Thursday, June 13, 2013

En Banc Bullying Decision Before 3rd Circuit

Last week, by a vote of 9-5 in Morrow v. Balaski, 2013 WL 2466892 (3d Cir. 2013), the en banc panel of the 3rd Circuit rejected a high school student's claim that the school had a duty to protect her from bullying.  The plaintiff's claim was an uphill battle from the start, as her claim was premised on substantive due process.  The Supreme Court in DeShaney v. Winnebago Cnty. Dep't of Social Servs., 489 U.S. 189 (1989), held 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.”  Most will remember that DeShaney involved state welfare services and their failure to pull an infant out of his father's home.  The Court did allow, however, that the state might have a duty under other contexts, most notably when the state had a custodial relationship with the victim.

Reasoning that schools have that sort of custodial relationship with students, the plaintiff in Morrow pressed her substantive due process claim. The court, however, found her argument unavailing against other school cases rejecting such a claim.  The court also relied on Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), which I have always found to have curious reasoning.  In Veronia, the Court relies on the custodial relationship/in parentis loco to justify its search of students in the form of drug tests, but then states: “[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.’"   On this point, the Supreme Court wants to have its cake and eat it to.  I suppose the benefit of being the Supreme Court is that you can.

On a related note, this decision along with other circuits taking similar positions cut heavily against a theory articulated in A Right to Learn?: Improving Educational Outcomes Through Substantive Due Process, 120 Harv. L. Rev. 1323 (2007), in which the article argued that the state's restrainst on students' liberty and the custodial relationship ought give rise to some substantive due process right to education.

Morrow, theoretically, would make for a good case for the Supreme Court to revisit these issues, but I don't see much interest in the Court taking this case or rendering a positive decision for students.


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