The State’s authority over students is near absolute when you consider that statutes exist that essentially govern what they can wear, how they must act, and may initiate actions against children in juvenile court for misbehaving.
Schools now exercise much more control over students than they have in the past. For instance, modern technology allows schools to track student locations to ensure that they are reporting to their classes and remaining in them. Schools are also now monitoring and regulating students’ social media activity both on and off school grounds. As a long-understood general proposition, students should feel comfortable and safe when on school grounds. Now more than ever, students should feel protected because of all the control the school can exercise over their learning environment. Students should, therefore, be able to trust their school officials to become involved if they need help in dealing with other students. In turn, parents should be able to trust their children will be safe when they are in school, and should not have to worry about their child being battered and abused by other students. However, Morrow and the subsequent collection of cases undeniably stand for the exact converse. School officials have little or no duty to ensure that children are safe from the actions of others. These cases give school officials legal authority to turn a blind eye to a child being bullied. Assistant Principal Balaski even advocated that Brittany Morrow and her sister be removed to another school, and did not advocated for moving her bully instead.
Educators recommend character education for students, but apparently do not want the responsibility to ensure the message is getting through. Studies have shown that one in six students is regularly bullied, while one in ten students experience cyber bullying. While not all of these incidents of bullying take place on school grounds, school officials most certainly must be notified of some instances. Why not make it a school official’s duty to protect a student when the student has notified him or her that there is bullying taking place? How does a student confiding in a teacher that he or she is being bullied not establish a special relationship? Were we not all told as students that if we have a problem to go to a teacher or principal for help? Well, if school administrators do not want to be viewed as quasi-parental figures, we can assume that they will leave issues of home behavior for parents to deal with, right?
V. Schools Overreach
A reasonable person could deduce that if a student is posting on Twitter in the middle of class, he may get in trouble for it. It would seem like a bit of a stretch, though, that a student could get suspended, let alone expelled, from school for posting a message from home, regardless of its content. However that is the situation in which Austin Carroll, a 17-year-old senior from Garrett, Indiana, found himself. Three months before graduation, Carroll posted the message, “F****** is one of those f****** words you can f****** put anywhere in a f****** sentence and it still f****** makes sense,” and was subsequently expelled from his school because of it. Clearly his attempt at humor was lost on the school administration. There is debate over whether this tweet came from his personal computer or from the computer the school provided him, but is that really justification to expel a student three months prior to graduation? Is that really a proportional response?
Contrast that with Brittany Morrow. Although Morrow’s attacker received a three day suspension, Morrow herself was also suspended for the same time because of her school’s zero tolerance policy. ACLU attorney Aden Fine remarked, “What kids say while they’re not at school is not the school’s business, that’s for the parents to decide.”
So schools can regulate what a student places on his personal Twitter account while he is at home, but have no duty to protect students from bullying or sexual molestation? Doesn’t this seem like a school infiltrating the area of a special, quasi-parental relationship, the exact type of relationship that schools have claimed not to have? Surely that will sit well with parents.
Maybe the caveat that Austin Carroll was possibly using a school computer to send the message makes a difference. Surely if a student is improperly behaving at home, the school administrators would leave it to the parent to discipline the child fearing that they might establish a special relationship with their students. Khalid Carabello, a seventh grade student in Virginia, was suspended one year for using an airsoft gun when he was not even on school property. It was reported to school administrators that students were being struck by pellets shot from Carabello’s gun as they were walking to their bus stop. Granted, the fact that school ensured the safety of its students is fantastic and admirable, but isn’t this exactly the sort of affirmative, custodial action that schools are trying to avoid? Solangel Carabello, Khalid’s mother, stated in opposition to the school’s discipline, “[Khalid] does not become the school’s property until he goes to the bus stop, gets on the bus, and goes to school.” Doesn’t her statement characterize the exact distant relationship that the schools want? How a school be justified in taking action here, but not be held responsible for what happens to its students while they are in the building?
VI. Going Forward
The line governing when a school establishes a special relationship with a student is obviously murky at best. Returning to Judge Fuentes’s dissent, his case-by-case circumstance-based analysis seems to be the most responsible construction of the special relationship exception. Evaluating each case on its own merit gives a legal remedy to the students who need and deserve it, but also protects the interests of school administration. Children should be protected in school. Administrators should be responsible for the failures that are within their control. Judge Fuentes’s analysis strikes a more equitable balance of these interests.
* James Esposito is a May 2014 J.D. candidate and a Staff Editor on the Rutgers Journal of Law & Religion.
 Morrow v. Balaski, 719 F.3d 160, 164-65 (3d Cir. 2013) (en banc).
 Id. at 165.
 Nicini v. Morra, 212 F.3d 798, 806 (3d. Cir. 2000).
 Morrow, 719 F.3d at 165.
 Id. at 167.
 489 U.S. 189, 192 (1989).
 Id. at 192.
 Id. at 193.
 Id. at 202-03.
 DeShaney, 489 U.S. at 198-200.
 See Estelle v. Gamble, 429 U.S. 97 (1976); Youngberg v. Romeo, 457 U.S. 307 (1982).
 See, e.g., Doe v. Covington Cnty. Sch. Dist., 675 F.3d 849 (5th Cir. 2012) (en banc); Patel v. Kent Sch. Dist., 648 F.3d 965 (9th Cir. 2011); Hassenfus v. LaJeunesse, 175 F.3d 68 (1st Cir. 1999); Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560 (11th Cir. 1997); Doe v. Claiborne Cnty., 103 F.3d 495 (6th Cir. 1996); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729 (8th Cir. 1993); Maldonado v. Josey, 975 F.2d 727 (10th Cir. 1992); J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267 (7th Cir. 1990).
 24 PA. CONS. STAT. ANN. §§ 13-1326, 1327(a) (West, Westlaw through 2013-14).
 Id. § 13-1317. The legal doctrine of in loco parentis is “the right of schools to discipline students, to enforce rules, and to maintain order.” Morse v. Frederick, 551 U.S. 393, 413 (2007) (Thomas, J., concurring). It has been used to regulate student speech. Id. at 415. The doctrine as traditionally understood provides scant limitation on how schools can “set rules and control their classrooms.” Id. at 416.
 Morrow, 719 F.3d at 168-69.
 Id. at 177.
 D.R. ex rel. L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1366 (3d. Cir. 1992).
 See id. at 1373 (citing J.O., 909 F.2d at 272).
 Id. at 1377 (Sloviter, C.J., dissenting); see also Maldonado, 975 F.2d at 733 (Seymour, J., concurring) (“I would … hold that a child legally required to attend school and thereby forced into the temporary day-time custody of the state’s agents is constitutionally entitled to some level of protection from harm and care for basic safety.”).
 Middle Bucks, 972 F.2d at 1384 (Becker, J., dissenting) (stating that where state law compelled the student to attend school, the student was disabled and lacked the capacity for mature judgment, and that the school took affirmative steps to confine the students to situations where she was physically threatened, a constitutional duty was imposed upon the school to protect the student’s liberty interest).
 515 U.S. 646, 654 (1995).
 Id. at 655. (citing DeShaney, 489 U.S. at 200).
 Morrow, 719 F.3d at 169-71 (emphasis in original).
 Id. at 171 (emphasis in original).
 Id. at 177.
 Id. at 188 (Fuentes, J., dissenting).
 Morrow, 719 F.3d at 188-89.
 Id. at 190.
 Id. at 191. (citations omitted).
 See Maurice Chammah & Nick Swartsell, Student IDs That Track the Students, N.Y. TIMES, Oct. 7, 2012, at A27A, available at http://www.nytimes.com/2012/10/07/us/in-texas-schools-use-ids-to-track-students.html?_r=0.
 See Chris Boyette, N.Y. Student Suspended After Controversial Twitter Hashtag, CNN (May 24, 2013, 8:45 PM) http://www.cnn.com/2013/05/24/us/new-york-twitter-suspension/; Eli Epstein, High School Class President Suspended For Negative Tweet, MSN NEWS (May 13, 2013), http://news.msn.com/us/high-school-class-president-suspended-for-negativ....
 Morrow, 719 F.3d at 164-65.
 Character Education Programs, ASS’N OF AM. EDUCATORS, http://www.aaeteachers.org/index.php/character-education-programs (last visited Dec. 15, 2013).
 Linda Carroll, 1 in 6 Students is Regularly Bullied, Survey Shows, TODAY.COM (Oct. 20, 2010, 12:16 PM), http://www.today.com/id/39758956/ns/health-kids_and_parenting/#.Uq1LtfRDvOQ.
 Peter West, Cyber Bullying Affects One in 10 Students, ABC NEWS (June 30, 2009), http://abcnews.go.com/Health/Healthday/story?id=7960972&page=1.
 Helen A.S. Popkin, Student Drops F-bomb on Twitter, Gets Expelled, NBC NEWS (Mar. 28, 2012, 5:22 PM), http://www.nbcnews.com/technology/student-drops-f-bomb-twitter-gets-expe....
 David Boroff, Virginia 7th Grader Suspended One Year for Using Zombie Hunter Airsoft Gun, but Family Claims He Did Not Use it on School Property, N.Y. DAILY NEWS, Sept. 24, 2013, available at http://www.nydailynews.com/news/national/boy-suspended-school-toy-gun-family-property-article-1.1465745.