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Are Public Schools Required to Protect Our Children from Assault by Bullies?

Contact Attorney Jason Chan

Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235

Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

“We owe our children, the most vulnerable citizens in our society, a life free of violence and fear.” – Nelson Mandela. Yet, public schools may not be responsible for maintaining an atmosphere free of violence and fear in any situation.

Most people assume that when they send their children to public school, the school administrators are expected and even required to protect them from violence at the hands of other students.  Logically, this belief is based on the assumption that, because attendance is compulsory and children are mostly defenseless, the school has a duty to protect them.  This should be especially true if the dangers they face come from other students who are allowed to attend school.

The Third Circuit Court of Appeals holds there is no duty to protect.

However, a recent opinion handed down by the Third Circuit Court of Appeals brings into question the contours of a school’s duty to protect.  In Morrow v. Balaski, the parents of two high school sisters filed a lawsuit in the Western District of Pennsylvania alleging that school officials denied them substantive due process under the Fourteenth Amendment by not protecting their children from a bully.  The Due Process Clause prohibits state and local government officials from depriving persons of life, liberty, or property without legislative authorization. U.S. Const. Amend. XIV.

The bullying in this case involved numerous physical attacks, as well as verbal harassment and threats of further violence by a fellow student.  Although the assaults were reported to the police and the bully was adjudicated and found to be delinquent, the school did not expel her, despite the school’s “no tolerance policy.”  Instead, the school officials informed the victim’s parents that they could not guarantee her safety and suggested they take their daughters out of the school.

Schools do not have a “special relationship” with their students.

In dismissing the Complaint, the district court held that a “special relationship did not exist” between the school and its students that would have required the school officials to protect them in this situation.  The court also held that the injuries were not the result of any “state-created danger.” According to another Third Circuit opinion, one of the reasons for this ruling was the long held principle that “parents remain the primary caretakers, despite their [children’s] presence in school.” The U.S. Supreme Court has yet to rule on this issue and undoubtedly this decision will be appealed, giving the high court the opportunity to weigh in.

States are taking action to protect its children.

Meanwhile, state and local lawmakers are passing legislation in an effort to prevent bullying and protect school children. Each state addresses bullying differently, as shown at www.stopbullying.gov/laws/index.html.  In this day and time, when bullying has taken on new meaning, this issue clearly needs to be addressed.  Some twenty years ago, bullying was no more than name-calling or a schoolyard fistfight.  Now, children are ending their lives as a result of bullying.

Is there a solution?

There is some hope.  The U.S. Department of Education’s Office for Civil Rights and the U.S. Department of Justice’s Civil Rights Division address bullying that involves discriminatory harassment.  Yet, the question remains — are schools doing all they can?  Why didn’t the school in Morrow v. Balaski expel the bully?  Many would say that a school system acts responsibly by following its “no tolerance policy” and removing the student making the threats.  This is an issue that remains to be decided by our highest court.

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