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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
teach children when disciplinary issues arise. Creating a duty to protect
against bullies, widens the discretion given to administrators and places a

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.

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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

See Emily Bazelon, Op-Ed., Defining Bullying Down, N.Y. TIMES, March 12, 2013, at A23.
Id.
3 Policies and Laws, STOPBULLYING.GOV, http://www.stopbullying.gov/laws/index.html (last
visited Apr. 6, 2015).
2

4 Find Out What Happened, STOPBULLYING.GOV, http://www.stopbullying.gov/respond/

find-out-what-happened/index.html (last visited Apr. 6, 2015).
5 Morrow v. Balaski, 719 F.3d 160, 164 (3d Cir. 2013).
6 See id.

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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 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 cyberbullying.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

Bazelon, supra note 1.

Bullying Definition, STOPBULLYING.GOV, http://www.stopbullying.gov/what-is-bullying/
definition/index.html (last visited Apr. 6, 2015).
9 Id.
10 Id.
11 Id.
12 What is Cyber Bullying?, STOPBULLYING.GOV, http://www.stopbullying.gov/cyberbullying
/what-is-it/ (last visited Apr. 6, 2015).
13 Id.
14 U.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/
8

ss6104.pdf.
15 Bazelon, supra note 1; see also Effects of Bullying, STOPBULLYING.GOV http://www.stop
bullying.gov/at-risk/effects/ (last visited Apr. 6, 2015).

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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
3.

How Do Anti-Bullying Laws Affect the Bully?

This legislation does not just affect the school environment or the
victimit 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

16

MASS. GEN. LAWS ch. 71, 37O(b) (West 2009 & Supp. 2014).
Id. 37O(a).
18 Id. 37O(c).
19 Id. 37O(d).
20 Id. 37O(i) .
21 Id.
22 The
Roles Kids Play, STOPBULLYING.GOV, http://www.stopbullying.gov/what-isbullying/roles-kids-play/index.html (last visited Apr. 6, 2015).
17

23

MASS. APPLESEED CTR. FOR LAW AND JUSTICE, KEEP KIDS IN CLASS: NEW APPROACHES TO

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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-toPrison 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
200217% 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

SCHOOL DISCIPLINE 5 (2012), available at http://www.massappleseed.org/pdfs/kkic_newappro

aches.pdf.
24 What 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).
25 Id.; 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-prison-pipeline/
(last
visited Apr. 6, 2015) (illustrating how standardized testing affects the School-to-Prison
pipeline).
26 MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 7.
27 Id.
28 ADVANCEMENT PROJECT ET AL., EDUCATION ON LOCKDOWN: THE SCHOOLHOUSE TO
JAILHOUSE TRACK 15 (2005).
29

Id.
ROBIN L. DAHLBERG, ARRESTED FUTURES: THE CRIMINALIZATION OF SCHOOL DISCIPLINE IN
MASSACHUSETTS THREE LARGEST SCHOOL DISTRICTS 22 (2012).
30

31
32

Cf. id. at 9.
See id.

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302

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 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

33

AM. CIVIL LIBERTIES UNION, supra note 24.

Id.; 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).
34

35

AM. CIVIL LIBERTIES UNION, supra note 24.

MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 5.
37 See Pelliccioni supra, note 34, at 978.
38 MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 5.
39 Id.
40 See infra notes Part IV.
41 U.S. CONST. amend. XIV, 1.
42 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 557 (4th ed. 2011).
43 Id. at 558.
44 Id.
36

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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 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

45

DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 191, 193 (1989).
Id. at 192.
47 Id. at 19293.
48 Id. at 193.
49 Id. at 195.
50 Id. at 19798.
51 Youngberg v. Romero, 457 U.S. 307, 309 (1982).
52 Id. at 324.
53 Estelle v. Gamble, 429 U.S. 97, 99 (1976).
54 Id. at 106.
55 DeShaney, 489 U.S. at 194.
56 Id. at 197.
57 See Youngberg, 457 U.S. at 324; Estelle, 429 U.S. at 10304.
58 Compare DeShaney, 489 U.S. at 191 (recognizing a fathers control over his infant sons
46

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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

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).
59 DeShaney, 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.
60 See 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).
61

See DeShaney, 489 U.S. at 201.

Middle Bucks, 972 F.2d at 1371.
63 Id.
64 BLACKS 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.).
62

65

Middle Bucks, 972 F.2d at 1371.

See id.
67 Zebra v. Sch. Dist. of Pittsburgh, 296 A.2d 748, 751 (Pa. 1972).
68 See generally Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000).
69 See id. at 800.
70 Id. at 804.
71 Id. at 807.
66

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All of 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

72

Morrow v. Balaski, 719 F.3d 160, 16471 (3d Cir. 2013).

Id. at 164.
74 Id.
75 Id.
76 Id.
77 Id. at 164.
78 Morrow, 719 F.3d at 164.
79 Id.
80 Id.
81 Id.
82 Id.
83 Id.
84 Morrow, 719 F.3d at 16465.
73

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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
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

85

Id. at 165.
Id.
87 Id. For the purposes of this Comment, the state-created-danger doctrine will not be
discussed.
86

88

Id.
Id.
90 Morrow, 719 F.3d at 165.
91 See id. at 168 (quoting DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189,
200 (1989)).
89

92

See id. at 168.

Id. at 169 (quoting Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655 (1995)).
94 Id. at 177.
93

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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
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

95

Id. at 18889 (Fuentes, J., dissenting).

See Morrow, 719 F.3d at 18889 (Fuentes, J., dissenting).
97 See id. at 193.
98 Id. at 188.
99 See infra Parts III.AB (discussing the importance of the Middle Bucks reasoning).
100 See infra Part III.
101 See 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).
96

102

See infra Parts III.AC.

Morrow 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).
103

104

Morrow, 719 F.3d at 168; Middle Bucks, 972 F.2d at 1371.

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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

105

Morrow, 719 F.3d at 168; Middle Bucks, 972 F.2d at 1371.

Morrow, 719 F.3d at 168.
107 See infra notes 108155 and accompanying text (describing the elements set out in Middle
Bucks that manifest control rather than physical custody).
108 972 F.2d at 1371.
109 Id.
110 Id.
106

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)
111

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

See 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.
112

113 Contra Middle Bucks, 972 F.2d at 1370 (Our court has read DeShaney primarily as setting
out a test of physical custody.).
114

See id.
Id.
116 Id.
115

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(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 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

117

Id.
Id. at 1371.
119 See 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).
118

120

See Middle Bucks, 972 F.2d at 1370.

See supra Part III.A; see also Morrow v. Balaski, 719 F.3d 160, 16876 (3d Cir. 2013).
122 See infra notes 123155 and accompanying text.
123 Middle Bucks, 972 F.2d at 1371.
124 Nicini v. Morra, 912 F.3d 798, 809 (3d Cir. 2013).
125 Middle Bucks, 972 F.2d at 1371.
126 See Nicini, 212 F.3d at 808 (stating that foster children, like those who are incarcerated,
do not have the ability to seek living elsewhere).
121

127
128

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

Nicini, 212 F.3d at 808.

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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 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

A relationship between the state and foster children arises out of the
states affirmative act in finding the children and placing them with stateapproved 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).
129
130

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

Nicini, 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).

131

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

Cf. Nicini, 212 F.3d at 809 n.7.
133 Id. at 807.
134 Id. at 809; Middle Bucks, 972 F.2d at 1371.
135 DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 201 (1989).
136 Compare 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 19899 (citing Estelle v. Gamble, 429 U.S.
97, 104 (1976)).
132

137

Compare DeShaney, 498 U.S. at 191, with Middle Bucks, 972 F.2d at 1371.

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because though Joshua could not have taken care of himself, the state did
not take care of himhis 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 resultthat 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

138

Compare DeShaney, 498 U.S. at 193, with Middle Bucks, 972 F.2d at 1371.
DeShaney, 498 U.S. at 192.
140 Compare DeShaney, 498 U.S. at 192, with Middle Bucks 972 F.2d at 1371.
141 DeShaney, 498 U.S. at 202; Middle Bucks, 972 F.2d at 1371.
142 See infra notes 14350 and accompanying text.
143 Compare Morrow v. Balaski, 719 F.3d 160, 183 (3d Cir. 2013), with Middle Bucks, 972 F.2d
at 1371.
144 Compare Morrow, 719 F.3d at 183, with Middle Bucks, 972 F.2d at 1371.
145 Morrow, 719 F.3d at 183.
146 Zebra v. Sch. Dist. of Pittsburgh, 296 A.2d 748, 751 (Pa. 1972).
147 Morrow, 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 . . . .).
139

148

See Morrow, 719 F.3d at 160.

Compare Morrow, 719 F.3d at 170, with Middle Bucks, 972 F.2d at 1371.
150 See Morrow, 719 F.3d at 170.
149

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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 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

151

See supra notes 14249 and accompanying text.

Middle Bucks, 972 F.2d at 137071.
153 Id.
154 See supra Parts III.AB.
155 See supra Parts III.AB.
156 Morrow v. Balaski, 719 F.3d 160, 188 (3d Cir. 2013) (Fuentes J., dissenting).
157 See supra Parts III.AB.
158 See 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.).
152

159

Morrow, 719 F.3d at 188, 192 (Fuentes, J., dissenting).

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to see the foundation that controls Nicini and Middle Bucks.160 It is a

determination of controlnot 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 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

160 See 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).
161 See supra Part III.A; see also Davison, supra note 158, at 287.
162 Morrow, 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 full-time physical custody and the school has compulsory
attendance laws thus arguing there is a stronger case for Morrow than Nicini).
163 See id. at 188.
164 But see id.
165 See 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.
166

See supra Part III.A. But see Morrow, 719 F.3d at 188.
See Morrow, 719 F.3d at 193.
168 Id. at 19293.
169 Id. at 193.
167

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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

170

See id.
See id.
172 See id. at 168; supra Part III.A.
173 See Morrow, 719 F.3d at 188 (Fuentes, J., dissenting).
174 See 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).
175 See 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.
171

176

See supra Part III.A.

Middle Bucks, 972 F.2d at 1371.
178 Id.
179 Id.
180 Id.
177

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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 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

181

Id.; see also Davison, supra note 158, at 292.

Rather than focusing on bright-line rules involving physical custody or a
students age, courts should adhere to DeShaney by looking to how the
student is limited in providing his or her own constitutional freedoms
during the day. This provides a workable balancing of factors that
decreases errors of under-and over-inclusiveness. A balancing framework
gives more discretion than rules and allows the trier of fact to take into
account all relevant factors or the totality of the circumstances.

Id.
182

See supra notes 12122 and accompanying text.

See supra notes 14251 and accompanying text.
184 Morrow v. Balaski, 719 F.3d 160, 164 (3d Cir. 2013) (Ambro, J., concurring in part and
dissenting in part).
183

185

Pelliccioni, supra note 34, at 1006.

Id.
187 AM. 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.
186

188

MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 5.

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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
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

189

Pelliccioni, supra note 34, at 978.

AM. CIV. LIBERTIES UNION, supra note 24.
191 See MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 910.
192 See id. at 10.
193 Morrow v. Balaski, 719 F.3d 160, 164 (3d Cir. 2013).
194 MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 10.
195 Id.
196 See, e.g., Morrow, 719 F.3d at 164.
197 See AM. CIV. LIBERTIES UNION, supra note 24.
198 MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 10.
190

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.
199

Id.
Id. at 10.
201 ZERO TOLERANCE TASK FORCE, supra note 187, at 12.
202 MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 9.
200

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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 behaviorchildren 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

203 Id. (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.

See id.
206 See MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 9.
207 DAHLBERG, 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/schoolto-prison-pipeline-fact-sheet/ (last visited Apr. 6, 2015).
205

208

See DAHLBERG, supra note 30, at 910.

See id. at 9.
210 MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 9 (quoting ZERO
TOLERANCE TASK FORCE, supra note 187, at 43).
209

211

See id. at 910.

AM. CIV. LIBERTIES UNION, supra note 24; Emily Yu, Mission Critical Documentary Calls
for End to School-to-Prison Pipeline, JUV. JUST. INFO. EXCHANGE (Feb. 28, 2014),
http://jjie.org/mission-critical-documentary-calls-for-end-to-school-to-prison-pipeline/.
212

213

See AM. CIV. LIBERTIES UNION, supra note 24.

Evelyn Beck, Bullying: How Parents Can Fight Back, SCH. FAM., http://www.schoolfamily.
com/school-family-articles/article/818-bullying-how-parents-fight-back (last visited Apr. 6,
2015).
214

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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 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.

215

See Pelliccioni, supra, note 34, at 978.

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