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From the Beaver County Times, Pa. (MCT)
The government has a duty to protect prisoners from harm.
It also has a duty to protect people who have been involuntarily committed for mental health treatment.
Yet that same duty doesn’t apply to the government when it comes to protecting students in school, according to case law.
But a local family, with the help of their attorney, hopes the U.S. Supreme Court will change that.
The Background
In January 2008, a female student at Blackhawk High School began threatening and assaulting twins Brittany and Emily Morrow.
For parents Brad and Diedre Morrow of White Township, the situation was surprising and scary. The couple had two older sons who went through Blackhawk without any problems, and their girls were honor roll students who had never been in trouble.
The girl posted on MySpace that she was going to kill Brittany and told Emily the same thing. Two days later, the student attacked Brittany in the lunchroom.
A series of assaults, racial slurs and name-calling followed for the duration of the school year and into the following school year, according to an appeal filed by attorney Al Torrence.
After one assault — for which Brittany had to seek medical attention — she, too, was suspended for three days, along with the aggressor, as part of the district’s “Zero Tolerance Policy” because Brittany tried to push the girl off her, Diedre said.
Principal Barry Balaski told the Morrows he could not protect their daughters all of the time.
The assailant was charged by the police as a juvenile and adjudicated delinquent, the juvenile court’s equivalent of guilty. She was placed on probation, and the court issued an order that the girl was to have no contact with the Morrow children.
Brad and Diedre took the court order to school district officials.
Yet the Blackhawk Area School District did not expel the student, and more incidents followed.
“They (school officials) said we don’t have a bullying problem here,” Brad said.
“I asked them, ‘What does it take? A broken arm? A broken leg?’ ” Diedre said.
The Morrows met with school district officials and the other girl’s mother, but nothing was resolved.
“I couldn’t see them go through that fear every day,” Diedre said.
When the Morrows said they were going to keep their daughters home in order to keep them safe, school officials said they would file charges against them for violating the state’s compulsory attendance laws, Diedre said.
The solution? School officials told the Morrows to send their girls to a private school.
“They told us to leave,” Diedre said.
“And to get an attorney,” Brad added.
In October 2008, the Morrows made the decision to withdraw their daughters from Blackhawk and pay tuition to a private school for the remainder of their high school years.
The Morrows said they knew they had to do something to prevent similar situations from happening in the future.
“The tools were all there. It could have been stopped, and it was let go from January to October,” Brad said.
The attorney representing the school district and Balaski, Scott G. Dunlop with the law firm of Marshall, Dennehey, Warner, Coleman & Goggin, said he could not comment on the case because it is still in litigation.
What the Law Says
Government units — school districts, municipalities, authorities — are largely exempt from lawsuits, including negligence claims. But they are subject to lawsuits for civil rights violations.
The Civil Rights Act is designed to protect citizens from the government and not to protect citizens from other citizens, Torrence said.
For example, if a police officer assaults a citizen, that could be considered a civil rights violation because the officer, acting as “the state,” deprived that citizen of his or her liberty and bodily integrity, Torrence said.
Case law has determined that prisoners and people who have been involuntarily committed for mental health treatment have had their ability to protect themselves taken away, Torrence said. There is a “special relationship” between the inmate or patient and the state that triggers a duty for the state to protect those people, he said.
The courts have ruled that students are not in a custodial relationship with schools, so there is no “special relationship” that requires the school to protect them.
Torrence said students in school are not “as custodial” as a prisoner, but there is still a custodial relationship. “I’ve argued a minor child in a public school has that relationship because of compulsory attendance,” he said.
School districts also are not responsible for student-on-student injuries, even if the district allegedly failed to protect the victim or supervise the attacker, Torrence said in his appeal, citing case law that has established that.
The other issue at hand is whether there is a “state-created danger,” which would require the school district to protect a student.
Essentially, in order to avoid a lawsuit, administrators do not act to pre-emptively stop a situation — for example, stopping the aggressive student from entering the school in the Morrow’s case — because that action could be considered as the school creating the danger, Torrence said.
If a school official has prior knowledge that someone is going to enter the building with a gun, the correct course of action is actually inaction, for the administration to do nothing, Torrence said. By doing nothing, there can be no allegation of state-created danger.
The issue of action or inaction on the part of the school is something Torrence considers “distinction without a difference.”
In the appeal, Torrence wrote, “Administrators who let violence run rampant can take shelter under the label ‘inaction.’ Dereliction of duty becomes a school’s best defense.”
The Morrows’ case has already been before the federal 3rd Circuit Court of appeals, which issued an 83-page opinion in June ruling that the school didn’t create a danger to the Morrows. Dissenting judges found that the school had exercised its authority by not expelling the bully and contributed to the danger, creating a duty to protect the victims.
“Under this reasoning, however,” the majority wrote, “every decision by school officials to use or decline to use their authority, disciplinary or otherwise, would constitute affirmative conduct that may trigger a duty to protect.”
“The Third Circuit recognized that minor children attending a public school do not have the freedom of action or independence of an adult. Nevertheless, it held that the United States 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,” Torrence wrote in his appeal.
“A new standard needs to be developed,” Torrence said.
Effect on the Family
The Morrows said they were unprepared with how being a victim would impact their lives.
“What’s really sad is when a bully does this, the victim loses their friends. They didn’t want to be the next victim,” Diedre said.
Even though the aggressor had bullied other students, their parents were unwilling to appear at school board meetings and talk about it.
While Brittany and Emily were still students at Blackhawk, they had to avoid extracurricular activities to avoid the aggressor.
Brittany and Emily graduated from Quigley Catholic High School, though the Morrows said they avoided most social interaction there.
Brittany has gone on to get a degree in social work, and Emily is going to school to become a registered nurse.
Despite continuing their educations, the Morrows said their daughters still have low self-esteem. “It’s hard for them to even talk about it,” Diedre said.
The situation also has created a financial hardship for the Morrows. Brad said they had to pay for tuition at Quigley, uniforms, medical bills and legal fees. On top of that, the couple had to take time off of work for court dates, for some of which the aggressor and her mother failed to appear.
The Morrows were aware when they filed their lawsuit that it could drag on for years, but they felt it was important to see it through. If their case is chosen to go before the U.S. Supreme Court, the Morrows would be instrumental in the way schools handle bullying cases. Its impact would nationwide.
“I don’t want anyone else to go through what Brittany and Emily and the whole family had to go through,” Diedre said.
Brad added, “We went in never anticipating winning, just forcing the issue with the school.
“It’s just a shame the girls had to go through this,” he said. “It’s not the life we wanted for them when we moved to this area.”
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©2013 the Beaver County Times (Beaver, Pa.)
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