Morrow v.

Balaski: When Good Intentions

Go Bad

WENDY L. HANSEN*

ABSTRACT
Bullying has become a new-found crusade. Due to recent events
involving safety in public schools, the nation is taking a closer look at how
to handle aggressive behavior. Many parents worry about the safety of
their children. However, the school does not necessarily have the duty to
protect that one would expect. Courts have held there is no duty to protect
students from third-party actions. This is because there is no special
relationship. A special relationship is an exception for when the state
has an affirmative duty to protect. However, courts have yet to define the
reasoning behind the exception of a special relationship and therefore,
the jurisprudence is murky and unclear. It is important for courts to
consider the likelihood of bullying incidents arising again. Creating a clearcut, well-defined test, would allow for easier decisions in the future
without the risk of inequitable results.
Furthermore, courts should consider a childs right to education and
the effect of excluding a child from school. The School-to-Prison pipeline is
a phenomenon within the United States where children are criminalized
for misconduct in the classroom. This results in earlier prison time, future
delinquent behavior, and most importantly, lack of opportunity to further
the childs education. The objective of every public school is to educate.
Rather than simply brushing the problem aside, schools should attempt to
** Candidate for Juris Doctor, New England Law | Boston (2015). B.A.,
History, Brigham Young UniversityIdaho (2011). I would like to thank my
parents, Rhonda and Victor Hansen, who have supported me throughout
law school and all the stress that ensued. Id also like to thank Kristy
Wilson and Suzanne Donnelly for being great supportive friends on Law
Review and reading my Comment multiple times. Most importantly Id like
to thank Joan Meschino and all those who worked at Massachusetts
Appleseed Center for Law and Justice. Thank you for showing me your
passion for helping those who cannot help themselves. In memory of
Sondra H. Peskoe.
1

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teach children when disciplinary issues arise. Creating a duty to protect against bullies, widens the discretion
given to administrators and places a childs education, and further opportunities in life, in peril. Courts should
consider this in their analysis when determining a schools duty to protect students from third-party actions.

INTRODUCTION

nti-bullying has become a new-found crusade amongst legislators and activist groups alike. 1 After
many recent stories in the news about bullies and the effects they have on their victims, the nation
has taken acute notice of what was once considered part of growing up. 2 Many states have
responded with legislation, encouraging schools to properly train their staff and students on how to
handle and respond to bullying.3 As commendable as this crusade is, it is always important to consider both
sides.4 In Morrow v. Balaski, the Third Circuit ruled that a public school does not have a duty to protect students
from bullies.5 It would appear that this ruling is a step backwards for anti-bullying campaigns and can frustrate
ones sense of justice.6
This Comment argues that the Morrow decision was correct because it properly adhered to current legal
doctrine. Furthermore, it will ultimately help schools create a better environment for all students as it will keep
children in the classroom rather than expelling them and potentially excluding them from educational
opportunities. While the Court was correct to follow established precedent of the special relationship, the
decision would have been more effective had it considered the underlying principles of a special relationship
and determined a test based on the states control. More importantly, the dissent and the majority failed to
consider the consequences of each child affected by bullying, not just the victim.
Part I of this Comment discusses what effects zero-tolerance policies have on bullies and how that relates to
the School-to-Prison pipeline. It also discusses the case law surrounding the states duty to protect against thirdparty actions and special relationships. Part II discusses the facts of Morrow v. Balaski and the Courts holding
and reasoning. Part III argues that the majority failed to address an opportunity to create a legal test that will
produce equitable results in determining whether there is a special relationship. Part IV addresses the need to
consider all sides of the matter and how the court and legislature should consider the School-to-Prison pipeline
when discipline is an issue.
I.Background
A. Bullying
1.

What is Bullying?

While there are varying definitions and types of bullying, 7 it is generally defined as unwanted, aggressive
behavior among school-age children that involves a real or perceived power imbalance. 8 Two main components
1See Emily Bazelon, Op-Ed., Defining Bullying Down, N.Y. TIMES, March 12, 2013, at A23.
2Id.
3Policies and Laws, STOPBULLYING.GOV, http://www.stopbullying.gov/laws/index.html (last visited Apr. 6,
2015).
4Find Out What Happened, STOPBULLYING.GOV, http://www.stopbullying.gov/respond/find-out-what-happened/index.html (last visited
Apr. 6, 2015).

5Morrow v. Balaski, 719 F.3d 160, 164 (3d Cir. 2013).

6See id.
7Bazelon, supra note 1.
8Bullying Definition, STOPBULLYING.GOV, http://www.stopbullying.gov/what-is-bullying/definition/index.html (last visited Apr. 6, 2015).

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of bullying are: (1) a perceived or real imbalance in power, and (2) repeated behavior. 9 Additionally, bullying can
be physical or verbal.10 Physical bullying is an unwanted physical touching, and verbal bullying consists of
teasing, taunting, or name-calling.11 An emerging type of bullying takes place through the Internet and has been
termed cyber-bullying.12 Current social media created a gateway for cyber-bullying, which is bullying that
takes place using electronic technology . . . includ[ing] devices and equipment such as cell phones, computers,
and tablets as well as . . . social media sites, text messages, chat, and websites. 13 In 2011, a survey conducted by
the U.S. Department of Health and Human Services concluded that about 20.1% of students nationwide
experienced bullying while on school property, and 16.2% of students were electronically bullied. 14 Regardless of
the form, the effect is the sameshort and long-term psychological trauma. 15
2.Massachusettss Anti-Bullying Statute
To address this issue, in 2010, Massachusetts passed an anti-bullying law that prohibited bullying on and off
school property if it creates a hostile environment for the victim at the school. 16 It defines bullying as:
[R]epeated use by one or more students of a written, verbal or electronic expression or a physical act or
gesture or any combination thereof, directed at a victim that: (i) causes physical or emotional harm to the
victim or damage to the victims property; (ii) places the victim in reasonable fear of harm to himself or of
damage to his property; (iii) creates a hostile environment at school for the victim; (iv) infringes on the
rights of the victim at school; or (v) materially and substantially disrupts the education process or the
orderly operation of a school. For the purposes of this section, bullying shall include cyber-bullying.17

The statute implements training programs for teachers and students to be instructed on bullying prevention as
part of their school curriculum.18 Each school is required to devise a plan that includes appropriate strategies to
prevent bullying, effective interventions to stop bullying, research findings on bullying, how parents can
implement this plan at home, and methods to address cyberbullying. 19 However, the final clause reads: Nothing
in this section shall supersede or replace existing rights or remedies under any other general or special law, nor
shall this section create a private right of action. 20 Stated otherwise, there is no cause of action under this
bullying statute.21

9Id.
10Id.
11Id.
12What is Cyber Bullying?, STOPBULLYING.GOV, http://www.stopbullying.gov/cyberbullying/what-is-it/ (last visited Apr. 6, 2015).

13Id.
14U.S. Dept of Health and Human Servs., Youth Risk Behavior SurveillanceUnited States, 2011, 61 SURVEILLANCE SUMMARIES 1, 9 (2012),
available at http://www.cdc.gov/mmwr/pdf/ss/ss6104.pdf.
15Bazelon, supra note 1; see also Effects of Bullying, STOPBULLYING.GOV http://www.stopbullying.gov/at-risk/effects/ (last visited Apr. 6,
2015).

16MASS. GEN. LAWS ch. 71, 37O(b) (West 2009 & Supp. 2014).
17Id. 37O(a).
18Id. 37O(c).
19Id. 37O(d).
20Id. 37O(i) .
21Id.

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3.How Do Anti-Bullying Laws Affect the Bully?

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This legislation does not just affect the school environment or the victim it also affects the bully.22 Most
school policies encourage administrators to suspend or expel bullies for their inappropriate or violent behavior. 23
These actions lead to what is called the School-to-Prison pipeline phenomenon.24
B.What is the School-to-Prison Pipeline?
Current practices have the effect of pushing schoolchildren out of classes and into the prison system; this
channel is known as the School-to-Prison pipeline which is defined as policies and practices that push our
nations schoolchildren . . . out of classrooms and into the juvenile and criminal justice systems. This pipeline
reflects the prioritization of incarceration over education. 25 In Massachusetts from 2009 to 2010, nearly 5,200
students were excluded from school for ten days or longer. 26 Children as young as four years old were excluded
for at least one day, and children as young as ten years old were permanently excluded, either through
suspension or expulsion.27
By way of illustration, in Philadelphia County Schools, the number of arrests went from 1,632 between 1999
and 2000 to 2,194 between 2002 and 2003.28 Houston Independent School District reported 4,002 arrests in 2002
17% for disrupting class and 26% for disorderly conduct. 29 Further, Boston Public Schools reported that 28% of
school arrests were for public order offenses between 2009 and 2010. 30 Public order offenses and disturbing
school assembly offenses are broad infractions that include talking back to the teacher or not having a hall pass. 31
Some argue this statistic is a reflection of the heightened police presence in schools and zero-tolerance policies. 32
1.

Zero-Tolerance Policies in Schools Contribute to the School-to-Prison Pipeline

One of the major factors contributing to the School-to-Prison pipeline are zero-tolerance policies. 33 Such
policies are generally school implemented and have become more popular due to school shootings and low

22The Roles Kids Play, STOPBULLYING.GOV, http://www.stopbullying.gov/what-is-bullying/roles-kidsplay/index.html (last visited Apr. 6, 2015).
23MASS. APPLESEED CTR. FOR LAW AND JUSTICE, KEEP KIDS IN CLASS: NEW APPROACHES TO SCHOOL DISCIPLINE 5 (2012), available at
http://www.massappleseed.org/pdfs/kkic_newapproaches.pdf.
24What Is the School-to-Prison-Pipeline?, AM. CIV. LIBERTIES UNION, https://www.aclu.org/racial-justice/what-school-prison-pipeline (last
visited Apr. 6, 2015).

25Id.; see also Stop the School-to-Prison Pipeline, RETHINKING SCHOOLS (Winter 20112012), available at
http://www.rethinkingschools.org/archive/26_02/edit262.shtmlschool-to-prison; How High Stakes Testing Feeds
the School-to-Prison Pipeline Infographic, FAIRTEST, http://fairtest.org/pipeline-infographic (last visited Apr. 6,
2015); School to Prison Pipeline, SUSPENSIONSTORIES, http://www.suspensionstories.com/school-to-prisonpipeline/ (last visited Apr. 6, 2015) (illustrating how standardized testing affects the School-to-Prison pipeline).
26MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 7.
27Id.
28ADVANCEMENT PROJECT ET AL., EDUCATION ON LOCKDOWN: THE SCHOOLHOUSE TO JAILHOUSE TRACK 15 (2005).
29Id.
30ROBIN L. DAHLBERG, ARRESTED FUTURES: THE CRIMINALIZATION OF SCHOOL DISCIPLINE IN MASSACHUSETTS
THREE LARGEST SCHOOL DISTRICTS 22 (2012).
31Cf. id. at 9.
32See id.
33AM. CIVIL LIBERTIES UNION, supra note 24.

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funding for public schools.34 These zero-tolerance policies automatically impose severe punishment regardless
of circumstances.35 This means that there is no mental state intent requirement. 36 It gives broad discretion to
administrators to suspend and expel students. 37 Though some supporters argue that these policies are fair, others
argue that they unfairly affect at-risk students whose infractions are minor under the circumstances, but who
nevertheless . . . get pushed out school doors. 38 Opponents argue these policies ultimately widen the offenses
from serious chargeslike drug or weapon possessionto the infamous catchall offense: disturbing school
assembly.39 These trends can lead to complex issues when bullies are suspended and expelled from school.40
2.The States Duty
While schools have their own policies, states rely on the Fourteenth Amendments Due Process Clause,
which provides that no state shall deprive any person of life, liberty, or property, without due process of law. 41
There are two components to the Due Process Clause: procedural and substantive. 42 Substantive Due Process
determines whether the government has an adequate reason for taking away ones life, liberty, or property. 43 [It]
looks to whether there is a sufficient justification for the governments action. 44
In DeShaney v. Winnebago Cnty.,45 the Supreme Court held that the state did not have a duty to protect against
third-party actions under the Fourteenth Amendments substantive Due Process Clause. 46 In DeShaney, Joshua
DeShaneys father beat him so that he suffered permanent mental impairment. 47 Joshuas mother sued the
Department of Social Services for violating his due process rights, alleging the Department failed to intervene to
protect Joshua against the risk of violence. 48 The Court stated that even though there was a history of violence
and the Department was aware of that history, it still did not create an affirmative duty for the state to intervene
and protect.49
However, there is an exception where the state does have an affirmative duty; this is called special
relationship.50 In Youngberg v. Romero,51 the Court held that the state possessed a duty to provide healthy and
safe living conditions as well as freedom from injury when a person is confined involuntarily in a mental
institution.52 Similarly, Estelle v. Gamble53 held that prisoners had to show acts or omissions sufficiently harmful
34Id.; Christopher D. Pelliccioni, Is Intent Required? Zero Tolerance, Scienter, and the Substantive Due Process Rights of
Students, 53 CASE W. RES. L. REV. 977, 978 (2003).
35AM. CIVIL LIBERTIES UNION, supra note 24.
36MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 5.
37See Pelliccioni supra, note 34, at 978.
38MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 5.
39Id.
40See infra notes Part IV.
41U.S. CONST. amend. XIV, 1.
42ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 557 (4th ed. 2011).
43Id. at 558.
44Id.
45DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 191, 193 (1989).
46Id. at 192.
47Id. at 19293.
48Id. at 193.
49Id. at 195.
50Id. at 19798.
51Youngberg v. Romero, 457 U.S. 307, 309 (1982).
52Id. at 324.
53Estelle v. Gamble, 429 U.S. 97, 99 (1976).

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to evidence deliberate indifference to serious medical needs in order to show the state had a duty to protect. 54 In
these situations, the Court has determined there was a special relationship triggering certain rights for the
plaintiff.55 When the state has a special relationship with a citizen, it follows that it has a duty to protect that
person from third-party actions. 56 More specifically, in these two cases, those exceptions took effect while the
citizens were imprisoned or in a mental institution against their will. 57 Both instances are similar because the
citizens had no choice but to be in that situation due to their confinement; their ability to remove themselves was
impeded.58 The Court reasoned that the state needs to protect this special class of persons from third-party actors
because of the states control.59
Regarding public schools, courts have reasoned that there is no duty to protect against third-party actions;
thus students do not fall into the special relationship category. 60 This means courts have determined that
school children do not fall within the class of persons whose liberty is restricted, and the state has no
responsibility to protect against third-party actors. 61 For example, the Third Circuit held in D.R. v. Middle Bucks62
that parents remain the primary caretakers of their children and therefore do not fall into the category set out by
Youngberg and Estelle.63 The court ultimately rejected the plaintiffs argument that mandatory attendance and in
loco parentis64 created a duty for the school to protect. 65 The court relied on physical custody and the exertion of
control over the third-party and the citizen. 66 The Zebra court also held that parents have an unrestricted right to
move their child to a different school.67
The Third Circuit later expanded upon the special relationship doctrine, though not specifically related to
public schools.68 Nicini v. Morra dealt with the states duty to protect foster children. 69 The child was sent to a
foster family and unfortunately was sexually assaulted by his foster parent. 70 The court held that the state had a
duty to protect foster children under the special relationship exception to the Fourteenth Amendment. 71 All of
54Id. at 106.
55DeShaney, 489 U.S. at 194.
56Id. at 197.
57See Youngberg, 457 U.S. at 324; Estelle, 429 U.S. at 10304.
58Compare DeShaney, 489 U.S. at 191 (recognizing a fathers control over his infant sons freedom of location as he
moved both of them across state borders), with D.R. v. Middle Bucks Vocational Sch., 972 F.2d 1364, 137172 (3d
Cir. 1992) (Middle Bucks) (holding the requirement of a teenager to attend high school classes was not a
restriction of freedom).
59DeShaney, 489 U.S. at 18999; Youngberg, 457 U.S. at 324; Estelle, 429 U.S. at 103; see Middle Bucks, 972 F.2d at
1371.
60See Hasenfus v. LaJeunesse, 175 F.3d 68, 71 (1st Cir. 1999) (holding there was no duty to protect a student from
bullying, even when it resulted in the student committing suicide); Middle Bucks, 972 F.2d at 1371 (quoting Pa.
State Educ. Assns v. Dept. of Pub. Welfare, 449 A.2d 89, 92 (1982)); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729,
731 (8th Cir. 1993) (holding there was no duty to protect student from another students violent actions).
61See DeShaney, 489 U.S. at 201.
62Middle Bucks, 972 F.2d at 1371.
63Id.
64BLACKS LAW DICTIONARY 907 (10th ed. 2014) (Of, relating to, or acting as a temporary guardian or caretaker
of a child, taking on all or some of the responsibilities of a parent.).
65Middle Bucks, 972 F.2d at 1371.
66See id.
67Zebra v. Sch. Dist. of Pittsburgh, 296 A.2d 748, 751 (Pa. 1972).
68See generally Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000).
69See id. at 800.
70Id. at 804.
71Id. at 807.

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these cases were considered in the Morrow opinion.72

II.Court Opinion in Morrow v. Balaski

A. Facts
Brittany and Emily Morrow were students at Blackhawk High School in Pennsylvania and were subjected to
a series of physical assaults and threats by Shaquana Anderson (Anderson). 73 Anderson threatened Brittany
over the phone and on her MySpace account. 74 Two days later, Anderson attacked Brittany in the lunchroom. 75
Both girls were suspended due to the zero-tolerance policy that the school implemented. 76 Brittanys mother
reported Anderson to the local police, who subsequently charged her with harassment, terroristic threats, and
assault.77 However, once Anderson returned to school, she continued to bully the Morrow girls and tried to
throw Brittany down a set of stairs. 78 Anderson was then placed on probation and ordered to have no contact
with Brittany.79 On April 9, 2008, the Court of Common Pleas of Beaver County, Juvenile Division, placed
Anderson on probation.80 The court adjudicated Anderson delinquent five months later and then imposed
another no contact order.81 However, the physical assaults continued, and Anderson elbowed Brittany in the
throat at a football game. 82 One of Andersons friends, Abby Harris, struck Emily in the throat as well. 83 Assistant
Principal Balaski responded by telling Brittany and Emilys parents that there was nothing the school could do to
guarantee their safety, and it would be best to consider transferring Brittany and Emily to another school. 84
B.Procedural History
The Morrows filed their claim under 42 U.S.C. 1983 stating that the schools inaction and failure to protect
their daughters violated their Fourteenth Amendment substantive Due Process right. 85 They argued that the
school had a special relationship with Brittany and Emily. 86 The Morrows also argued that the school was
liable because it created a dangerous situationwhich created a duty to protect them. 87
The district court dismissed the Morrows claim with prejudice, stating that there is no special relationship
between public schools and students. 88 Additionally, the court stated that the Morrows specified no action in
which the defendants used their authority improperly. 89 An appeal followed and the Third Circuit took the case
en banc.90
72Morrow v. Balaski, 719 F.3d 160, 16471 (3d Cir. 2013).
73Id. at 164.
74Id.
75Id.
76Id.
77Id. at 164.
78Morrow, 719 F.3d at 164.
79Id.
80Id.
81Id.
82Id.
83Id.
84Morrow, 719 F.3d at 16465.
85Id. at 165.
86Id.
87Id. For the purposes of this Comment, the state-created-danger doctrine will not be discussed.
88Id.
89Id.
90Morrow, 719 F.3d at 165.

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C.Reasoning and Holding

The Court relied on DeShaneys reasoning that an affirmative duty arises not from the States knowledge of
the individuals predicament or from its expressions of intent to help him, but from the limitation which it has
imposed on his freedom to act on his own behalf. 91 They also relied on Middle Bucks to determine that
compulsory attendance laws and in loco parentis do not restrain parents authority as to equate a schools custody
with the situations in Youngberg and Estelle.92 The majority also highlighted that the Supreme Court in Vernonia
stated we 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. 93 Ultimately, the Court held there is no special
relationship between public schools and their students, and therefore, the school did not violate any duty to
Brittany and Emily Morrow.94
D.The Dissent
The dissent argued, Middle Bucks provides no basis to conclude that DeShaney endorses an all-or-nothing
approach that turns on the existence of round-the-clock physical custody or on who remained the primary
caregiver.95 Instead, the dissent argued that Middle Bucks should not be followed because it had no basis to
determine that full physical custody was needed from DeShaney.96 The dissent also parallels Nicini with Morrow,
arguing that there was more physical custody in Morrow than in Nicini so there should be a special
relationship.97 The Morrow dissent reasoned that the school may have had a duty to protect because the parent
could not immediately protect the child in the situation. 98

ANALYSIS
III. The Majority Missed an Opportunity to Clarify the Law
While the Court does an excellent job relying on established precedent, it did not dive deeply enough into
the Middle Bucks reasoning, which is similar to the Morrow case.99 In failing to do so, it still has not completely
closed the gap with regard to the states special relationship in certain circumstances. 100 Had the majority come
up with a test, as they implicitly did in their prior decision in Middle Bucks, they would have effectively created a
rule that future courts could use to apply in similar situations.101 The majority erred in not applying this test.102

91See id. at 168 (quoting DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 200 (1989)).
92See id. at 168.
93Id. at 169 (quoting Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655 (1995)).
94Id. at 177.
95Id. at 18889 (Fuentes, J., dissenting).
96See Morrow, 719 F.3d at 18889 (Fuentes, J., dissenting).
97See id. at 193.
98 Id. at 188.
99See infra Parts III.AB (discussing the importance of the Middle Bucks reasoning).
100See infra Part III.
101See infra Parts III.AC (determining that the job of the court is to do more than come out with a correct
decision, rather they are to come up with the correct reasoning).
102See infra Parts III.AC.

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A. Morrow Should Have Relied on the Middle Bucks Reasoning to Come to Its Conclusion Because it Creates a
Clear Test and Stronger Precedent

Both Morrow and Middle Bucks deal with whether the state has a duty to protect students from third-party
actions.103 Both cases rely upon DeShaney, Estelle, and Youngberg.104 Both cases reason that the state does not have
a duty and there is no special relationship. 105 The Morrow majority mentions Middle Bucks, but does not rely
heavily on it.106 Had the Court relied upon this case and dove deeper into the reasoning, it would have created a
stronger precedent and an easily applicable test.107
The Middle Bucks court uses a physical custody test, this test, however, has more to do with control rather
than physical custody.108 The physical custody test determines whether the state has a special relationship
with the injured party.109 If the state has physical custody, then it has a duty to protect. 110 Some may argue that
relying on physical custody is not in accordance with established precedent because physical custody is not a
factor.111 However, one should not be fooled by the name. 112 Though Middle Bucks calls it a physical custody
test, the underlying elements of that test correlate to control, which is in accordance with established
precedent.113 The test in Middle Bucks looks at four components between the relationship of the state and the
citizen under DeShaney, Estelle, and Youngberg.114 The four components are: (1) full time severe and continuous
state restriction of liberty;115 (2) citizens are not given the opportunity to seek outside help to meet their basic
needs;116 (3) they are not free to leave or provide for themselves; 117 and (4) they are wholly dependent on
[the] state for food, shelter, clothing, and safety. 118 This is not a simple, broad test of round-the-clock physical
custody.119 Rather, these components, together with the element of physical custody, help determine whether
103Morrow v. Balaski, 719 F.3d 160, 168 (3d Cir. 2013); L.R. ex rel. D.R. v. Middle Bucks Area Vocational Tech.
Sch., 972 F.2d 1364, 1371 (3d Cir. 1992).
104Morrow, 719 F.3d at 168; Middle Bucks, 972 F.2d at 1371.
105Morrow, 719 F.3d at 168; Middle Bucks, 972 F.2d at 1371.
106Morrow, 719 F.3d at 168.
107See infra notes 10855 and accompanying text (describing the elements set out in Middle Bucks that manifest
control rather than physical custody).
108972 F.2d at 1371.
109Id.
110Id.The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains
an individuals liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic
human needse.g., food, clothing, shelter, medical care, and reasonable safety . . . .
DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 498 U.S. 189, 200 (1989)

111Morrow, 719 F.3d at 188 (Fuentes, J., dissenting).

112See id. at 189. The dissent relies heavily upon the term physical custody and believes that the Morrow and
Middle Bucks opinions rely solely on whether there is full-time physical custody. However, this is a weakness in
their argument and will be discussed in more detail. See infra Part III.C.
113Contra Middle Bucks, 972 F.2d at 1370 (Our court has read DeShaney primarily as setting out a test of physical
custody.).
114See id.
115Id.
116Id.
117Id.
118Id. at 1371.
119See DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 199 (1989); Middle Bucks, 972 F.2d at 1371.
Contra Morrow v. Balaski, 719 F.3d 160, 188 (3d Cir. 2013) (arguing that the Middle Bucks opinion creates a test
that demands round-the-clock physical custody in order to have a special relationship).

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the state has a special relationship with the student and is more based on control.120
B. An Applied Physical Custody Test Produces Equitable Results
The Morrow Court had the opportunity to create a test from Middle Bucks that would clarify the case law
concerning special relationships, but it failed to do so. 121 If this test is applied again to prior decisions, those
decisions come out to the same reasonable result, further showing that this test not only yields reasonable
results, but also adds consistency and predictability to this area of law. 122
To demonstrate this, if the Middle Bucks test is applied to Nicini, the result would still be the same. 123 The
Nicini court held that though the child was not in the states absolute physical custody, there was still a special
relationship with a foster child.124 Under the first prong, the childs restriction of liberty has to be full-time and
severe.125 Applying this to the case of foster children, a representative from Child Services monitors everything
the child does and children do not have the ability to go wherever they please. 126 The second prong states that
the child cannot seek outside help for basic needs. 127 For foster children, the primary caregiver is the state; they
are assigned to foster parents by the state and cannot seek help at other places. 128 Prong three articulates that the
child cannot provide for himself or herself. 129 Because these are children, they are not able to take care of
themselves properly and would not be able to live on their own. 130 The fourth prong states that they are wholly
dependent upon the state for food, shelter, clothing, and safety. 131 Foster parents are paid to care for foster
children by paying for their food, shelter, and clothing. 132 A foster childs life is controlled completely by the
state.133 Therefore, Nicinis reasoning comes out the same under the Middle Bucks test.134
One can even apply this test to DeShaney, in which the Supreme Court established that the state does not
120See Middle Bucks, 972 F.2d at 1370.
121See supra Part III.A; see also Morrow v. Balaski, 719 F.3d 160, 16876 (3d Cir. 2013).
122See infra notes 12355 and accompanying text.
123Middle Bucks, 972 F.2d at 1371.
124Nicini v. Morra, 912 F.3d 798, 809 (3d Cir. 2013).
125Middle Bucks, 972 F.2d at 1371.
126See Nicini, 212 F.3d at 808 (stating that foster children, like those who are incarcerated, do not have the ability
to seek living elsewhere).
127See Middle Bucks, 972 F.2d at 1371.
128Nicini, 212 F.3d at 808.A relationship between the state and foster children arises out of the states affirmative act in
finding the children and placing them with state-approved families. . . . By so doing, the state assumes an important
continuing, if not immediate, responsibility for the childs well-being. In addition, the childs placement renders him or
her dependent upon the state, through the foster family, to meet the childs basic needs.
Id. (quoting Middle Bucks, 972 F.2d at 1372).

129See Middle Bucks, 972 F.2d at 1371.

130Nicini, 212 F.3d at 808.Nonetheless, any distinctions between children placed in foster care and the prisoners at issue
in Estelle or the institutionalized mentally retarded persons at issue in Youngberg are matters of degree rather than of
kind . . . . In each of these cases the state, by affirmative act, renders the individual substantially dependent upon the
state . . . to meet [his or her] basic needs.
Id. (citation omitted).

131See Middle Bucks, 972 F.2d at 1371.

132Cf. Nicini, 212 F.3d at 809 n.7.
133Id. at 807.
134Id. at 809; Middle Bucks, 972 F.2d at 1371.

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have a duty to protect against third parties. 135 Joshua DeShaney was living at his fathers house for the entire two
years he was visited by the Department of Social Services; therefore, the state did not restrict his liberty as the
first prong requires.136 Because help could have come from many places other than the state, Joshua was not
completely under the states control as he was still living with his father; thus, the second prong is not
satisfied.137 The third prong also fails because though Joshua could not have taken care of himself, the state did
not take care of him his father did.138 Therefore, he was still able to care for himself through his parent. 139
Joshua DeShaney did not rely upon the state for food, shelter, clothing, or safety as the fourth prong requires; he
relied on his father to provide them. 140 The Middle Bucks test applied to DeShaney comes out with the same
result that there is no special relationship, and the state does not have a duty to protect. 141
If the Middle Bucks test is applied to Morrow, the result would again be the same and show that the majority
should have adopted this test to add consistency to this area of law. 142 The Morrows go home every day to their
parents: they have the choice to go to another school, a private school, or be home-schooled; therefore, there is
no full time and severe restriction of their liberty. 143 The second prong fails because the Morrows are not at the
school all day, and their basic needs and outside help are never limited to the school. 144 Further, they are free to
leave the school every day when class is over and be withdrawn if needed. 145 In fact, Zebra held that a parent
cannot be denied the right to move a child from the school when his or her health and safety are threatened. 146
Though the Morrows parents cannot take care of their children while they are in school, the parents still have
ultimate power and control over their children. 147 Thus, prong three failed because the Morrows are able to be
cared for by someone other than the state. 148 Although the students rely temporarily on shelter and sometimes
food, through school lunches, they do not wholly rely on the state or the school for these items. 149 Parents provide
their clothing, food, shelter, and safety. 150 Therefore, the Middle Bucks test applied to the Morrow facts produces
the same result.151
Despite the fact that Middle Bucks stated, [o]ur court has read DeShaney primarily as setting out a test of
physical custody,152 the principles behind the test relate less to full-time physical custody and more to the
135DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 201 (1989).
136Compare DeShaney, 498 U.S. at 201, with Middlebucks, 972 F.2d at 1371. The Court rejected the parallel of
DeShaneys facts to Youngberg, reasoning that because the prisoner is unable by reason of the deprivation of his
liberty [to] care for himself, it is only just that the State be required to care for him. DeShaney, 498 U.S. at 198
99 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
137Compare DeShaney, 498 U.S. at 191, with Middle Bucks, 972 F.2d at 1371.
138Compare DeShaney, 498 U.S. at 193, with Middle Bucks, 972 F.2d at 1371.
139DeShaney, 498 U.S. at 192.
140Compare DeShaney, 498 U.S. at 192, with Middle Bucks 972 F.2d at 1371.
141DeShaney, 498 U.S. at 202; Middle Bucks, 972 F.2d at 1371.
142See infra notes 14350 and accompanying text.
143Compare Morrow v. Balaski, 719 F.3d 160, 183 (3d Cir. 2013), with Middle Bucks, 972 F.2d at 1371.
144Compare Morrow, 719 F.3d at 183, with Middle Bucks, 972 F.2d at 1371.
145Morrow, 719 F.3d at 183.
146Zebra v. Sch. Dist. of Pittsburgh, 296 A.2d 748, 751 (Pa. 1972).
147Morrow, 719 F.3d at 169; Middle Bucks, 972 F.2d at 1372 (However, even when enrolled in public school
parents retain the discretion to remove the child from classes as they see fit . . . .).
148See Morrow, 719 F.3d at 160.
149Compare Morrow, 719 F.3d at 170, with Middle Bucks, 972 F.2d at 1371.
150See Morrow, 719 F.3d at 170.
151See supra notes 14249 and accompanying text.
152Middle Bucks, 972 F.2d at 137071.

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degree of control.153 The majority had a prime opportunity to address this hot-bed issue, but they slept on it. 154
Had they scrutinized the Middle Bucks reasoning, they would have created a test that produced equitable results
and provided a clear-cut analysis for future courts.155
C. The Misunderstanding of Control
The Morrow dissent argues that Middle Bucks should not be relied upon because the physical custody test
did not follow precedent.156 However, as previously established, the physical custody test does not rely on
physical custody alone.157 Rather, as prior decisions by the court show, the test relies on degree of control. 158 The
dissent relied specifically on Nicini and determined that even though there was no round-the-clock care for
foster children, the state still had a special relationship; therefore there should be a special relationship in
Morrow.159 However, the dissent failed to see the foundation that controls Nicini and Middle Bucks.160 It is a
determination of control not physical custody alone.161
The dissent further used this parallel argument of physical custody to state that there was a special
relationship in Morrow.162 The dissent also argued that the special relationship existed because the parent had
no immediate control of the situation. 163 Of course there is no immediate controlthe very nature of third-party
aggression is that no one has control.164 The only time there is control is when there is a special relationship. 165
153Id.
154See supra Parts III.AB.
155See supra Parts III.AB.
156Morrow v. Balaski, 719 F.3d 160, 188 (3d Cir. 2013) (Fuentes J., dissenting).
157See supra Parts III.AB.
158See Ali Davison, Note, Shackled and Chained in the Schoolyard: A New Approach to Schools Section 1983 Liability
Under the Special Relationship Test, 19 CARDOZO J. L. & GENDER 273, 286 (2012) (Therefore, the question is not
whether the individual is in the physical custody of the state, but instead whether the state has imposed some
kind of limitation on the individuals ability to act in his or her own interests.); supra Parts III.AB; see also
DeShaney v. Winnebago Cnty Dept of Soc. Servs., 489 U.S. 189, 200 (1989) (The affirmative duty to protect
arises not from the States knowledge of the individuals predicament or from its expressions of intent to help
him, but from the limitation which it has imposed on his freedom to act on his own behalf.).
159Morrow, 719 F.3d at 188, 192 (Fuentes, J., dissenting).
160See supra Part III.B (discussing the reasoning behind the special relationship is that of control); see also
Deborah Austern Colson, Note, Safe Enough to Learn: Placing an Affirmative Duty of Protection on Public Schools
Under 42 U.S.C. Section 1983, 30 HARV. C.R.-C.L. L. REV. 169, 174 (1995) (discussing that courts use custody and
special relationship interchangeably but that DeShaney did not confine the meaning of special relationship to
custodial situations).
161See supra Part III.A; see also Davison, supra note 158, at 287.
162Morrow, 719 F.3d at 188, 193 (Fuentes, J., dissenting) (arguing that because the court in Nicini held that the
state had a special relationship to foster children, then it should have it in Morrow because there was no fulltime physical custody and the school has compulsory attendance laws thus arguing there is a stronger case for
Morrow than Nicini).
163See id. at 188.
164But see id.
165See supra Part III.A; see also DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 203 (1989) (Brennan, J.,
dissenting).The most that can be said of the state functionaries in this case is that they stood by and did nothing when
suspicious circumstances dictated a more active role for them. In defense of them it must also be said that had they
moved too soon to take custody of the son away from the father, they would likely have been met with charges of
improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the
basis for the present charge of failure to provide adequate protection.
Id.

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Simply paralleling cases that are similar to one another is only half of the analysis; the dissent failed to look at
the crux of the issue.166 The dissent mentions that it is a difference in degree, not kind; however, the factors the
dissent uses are those of kind and not degree. 167 The factors look to the issue of physical custody and not control
over third parties and the victim. 168 The factors consider physical custody in the school, compulsory attendance
laws, and the inability for parents to remove their children. 169 These factors point to the solidity of physical
custody the school has over students but not the degree of control the school has over the actions of individual
students.170 Mandatory attendance does not determine the ability to control third party actions, which is essential
to determine whether a special relationship exists. 171 The dissent failed to understand the underlying question
that the precedent sets forth: what degree of control does the state have over the victim and third party actors?172
The dissent essentially grasped at straws to make the foundation of its argument, and ended up arguing in a
circle.173
Simply relying on the fact that there is no immediate control of the situation does not set this case apart from
DeShaney, Estelle, Youngberg, or Middle Bucks.174 The reason why a special relationship exists is because in those
particular situations, the state does have control over the third party and the victim. 175 Simply relying on the fact
that there is no immediate control eliminates the foundational principle of control in general, which is essential
to establishing whether the state has a duty.176
D.Going Forward, Courts Should Adopt the Middle Bucks Test
Going forward, in determining whether the state has a duty to protect under the special relationship
exception, courts should look at the elements set forth in Middle Bucks, namely: (1) fulltime severe and
continuous state restriction of liberty; 177 (2) [the citizen is not] given the opportunity to seek outside help to
meet [his or her] basic needs; 178 (3) the citizen is not free to leave or provide for themselves; 179 and (4) the
citizen is wholly dependent on the state for food, shelter, clothing and safety. 180 Looking at these elements will
allow the court to clearly determine what should constitute a special relationship according to precedent. 181
The majority opinion would have created a stronger precedent had it analyzed Middle Bucks more thoroughly
and created a test.182 Ultimately, Morrow was a reasonable, fair decision, but a courts reasoning is just as

166See supra Part III.A. But see Morrow, 719 F.3d at 188.
167See Morrow, 719 F.3d at 193.
168Id. at 19293.
169Id. at 193.
170See id.
171See id.
172See id. at 168; supra Part III.A.
173See Morrow, 719 F.3d at 188 (Fuentes, J., dissenting).
174See DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 196200 (1989); Youngberg v. Romero, 457
U.S. 307, 324 (1982); Estelle v. Gamble, 429 U.S. 97, 106 (1976); Morrow, 719 F.3d. at 16571; D.R. v. Middle Bucks
Vocational Sch., 972 F.2d 1364, 1371 (3d Cir. 1992).
175See Davison, supra note 158, at 28081 (stating there is a current confusion with special relationship and
custody and that courts generally rely only on the presence of physical custody); supra Part III.A.
176See supra Part III.A.
177Middle Bucks, 972 F.2d at 1371.
178Id.
179Id.
180Id.
182See supra notes 12122 and accompanying text.

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important as its holding; and Morrow failed to take advantage of this opportunity to create a test that would add
uniformity and predictability to special relationship jurisprudence.183
IV.It Is Valuable Policy to Keep Children in School
The dissent and the majority do not account for what the concurrence illustrates: I also worry that creating
a constitutional tort out of a schools failure to expel a student creates a too-easy incentive for schools to expel
quickly students who engage in any violent behavior in order to avoid liability or the threat of suit. 184 The
schools job is to educate children. 185 Appropriate discipline is a great educational experience if done correctly. 186
Therefore, going forward, courts should consider this in their analysis.187
A. How Zero-Tolerance Policies Affect Bullies
Zero-tolerance policies are unproductive mechanisms for discipline. 188 They do not consider the students
mental state to determine whether the child knowingly committed the offense. 189 This blanket consequence
affects students learning in and out of school. 190 It affects students outside of school because they are not
receiving an education while suspended or expelled. 191 In school, children fall behind in their learning and have
difficulty catching up, thus leading to frustration and more disciplinary issues. 192 Even in this case, both victim
(Brittany) and bully (Anderson) were suspended.193 What disciplinary purpose does that serve?194 What does that
teach children?195 It only teaches children that even the victim gets punished. 196 Zero-tolerance policies are a way
for school administrators to ignore problems without truly addressing the issue at hand. 197 With zero-tolerance
policies, society ends up dealing with the consequences in the long run. 198 Keeping children out of school is not a

183See supra notes 14251 and accompanying text.

184Morrow v. Balaski, 719 F.3d 160, 164 (3d Cir. 2013) (Ambro, J., concurring in part and dissenting in part).
185Pelliccioni, supra note 34, at 1006.
186Id.
187AM. PSYCHOLOGICAL ASSN ZERO TOLERANCE TASK FORCE, ARE ZERO TOLERANCE POLICIES EFFECTIVE IN THE
SCHOOLS? AN EVIDENTIARY REVIEW AND RECOMMENDATIONS 12 (2006) [hereinafter ZERO TOLERANCE TASK
FORCE]; MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 1.
188MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 5.
189Pelliccioni, supra note 34, at 978.
190AM. CIV. LIBERTIES UNION, supra note 24.
191See MASS. APPLESEED CTR. FOR LAW AND JUSTICE , supra note 23, at 910.
192See id. at 10.
193Morrow v. Balaski, 719 F.3d 160, 164 (3d Cir. 2013).
194MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 10.
195Id.
196See, e.g., Morrow, 719 F.3d at 164.
197See AM. CIV. LIBERTIES UNION, supra note 24.
198MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 10.The Commonwealth has a vested economic interest
in seeing all of its children complete a high school education. Those who graduate from high school are more likely to
earn a livable wage, pay taxes, and be productive members of society. Studies have linked educational attainment to
overall good health. Additionally, the Commonwealth considers creation of a highly skilled workforce as an economic
imperative which is an essential prerequisite to ensure that Massachusetts remains a leader in technology and in the
emerging 21st Century economy.
Id.

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proper incentive to dissuade bad behavior.199 This can deprive them of opportunities later in life.200
Those who argue for zero-tolerance policies claim they keep children safe by creating a safe environment. 201
However, this is not the case.202 Children are less safe out of school because they are usually unsupervised. 203 In
terms of a safer school environment, studies show that zero-tolerance policies do not reduce violence and create
a negative school environment.204 The negative environment comes from inconsistently and improperly
punishing the wrong behavior children do not trust unfair results. 205 The only thing that changes is that more
children are on the street and have less faith in the fairness of their school system. 206
B. It Is Important to Keep Children in Class
Criminalizing children for their misbehavior in school is a growing trend. 207 This leads to early involvement
with the juvenile detention system. 208 Children are more likely to come back to prison as an adult if they have
been in the system as a child.209 A student who is suspended or expelled from school is thus placed at greater
risk for delinquent behavior and subsequent incarceration when placed unsupervised on the streets of the
community for days or weeks at a time. 210 The issue is: when should society pay for the wrong behavior? 211
During school when bad behavior is more controllable and formidable in the childs life? 212 Or after years of legal
trouble and paying for students to stay in prison?213
Many parents would protest, and rightfully so, to the idea of having bullies at school. 214 But simply placing
blame and shifting the problem to someone else does not solve the issue. 215 Schools are in a better position to
help students realize the consequences of their actions through constructive discipline rather than kicking a

199Id.
200Id. at 10.
201ZERO TOLERANCE TASK FORCE, supra note 187, at 12.
202MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 9.
203Id. (Students who are repeatedly excluded from school struggle to keep up with their classmates, do not feel
welcomed into the school community, and often leave of their own volition. Additionally, many of these students
are unsupervised while excluded from school, leaving more time to engage in delinquent behavior.).
204 ZERO TOLERANCE TASK FORCE, supra note 187, at 12.
205See id.
206See MASS. APPLESEED CTR. FOR LAW AND JUSTICE , supra note 23, at 9.
207DAHLBERG, supra note 30, at 5; Carla Amurao, Fact Sheet: How Bad is the School-to Prison Pipeline?, PBS.ORG,
http://www.pbs.org/wnet/tavissmiley/tsr/education-under-arrest/school-to-prison-pipeline-fact-sheet/ (last
visited Apr. 6, 2015).
208See DAHLBERG, supra note 30, at 910.
209See id. at 9.
210MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 9 (quoting ZERO TOLERANCE TASK FORCE, supra
note 187, at 43).
211See id. at 910.
212 AM. CIV. LIBERTIES UNION, supra note 24; Emily Yu, Mission Critical Documentary Calls for End to School-toPrison Pipeline, JUV. JUST. INFO. EXCHANGE (Feb. 28, 2014), http://jjie.org/mission-critical-documentary-calls-forend-to-school-to-prison-pipeline/.
213See AM. CIV. LIBERTIES UNION, supra note 24.
214Evelyn Beck, Bullying: How Parents Can Fight Back, SCH. FAM., http://www.schoolfamily.com/school-family-articles/article/818-bullyinghow-parents-fight-back (last visited Apr. 6, 2015).

215See Pelliccioni, supra, note 34, at 978.

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child out of school.216 Schools should develop a system to teach children why their behavior is wrong. 217 There
are many constructive ways to discipline children without taking them out of the classroom environment, for
example: in-school suspension, detention on Saturdays, service around the school, and alternative school
placements.218 Ultimately, state legislatures should consider implementing systems in schools that attack both
sides of the issue.219 Courts should also consider these trends when determining whether schools have a duty to
protect students from bullies.220

CONCLUSION
The Morrow majority had an opportunity to address and clarify the issue of control in a special
relationship, but failed to do so. Though they came to the right decision, they failed to address and articulate a
legal test and correct a hot-bed issue. By failing to take the opportunity to add to the jurisprudence, the Morrow
Court left the door open for future inequitable decisions. With school bullying at an all-time high, this issue is
bound to come to a courtroom again. Many state legislatures have addressed bullying problems. It would have
been more effective and stronger had the Morrow Court considered the underlying principles of special
relationship and determined a test for the states control. Without a test to rely upon in future cases, one can
only hope that future plaintiffs and defendants are not bullied by the court system.

216See id.
217See, e.g., MASS. APPLESEED CTR. FOR LAW AND JUSTICE , supra note 23, at 14.
218E.g., id.
219See, e.g., id.
220See id.