Appendix — D. R. ex rel. L. R. v. Middle Bucks Area Vocational Technical School

92-816 : ir y

: | Nov g 1992

In the Ds

Supreme Court of the Hnited States —

No

D.R., a minor child, by her parent and natural guardian.

L.R.. and L.R., individually and in her own right

and

L.H., Bucks County, Pennsylvania.

Petitioners,

\.

MIDDLE BUCKS AREA VOCATIONAL TECHNICAL

SCHOOL; WILLIAM GOODE; JAMES C. BAZZEL:

MARTHA RICHINO; SUSAN PETERS; BUCKS COUNTY

INTERMEDIATE UNIT NO. 22; CHRISTINA TUTTLE:

PENN RIDGE SCHOOL DISTRICT; CHARLES FAMBRO:

FRED FREEMAN; JAMES A. GALLAGHER; BRIAN

MILLER; MARC R. RATCLIFFE; JAMES M. SPERLING:

LESTER SUTPHIN

APPENDIX TO THE ®t. {TION FOR A

WRIT OF CERTIORARI TC }4iE UNITED STATES

COURT OF APPEALS FOR THE THIRD CRCUIT

Thomas B. Rutter, Esquire

Suite 750, The Curtis Center

Independence Square West

Philadelphia, PA 19106

(215) 925-9200

IN THE UNITED STATES DISTRI

rCOURT

FOR THE EASTERN DISTRICT O!

PENNSYLVANIA

3018 and 90-3060

D.R.. a minor child, by her parent

ind natural guardian, L.R. and L.R

individually and in her own rig!

wilt

\

VIIDDLE BUCKS AREA VOCATIONAI

PECHNICAL SCHOOL, et al

and

LH... BUCKS COUNTY, PA

\

\VIIDDLE BUCKS AREA VOCATIONAI

PECHNICAL SCHOOL. et al

VIEMORANDU M

GILES, J FEBRUARY 1, 199]

Plaintiffs have sued several public school entities and

school-related individuals for alle Uy ¢ d violations of their con

sututional rights under 42 U.S.C. § 1983 and several othe

federal statutes, as well as under state law. Defendants have

moved to dismiss the complaint against them pursuant to

Fed. R. Civ. P. 12(b Penn Ridge School District

uunty Intermediate Unit No. 22, Middl

tional Technical School, and

6 Bucks

Bu KS \re i Vor

eachers ind otticials nd)

Shicmeal { 1} ly |

CUVEIV De rerterred i St

biWQ)1 ac Le 1}

BACKGROUND

disturbing. Plaintiffs allege sexual molestation by fellow stu-

dents (“student defendants’) over a period of months and al

lege that their classroom was left so uncontrolled by the

student teacher, that the student defendants seized

opportunitics to commit the alleged offenses. No doubt exists

that plaintiffS may maintain a state Court action against these

students

However, whether plainuffts have alleged sufficient facts to

give rise to a federal civil rights action against the school that

they attended, the several school districts which transferred

them, and teachers and administrators within them, is the

central question in this motion. School defendants’ liability

must be premised upon conduct that is more than gross neg

livenee Nothing short of reckless indifference by school

defendants will allow plaintiffs SUILS LO prot eed

In their amended complaints plaintiffs allege violations of

2 USC. §§ 1983, 198503), 1986 and 1988 in counts I

through IV, claiming that the school defendants breached a

duty of care to them by knowingly and recklessly engaging in

acts or omitting acts that led to their injuries

Counts V VIL VIE, Vill and IX allege violations of state law

for the alleged acts of the students individually and against

the school defendants. The handicapped plaintiff, D R..

laims that she was entitled to the benefits of the Education

of All Handicapped Children Act, 20 U.S.C. § 1411 et seg and

that the school defendants were required to provide special

classes for her pursuant to 24 Pa. Cons. Stat. Ann. § 13-1372

(

\dditionally, she claims that the school defendants breached

i duty to report the alleged abuse pursuant to 1] Pa. Cons

Stat. Ann. § 2204 and § 2205

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Defendants Penn Ridge School District (“Penn Ridve”) and

sucks County Intermediate Unit No. 22 (“Unit No. 22”

made arrangements for plaintiff D.R., an “exceptional” o1

handicapped student within the meaning of 24 Pa. Cons

stat. Ann. §§ 13-1371, 13-1373, to take graphics occupation

classes at the Middle Bucks Area Vocational Technical School

Middle Bucks). Plaintiff, L-H. was not an “exceptional” child,

but was enrolled in the same graphics class. She has not sued

Penn Ridge or Unit No. 22

Plaintiffs allege that some student defendants in the graph-

ics Class physically abused them through forcible and offen-

sive sexual contact. Specifically, those students allegedly

touched their breasts and genitalia, sodomized them. forced

them to touch the genitalia of the student defendants, forced

plaintiffs to perform acts of fellatio, forced plaintiffs to watch

similar acts performed on other female students and forced

plaintiffs to watch while the student defendants offensively,

but non-sexually, touched their teacher, defendant Susan

Peters

Plaintiffs were required to attempt to plead: 1) every date of

non-consensual sexual contact, 2) the students who perpe

trated cach separate contact, 3) where each contact occurred,

1) who witnessed the contact, and 5) which school defendant

had actual knowledge of the contact that occurred and when

In direct response to this court’s bench order at oral argu-

ment, plaintiffs recite more specifically individual incidents of

sexual harassment and the perpetrators of those incidents

D.R. Amended Complaint, ©© 40-45. L.H. Amended Com

plaint, © 35-4]

While not pleading specific dates, plaintiff D.R. avers that

from Janua.y through April or May of 1989 student defendant

James Sperling regularly grabbed her, pulled or carricd her

Into the graphics class bathroom, forcing her to masturbate

him. She states that student defendants Marc Ratcliffe,

James Gallagher, Fred Freeman and Brian Miller did the

same as frequently, during the same time period, in the

bathroom or darkroom. From January through May of 1989

she states that student defendant Lester Sutphin repeatedly

\-4

requested that she masturbate him. She also charges that

these student defendants helped each other complete the

crimes allegedly committed against her. She asserts that

these student defendants assaulted her two to four times a

week between January and May of 1989. D.R. Amended

Complaint, £€ 40-44. She made no complaint to any school

teacher, official or defendant

Plaintiff L.H. states that, beginning in December of 1988.

student defendant Brian Miller attempted to force her to mas-

turbate him in the graphics class bathroom, and that on an-

other occasion in December of that year was successful in

this molestation. She states that he succeeded in molesting

her in this way two to three times a week between December

and mid-March of 1989. Student defendants Marc Ratcliffe.

James Gallagher, Charles Fambro and Fred Freeman al-

legedly committed the same kind of acts against her from Jan-

uary to March or May of 1989. L.H. Amended Complaint,

77 38-41.

Neither plaintiff states that a school defendant witnessed

any of the forcible contact. They merely state that defendant

Peters was or should have been present in the classroom

when each attack occurred and did or should have heard each

incident taking place. (D.R. Amended Complaint, © 47, L.H

Amended Complaint, © 43)

Plaintiffs state that school defendants had a duty to protect

them while in their care, custody and control and to report

any abuse of plaintiffs. (D.R. Amended Complaint, ©€ 28 and

31, L-H. Amended Complaint, © 24 and 26). Additionally,

they aver that student defendants had behavioral problems

throughout the 1988-1989 school year and that school defen-

dants had actual knowledge of this. (D.R. Amended Com-

plaint, © 38, L.H. Amended Complaint, © 33). They add that

defendant Peters was not properly trained to teach or protect

students. (D.R. Amended Complaint, © 36, L.H. Amended

Complaint, © 3]

LEGAL STANDARD

Under Rule 12(b)(6), a motion to dismiss for failure to state

\-5

a claim upon which relief may be granted can only be granted

if “it appears beyond doubt” that the plaintiffs can prove no

set of facts in support of claims which would warrant reliet

Conley v. Gibson, 355 U.S. 41 (1957). This court must accept

as true all of plaintiffs factual allegations that are well pled,

and draw from them all reasonable inferences favorable to the

non-moving party. Scheurer v. Rhodes, 416 U.S. 232, 236

1974); D. P Enterprises. Inc. v. Bucks County Community

( ollege. 729 F.2d 943, 944 (3d Cir. 1984).

lo recover in a § 1983 action plaintiffs must show that de-

fendants deprived them of a right secured by the Constitution

of the United States while acting under the color of state law.

See Riley v. Jeffes. 777 F.2d 143, 145 (3d Cir. 1985). Negligent

conduct is not actionable under § 1983. Defendant must have

acted or refused to act with deliberate indifference to the

rights of the injured party. Colburn, 838 F.2d at 668

Complaints under civil rights statutes must plead facts

with greater specificity than is generally required. Colburn j

Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988

[he heightened specificity requirement for section 1983

claims does not alter the general standard for ruling on mo-

lions to dismiss under 12(b)(6 |The crucial questions are

Whether sufficient facts are pleaded to determine that the

complaint is not frivolous, and to provide defendants with

adequate notice to frame an answer.” Id

LEGAL ANALYSIS

In the original motions to dismiss some school defendants

claimed that they were immune from suit pursuant to the

eleventh amendment of the U.S. Constitution as arms of the

state and that a school district is not a “person” within the

meaning of § 1983. Alternatively, they claimed that plaintiffs

acuions against them were barred by governmental immunity

protection provided in the Political Subdivision Tort Claims

\ct, 42 Pa. Cons. Stat. Ann. § 8541 et seg (Purdon 1982

Because some of the school defendants renewed these claims.

after this court allowed plaintiffs to amend their complaints,

the court will address them

\-6

1 kleventh Amendment Immunits

Phe third circuit ruled recently that Pennsylvania school

districts are not alter egos of the Commonwealth and, there-

fore, do not acquire cleventh amendment immunity in suits

lor special education services. Lester H. v. Gilhool, slip op

89-2046 at pg. 13 (Sept. 27, 1990

ven if defendant attempted to distinguish this case from

Lester H., the argument would be unsupported by Pennsylva

nia law. Eleventh amendment immunity bars suit in federal

court against a State and its officials under certain circum-

stances. See Edelman v. Jordan, 415 U.S. 651 (1974). How-

ever, Municipal corporations do not have eleventh amend

ment protection. Moor v. County of Alameda, 411 U.S. 693

(17-21 (1973). The Supreme Court has determined that, un-

der certain Circumstances, a school district may be consid

ered a municipal corporation or a political subdivision that

qualifies for municipal corporation treatment. Mt. Healthy

City Bd. of Fauc. v. Doyle, 429 U.S. 274, 280 (1976

In Mt. Healthy the Court held that an Ohio school district

could not invoke cleventh amendment immunity. By looking

to state law, it determined that the school district was a “politi

cal subdivision” and that as such it was not included in the

definition of “State” Id. Although it was “subject to some

guidance from the State Board of Education” and received “a

significant amount of money from the State’, it had “exten

sive powers to issue bonds [citation omitted], and to levy

taxes” and, therefore, “[ojn balance” the school district: was

more like a county or city than anoarm of the State.” Id

In Pennsvivania, school districts are technically agencies of

the state, created to promote education. Northwestern School

Dist. v. Pittenger, 397 | Supp. 975, 979 (1975). However

they have been considered quasi-municipal Corporations

Smith o. School Dist. of Philadelphia, 334 Pa. 197, 202, 5 A.2d

9:35 1939): Borough of Wilkinsburg co. School Dist. of

Wilkinsburg, 365 Pa. 254, 257. 74 A.2d 138 1950): See

Southwest Delaware Cty. Municipal Authority o. Aston Ip

113 Pa. 526, 198 A.2d 867 61964). Furthermore, historicalls

Pennsvivania Courts treated sc hool districts as muni Ipal CO!

porations for purposes of tort liability. See Morris cv. Mt

Lebanon lwp School Dist 393 Pa. 633 (1958 See Also

Shields vc. Pittsburgh School Dist 108 Pa. 388 (1962 Phe

legislature has also treated them as municipal corporations o1

politcal subdivisions for tort liability purposes by including

them under the Political Subdivision Tort Claims Act. 42. Pa

Cons. Stat. Ann. § 8541 et seg (Purdon 1982

While itis true that 53 Pa. Cons. Stat. Ann. § 1-102 defines

MUNICIpality aS COUNTY, CILY, borough incorporated town o1

township), omitting “school district” from the definition this

lactis not determinative of whether a school district is consid

ered a municipal or quasi-municipal corporation. Section

2-211, 24 Pa. Cons. Stat. Ann. (Purdon 1982). states that

t}he several school districts in this Commonwealth shall be

bodies COPPOrali with all necess ry powers UU enable

them to carry out thre PrOVISIONS of this act

School boards have broad powers to levy taxes in a given

school district to supplement state funds. 24 Pa. Cons. Stat

\nn. § 6-602 (Purdon 1982). Moreover. school districts have

some power to issue bonds to secure Corporate indebtedness

Wilson co. School Dist. of Philad lphia 528 Pa. 225, 249, 195

\. 90 1937). The Local Government Unit Debt Act. 33

Pa. Cons. Stat. Ann. § 6780 et seg (Purdon |

school districts as included in the definition of “Local Govern

ment Unit. 53 Pa. Cons. Stat. Ann. § 6780-1010). Local vox

ernment units may issue bonds for the payment of unfunded

debt. See Id. § 6780-209 4() |

\dditionally, the school district itself, not the State. is re

sponsible for paying any judgments against it. Although the

payment comes indirectly from state funds, the State is not

the judgment debtor. See 24 Pa. Cons. Stat. Ann. § 6-611

Purdon 1982

Because school districts in Pennsylvania are considered po

tical subdivisions or quasi-municipal corporations and have

nalovous

pOoWer LO levy taxes and issue bonds, they are more

to municipalities, as discussed in Mt. Healthy. Therefore, de

fendant has no claim to eleventh amendment immunits

\-8

However, school districts are protected from suit to some de-

gree by Pennsylvania's governmental immunity statute

2. Governmental Immunity:

Pennsylvania's governmental immunity statute, 42 Pa

Cons. Stat. Ann. § 8541 et seg (Purdon 1982), provides:

Except as otherwise provided in this subchapter, no

local agency shall be liable for any damages on ac-

count of any injury to a person or property caused

by anv act of the local agency or an employee

thereof or any other person.

Schools and school districts are local agencies accorded gov-

ernmental immunity pursuant to this provision. See Henley v.

Octorara Area School Dist., 701 FSupp. 545, 552-3 (E.D.Pa.

1988): See also Cotter v. School Dist. of Phila., 562 A.2d 1029,

1031 (Pa. Cmwilth 1989). However, it does not protect schools

or school districts from suit for alleged violations of civil and

constitutional rights. Martinez v. Califano, 444 U.S. 227, 284,

n. 8 (1980): Wade v. City of Phila., 765 F.2d 405, 407 (3d Cir.

1985); Bushkirk v. Seiple, 560 F Supp. 247, 250-1 (E.D.Pa

1983) Therefore, plaintiffs may maintain a suit under § 1983

against defendants if they state a proper claim upon which

relief can be granted

3. 42 U.S.C. § 1983:

\. The School Districts

Municipalities have been deemed persons for § 1983 pur-

poses and, therefore, defendants may be sued as entities tan-

tamount to a municipality. See Monell v. New York Dept. of

Social Services, 436 U.S. 658, 690 (1978). However, a munic-

ipality cannot be held liable under § 1983 on a respondeat

superior theory. Id. at 691. Thus, a school district cannot be

liable under § 1983 based on an act or omission of a school

employee that injures another that was not caused by some

policy or custom of the school. See Id. at 691. Here, plaintiffs

must allege that the school districts were reckless, actually

abandoning a known duty to plaintiffs through a policy or

\-9

custom. The policy complained of must be a proximate caus

of the constitutional violation alleged. Therefore, even assum-

ing that defendants have an affirmative duty to protect stu

dents, plaintiffs must allege a nexus between a policy, which

was recklessly indifferent to their well being, and the injury

suffered. Id. Otherwise, any theory of liability against the

school districts would amount to respondeat superior and

would not be actionable under § 1983. Here, plaintiffs have

not stated a custom, policy or practice of school defendants

violative of their rights

\n absence of a policy may also be actionable. Following

the rationale of prisoner and detainee cases, which provid

the actionable duty here, plaintiffs must show that the ab

sence of a policy to address the special needs of those who

may be abused by fellow classmates is actionable under §

1983. See Hudson v. Palmer, 468 U.S. 517. |526-27| (1984

Colburn, 838 F.2d at 669

Obviously, a school district must have breached a duty to

protect its students before it can be held liable for injuries

students suffer while in school. An open question exists as to

whether a school or school district has an affirmative duty to

protect students from other students

In Deshaney v. Winnebago County Dept. of Social Services,

189 U.S. 189, 57 U.S.L.W. 4218 (1989), the Supreme Court

held that the state had no affirmative duty to protect the lif

liberty or property of citizens from private actors. Id. at), 57

U.S.L.W. at 4219. There, the state had not removed a child

from his father’s custody, although it received repeated ri

ports of abuse. Subsequently, the father beat the boy into a

coma and the boy’s mother sued the state under § 1983. Thi

Supreme Court reasoned that no special relationship existed

between the state and the boy which gave rise to a duty to

protect him from his father

Phe Court remanded Stoneking v. Bradford Area School

Dist., 882 k.2d 720 (3d Cir. 1989) (Stoneking II), to the third

circuit for reconsideration of its earlier-judgment (Stoneking

I, 856 F.2d 594 (3d Cir. 1986) ) in light of Deshaney. In Stone

king | & Ila tormer student sued the school district and other

S er scl mde 1983 for sexual abuse perp

at tf her teachers. The third circuit held that D

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Hd t pr ide “li | { state officials! arisin

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supreme Court suggested ha

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Viti ses holding that states har duty

st nst them Wilk, such as prisoners and

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ed mentally ill, trom themselves and others

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nd. thereror Vere subject to thre Custody of thr

1 : 7

luring school hours. This court agrees. Plaintitts

red DV State Law to ittend schoo! J4 Pa ( mis. Stat

Nn 13-141r gives teachers and principals the same

er students’ behavior, during school hours. that

their parents would have. School officials’ standing in loc

parentts permit the exercise of such control reasonably ne

essary to prevent disciplinary infractions and interference

h the educational process. Such discipline may include

corporal punishment. Glase) Marietta, 351 ESupp. 555

D.D.C. 1972

Because school districts do have a duty to protect students

Lt

from each other while on school property, during school

ours, this court must determine whether the school districts

In question recklessly abandoned this dutv.2 Plaintiffs do not

llege that a written policy existed which catwsed them | um

ihus, they must have alleged a custom which resulted in the

Violation of their rights. One wav to demonstrate that a

mm existed is to allege facts showing that the school dis

trict Knew or must have known that perpetrator defendants

were molesting plaintiffs. They could provide facts which

demonstrate tha student deter dants had a Propensity to

mmit such crimes and that the school district had know]

dge or should have known of the propensity

that the students who attacked them had

behavioral problems is insufficient to show that the school

should have known th hey might commit the acts alleged

here. Plaintiffs’ all lions permit only the inference that the

sc} | detendants | I Knowledge of student behavior

vhich WOrs Hd be described as non-criminal hors

p!

During classroom hours, student defendants jumped

round, plaved “hacky-s plaved their walkmans,. smoked

igarettes, hid under their desks, touched and vrabbed

female students. and or ne occasion started small fire. In

February of 1989 student defendant Brian Miller pushed

metal pole through a window, breaking it. and als spit and

it Wax in female students hair. Clearly. all of these acts

constitute inappropriate and incorrigible classroom behavior

Yet, one cannot infer from these events that the school defen-

dants were bound to have known that the student defendants

were criminal sexual molesters

Phe allegations that the student defendants touched,

grabbed or even hit their female classmates do not in them-

selves state facts sufficient to impute knowledge to school dis-

trict defendants of likely criminal sexual molestation. Even if

the students accused of molesting plaintiffs committed non-

sexual violent acts against female students with the knowl-

edge of the school districts, the commission of those acts

alone would not be evidence of the students’ propensity to

rape or sexually molest. Plaintiffs have not alleged that the

touching actually observed in the open classroom was non-

consensual

Plaintiffs allege that from January through May 4, 1989

student defendants Marc Ratcliffe, Charles Fambro, James

Gallagher, Fred Freeman and Lester Sutphin uttered pro-

fanities and obscenities in class, did not do their work, threw

materials around the classroom, roughhoused, teased D.R. by

throwing her purse and sweater to the ground, stepping on

them, put their hands on her face or the computer screen and

made lewd gestures to her. D.R. Amended Complaint,

* 380a)-(n). L.H. Amended Complaint, © 33(a)-(m).

\gain, these incidents evidence bad behavior, not a propen-

sitv to rape such that the school district defendants could be

liable for reckless disregard of a duty to protect against sexual

molestation. The strongest of these allegations involved vid-

ecotapes made in the graphics class. In a March 1989 vid-

eotape, plaintiffs allege that student defendants videotaped

forcibly at least one female student, submitting her to ques-

tions about sex, by pinning her down in a locked darkroom f{o1

thirty to forty-five minutes. In another videotape, student de

fendants filmed themselves touching and grabbing temale

students and displayed signs on which profanity was written,

and one defendant mooned the camera

Plaintiffs have not alleged that any school defendants

A-13

viewed the videotapes or had actual knowledge of their con-

tents.

Other acts of student defendants of which plaintiffs state

that school defendants had actual knowledge amount to pro-

fanity, “rough housing” and watching a Jane Fonda \ ideotape

for personal sexual gratification. Profanity and rambunc-

tiousness fall into the category of behavior much lower than

the specific criminal acts of which student defendants stand

accused. Viewing the workout tape for sexual gratification

does not demonstrate propensity to assault sexually othe

students.

D.R. states that defendant students knocked her sweatet

and purse to the floor and that they struck other female stu-

dents in class. L.H. states that student defendants hit her on

various occasions. Additionally, plaintiffs allege that the stu-

dent defendants offensively, albeit non-sexually, touched de

fendant Peters. These averments, while violent, are non-sex

ual in nature

Plaintiffs assert that the school districts could have taken

steps to prevent the attacks on plaintiffs, or to have made the

likelihood more difficult. School defendants required only co

ed bathrooms with a lock on the inside of the door and had

designed a classroom with areas concealed from the view of

the teacher, such as a photography darkroom. According to

plainufts, these facts created an atmosphere that facilitated

sexual abuse. These allegations do not support a finding of

actual abandonment of a known duty on the part of the school

district. At most, the: classroom and bathroom door designs

were acts of negligence

Plaintiffs aver the following to attempt to show that schoo!

defendants knew or should have known of the abuse. D.R

states that she screamed or attempted to scream and that de

fendant Susan Peters, who was or should have been present

in the classroom, did not listen to her or take any action to

stop the contact from occurring. This “either-or” pleading is

notan allegation that Peters was in the classroom or heard the

scream

\t other times Peters was allegedly aware that several stu

A-14

dents in the graphics class were not in the theory room or

work area and that on those occasions she should have known

that male and female students were in the bathroom together

DDR. avers that beginning in February of 1989, Peters asked

students on various occasions what was occurring in the

bathroom and that she was told that D.R. was in there with

male students. DR. Amended Complaint, © 49. LH. makes

the same allegation in paragraph 45 of her amended com-

plaint. Plaintiffs also aver that Peters would leave the room or

turn her head away intentionally when students were in the

bathroom together. D.R. Amended Complaint, © 57. L.H

\mended Complaint, © 51. Moreover, they allege that Peters

told the administration in February of 1989 that there was a

problem with students being in the bathroom. D.R. Amended

Complaint, © 57, L-H. Amended Complaint, £ 49

Phese allegations show that Peters failed to investigate the

bathroom occupations. However, they do not support a neces-

sary contention that students were not consensually in the

bathroom and that Peters knew it. None of the plainuffs com-

plained to Peters about sexual assault or fears

I) R. asserts that at the end of March or beginning of April

1989. in a meeting with Peters, Ms. Bugaski, a teacher at

Penn Ridge, and Ms. Rogers, the coordinator for Unit No. 22

students, D.R’s mother informed them that a student, Renee,

had told her that bad things were happening in the classroom

1) Ro Amended Complaint, © 61

LH. states that in December of 1988, she informed deten-

dant Bazzel, Assistant Director of the Middle Bucks Voca-

tional School, that perpetrator defendant Miller “was trying to

force her to masturbate him in the bathroom of the graphic

arts Classroom.” LH) Amended Complaint, © 36. On another

occasion Dena Brosko, a student in the class, allegedly told

\Irs. Carson, a substitute teacher, that, “things were going on

in the bathroom” and that Trina Ann Schuleyer, another stu-

dentin the class, told Mrs. Mover, a teacher, what was going

on in the graphics class bathroom. L.H. Amended Complaint,

€€ 54 and 55, respectively

\-15

\rguably, the facts may show that defendants’ lack of a pol-

icy amounted to a policy of being lax about a recurring prob-

lem. The third circuit has stated that “an official policy may

be inferred from informal acts or omissions of supervisors

municipal officers.” Colburn, 838 F.2d at 671, citing Estate of

Bailey by Oare v. County of York, 768 F.2d 503. 506 (3d Cir

1985). Here, those officers would be teachers and administra-

tors of the school districts sued

Plainuffs’ argument that such a policy of laxity existed is

dependent upon establishing that there were prior incidents

of sexual assault known to the school defendants, perpetrated

by the student defendants. Such a showing would suggest

that defendants knew, or should have known. that their su-

pervision of students was inadequat

While plaintiffs allege wild behavior on the part of the stu

dent defendants and a suggestion that defendants Peters and

futtle knew that something was occurring in the graphics

Class bathroom, they have alleged no r ports of sexual mo

lestation prior to \Viav 4. 1989, exe Cpt ome LH. states that she

told defendant Bazzel in December of 1988 that perpetrator

defendant Miller had atte mpted to force her to masturbate

him in the graphics class bathroom and that defendant Baz

7cl took no disciplinary or other action against Miller. LH.

Who is not handicapped, did not report to Bazzel that there

had been any reoccurrence of the offensive sexual « pisode or

that she would be unable to report any attempted sexual act

In the future. There was nothing Bazzel could have done to

erase the past act and it would be speculative that he could

have done som thing to prevent that which he did not Know

would happen in the futur

Plaintiffs did not inform any school defendant or other

school official that other students were sexually molesting

them. Nor do they allege that any other female students in-

formed the school offic lals that such eve nts were taking

place Pherefore, the allegation that L.H. informed one s¢ hool

Official of orn Past Ii ident perpetrate d by one student does

support a finding that the school districts themselves had a

policy or custom of abandoning a known duty owed to LH. o1

student. even if that school official was dere

hietan not taking disciplinary action on that occasion

from their pleading that the individual school defendants

KRneCW something bad™ wa happe ning in the bathroom, one

may reasonably infer that these defendants had a duty to in

vestigate. However, their failure to do so, does not create mu

nicipal or school district liability. As the third circuit stated

the allegation that defendants failed to supervise and moni

tor adequately Hone might not satisfy our requirement for

; nd

modicum of factual specificity Colburn, 436 I 2d at 672

B Qualified Immunity under § 19%4

Defendants Peters. Goode. the Director of Middle Buck

ind Bazzel the Assistant Director of Middle Buck ire

ty tye (I pl i! i l byeey jul be ism i based on

rahified wmmunuty from § 198% lability. This court agree Ir

toncking I, 482 b 2d at 726, the third circuit stated that

defendant Claiming qualified immunity from § 198% liability

must Show that his conduct did “not violate cl

lished statutory or constitutional rights of which a reasonable

person Would have known. citing Harlow co. Fitzgerald, 497

LS. 400, 814% 6 1982 Because plamititf have mot hegved ade

quately that defendants acts or omissions Caused plaintiff

injuries. plamtiffs have not sufficiently alleged that defen

dants Peter Bazzel and Goode acted in violation of a clearly

established right

Plaintiffs claim that the individual defendants allowed the

sexual abuse to occur without alleging that they were present

during the incidents or participated in them. Nor have plain

ffs alleged that the same type of behavior had occurred be

fore the incidents in question. In Stoneking I, the defendant

teacher was accused of sexually abusing students, which was

held to have abused to the students constitutional rights. Id

it 727. Although the nght to be free from such molestation Is

clear. one Could mot rea onably say that defendants Peters

suzzel or Goode should have known that he or she would be

held pe rsonally liable for anothers sexu th molestation olastu

dent unless they participated in the

happen

ict itself or Caused jt to

his courts discussion of Deshaney demonstrates that the

law in this area is not fully developed and the question of lia

bility for the acts of another in the school setting remains un

Clear, That Bazzel may not have notified LHS pare

nts of thy

incident in a timely fashion. is in

ulficient without any fact

suggesting that this was constitutionally violative in itself

Dherefore, defendant Bazzel. as well as the other defendants

are entitled to qualified immunity from § 198% liability. bur

thermore, plamtulfs action could not be maintained urist

ny of these defendants on the facts provided ¢ vena they did

not have qualified immunity from suit

( Susan Peters

Viens of the fact pl tiritill i e-yt » demonstrate

school defendants knew or Should have Known that beerrycale

students in the graphics class needed protection from fellow

students relate to defendant Peters. [DB st

| ?

ites that stat

would scream or attempt to scream when student defendants

would grab her and that defendant Peters did or st

shiould Pheaivé

bye ard hey SCTCAINS OF Was OI should rya\e beer ppres¢ rit ana tha

Classroom when the attacks took pI we DR

fendant Peters did not listen to her or take anv action

Claims that de

the contact from occurring

\t other times defendant Peters alleged],

Was aware that

several students in the graphics class

were notin the theory

room or work area and that on these occasions shi should

bhaave KNOWN? threat rial bd 1 rrvcale

students were in the

bathroom trovether |) I

avers that defendant Peters asked

students on various occasions What was occurring in thie

bathroom beginning in February of

told that DOR. was in there with rival

Complaint ‘ 1 | tf makes thie

1989 and thyeat she was

students. DR. Amended

same allegation I) pyaba

vraph 45 of her amended complaint

Plainulfs also aver that defendant Peters would leave thy

A-18

room or turn her head away intentionally when students were

in the bathroom together. D.R. Amended Complaint, £ 57

L.H. Amended Complaint, © 51. Moreover, they allege that

defendant Peters told the administration in’ February of

1989 that there was a problem with students being in the

bathroom. D.R. Amended Complaint, © 57, L.H. Amended

Complaint, © 49.

D.R. alleges that student defendants grabbed her, picked

her up or dragged her into the bathroom or darkroom, during

class hours. Plaintiffs allege that the attacks occurred ovet

several months, but plaintiffs do not state with specificity that

they were forced into the bathroom while defendant Peters

Was present or that Peters witnessed any of these incidents

Phey state that she was or should have been present and saw

or Should have seen student defendants pulling on plaintiffs

DR. Amended Complaint, © 47. L.H. Amended Complaint,

© 43. This form of pleading suggests that they do not know

and cannot prove that Peters was present during the inci-

dents or that she witnessed the alleged occurrences.

Plaintiffs allege that Peters sometimes deliberately turned

her head or left the classroom, raising speculation that she

Was aware that something unpleasant was occurring and

overlooked it. D.R. Amended Complaint, £ 56. L.H. Amended

Complaint, © 51. Yet, plaintiffs have not alleged facts from

which it can be fairly inferred that she actually knew that the

female students were being criminally molested. She may

have ignored generally disruptive student behavior, but that is

a far cry from a sufficient factual allegation of tolerating

known sexual abuse of students.

Reading the pleadings in a light most favorable to plainufts,

they allege conduct amounting to negligence, not reckless in-

difference. The allegations suggest that Peters knew that

there were disciplinary problems in the class, even severe dis-

ciplinary problems. However, in order to state a claim under

§ 1983, plaintiffs must plead facts upon which this court

could inter that defendant Peters knew or should have known

that the plaintiffs or other female students were being crimi-

nally molested by student defendants during school hours on

A-19

school property, and that she thereafter abandoned a duty to

act to protect the plaintiffs.

Plaintiffs have not alleged facts in support of their failure to

train claim. See, LaPlant v. Frazier, 564 FSupp. 1095, 1098

(f..D.Pa. 1983); Tillio v. Montgomery County, 695 F Supp

190, 194 (E.D.Pa. 1988). The fact that some students were

uncontrolled does not support a claim that Peters was inade

quately trained as a teacher

1), William Goode

Goode was the Director of Middle Bucks during the time

that the incidents of which plaintiffs complain occurred

Plaintiffs allege no facts fairly inferring that he had any spe-

cific knowledge that they were being molested. In fact, plain-

tiffs allege nothing suggesting that he was told that the class

was out of control. Thus, plaintiffs cannot maintain a suit

against him in his individual capacity

k. James Bazzel

\s discussed previously, L.H. charges Bazzel with knowl.

edge of one incident of attempted molestation perpetrated by

student defendant Miller. She states that he did not act on

this information about a past act. However, she does not as-

sert that she thereafter reported to Bazzel any other attacks

upon her by Miller or by any other students. Thus, while Baz-

zel’s omission of disciplinary acts against Miller may be ac-

tionable in negligence, through hindsight it does not rise to

the level of reckless indifference of a known present or on-

going danger to D.H. and, therefore, is not actionable under

y 1983.

F. Martha Richino

{ichino was a counselor at Middle Bucks. Plaintiffs make

no allegations that Richino had personal knowledge of anv of

the incidents alleged in the complaints and, therefore, it can-

not be discerned on what theory plaintiffs have sued. Because

no claim has been asserted with any specificity, the amended

complaint against Richino must be dismissed

(;. Christina Tuttle

futtle is also a counselor at Middle Bucks. D.R. complains

that Tuttle saw that the student defendants were “rough-

housing” on several occasions and admitted this to D.R.’s

mother. D.R. Amended Complaint, £© 59 and 60. Mere

knowledge of this type of misbehavior Cannot create an in-

ference that Tuttle knew that criminal sexual molestation was

occurring in the classroom. Furthermore, it cannot be in-

ferred that she should have known of the incidents of which

plaintitfs complain

On other occasions Tuttle came to the graphics class in

search of D.R. and, when told that D.R. was in the bathroom,

left without waiting for D.R. to emerge. This allegation can-

not permit an inference that D.R. was being molested in the

bathroom on those occasions or, if she was, that Tuttle knew

it. As to her, too, the amended complaints must be dismissed

>. 42 U.S.C. 88 198503). 1986 and 1988

\dditionally, plaintiffs sue defendant pursuant to 42 U.S.¢

§§ 198503), 1986 and 1988. Section 1985(3) provides a cause

of action for conspiracy to interfere with one’s civil rights. It

provides, in pertinent part

3) If two or more persons in any State conspire

for the purpose of depriving, cither directly o1

indirectly, any person or class of persons of th

equal protection or the laws, or of equal privileges

and immunities under the laws _ if one or more

persons engaged therein do, or cause to be done,

any act in furtherance of the object of such conspir-

acy, Whereby another is injured in his person o1

property, or deprived of having and exercising any

right or privilege of a citizen of the United States,

the party so injured or deprived may have an action

for the recovery of damages occasioned by such in-

jury or deprivation, against any one or more of the

conspirators

fo state a claim under § 1985(3) plaintiffs must allege the

existence of a conspiracy to deprive them of equal protection

A-2]1

of the laws or of their rights and privileges, that the conspir-

acy Was motivated by racial or other class-based invidiously

discriminatory animus, that defendant committed an act in

furtherance of the conspiracy, and that plaintiffs were injured

and deprived of rights guaranteed by the Constitution. Griffin

v. Breckenridge, 403 U.S. 88, 103-4 (1971); Bethel v. Jendeco

Construction Corp., 370 F.2d 1168, 1172-3 (3d Cir. 1978

The amended complaints state that a conspiracy existed on

the part of the school defendants to deprive plaintiffs of rights

to equal protection under the law and of privileges and immu-

nities of U.S. citizenship. In the memorandum of law that this

court requested, plaintiffs claim that the discrimination

against them was sex-based

However, plaintiffs allegation of conspiracy is not sufficient

to provide them with a cause of action under this statute. See

Smith v. Butler, 507 FE Supp. 952 (E.D.Pa. 1981). The conspir-

ators must have agreed to violate plainuffS rights. Santiago 7

City of Philadelphia, 435 F Supp. 136 (E.D.Pa. 1977). Plain

tiffs allege no facts which suggest even a tacit agreement be-

tween the school defendants and the student defendants that

allegedly molested plaintiffs. Indeed, the facts plaintiffs allege

suggest that no such agreement existed. Defendant Peters

complained to school defendants that student defendants

were behaving badly. Furthermore, plaintiffs aver that defen-

dant Peters attempted to stop perpetrators from uttering

obscenities

If plaintiffs intended to allege that a policy or Custom of

school defendants not to discipline students amounted to a

conspiracy, they still fail to sufficiently plead § 1985(3) vio-

lations, because they do not allege class-based animus.

Plaintiffs state that they are members of the female class

and that the class-based animus was sexually discriminatory.

Sex-based animus is actionable under § 1985(3). Frontiero v.

Richardson, 411 U.S. 677, 678 (1973) (plurality opinion).

Plaintiffs do not have to allege that all their female classmates

were discriminated against, only that they were members of a

discernable class within § 1985(3), which thev are. See Gobla

v. Crestwood School Dist., 609 F Supp. 972, 980 (E.D.Pa

A-22 ‘

1985); Skadegaard v. Farell, 578 FSupp. 1209, 1220 (D.N.J.

1984). Notwithstanding their class membership, they have

not alleged that school defendants’ reckless indifference was

due to this class membership. In other words, they have not

alleged facts which raise an inference that they were discrim-

inated against as female students, at least on the part of

school defendants.

Arguing that this court cannot dismiss the § 1985(3) claim,

they state in their brief in support of this claim that the exis-

tence of a conspiracy, as well as class based animus, are ques-

tions of fact to be decided at trial. If plaintiffs’ statement of the

law were correct, it would mean that plaintiffs could simply

state that a statute had been violated without alleging any

facts to support that the elements of the statute had occurred.

Plaintiffs would have no practical burden of pleading. This is

clearly not the law.

They cite Gant v. Aliquippa Borough, 612 F.Supp. 1139

(W.D.Pa. 1985) to support the argument regarding conspir-

acy. In Gant the court refused to dismiss a_ plaintiff's

§ 1985(3) claim where she alleged that a police officer ar-

rested her without justification, beat her and then took her to

the police station where other officers questioned her and de-

nied her medical treatment. The court stated that plaintiff

pled facts that could, if proven, establish a tacit agreement to

violate her rights. Id. at 1142. Here, however, no such facts

have been supplied.

Cases cited by plaintiffs raise employment discrimination

claims where facts were alleged which, if proven at trial,

would support a finding of class-based animus. In Gobla a

female teacher fired from her job sued the school district, al-

leging that her termination was motivated by her refusal to

tolerate sexism. She alleged a history of pervasive discrimi-

natory conduct. In Skadegaard a woman fired from her job

sued her employer, alleging that she was terminated for refus-

ing to accept her bosses’ sexual advances. Plaintiffs do not

allege that the school defendants acted in a constitutionally

violative way due to plaintiffs’ membership in the class.

A-23

Because plaintiffs state no claim under § 1985(3), they can-

not recover under § 1986. Section 1986 provides a claimant

alleging a private conspiracy under § 1985 with a cause of

acuion against anvone who knows that such a violation is

going to be committed, has the power to prevent the commis-

sion, and fails to do so. As a companion statute, no cause of

action can be maintained under § 1986, unless a claim is es-

tablished pursuant to § 1985. Rogin v. Bensalem Tp., 616 F.2d

680, 696 (3d Cir. 1980).

Additionally, plaintiffs have no cause of action undet

§ 1988, because it provides none. Moor v. Alameda Cty.. 411

U.S. 693, rehearing denied 412 U.S. 963 (1973). It simply

allows a prevailing party in a civil rights suit, including one

brought pursuant to §§ 1981, 1982, 1983, 1985 or 1986. to

recover attorney's fees. Additionally, the statute requires that

a plaintiff prevail on the merits of her claim to obtain at-

torneys fees. See Thompson v. Pa. Parole Bd. Member Jeffer-

son, 944 F.Supp. 173 (E.D.Pa. 1982). Here, plaintiffs are not

the prevailing parties.

6. The Education of All Handicapped Act

The Education of All Handicapped Act, 20 U.S.C. § 1411 et

seq. does not provide plaintiffs with a cause of action. Plain-

uffs state that they had a right to special classes pursuant to

this act. Defendants do not deny that they have such a right

However, plaintiffs have alleged no facts tending to show that

they were denied access to public education or to special

classes.

The purpose of the-statute is to provide equal educational

opportunities to handicapped children and to help them

achieve a reasonable degree of self-sufficiency. Armstrong wv.

Kline, 476 F.Supp. 583 (3d Cir.), remanded on other grounds

629 F.2d 269, cert. denied 452 U.S. 968 (1979). By alleging

that school defendants referred them to the graphics class for

vocational training, plaintiffs provide facts that demonstrate

school defendants were in compliance with the statute.

The Act provides the handicapped student with an enforce-

able right to a free and appropriate education. Andrews 2

A-24

Ledbetter, 880 F.2d 1287 (11th Cir. 1989). However, a court

determining whether the state provided an appropriate edu-

cation does not determine what educational program would

be best. Visco v. School Dist. of Pittshurgh, 684 F.Supp. 1310

WD. Pa. 1988). The crux of plaimtiffs claim is that the be-

haviorally troubled students alleged to have committed the

criminal acts should not have been in a classroom with plain-

uffs and the other physically handicapped students. However,

without any allegation that these students committed such

acts in the past, plaintiffs fail to demonstrate that the educa-

tional program itself was not the most appropriate.

Xctually, the school district could be liable if it separated

these students without some showing that they were not ca-

pable of being educated in special classes located in a tradi-

tional school. See Hendricks v. Gilhool, 709 F.Supp. 1362

E.D. Pa. 1989).

CONCLUSION

Defendants’ Fed.R.Civ.P. 12(b)(6) motions to dismiss plain-

ulfs complaints are granted as to plaintiffs’ Federal Consti-

tutional and statutory claims. Plaintiffs’ state claims are

remanded for determination by the appropriate state court.

An appropriate Order follows.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NOS. 90-3018 and 90-3060

[).R., a minor child, by her parent

and natural guardian. L.R. and L.R..

individually and in her own right.

\

MIDDLE BUCKS AREA VOCATIONAL TECHNICA

SCHOOL. et al

and

L.H.,. BUCKS COUNTY, PENNSYLVANIA

\

MIDDLE BUCKS AREA VOCATIONAL TECHNICA]

SCHOOL. et al

ORDER

\ND NOW, this Ist day of February, 199] upon considera

tion of defendants’ motions to dismiss the complaints unde1

Fed. R.Civ.P. 12(b)(6), plaintiffs: response thereto and the re

plies of the parties, it is hereby ORDERED that defendants

mouons are GRANTED. Judgment is hereby entered in favor

of defendants and against plaintiffs

BY THE COURT

A-26

Filed December 31, 199]

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 91-1136 and 91-1137

D.R., a minor child, by her parent

and natural guardian, L.R., and L.R..

individually and in her own right,

Appellants,

V.

MIDDLE BUCKS AREA VOCATIONAL TECHNICAL

SCHOOL; WILLIAM GOODE; JAMES C. BAZZEL;

MARTHA RICHINO; SUSAN PETERS: BUCKS

COUNTY INTERMEDIATE NO. 22: CHRISTINA

TUTTLE; PENN RIDGE SCHOOL DISTRICT;

CHARLES FAMBRO; FRED FREEMAN: JAMES A.

GALLAGHER; BRIAN MILLER; MARC R.

RATCLIFFE; JAMES M. SPERLING: LESTER

SUTPHIN

and

L.H., BUCKS COUNTY, PENNSYLVANIA.

Appellant,

ve.

MIDDLE BUCKS AREA VOCATIONAL

TECHNICAL SCHOOL; AND WILLIAM GOODE

AND JAMES C. BAZZEL AND MARTHA RICHINO

AND SUSAN PETERS AND JAMES A.

GALLAGHER AND BRIAN MILLER AND MARC

>

ho

R. RATCLIFFE AND JAMES M. SPERLING AND

LESTER SUTPHIN

Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil No. 90-03018 and 90-03060

Argued July 16, 1991

BEFORE: SLOVITER, Chief Judge, GREENBERG

and SEITZ, Circuit Judges.

Filed: December 31, 1991

Thomas B. Rutter (Argued)

Rutter, Turner, Solomon & Dipiero

Curtis Center, Suite 750 South

Independence Square West

Philadelphia, Pennsylvania 19106

Attorney for Appellants

John E. Freund, III

King, McCardle, Herman & Freund

112 North 6th Street

P.O. Box 449

Allentown, Pennsylvania 18105

Larry D. Jackson

Harris & Silverman

1515 Market Street

Suite 1000

Philadelphia, Pennsylvania 19102

Eric A. Weiss

Barbara A. Subkow

Liebert, Short & Hirshland

1901 Market Street

31st Floor

Philadelphia, Pennsylvania 19103

Andrew L. Braunfeld

Masterson, Braunfeld, Himsworth & MaGuire

Swede & Airy Streets

One Montgomery Plaza

Norristown, Pennsylvania 1940]

Robert G. Devine

James J. Donohue (Argued)

White & Williams

One Liberty Place

1650 Market Street

Suite 1800

Philadelphia, Pennsylvania 19103

Andrew E. Faust (Argued)

Curtin & Heefner

140 East State Street

Doylestown, Pennsylvania 18901

Edwin F. McCoy

David B. Kline

LaBrum & Doak

1700 Market Street

Suite 700

Philadelphia, Pennsylvania 19103-3997

Joseph M. O'Neill

Sean X. Kelly

Marks, Kent & O'Neill

A-29

1315 Walnut Street

3rd Floor

Philadelphia, Pennsylvania 19107-2331

Attorneys for Appellees

OPINION OF THE COURT

SEITZ, Circuit Judge.

Plaintiffs, D.R., a minor child, by her parent,

L.R. and L.H., both high school students, as wel]

as L.R. in her own right,' appeal the decision and

order of the district court dismissing their

amended complaints. Future references herein to

“plaintiffs” will include only D.R., by her parent

and L.H. unless otherwise noted. These complaints

asserted claims under 42 U.S.C. §§ 1983, 1985(3),

1986 and 1988’ as well as state law claims.

Federal jurisdiction was asserted under 28 U.S.C.

§§ 1341 and 1343 and pendant jurisdiction over

the state law claims. This court has jurisdiction

pursuant to 28 U.S.C. § 1291.

Because the district court granted defendants’

motions to dismiss each of the complaints under

Rule 12(b)(6) of the Federal Rules of Civil

Procedure for failure to state a claim, this court

must “accept as true the facts alleged in the

amended complaints and all reasonable inferences

that can be drawn therefrom.” Markowitz v.

Northeast Land Co., 906 F.2d 100, 103 (3d Cir.

1. Because of our disposition of this appeal, we need not

decide whether L. R., the parent of plaintiff D.R., has a legally

cognizable constitutional claim in her individual right.

2. The §§ 1986 and 1988 claims are not pressed on appeal.

A-30

1990). We therefore turn to the allegations in the

amended complaints.

I. AMENDED COMPLAINTS

Plaintiffs were two female students in a graphics

arts class at Middle Bucks Area _ Vocational

Technical School (“Middle Bucks”).* They allege

that while attending the arts class for several

months during the 1989-90 school year several

male students {hereinafter the “student

defendants”] in the same class physically, verbally

and sexually molested them. This conduct took

place primarily in the unisex bathroom and a

darkroom, both of which were part of the graphic

arts classroom.

Plaintiff, D.R., avers that the student defendants

grabbed her and either forced or carried her into

the bathroom or darkroom on a regular basis and

physically abused her. She asserts that such

conduct took place on an average of two to four

times per week from January to May of 1990.

Plaintiff, L.H., claims that some of the student

defendants molested her two to three times per

week from December 1989 to May of 1990.

Plaintiffs allege that the sexual molestation

consisted of offensive touching of their breasts and

genitalia, sodomization and forced acts of fellatio.

The student defendants also allegedly forced

3. Plaintiff, D.R., attended graphics occupation classes at

Middle Bucks pursuant to an arrangement between defendants

Penn Ridge School District (“Penn Ridge”) and Bucks County

Intermediate Unit No. 22 (“Unit No. 22°). The districts arranged

her placement due to her status as an “exceptional” student

under Pennsylvania law. 24 Pa. Cons. Stat. Ann. §§ 13-1371,

13-1373 (Purdons 1982).

A-3]

plaintiffs to watch similar acts performed on other

students.

Defendant Susan Peters was the student-teacher

in the graphic arts classroom during the time of

the conduct in question. Plaintiffs do not claim to

have informed Peters of the molestation but assert

that Peters was or should have been in. the

classroom during the time of the acts complained

of and either heard or should have heard the

incidents taking place. Peters did experience

difficulty in controlling the class generally and

allegedly was exposed to a variety of misconduct

including obscene language and gestures, and

physically, but not sexually, offensive touching of

females including herself in the main classroom.

Plaintiff, L.H., avers that in December of 1988,

she told defendant Bazzel, Assistant Director of

Middle Bucks, of an attempt by one. student

defendant to force her into the darkroom for the

purpose of engaging in sexual conduct. She alleges

that Bazzel did not take action to correct. the

Situation. Plaintiffs also allege that other individual

defendants had knowledge of the — severe

non-sexual misconduct occurring in the classroom.

Based on the foregoing allegations, the amended

complaints assert violations of plaintiffs’ civil

rights under 42 U.S.C. §§ 1983 and 1985(3) by

Middle Bucks, Penn Ridge School District, Bucks

County Intermediate Unit No.22, and the teachers

and officials individually named [hereinafter the

“school defendants”|]. The student defendants were

also joined. However, since they were not state

actors, those claims were properly dismissed by

the district court.

A-32

II. DISTRICT COURT RULING

On the basis of the record then before it, the

district court found that defendants, Goode, Peters

and Bazzel were entitled to qualified immunity

under section 1983. D.R., L.R. and L.H. v. Middle

Bucks Area Vocational Technical School, No.

90-03018 and 90-03060, 1991 U.S.Dist. LEXIS

1292 at *17-18 (E.D.Pa. Feb. 1, 1991). Rather than

dismissing on that basis, however, the district

court's order granted the motions of the

defendants to dismiss each of the complaints for

failure to state a claim.

The district court first held that a_ special

custodial relationship between plaintiffs and the

school defendants was established by virtue of the

State's compulsory attendance laws, thus creating

an affirmative constitutional duty on the part of

the school defendants to protect plaintiffs from the

types of acts committed by the student defendants.

D.R.. L.R. and L.H., 1991 U.S. Dist. LEXIS 1292

at *27; 24 Pa. Cons. Stat. Ann. §§ 13-1327,

13-1333, 13-1343 (Purdon 1982). The court found

that the existence of the affirmative duty to act

was complemented by Pennsylvania law which

gives school officials in loco parentis standing to

take any action necessary to prevent disciplinary

infractions and educationally disruptive behavior.

24 Pa. Cons. Stat. Ann. § 13-1317 (Purdon 1982).

Nevertheless, the court concluded that the

amended complaints failed to allege sufficient

knowledge on the part of the school defendants to

charge them with the requisite reckless

indifference to plaintiffs’ rights to support a section

1983 claim.

A-33

III. DISCUSSION

Plaintiffs contend that their amended complaints

alleged the school defendants’ knowledge of the

physical, verbal and sexual abuse committed by

the student defendants and a policy of laxity

toward such conduct. They assert that the district

court impermissibly narrowed their allegations by

focusing solely on the issue of the school

defendants’ awareness of the sexual misconduct.

Thus, as a consequence, they argue that the

district court erred in granting the Rule 12(b)(6)

motion, given the more expansive allegations and

theories presented in their amended complaints.

Appellees respond that the district court's

dismissal can be affirmed by this court without

reaching the issue of the sufficiency of the factual

allegations of the school defendants’ knowledge of

the conduct of the student defendants. They assert

that, contrary to the district court's ruling, no

special relationship of constitutional proportions

existed between plaintiffs and the school

defendants. Thus, they say that this section 1983

action is not maintainable. We turn to that

important and complex issue in_ this most

wrenching factual setting.

A. Standard of Review

This court's scope of review of the district court's

dismissal for failure to state a claim is plenary.

Markowitz v. Northeast Land Co.. 906 F.2d 100,

103 (3d Cir. 1990). Construing the pleadings in

favor of plaintiffs, we must “determine whether,

under any reasonable reading of the pleadings, the

plaintiff may be entitled to relief.” Colburn v. Upper

é

Darby Township, 838 F.2d 663, 665-666 (3d Cir.

1988), cert. denied 489 U.S. 1065 (1989).

B. Legal Sufficiency of the Complaints

The first issue in a section 1983 case is whether

plaintiffs sufficiently allege a deprivation of any

right secured by the _ constitution, Baker ov.

McCollan, 443 U.S. 137, 140 (1978). Plaintiffs’

amended complaints essentially assert two theories

of liability under § 1983. The first is predicated

upon the finding of a special relationship between

plaintiffs and the school defendants giving rise to

a duty to protect the students such as those here

involved. We turn to that issue.

1. Constitutional Duty Analysis

We commence our analysis by addressing one of

the seminal Supreme Court cases shedding light

on § 1983 liability in this area. In DeShaney by

First v. Winnebago County Department of Social

Services, 489 U.S. 189 (1989), the Court declined

to impose a duty upon a state to protect the life,

liberty or property of a citizen from deprivations

by private actors absent the existence of a special

relationship. DeShaney involved _ the _ state's

repeated receipt of reports of abuse of a minor by

his father. Notwithstanding the notice provided by

the reports to the state agency, it did not remove

the child from his father's custody. The father

subsequently beat the child resulting in permanent

brain damage. The child and his mother filed a

section 1983 action against state officials claiming

that their official inaction deprived the minor of

his liberty in violation of the fourteenth

amendment.

A-35

The Suprenie Court stated at the outset that the

due process clause itself does not impose an

affirmative duty upon the state to protect its

citizens but rather serves as a limitation on the

State’s power to act. Id. at 195. Further, the Court

observed that the purpose of the due process

clause “was to protect the people from the State,

not to ensure that the State protected them from

each other.” Id. Thus, as a general matter, “a

State’s failure to protect an individual against

private violence simply does not constitute a

violation of the Due Process Clause.” Id. at 197.

The Court went on to acknowledge, however,

that “in certain limited circumstances the

Constitution imposes upon the State affirmative

duties of care and protection with respect to

particular individuals.” DeShaney, 489 U.S. at

198. The Court noted that it first recognized such

an exception in Estelle v. Gamble, 429 U.S. 97

(1976), reh. denied, 429 U.S. 1066 (1977). The

Court in Estelle held that the state had an

affirmative duty to provide adequate medical care

for prisoners since incarceration prevents an

inmate from caring for himself. Id. at 103-04.

The Court extended the Estelle exception from

the eighth amendment context to a fourteenth

amendment due process claim in Youngberg v.

Romeo, 457 U.S. 307 (1982). It there held that the

Constitution imposed a duty upon the state to

provide involuntarily committed mental patients

“such services as are necessary to ensure their

‘reasonable safety’ from themselves and others.”

DeShaney, 489 U.S. at 199. The Court also pointed

out in DeShaney, without editorial comment, that

several Courts of Appeals had analogized foster

children to individuals who fall within the Estelle

A-36

and Youngberg exceptions. These courts imposed

liability on the state for failing to protect children

that the state placed in the care of foster parents

when such placement resulted in abuse.

DeShaney, 489 U.S. at 201 n.9.

In commenting on each situation constituting a

departure from the general rule the DeShaney

Court noted:

[I]t is the State’s affirmative act of restraining the

individual's freedom to act on his own behalf-

through incarceration, institutionalization, or

other similar restraint of personal liberty- which

is the ‘deprivation of liberty’ triggering the

protections of the Due Process Clause, not its

failure to act to protect his liberty interests

against harms inflicted by other means.

DeShaney, 489 U.S. at 200. Focusing on _ the

element of restraint, the Court concluded that the

Estelle Youngberg exception was inapplicable to

Joshua DeShaney’s case since the conduct did not

occur while the child was in the state's custody.

Although the court decided that Joshua's

situation did not amount to state custody, it left

open the possibility that the duty owed by a state

to prisoners and the institutionalized may also be

owed to other categories of persons in custody by

means of “similar restraints of personal liberty.”

Id. at 200. We must decide therefore whether, as

appellants assert, state compulsory attendance

laws so restrain school children’s liberty that

plaintiffs can be considered to have been in state

“custody” during school hours for fourteenth

A-37

amendment purposes. We consider this to be an

open question in this circuit.‘

In order to decide whether a special relationship

of constitutional proportions exists by virtue of the

compulsory school attendance laws, we must

attempt to discern the’ rationale for the

Estelle Youngberg exception as articulated by the

Supreme Court. In determining that the state did

not owe Joshua a duty, the Court in DeShaney

Shed light on what might constitute a special

relationship which would give rise to a duty. It

found no special relationship between the state

and the abused child because the harm occurred

while Joshua was in the custody of his father who

was not a state actor. Further, the Court noted

that “[w]hile the State may have been aware of the

dangers that Joshua faced in the free world, it

played no part in their creation, nor did it do

anything to render him more vulnerable to them.”

DeShaney, 489 U.S. at 201.

Our court has read Deshaney as_ primarily

setting out a test of physical custody. Philadelphia

Police & Fire Ass'n for Handicapped Children, Inc.

v. City of Philadelphia, 874 F.2d 156, 167 (3d Cir.

1989) (“the state continues to owe an affirmative

duty to protect those physically in its custody’).

4. This court has suggested that by virtue of the compulsory

attendance laws, “students are in what may be viewed as

functional custody of the school authorities.” Stoneking v.

Bradford Area School District, 856 F.2d 594, 601 (3d Cir.

1988). In reconsidering that case in light of DeShaney on

remand from the Supreme Court, however, we stated that “we

prefer not to rest our decision again on an affirmative duty

to protect such students in this situation.. Stoneking vu

Bradford Area School District, 882 F.2d 720, 724 (3d Cir. 1989)

(“Stoneking II).

See also, FlYalowski v. Greenwich Home for

Children, Inc., 921 F.2d 459 (3d Cir. 1990)

(deciding no Youngberg duty of care for mentally

retarded adult voluntarily placed at institution

because state has not substantially curtailed his

freedom). The issue in Philadelphia Police was

whether the state could be held liable for

withdrawing vocational and support services

provided in aé_e daily program for mentally

handicapped’ children. While admitting that

cessation of services would be detrimental to the

children, this court refused to expand the

Estelle Youngberg custody exception to these

children since it was “impossible to find an

affirmative duty to protect the mentally retarded

living at home.” Id. at 168. In essence, the court

did not “believe that such intermittent custody

gives rise to an affirmative duty on the state's

part.” Id. at 168 n.9.

Plaintiffs argue that, unlike the plaintiffs in

Philadelphia Police who chose to receive state

services, they were required by law to attend

school and therefore were in the state's custody

during school hours under the Estelle- Youngberg

exception. But the Supreme Court explained that

“[tlaken together, [Estelle and Youngberg] stand

only for the proposition that when the State takes

a person into its custody and holds him there

against his will, the Constitution imposes upon it

a corresponding duty to assume some

responsibility for his safety and_— general

well-being.” DeShaney, 489 U.S. at 199-200. Thus,

although plaintiffs’ characterization fits in a

general way within DeShaney characterization of

Estelle Youngberg, the similarities go no further.

\-39

The state's duty to prisoners and involuntarily

committed patients exists because of the severe

restriction of liberty in both environments.

Institutionalized persons are wholly dependant

upon the state for food, shelter, clothing and

safety. It is not within their power to provide for

themselves, nor are they given the opportunity to

seek outside help to meet their basic needs.

Obviously, they are not free to leave.

As noted previously, some courts have imposed

a constitutional duty to protect foster children by

analogy to involuntarily institutionalized

individuals. See, Doe v. New York City Dept. of

Social Services, 649 F.2d 134 (2d Cir. 1981), after

remand, 709 F.2d 782, cert. denied sub nom,

Catholic Home Bureau v. Doe, 464 U.S. 864 (1983);

Taylor by and through Walker v. Ledbetter, 818

F.2d 791 (lith Cir. 1987), cert. denied sub nom,

Ledbetter v. Taylor, 489 U.S. 1065 (1991).

Although the situation of a public school child is

closer to that of a foster child than to an

institutionalized person, the foster care analogy is

not decisive. A special relationship between the

state and foster children arises out of the state's

affirmative act in finding the children and placing

them with state-approved families. Taylor, 818

F.2d at 794-97. By so doing, the state assumes

pervasive responsibility for the child's well-being.

In addition, the child's placement renders him

dependant upon the state, through the foster

family, to meet his or her basic needs. Id. A foster

child is completely unable to seek other living

arrangements and thus may well fall within the

Estelle Youngberg rationale.

Students, on the other hand, do not depend

upon the schools to provide for their basic human

A-40

needs. Instead, parents or others remain a child's

primary caretakers. To the extent that the child is

able to take care of himself or herself, attending

school does not effectively preempt that

responsibility. Schoolchildren, like the

institutionalized, may complain to officials,

however, unlike prisoners and mental patients,

they may also turn on a daily basis to others such

as their parents for help. By requiring plaintiffs to

attend assigned classes, the school defendants did

not cut off all meaningful sources of help for those

in plaintiffs’ positions.” Consequently, plaintiffs’

case fails the DeShaney test which imposes

liability only “when the State by the affirmative

exercise of its power so restrains an individual's

liberty that it renders him unable to provide for

his basic human needs....” DeShaney, 489 U.S. at

200.

We hold that compulsory attendance laws

cannot be viewed as creating a special custodial

relationship between schools and students akin to

that between a state and its prisoners or those

otherwise involuntarily committed. Our view is in

accord with the only other appellate case to

directly confront the issue to date. J.O. v. Alton

Community Unit School Dist. 11, 909 F.2d 267 (7th

Cir. 1990). The Court of Appeals for the Seventh

Circuit found that compulsory attendance laws did

not liken school children to prisoners and the

involuntarily committed, both of whom are unable

5. We are not required to decide here whether a public school

may owe younger students a greater duty of care. See e.g.,

Pagano by Pagano v. Massepequa Public Schools, 714 F. Supp.

641, 643 (E.D.N.Y. 1989) (holding that truancy laws give rise

to some duty of care toward elementary students).

A-4]

to provide for their own basic human needs.

Instead, the Seventh Circuit determined that

parents have primary responsibility to provide for

the basic needs of their children and that both

school children and parents “retain substantial

freedom to act.” Id. at 272. We therefore conclude

that plaintiffs amended complaints fail to state a

constitutional duty that the school defendants

could have breached.

2. Policy, Custom or Practice Analysis

We read plaintiffs’ amended complaints to assert

a second theory of liability that is viable even in

the absence of a DeShaney duty. In Stoneking I’,

882 F.2d 720 (3d Cir. 1989), cert. denied, 110

S.Ct. 840 (1990), this court held a school district

liable for deliberately and recklessly establishing

and maintaining a custom, practice or policy

which caused harm to a student. In Stoneking II

a teacher sexually molested a student. We stated

there that the district was liable for maintaining

the policies “in deliberate indifference to actions

taken by their subordinates,” id. at 725 and

emphasized that Deshaney was distinguishable

because the abuse there “resulted at the hands of

a private actor.” Id. at 724.

We agree with the district court that this case

lacks the linchpin of Stoneking II, namely a

violation by state actors. Sexual molestation

committed by an agent of the state is readily

distinguishable from the situation here pressed

since the due process clause itself imposes

limitations on the state’s conduct. Thus, section

1983 liability may not be predicated upon a

Stoneking Il-type theory where private actors

committed the underlying violative acts.

A-42

C. Qualified Immunity Under Section 1983

Although we. have ruled that the section 1983

claims were properly dismissed for failure to state

a claim under Rule 12(b)(6), we feel compelled to

note that before granting defendants’ motion to

dismiss, the trial court ruled that defendants

Goode, Peters and Bazzel were entitled to qualified

immunity.° This court stated in Black v. Bayer,

672 F.2d 309 (3d Cir. 1982) that the affirmative

defense of qualified immunity could not be

successfully asserted through a 12(b)(6) motion

since it must be developed by affidavits at the

summary judgment stage or at trial. Id. at 316.

We think that subsequent Supreme Court rulings

have so undermined the rule enunciated in that

case that to the extent Black is to the contrary, it

is no longer viable. See, Harlow v. Fitzgerald, 457

U.S. 800 (1982); Mitchell v. Forsyth, 472 U.S. 511

(1985); see e.g., Hidahl v. Gilpin County DSS, 938

F.2d 1150, 1155 (10th Cir. 1991). In view of the

fact that we have concluded that plaintiffs failed

to assert a constitutional claim, the district court

correctly determined that these defendants were

also entitled to qualified immunity. See, Siegert v.

Gilley, 111 S.Ct. 1789 (1991).

D. Section 1985(3) Liability

Plaintiffs also charge that defendants engaged in

a conspiracy to interfere with their civil rights in

violation of 42 U.S.C. § 1985(3). In order to

prevail, plaintiffs must show a conspiracy on the

part of the school defendants to deprive them of

6. It is unclear on this record whether defendants Richino

and Tuttle are also entitled to the benefit of the qualified

immunity defense.

A-43

equal protection or equal privileges and

immunities motivated by “class-based, invidiously

discriminatory customs and practices of failing to

protect female students from sexual, physical and

verbal abuse. Specifically, the amended complaints

assert that the school defendants’ acts in setting

up the graphics arts classroom to include a

darkroom and unisex bathroom constituted a

deliberate and reckless indifference to female

students’ rights.

We agree with the district court that plaintiffs

failed to assert any facts from which any type of

conspiratorial agreement between’ the_ school

defendants and the student defendants can be

inferred. Neither do the pleadings establish that

the alleged discriminatory policies or practices

were due to plaintiffs’ membership in the class of

female students. “[MJere conclusory allegations of

deprivations of constitutional rights,” Robinson v.

McCorkle, 462 F.2d 111, 113 (3d Cir.), cert. denied,

409 U.S. 1042 (1972), are insufficient to state a

section 1985(3) claim. Id.

In view of our affirmance of the district court's

dismissal of the constitutional claims, we will also

affirm the dismissal of the pendent state law

claims.

The order of the district court will be affirmed.

SLOVITER, Chief Judge, dissenting.

Ever since the Supreme Court's opinion in

DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189 (1989), the inferior

federal courts have struggled to draw the line that

A-44

will distinguish between’ those _ state-citizen

relationships where’ the state bears’ no

responsibility for harm _ resulting from _ private

conduct and those relationships where the state's

actions and the private conduct are so intermingled

that the state cannot disclaim its responsibility for

the harm that results. The case of children

subjected to harm within the confines of a school

that they are compelled to attend by state law

offers perhaps the most acute of the scenarios

raising this issue.’ The majority holds that

notwithstanding the state’s custody over school

children and its duty to act in loco parentis during

school hours, the state bears no _ responsibility

because the school is not the child's primary

caretaker. That holding at least draws the line

neatly and decisively. However, because I believe it

relieves the state from accountability in this case

not only for harm for which it shares responsibility

but also for harm to a student to whom it owed a

particularized duty, I respectfully dissent.

Focusing primarily on D.R., as the majority

does, if the allegations in her complaint are true,

1. In Stoneking v. Bradford Area School District, 856 F.2d

594 (3d Cir. 1988) (Stoneking I, this court found a

constitutional duty owed by school officials to protect school

children based on statutory and common law duties. That case

was vacated and remanded by the Supreme Court for

reconsideration in light of its decision in DeShaney. In

Stoneking v. Bradford Areas School District, 882 F.2d 720 (3d

Cir. 1989), cert. denied, 493 U.S. 1044 (1990) (Stoneking II,

this court did not decide whether its holding survived

DeShaney, Stoneking II, 882 F.2d at 723, but nevertheless

affirmed its previous decision on other grounds, stating that,

in light of DeShaney, “we can no longer rely on the statutory

and common law duties” of care to find a constitutional duty

to protect school children. Id.

A-45

she was subject to violent, sexual assault over a

five-month period while attending school. App. at

225-26. There is no question that D.R. has a

liberty interest in “safety and freedom from bodily

restraint.” Youngberg v. Romeo, 457 U.S. 307, 319

(1982). As in DeShaney, the question here is

whether the State deprived D.R. of her liberty

interest in “free[dom] from . . . unjustified

intrusions on personal security.” 489 U.S. at 195

(citing Ingraham v. Wright, 430 U.S. 651. 673

(1977)).

The majority believes that this case is closer to

DeShaney than the situation where a state places

a child with a foster family.? I cannot agree. The

harm caused by the father in DeShaney or by a

foster parent in the majority's hypothetical was not

inflicted on state premises under the purview of

State officials. Under the allegations here, the state

school significantly contributed to the harm by

requiring these minor plaintiffs to remain in a

chaotic classroom situation, constructing and

maintaining a unisex lavatory where they could be

assaulted without observation, assigning an

apparently unqualified and ineffectual student

teacher as the only supervisor in an out-of-control

classroom, and adopting the position of the three

monkeys who see, hear and speak no evil.

Barring unusual circumstances, school

attendance up until the age of seventeen is

2. In DeShaney, the Court left open the possibility that the

government has a constitutional duty to protect children that

it places in foster care from abusive foster parents. 489 U.S.

at 201, n.9. See Taylor ex rel. Walker v. Ledbetter, 818 F.2d

791 (11th Cir. 1987), cert. denied, 489 U-S. 1065 (1989): Doe

v. New York City Dept. of Social Services, 649 F.2d 134 (2d

Cir. 1981).

A-46

mandatory in the state of Pennsylvania. Pa. Stat.

Ann. tit. 24, §§ 13-1326, 1327 (Purdon’s Supp.

1991); In re D.M., 19 D & C.3d 514, 520 (1981).°

During the school day, school officials exercise

substantial control over students, either because

they are considered to stand in loco parentis

toward the students, Pa. Stat. Ann. tit. 24,

§ 13-1317 (Purdon’s Supp. 1991), or, as the

Supreme Court has stated, because “the concept

of parental delegation has been replaced by the

view - more consonant with compulsory education

laws - that the State itself may impose

corporal punishment . . . ‘for the maintenance of

group discipline.” Ingraham v. Wright, 430 U.S.

651, 662 (1977) (quoting 1 F. Harper & F. James,

Law of Torts § 3.20, p.292 (1956)) (emphasis

added). These rationales are frequently invoked by

school officials in an attempt to claim tmmunity

for their actions, see New Jersey v. T.L.O., 469

U.S. 325, 336-37 (1985) (rejecting state’s defense

on ground that in loco parentis authority does not

excuse school authorities from limits of Fourth

Amendment), and also have been relied upon by

the Court to recognize the special relationship

between school officials and the students they

supervise. Bethel School District No. 403 v. Fraser,

478 U.S. 675, 684 (1986) (recognizing “the obvious

concern on the part of . . . school authorities

acting in loco parentis, to protect children

from exposure to sexually explicit, indecent, or

lewd speech’).

The majority of secondary school students are

minors and the law recognizes that their judgment

3. D.R. was sixteen and L.H. was seventeen at the time of

the incidents alleged in their complaint.

A-47

may not be fully mature and developed: children

cannot vote, U.S. CONST. amend. XXVI; they

cannot serve in the armed forces, 10 U.S.C.

§ 505(a) (1983); if arrested, they are tried in

juvenile courts, 42 Pa. Cons. Stat. Ann. §§ 6301,

6322 (Purdon’s Supp. 1991); and if pregnant, they

must ask a parent for permission to have an

abortion, 18 Pa. Cons. Stat. Ann. § 3206 (Purdon's

Supp. 1991).

In their capacity as “parents,” school officials

can exercise control over the movements of their

students. In discussing the general acceptance of

corporal punishment in public schools, Justice

Powell, speaking for a majority of the Court, stated

that “[t]he prevalent rule in this country today

privileges such force as a teacher or administrator

‘reasonably believes to be necessary for [the

child's] proper control, training or education.”

Ingraham, 430 U.S. at 661 (quoting the

Restatement (Second) of Torts § 147 (2) (1965)).

The obvious corollary to this control is the

principle that the school child is not free do

anything or go anywhere she pleases while at

school.

In this case, for example, D.R. claims that in

order to avoid the situation in the classroom

lavatory, she repeatedly requested a pass to use a

different lavatory. Peters, the student teacher in

charge of D.R.’s class, either ignored her or

refused. App. at 228. As a result, D.R. was obliged

by the actions of the school itself to use the unisex

lavatory.

In DeShaney, the Supreme Court emphasized

that Joshua DeShaney suffered all of his injuries

at the hands of and while in the custody of his

father. 489 U.S. at 201. The Court stated that

A-48

although the State itself may not deprive people of

their liberty, the Due Process Clause does not

“Impose an affirmative obligation on the State to

ensure that those interests do not come to harm

through other means.” Id. at 195 (emphasis added).

Quoting its opinion in Harris v. McRae, 448 U.S.

297, 317-18 (1980), the Court noted that the Due

Process Clause “does not confer an entitlement to

such [government aid] as may be necessary to

realize all the advantages of that freedom.”

DeShaney, 489 U.S. at 196. It added that “a

State’s failure to protect an individual against

private violence simply does not constitute a

Violation of the Due Process Clause.” Id. at 197

(emphasis added). Finally, the Court noted that

“while the State may have been aware of the

dangers that Joshua faced in the free world, it

played no part in their creation, nor did it do

anything to render him any more vulnerable to

them.” Id. at 201.4

This is nothing like the situation of D.R. In this

case, the injury to D.R. did not come about

through “other means,” allowing the state to claim,

as it did in DeShaney, that it did not play some

role in creating the danger to the plaintiff or

making her “more vulnerable.” The most extreme

sexual misconduct allegedly went on in a unisex

4. This court has had a number of oppertunities to interpret

this standard. In Philadelphia Police & Fire Association v. City

of Philadelphia, 874 F.2d 156, 168 (3d Cir. 1989), the court

held that DeShaney “makes clear that a ‘state's affirmative act

of restraining the individual's freedom to act on his own behalf

through incarceration, institutionalization, or other stmilar

restraint on personal liberty’ is a prerequisite to the state's

obligation to provide care.” (quoting DeShaney, 489 U.S. at

200) (emphasis added)

A-49

lavatory, designated as such by school officials,

with an inside lock. Appellants allege that the

teacher of that classroom witnessed daily the

chaotic behavior that took place in her classroom

and was present when the male students grabbed

at D.R., touched her breasts, pushed her down,

and dragged her into the bathroom. App. at 222,

226-28. The teacher's general reaction was to

ignore the behavior or walk away. App. at 229.

The other school officials also knew and did not

try to remedy the situation. App. at 230-232. On

one occasion Peters even made the students open

the bathroom door when she knew a number of

boys and girls were in there. App. at 228.

Apparently a videotape of the class was made by

a male student which showed “open lewdness”

while the teacher was sitting at her desk watching.

App. at 222-23, 739-41.

I do not see how we can say that in this

Situation the harm to D.R. came about by means

apart from the state and that the state had no

role in creating the dangers to plaintiff. This is not

“private violence”: some of it was carried out right

in front of the teacher and the behavior in the

lavatory, although outside of the teacher's

immediate sight, was most likely well within her

knowledge.

Despite the majority's reference to Philadelphia

Police, 874 F.2d 156, this is not a case of a

plaintiff claiming entitlement to government aid

which has been withdrawn and which the

government has no duty to provide in the first

place, nor ts it a case where the court needs to

draw fine lines between the need for disciplinary

measures in the school | setting and the

consUtutional prohibition of cruel and unusual

A-50

punishment. See Ingraham, 430 U.S. 651. Rather,

this is a claim that if the government is going to

require that minor children spend most of their

waking hours” subject to its control and

disciplinary rules, id., the government owes some

duty to those children that their most profound

liberty interest, the interest in personal security

and dignity, is not brutally violated by means that

were completely within the power of the state to

prevent.

The foregoing analysis is, at least on the face of

the complaints, applicable to both D.R. and L.H.

However, it is apparent from the record of the

juvenile hearing before the state judge at which

the perpetrators were found to be delinquent that

D.R. qualified as an “exceptional child,” see

Majority Typescript Op. at 4 n.3, because she is

“almost totally hearing impaired” and “her powers

of articulation are seriously limited.” App. at 744.°

The majority leaves open the door for claims of

elementary school age children, Majority Typescript

Op. at 15 n.5, presumably because those children

have immature judgment and may not be

sufficiently independent of the school authoritles

to complain to their parents about constitutional

deprivation occurring at school. D.R.,

notwithstanding her age, was apparently in a

similar situation. :

The record before us shows that D.R. also was

unwilling to disobey her teacher and, in a poignant

revelation of her own vulnerability, stated that she

was afraid that if she complained about the

5. The transcript of the state proceeding was attached to

defendants’ motion to dismiss. It 1s, in any event, a matter of

public record.

A-51

_ brutality to anyone and was removed from the

classroom, she would have nowhere to go. App. at

232, 746. The fact is that she suffered these

indignities for many months before telling anyone.

Presumably her fear arose from the fact that she

had already been removed from a regular public

school to go to this vocational school. There is

little question, if we take the allegations of the

complaint to be true, that Ms. Peters and other

school officials knew about D.R.’s disability and

about at least some of the offenses to which she

was being subjected. App. at 229.

I believe that under these circumstances

DeShaney is distinguishable. Unless and until the

Supreme Court takes DeShaney a step beyond its

already extensive applicability, I believe that there

is still room to apply the protections provided by

section 1983 to the fact pattern alleged in these

complaints. Because I do not agree with the

majority's limited view of the viability of the

constitutional claims asserted here, I also disagree

with its disposition of the qualified immunity

defenses proffered by the individual defendants.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

Filed August 11, 1992

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 91-1136 and 91-1137

D.R., a minor child, by her parent

and natural guardian, L.R., and L.R.,

individually and in her own right,

Appellants, No. 91-1136

V.

MIDDLE BUCKS AREA VOCATIONAL TECHNICAL

SCHOOL; WILLIAM GOODE; JAMES C. BAZZEL;

MARTHA RICHINO; SUSAN PETERS; BUCKS

COUNTY INTERMEDIATE UNIT NO. 22; CHRISTINA

TUTTLE; PENN RIDGE SCHOOL _ DISTRICT;

CHARLES FAMBRO; FRED FREEMAN; JAMES A.

GALLAGHER; BRIAN MILLER; MARC R.

RATCLIFFE; JAMES M. SPERLING; LESTER

SUTPHIN

and

L.H., BUCKS COUNTY, PENNSYLVANIA,

Appellant, No. 91-1137

V.

MIDDLE BUCKS AREA VOCATIONAL

TECHNICAL SCHOOL; AND WILLIAM GOODE

AND JAMES C. BAZZEL AND MARTHA RICHINO

AND SUSAN PETERS AND JAMES A.

GALLAGHER AND BRIAN MILLER AND MARC

R. RATCLIFFE AND JAMES M. SPERLING AND

LESTER SUTPHIN

Appeals from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil Nos. 90-03018 and 90-03060

Argued July 16, 1991

Before: SLOVITER, Chief Judge,

GREENBERG and SEITZ, Circuit Judges.

Reargued In Banc May 6, 1992

Before: SLOVITER, Chief Judge, BECKER,

STAPLETON, MANSMANN, GREENBERG,

HUTCHINSON, SCIRICA, COWEN, NYGAARD.,

ALITO, ROTH and SEITZ, Circuit Judges.

Filed: August 11, 1992

Thomas B. Rutter (Argued)

Rutter, Turner, Solomon & Dipiero

Curtis Center, Suite 750 South

Independence Square West

Philadelphia, Pennsylvania 19106

Attorney for Appellants

John E. Freund, III

King, McCardle, Herman & Freund

112 North 6th Street

P.O. Box 449

Allentown, Pennsylvania 18105

Larry D. Jackson

Harris & Silverman

1650 Arch Street

25th Floor

Philadelphia, Pennsylvania 19103

Eric A. Weiss

Barbara A. Subkow

Liebert, Short & Hirshland

1901 Market Street

3ist Floor

Philadelphia, Pennsylvania 19103

Andrew L. Braunfeld

Masterson, Braunfeld, Himsworth & MaGuire

Swede & Airy Streets

One Montgomery Plaza

Norristown, Pennsylvania 19401

Robert G. Devine

James J. Donohue

White & Williams

One Liberty Place

1650 Market Street

Suite 1800

Philadelphia, Pennsylvania 19103

Andrew E. Faust (Argued)

Curtin & Heefner

140 East State Street

Doylestown, Pennsylvania 1890]

Edwin F. McCoy

David B. Kline

LaBruin & Doak

1700 Market Street

Suite 7OO

Philadelphia, Pennsylvania 19103-3997

Joseph M. O'Neill

Sean X. Kelly

Marks, Kent & O'Neill

1315 Walnut Street

3rd Floor

Philadelphia, Pennsylvania 19107-2331

Attorneys for Appellees

Michael I. Levin

Cleckner and Fearen

Willow Grove Plaza

102 York Road, Suite 2000

Willow Grove, Pennsylvania 19090

Stuart L. Knade (argued)

Cleckner and Fearen

31 North Second Street

Harrisburg, Pennsylvania 17101

Attorneys for Amicus Curiae

Pennsylvania School Board Association

OPINION OF THE COURT

SEITZ, Circuit Judge.

This appeal presents us with a classic case of

constitutional line drawing in a most excruciating

factual context

Plaintiffs, D.R.. a minor child, by her parent,

L.R. and L.H., both public high school students,

as well as L.R. in her own right,’ appeal the

decision and order of the district court dismissing

1. Because of our disposition of this appeal, we need not

decide whether L.R., the parent of plaintiff D.R., has a legally

cognizable constitutional claim in her individual right

their amended complaints against Middle Bucks

Area Vocational Technical School (“Middle Bucks’),

Penn Ridge School District ("Penn Ridge”), Bucks

County Intermediate Unit No. 22 (“Unit No. 22°),

and individually mamed teachers and _ officials?

(“school defendants”). Claims were also asserted

against seven male students. Only two students,

James Gallagher and Marc Ratcliffe, appeared, but

because all seven were allegedly involved in the

wrongtul conduct we shall inelude all of them tn

referring to “student defendants.” Future

references to “plaintiffs” will apply to D.R., by her

parent, and L.H. unless otherwise noted.

The amended complaints pleaded claims under

42 U.S.C. §§ 1983 and 1985(3) (1988), as well as

State law claims. Federal jurisdiction was invoked

under 28 U.S.C. §§ 1341 and 1343 (1988),* and

pendent jurisdiction over the state law claims. This

eourt has jurisdiction pursuant to 28 U.S.C.

§ 1291 (1988).

I. AMENDED COMPLAINTS

2 These individuals are William Goode and James Bazzell.

both building administrators, the classroom student teacher.

Susan Peters, and guidance counselors Martha Richino and

Christina Tuttle

* There is no record evidence to demonstrate that students

Fambro, Freeman, Miller, Sperling and Sutphin were served

with process or entered an appearance. Persons who are not

served and do not appear are not parties to an action and

thus do not prevent the judgment from becoming final. DeTore

v. Local Number 245, 615 F.2d 980. 982. n2 (38d Cir. 1980)

4. Plaintiffs also asserted §§ 1986 and 1988 claims. but thev

are not pressed on appeal

Plaintiffs were two female students in a graphic

arts class at Middle Bucks.” They allege that while

attending the arts class during the 1989-90 school

year. several male students in the same class

physically, verbally and sexually molested them.

This conduct took place primarily in the unisex

bathroom and a darkroom, both of which were part

of the graphic arts classroom.

Plaintiff, D.R., avers that the student defendants

grabbed her and either forced or carried her into

the bathroom or darkroom on a regular basis and

physically abused her. She asserts that such

conduct took place on an average of two to four

times per week from January to May of 1990.

Plaintiff, L.H., claims that some of the student

defendants molested her two to three times per

week from December 1989 to Mav of 1990.

Plaintiffs allege that the sexual molestation

consisted of offensive touching of their breasts and

genitalia. sodomization and forced acts of fellatio.

The student defendants also allegedly forced

plaintiffs to watch similar acts performed on other

students.

Defendant Susan Peters was the studeni teacher

in the graphic arts classroom during the time of

the alleged conduct in question. Plaintiffs do not

claim to have informed Peters of the molestation

but assert that Peters was or should have been in

5. Plaintiff, D.R., attended graphics occupation classes at

Middle Bucks pursuant to an arrangement between Penn

Ridge and Unit No. 22. The districts arranged her placement

due to her status as an “exceptional” student under

Pennsylvania law. Pa.Stat.Ann. tit. 24 § 13-1371 (1962 &

Supp. 1991). She was accorded exceptional student status

because of her hearing impairment and related communication

problems

the classroom during the time of the acts

complained of and either heard or should have

heard the incidents taking place. Peters admittedly

experienced difficulty in controlling the class

generally. She allegedly was exposed to a variety

of misconduct by the student defendants including

obscene language and gestures, and physically,

but not sexually, offensive touching of females

including herself in the main classroom.

Plaintiff, L.H., avers that in December of 1988,

she told defendant Bazzel, Assistant Director of

Middle Bucks, that one student defendant was

trying to force her into the bathroom for the

purpose of engaging in sexual conduct. She aileges

thet Bazzel did not take action to correct the

Situation. Plaintiffs also allege that other individuai

school defendants had knowledge of the severe

non-sexual misconduct occurring in the classroom.

Based on the foregoing allegations, the amended

complaints assert violations of plaintiffs’ civil

rights by the school and student defendants under

42 U.S.C. §§ 1983 and 1985(3) as well as

Pennsylvania law.

II. DISTRICT COURT RULING

On the basis of the record before it, the district

court found that defendants Goode, Peters, and

Bazzel were entitled to qualified immunity under

§ 1983. D.R., LR. and L.H. v. Middle Bucks Area

Vocational Technical School, No. 90-03018 and

90-03060, 1991 U.S.Dist. LEXIS 1292 at *17-18

(E.D.Pa. Feb. 1, 1991). Rather than dismissing on

that basis as to those defendants, however. the

district court granted defendants’ motions® to

6. School defendants Middle Bucks, Penn Ridge, Goode,

dismiss both complaints under Rule 12(b)(6) of the

Federal Rules of Civil Procedure for failure to state

a claim.

The district court first held that a special

custodial relationship between plaintiffs and the

school defendants was established by virtue of the

State's compulsory attendance and truancy laws,

Pa.Stat.Ann. tit. 24 §§ 13-1326-13-1330, 13-1333

and 13-1343 (1962 & Supp. 1991), thus creating

an affirmative constitutional duty on the part of

the school defendants to protect plaintiffs from the

types of acts committed by the student defendants.

D.R., L.R. and L.H., 1991 U.S. Dist. LEXIS 1292

at “27. The court found that the existence of the

affirmative duty to act was complemented by

Pennsylvania law which gives school officials in

loco parentis standing to take any action necessary

to prevent disciplinary infractions and

educationally disruptive behavior. Pa.Stat.Ann. tit.

24 § 13-1317 (1962 & Supp. 1991). Nevertheless,

the court concluded that the amended complaints

failed to allege sufficient knowledge of the student

misconduct on the part of the school defendants

to charge them with tie requisite reckless

Indifference to plaintiffs’ rights to Support a

§ 1983 claim and, therefore, dismissed the

complaints.

II. DISCUSSION

Bazzel, Peters, Richino. along with student defendants

Gallagher and Ratcliffe filed Rule 12(b)(6) motions to dismiss

the amended complaints which were granted by the district

court's order. The parties stipulated that school defendants

Unit No. 22 and Tuttle would be deemed to have filed timely

12(b}(6) motions as well. The court then dismissed Unit No.

22 and Tuttle on that basis

\ 0)

Plaintiffs’ amended complaints allege that the

school defendants had knowledge of the physical,

verbal and sexual abuse committed by the student

defendants and maintained a_ policy of laxity

toward such conduct. They assert that the district

court impermissibly narrowed their allegations by

focusing solely on the tssue of the school

defendants’ awareness of the sexual misconduct.

Thus. as a consequence, they argue that the

district court erred in granting the Rule 12(b)(6)

motions, given the more expansive allegations and

theories presented in their amended complaints.

The school defendants respond that the district

court's dismissal can be affirmed by this court

without reaching the issue of the sufficiency of the

factual allegations as to their knowledge of the

conduct of the student defendants. They assert

that, contrary to the district court's ruling, no

special relationship of constitutional proportions

existed between plaintiffs and the school

defendants. Thus, they say that this § 1983 action

is not maintainable. We turn to that important and

complex issue in this most wrenching factual

setting.

A. Standard of Review

This court's scope of review of the district court's

dismissal for failure to state a claim ts plenary.

Markowitz v. Northeast Land Co., 906 F.2d 100,

103 (3d Cir. 1990). We are required to “accept as

true the facts alleged in the amended complaints

and all reasonable inferences that can be drawn

therefrom.” Id. Construing the pleadings in favor

of plaintiffs then, we must “determine whether,

under any reasonable reading of the pleadings, the

plaintiff may be entitled to relief.” Colburn v. Upper

\-6 |

Darby Township, 838 F.2d 663, 665-66 (3d Cir.

1988), cert. denied, 489 U.S. 1065 (1989).

B. Legal Sufficiency of the

Complaints under § 1983

Generally, the first issue in a § 1983 case is

whether a plaintiff sufficiently alleges a deprivation

of any right secured by the constitution. Baker v.

McCollan, 443 U.S. 137, 140 (1978). When a

defendant asserts the affirmative defense of

qualified immunity, however, the court § must

determine as a threshold matter whether the

defendant is entitled to that defense. See Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, we

must begin by addressing the Immunity defense’

asserted by defendants Goode, Peters and Bazzel.*

Officials exercising discretionary powers are

“shielded from liability for civil damages insofar as

their conduct does not violate clearly established

Statutory or constitutional rights of which a

reasonable person would have known.” Id. The

Supreme Court in Siegert v. Gilley, 111 S.Ct. 1789

(1991), recently clarified the analytical framework

7. This court stated tn Black v. Bayer, 672 F.2d 309 (3d Cir.

1982), that the affirmative defense of qualified immunity could

not be successfully asserted through a 12(b)(6) motion since

it must be developed by affidavits at the summary judgment

Stage or at trial. Id. at 316. We think that subsequent Supreme

Court rulings have so undermined the rule enunciated in that

case, that it is no longer viable. See, Harlow v. Fitzgerald, 457

U.S. 800 (1982): Mitchell v. Forsyth, 472 U.S. 511 (1985): see

e.g., Hidahl v. Gilpin County DSS, 938 F.2d 1150. 1155 (10th

Cir. 1991).

8. It is unclear on this record whether defendants Richino

and Tuttle are also entitled to the benefit of the qualified

immunity defense but it is moot in view of our decision.

\-62

to be used to evaluate whether a_ plaintiffs

allegations overcome the defense of qualified

immunity. The Court there said that, “lal

necessary concomitant to the determination of

whether the constitutional right asserted by a

plaintiff is ‘clearly established’ at the time the

defendant acted is the determination of whether the

plaintiff has asserted a violation of a constitutional

right at all.” Id. at 1795 (emphasis added). Thus,

the predicate question for Goode, Peters and

Bazzel is the same as that posed with respect to

the other school defendants, namely, whether

plaintiffs allege the “deprivation of any right

secured by the constitution.” Baker, 443 U.S. at

140. We will, therefore, consider plaintiffs’

allegations of constitutional error as they relate to

all of the school defendants.°

Plaintiffs state that they have a liberty interest

in their personal bodily integrity protected by the

Fourteenth Amendment as recognized in Ingraham

v. Wright, 430 U.S. 651, 673-74 (1977), and

Youngberg v. Romeo, 457 U.S. 307, 315 (1982).

Defendants do not argue otherwise. In order to

demonstrate a violation of their constitutional

rights plaintiffs’) amended complaints essentially

9. The district court did not specify which 12(b)(6) motions of

the defendants it granted. Thus, it appears that its order

applied to all motions to dismiss for failure to state a claim,

including those of student defendants Gallagher and Ratcliffe.

It is clear that § 1983 actions may only be maintained against

persons acting under color of state law. Parratt v. Taylor, 451

U.S. 527. 535 (1981), overruled tn part on other grounds,

Daniels v. Williams, 474 U.S. 327 (1986). There ts no such

allegation as to students Gallagher and Ratcliffe. Thus, it is

clear that the complaints failed to state a federal claim against

them.

\-6:3

assert four theories of liability. The first is based

upon the finding of the existence of a special

relationship between plaintiffs and the school

defendants during the school day. Such

relationship, they assert, gave rise to an

affirmative constitutional duty on the part of state

officials to protect students such as these plaintiffs

from serious harm. Second, plaintiffs contend that

the school defendants are Hable for creating a

danger that resulted in a violation of plaintiffs’

constitutional rights under the Fourteenth

Amendment. Third, they assert that the school

defendants are responsible for the existence of a

policy, custom or practice that permitted injuries

to the plaintiffs in violation of their constitutional

rights. Fourth, plaintiffs assert that defendants

conspired to deprive them of certain constitutional

rights. We will deal with each theory in turn.

IV. CONSTITUTIONAL CLAIMS

A. Special Relationship Custody

We commence our analysis by reiterating the

well-established principle that the Due Process

Clause does not impose an affirmative duty upon

the state to protect its citizens. Rather, it serves

as a limitation on the state’s power to act.

DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189, 195 (1989): Fralkowski v.

Greenwich Home for Children, Inc., 921 F.2d 459,

465 (3d Cir. 1990). However, when the state enters

into a special relationship with a particular citizen,

it may be held liable for failing to protect lim or

her from the private actions of third parties.

Cornelius v. Town of Highland Lake, Ala., 880 F.2d

348, 352 (11th Cir. 1990). This liability attaches

A-64

under § 1983 when the state fails, under

sufficiently culpable circumstances, to protect the

health and safety of the citizen to whom it owes

an aflirmative duty. See Cornelius, 880 F.2d at

353.

We must decide at the outset whether the school

defendants had such a special relationship with

the plaintiffs during school hours that they owed

plaintiffs a constitutional duty to protect them

from the misconduct of the student defendants.

Plaintiffs argue that one way the state can enter

into a duty-producing relationship under this

theory is by restraining a citizen’s freedom to act

on his or her own behalf. In addressing this

argument, we turn to one of the seminal Supreme

Court cases shedding light on § 1983 Hiability in

this area.

In DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189 (1989), the Court declined

to impose a constitutional duty upon a state to

protect the life, liberty or property of a citizen from

deprivations by private actors absent the existence

of a special relationship. DeShaney involved the

state’s repeated receipt of reports of abuse of a

minor by his father. Notwithstanding the notice

provided by the reports to the state agency, it did

not remove the child from his father’s custody.'°

The father subsequently beat the child resulting

in permanent brain damage. The child and his

mother filed a § 1983 action against state officials

10. At one point, a court order placed Joshua in the

temporary custody of the hospital where he was receiving

treatment. A team of specialists determined, however, that

there was insufficient evidence of child abuse for the state to

retain custody over Joshua.

A-65

claiming that they deprived the minor of his liberty

in violation of the Fourteenth Amendment “by

failing to protect him against a risk of violence at

his father’s hands of which they knew or should

have known.” DeShaney, 489 U.S. at 193.

After stating the general rule that “a State's

failure to protect an individual against private

violence simply does not constitute a violation of

the Due Process Clause,” Id. at 197, the Court

went on to acknowledge that “in certain limited

circumstances the Constitution imposes upon the

State affirmative duties of care and protection with

respect to particular. individuals.” DeShaney, 489

U.S. at 198. The Court noted that it first

recognized such an exception in Estelle v. Gamble,

429 U.S. 97 (1976). The Court in Estelle held that

the state had an affirmative duty to provide

adequate medical care for prisoners since

incarceration prevents an inmate from caring for

himself. Id. at 103-04.

The Court extended the Estelle exception from

the Eighth Amendment context to a Fourteenth

Amendment substantive due process claim in

Youngberg v. Romeo, 457 U.S. 307 (1982).

According to the DeShaney court, it there held that

the Constitution imposed a duty upon the state to

provide involuntarily committed mental patients

“such services as are necessary to ensure their

‘reasonable safety’ from themselves and_ others.”

DeShaney, 489 U.S. at 199. The Court also pointed

out in DeShaney, without editorial comment, that

several appellate courts had. analogized foster

children to individuals who fall within the Estelle

and Youngberg exceptions. Id. at 201 n.9. These

courts imposed liability on the state for failing to

protect children that the state placed in the care

of foster parents when such placement resulted in

abuse

In commenting on each situation constituting a

departure from the general rule, the Court noted:

[I]t is the State's affirmative act of restraining the

individual's freedom to act on his own behalf

through incarceration, institutionalization, or

other similar restraint of personal liberty- which

is the ‘deprivation of liberty’ triggering the

protections of the Due Process Clause, not its

failure to act to protect his liberty interests

against harms inflicted by other means.

DeShaney, 489 U.S. at 200 (emphasis added).

Focusing primarily on physical restraint, the Court

concluded that the Estelle-Youngberg exception was

inapplicable to Joshua DeShaney’s case since the

conduct did not occur while the child was in the

state's custody.

Although the Court decided that Joshua's

situation did not amount to state custody, it left

open the possibility that the duty owed by a state

to prisoners and the institutionalized might also

be owed to other categories of persons in custody

by means of “similar restraints of personal liberty.”

Id. at 200. Plaintiffs seek to bring themselves

within the quoted language.

Plaintiffs assert that Pennsylvania’s scheme of

compulsory atteudance and the school defendants’

exercise of in loco parentis authority over their

pupils so restrain school children’s liberty that

plaintiffs can be considered to have been in state

“custody” during school hours for Fourteenth

Amendment purposes. We consider this to be an

open question in this circuit. See Stoneking v.

Bradford Area School District, 882 F.2d 720. 724

(3d Cir. 1989).

Pennsylvania law mandates that every child of

“compulsory school age” attend a day _ school.

Pa.Stat.Ann. Ut. 24 § 13-1327. Both children and

their parents may be penalized for the child's

truancy. Pa.Stat.Ann. tit. 24 § 13-1333 and 1343.

However, a child is only of compulsory school age

“until the age of seventeen (17) years.” Pa.Stat.Ann.

lit. 24 § 13-1326 (emphasis added). At the time of

the incidents alleged, D.R. was sixteen and L.H

was seventeen years old. Appendix at 336. Thus,

Pennsylvania law only mandated D.R.'s

attendance. To the extent that plaintiffs’ argument

is dependant upon the compulsion provided by

section 13-1327, it is, therefore, only applicable to

1). ER

li order to decide whether a special relationship

of constitutional proportions exists between the

school defendants and D.R. by virtue of the

Pennsylvania statutes, we must consider the

DeShaney Court's rationale for the

Estelle Youngberg exception. The Court explained

its reasoning as follows:

[W]hen the State by the affirmative exercise of

iis power so restrains an individual's liberty that

it renders him unable to care for himself, and at

the same time fails to provide for his basic

human needs - eg. food, clothing, shelter,

medical care, and reasonable safety - it

transgresses the substantive limits on state

action set by the Eighth Amendment and the

Due Process Clause.

DeShaney, 489 U.S. at 200. Thus, the question

presented to us is whether compulsory attendance

\-68

paired with the in loco parentis authority of the

school defendants resulted in such an affirmative

restraint of D.R.’s liberty by the state that she was

left without reasonable means of self-protection

and. indeed, whether the focus should be confined

to the school day.

Our court has read DeShaney primarily as

setting out a test of physical custody. Philadelphia

Police & Fire Ass'n for Handicapped Children, Inc.

v. City of Philadelphia, 874 F.2d 156, 167 (3d Cir.

1989) (“the state continues to owe an affirmative

duty to protect those physically in its custody’).

See also, Fialkowski v. Greenwich~ Home for

Children, Inc., 921 F.2d 459 (3d Cir. 1990)

(deciding no Youngberg duty of care exists for

mentally retarded adult voluntarily placed at

institution because state has not substantially

curtailed his freedom). The issue in Philadelphia

Police was whether the state could be held liable

for withdrawing vocational and support services

provided in a _ datly program for mentally

handicapped’ children. While admitting that

cessation of services would be detrimental to the

children, this court refused to expand the

Estelle Youngberg custody exception to these

children since it was “impossible to find an

affirmative duty to protect the mentally retarded

living at home.” Id. at 168. In essence, the court

did not “believe that such intermittent custody

gives rise to an affirmative duty on the state's

part.” Id. at 168 n.¥.

D.R. argues that, unlike the plaintiffs in

Philadelphia Police who chose to receive state

services, or plaintiffs decedent in FYalkowskt who

was voluntarily placed at the state institution, she

\-69

was legally compelled to attend school and was

placed under the control of state actors who were

given parental authority over her as a matter of

law. She therefore contends that she was in the

State's custody during school hours within the

rationale of the Estelle-Youngberg exception. She

relies on the Supreme Court's explanation that

Estelle and Youngberg together stand “for the

proposition that when the State takes a person

into its custody and holds him there against his

will, the Constitution imposes upon it a

corresponding duty to assume some responsibility

for his safety and general well-being.” DeShaney,

489 U.S. at 199-200.

The Estelle-Youngberg type custody referred to

by the Court in DeShaney, however, is to be

sharply contrasted with D.R’s situation. The state's

duty to prisoners and involuntarily committed

patients exists because of the full time severe and

continuous state restriction of liberty in both

environments. Institutionalized persons are wholly

dependant upon the state for food, shelter.

clothing and safety. It is not within their power to

provide for themselves, nor are they given the

opportunity to seek outside help to meet their

basic needs. Obviously, they are not free to leave.

Here it is the parents who decide whether that

education will take place in the home, in public

or private schools’ or, as_ here, in a

vocational-technical school. Id. For some, the

options may be limited for financial reasons.

However, even when enrolled in public school

parents retain the discretion to remove the child

from classes as they see fit, see Pa.Stat.Ann. tit.

24 § 15-1546 (1962 & Supp. 1991) (religious

instruction); 22 Pa.Code § 11.26 (1992)

(non-school sponsored educational trips and

tours); Pa.Stat.Ann. tit. 24 § 13-1329 (1962)

(healthcare), subject only to truancy penalties for

continued periods of unexcused _ absence.

Pa.Stat.Ann. tit. 24 §§ 13-1333 and 13-1343. In

the case of special education students, the parents

have even greater involvement since they must

approve the precise educational program developed

for their child. 20 U.S.C. § 1415 (1988); 22

Pa.Code §§ 14.32, 14.61-68 (1992). Moreover, as

the Pennsylvania Supreme Court has recognized,

even without reference to the Pennsylvania School

Code or related statutes, “it [cannot] be denied

that a parent is justified in withdrawing his child

from a school where the health and welfare of the

child is threatened.” Zebra v. School District of City

of Pittsburgh, 296 A.2d 748 (Pa. 1972).

Our view that parents remain the primary

caretakers, despite their presence in school, is not

affected by section 13-1317 which grants

Pennsylvania teachers and principals in loco

parentis status. Section 13-1317 operates in

conjunction with section 5-510. Together they

permit school boards to set reasonable regulations

to govern students’ conduct. Pa.Stat.Ann. tit. 24

§ 5-510 (1962 & Supp. 1991). However, section

13-13i7 invests in school officials “only such

control as is reasonably necessary to prevent

infractions of discipline and interference with the

educational process.” Axtell v. Lepenna, 323

F.Supp. 1077 (W.D.Pa. 1971). As the

Commonwealth court concluded, section 13-1317

“invests authority in public school teachers; it does

not impose a duty upon them.” Pennsylvania State

Education Association v. Department of Public

Welfare, 449 A.2d 89, 92 (Pa.Commw.Ct. 1982)

(emphasis in original) (holding that teachers are

not among those persons “responsible” for a child's

welfare under § 2203 of the Child Protective

Services Law, Pa.Stat.Ann. tit. 11 §§ 2201-2224

(1962), now codified at 23 P.C.S.A. § 6311 (1991)).

By requiring D.R. to attend assigned classes at

Middle Bucks as_ part of her high = school

educational program, and authorizing officials to

engage in disciplinary control over the students,

the school defendants did not restrict D.R.'s

freedom to the extent that she was prevented from

meeting her basic needs. See Flalkowski, 921 F.2d

at 456-66 (mentally retarded adult's liberty not

restrained by state where “the Fialkowskis were

free to remove their son from [the state institution]

if they wished [and] Walter Fialkowski himself

enjoyed considerable freedom of movement.”) Thus,

the school defendants’ authority over D.R. during

the school day cannot be said to create the type

of physical custody necessary to bring it within

the special relationship noted in DeShaney,

particularly when their channels for outside

communication were not totally closed.

The analogy between’ school children and

prisoners or the involuntarily committed is

weakened further by the fact that school children

remain resident in their homes. Thus, they may

turn to persons unrelated to the state for help on

a daily basis. D.R’s complaint alleges an ongoing

series of assaults and abuse over a period of

months. Although these acts allegedly took place

during the school day, D.R. could, and did, leave

the school building every day. The state did

nothing to restrict her liberty after school hours

and thus did not deny her meaningful access to

sources of help.

As noted previously, some courts have imposed

a constitutional duty to protect foster children by

analogy to involuntarily institutionalized

individuals. See, Doe v. New York City Dept. of

Social Services, 649 F.2d 134 (2d Cir. 1981), after

remand, 709 F.2d 782, cert. denied sub nom,

Catholic Home Bureau v. Doe, 464 U.S. 864 (1983);

Taylor by and through Walker v. Ledbetter, 818

F.2d 791 (11th Cir. 1987), cert. denied, 489 U.S.

1065 (1991). We, of course, are not called upon

to decide the foster care issue. Nevertheless, we

do note that although the situation of a public

school student is perhaps closer to that of a foster

child than to an institutionalized person, the foster

care analogy is not decisive.

A relationship between the state and foster

children arises out of the state's affirmative act in

finding the children and placing them with

state-approved families. Taylor, 818 F.2d at

794-97. By so doing, the state assumes an

important continuing, if not immediate,

responsibility for the child's’ well-being. In

addition, the child's placement renders him or her

dependent upon the state, through the foster

family, to meet the child's basic needs. Id.

Students, on the other hand, do not depend upon

the schools to provide for their basic human

needs. Public school students are required to

spend only 180 six-hour days in the classroom per

year. Pa.Stat.Ann., tit. 24 §§ 13-1327(b), 15-1501,

15-1504(a) (1962 & Supp. 1991). Even during the

school day, however, parents or others remain a

child's primary caretakers and decisionmakers.

See e.g., Pa.Stat.Ann., tit. 24 § 14-1406 (1962)

(parents responsible for necessary’ medical

treatment). Pennsylvania's compulsory attendance

law demands only that parents ensure that their

child receive an appropriate education.

Pa.Stat.Ann. tit. 24 § 13-1327 Thus, the

relationship between foster children and public

school students is not controlling here

Our view of the public school function with

respect to its students seems to be in harmony

with the Supreme Court's description of that

institution in the context of denying school

children Eighth Amendment protection from

corporal punishment. There the Court said:

The school child has little need for the protection

of the Eighth Amendment. Though attendance

may not always be voluntary, the public school

remains an open institution. Except perhaps

when very young, the child is not physically

restrained from leaving school during school

hours; and at the end of the school day, the

child is invariably free to return home. Even

while at school, the child brings with him the

support of family and friends and is rarely apart

from teachers and other pupils who may witness

and protest any instances of mistreatment.

Ingraham, 430 U.S. at 670.

Our position that no special relationship based

upon a restraint of liberty exists here is in accord

with the only other appellate case to directly

confront this issue to date. In J.O. wv. Alton

Community Unit School Dist. 11, 909 F.2d 267 (7th

Cir. 1990), the Court of Appeals for the Seventh

Circuit found that compulsory attendance laws did

not liken school children to prisoners and_ the

involuntarily committed, both of whom are unable

to provide for their own basic human needs.

Instead, the Seventh Circuit determined that

A-74

parents have primary responsibility to provide for

the basic needs of their children and that both

school children and parents “retain substantial

freedom to act.” Id. at 272.

B. State Created Danger

We come to plaintiffs’ second basis for their

constitutional claim, viz., that the — school

defendants created the danger that eventuated in

a violation of plaintiffs’ constitutional rights.

Plaintiffs’ counsel asserts that this claim exists

apart from the claim based on the compulsory

attendance law and applies to both plaintiffs. We

now address that claim.

We understand plaintiffs’ amended complaints,

their briefs and the oral assertions of their counsel

to advance a claim that the school defendants

imperiled plaintiffs, or increased their risks of

harm, by: (1) failing to report to the parents or

other authorities the misconduct resulting in

abuse to plaintiffs; (2) placing the class under the

control of an inadequately trained and supervised

student teacher; (3) failing to demand proper

conduct of the student defendants; and (4) failing

to investigate and put a stop to the physical and

sexual misconduct. Plaintiffs say that these acts

or omissions “created a climate which facilitated

sexual and physical abuse of students.” L.H.’s

Amended Complaint, App. at 58. Thus, they assert

that having placed plaintiffs in the situation

alleged, the school defendants were obligated to

protect them from violations of their personal

bodily integrity by other students who were also

under such defendants’ control.

The state-created danger theory, utilized to find

a constitutional tort duty under § 1983 outside of

A-/9

a Strictly custodial context, has been recognized

by several courts of appeals.''! Cornelius v. Town

of Highland Lake, 880 F.2d 348 (11th Cir. 1989);

Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989),

cert. denied, 111 S.Ct. 341 (1990): Jackson v. City

of Joliet, 715 F.2d 1200, 1204 (7th Cir. 1983).

After determining in DeShaney that there was no

Estelle-Youngberg type custody there giving rise to

an affirmative duty of protection, the Court

commented that “[wlhile the State may have been

aware of the dangers that Joshua faced in the free

world, it played no part in their creation, nor did

it do anything to render him more vulnerable to

them.” DeShaney, 489 U.S. at 201 (emphasis

added).

Post-DeShaney courts have tracked the quoted

Supreme Court's language by asking whether the

State actors involved affirmatively acted to create

plaintiffs danger, or to render him or her more

vulnerable to it. See e.g., Bryson v. City of

Edmond, 905 F.2d 1386, 1392 (10th Cir. 1990)

(declining to impose liability upon state for deaths

of post office employees shot by fellow worker

where responding police did not create the

dangerous situation nor act to worsen decedents’

plights). We turn to Third Circuit case law in this

area.

11. Justice Brennan, dissenting in DeShaney, noted that,

“[clases from the lower courts also recognize that a State's

actions can be decisive in assessing the constitutional

significance of subsequent Inaction. For these purposes,

moreover, actual physical restraint is not the only state action

that has been considered relevant.” DeShaney, 489 U.S. at 205

(Brennan, J., dissenting) (citing White v. Rochford, 592 F.2d

381 (7th Cir. 1979))

In Brown v. Grabowski, 922 F.2d 1097 (3d Cir.

1990), this court considered the state-created

danger theory as_ enunciated in Wood and

Cornelius. There, the plaintiffs decedent reported

to the police that her former boyfriend had held

her hostage, threatened her, and _ sexually

assaulted her for three days. The police did not

place her abductor under arrest, and failed to

inform her of her right to request a temporary

restraining order under New Jersey's Prevention of

Domestic Violence Act. N.J.Stat.Ann. § 2C:25-7

(1982). She was subsequently found dead in the

trunk of her abductor’s car. This’ court

distinguished the state officials’ actions in Brown

from those in Wood and Cornelius where the courts

found’ _ affirmative constitutional duties’ of

protection. Brown, 922 F.2d at 1114-17.

Ultimately, the court concluded that, “[iJn contrast

to the plaintiff in Wood, [plaintiff] has supplied no

evidence that [the state actors] acted to create or

to exacerbate the danger that [the abductor] posed

to [her], thereby triggering a possible constitutional

duty to assist her in gaining access to the civil

courts.” Id. at 1116.

Plaintiffs here also rely upon Wood = and

Cornelius to demonstrate the use of the

state-created danger theory to impose lability

under § 1983. In addition, they cite Swader v.

Virginta, 743 F.Supp. 434 (E.D.Va. 1990), Horton

v. Flenory, 889 F.2d 454 (3d Cir. 1989), and

Germany v. Vance, 868 F.2d 9 (Ist Cir. 1989). As

in Brown, however, the facts alleged in plaintiffs’

amended complaints differ in important respects

from those in the state-created danger line of

cases.

\-77

Liability under the state-created danger theory

is predicated upon the states’ affirmative acts

which work to plaintiffs’ detriments in terms of

exposure to danger. As the Court of Appeals for

the First Circuit commented:

We do not want to pretend that the line between

action and inaction, between inflicting and failing

to prevent the infliction of harm, is clearer than

it is. If the state puts a man in a position of

danger from private persons and then fails to

protect him, it will not be heard to say that its

role was merely passive; it is as much an active

tortfeasor as if it had thrown him into a snake

pit.

Bowers v. Vito, 686 F.2d 616, 618 (lst Cir. 1982).

Although we find this to be an extremely close

case, and certainly a tragedy, we are convinced

that the school defendants did not create plaintiffs’

peril, increase their risks of harm, or act to render

them more vulnerable to the student defendants’

assaults.

In Wood, the police officer arrested an

intoxicated driver and impounded the vehicle

leaving the driver's female passenger in a

neighborhood known for criminal activity at night

without any means to travel to a place of safety.

The woman was raped by a stranger who offered

to take her home. In Cornelius, the state prison

officials and local officers instituted a prisoner

work program which permitted inmates to work in

public areas with access to dangerous weapons

under the general supervision of an untrained city

employee. Although the authorities represented to

the public that only property offenders would be

assigned to the work crews, the state permitted a

prisoner with a violent criminal history to work in

the town hall where plaintiff was employed. This

prisoner abducted plaintiff at knife-point and held

her hostage for three days, subjecting her to

repeated threats of physical and sexual abuse

Finally, in Stwader, officials permitted a prisoner

serving a life sentence for rape to work

unsupervised outside the prison gates, but still on

prison property. This prisoner raped and killed the

daughter of a prison employee who was required

by her employment to reside on the complex

grounds.

In each of these cited cases, the state can fairly

be said to have affirmatively acted to create the

danger to the victims. The school defendants’

“acts” in assigning student teacher Peters to the

graphic acts class and failing to supervise her

more closely, as well as their failure to put a stop

to the non-sexual pandemonium may have created

a recognizable risk that plaintiffs would receive

little education in that class, and _ perhaps,

physical injury due to the roughhousing. Plaintiffs

did not suffer harm, however, from that kind of

foreseeable risk. See Williamson v. City of Virgtnta

Beach, Va., 786 F.Supp. 1238, 1253 (E.D.Va.

1992) (no § 1983 Hability for minor tnformant’s

suicide due to stress of receiving threats where

recognized risk is retaliation against the informant

or his family). Plaintiffs’ harm came about solely

through the acts of private persons without the

level of intermingling of state conduct with private

violence that supported lability tn Wood, Swader

and Cornelius

We now turn to the final two cases cited by

plaintiffs to support their theory of state created

danger. In Horton, the owner of a private club, a

retired police officer known for his’ violence,

believed an employee to be responsible for the

burglarization of the club. He interrogated the

employee and summoned the _ police. Sergeant

Dlubak, who responded to the call, also questioned

the employee, but refused to remove him from the

owners premises notwithstanding signs of physical

mistreatment. This court imposed liability upon

the state holding that “[cllearly, Sgt. Dlubak was

a participant in the custody which led to the

victim's death.” Id. at 458.

In Germany, plaintiff, a minor, was committed

to the custody of the state based upon a charge

of assault and battery upon her father. The court

held the state Hable under § 1983 for its failure

to reveal an admission obtained after the

delinquency proceedings that plaintiffs parents

had fabricated the assault charge to obtain state

services for their daughter. The state's failure to

disclose the information resulted in continued

State “custody” via foster homes and_ other

placements, after the grounds for the delinquency

charges had dissipated.

We believe that plaintiffs’ reliance on Horton and

Germany to support their theory of state-created

danger is misplaced since we read both cases to

turn upon a finding of “functional” custody.

Moreover, the school defendants here, unlike the

state officials in Horton and Germany, are not

alleged to have encouraged or implicitly authorized

the violatfons by bestowing on the student

defendants any authority under color of law. In

both cited cases, the states’ acts in withholding

vital information served to increase the risks of

harm by permitting continued custody with the

states’ imprimatur.

\-80

Plaintiffs also allege that the “acts of the School

Defendants ... in setting up the graphic arts

classroom, and the unisex bathroom, demonstrates

a custom, policy or practice of ... indifference to

and the failure to protect [plaintiffs’] rights.” L.H.'s

Amended Complaint, App. at 263 (emphasis

added). The allegation seems to be made to

support a contention that the state created or

increased plaintiffs’ danger.

We do not believe, however, that the state can

be said to have created or increased plaintiffs’ risk

of danger by constructing and maintaining the

graphic arts classroom with its particular physical

layout. Bathrooms generally are equipped with

inside locks for privacy purposes and obviously,

the room was not intended to be used by both

sexes at the same time. The same conduct could

have occurred had the school built separate

bathrooms for its male and female students. As

for the darkroom, it must by definition be closed

off from the main classroom in order to serve its

function. The existence of the darkroom and of a

single restroom, both contained within the high

school classroom, did not subject plaintiffs to an

inherently dangerous environment. Comp :.ce White

v. Rochford, 592 F.2d 381, 384-85 (7ui Cir. 1979)

(children left in car on side of busy highway after

state officer arrested the driver).

Plaintiffs also argue that school defendants

increased their risks of harm by failing to report

the abuse to plaintiffs’ parents or other

authorities. This argument stems in part from

their assertion that defendants are under a state

imposed duty to report abuse pursuant to 23

P.C.S.A. §§ 6311 and 6312 (1991). It is clear,

however, that a violation of a state law duty, by

itself, is insufficient to state a § 1983 claim.

Brown, 922 F.2d at 1113 (citing Maine ov.

Thiboutot, 448 U.S. 1 (1980)). Section 1983 lability

arises only from a violation of federal statutory or

constitutional rights under color of state law. Id.;

see also, Youngberg, 457 U.S. at 330 (Burger, J.,

concurring). Thus, “ijllegality under the state

statute can neither add to nor subtract from [the]

constitutional validity [of a state's actions]."” Archie

v. City of Racine, 847 F.2d 1211, 1216 (7th Cir.

1988) (quoting Snowden v. Hughes, 321 U.S. 1, 11

(1944)).'?

We readily acknowledge the apparent

indefensible passivity of at least some _ school

defendants under the circumstances. Accepting the

allegations as true, viz., that one school defendant

was advised of the misconduct and apparently did

not investigate, they show nonfeasance but they

do not rise to the level of a constitutional violation.

As in DeShaney, “|t]he 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.” DeShaney, 489 U.S. at 203; see also,

Brown, 922 F.2d at 1116 (Defendant “could and

should have instructed [plaintiff] as to her rights

under the [Prevention of Domestic Violence] Act.

12. The same ts true of plaintiffs’ reliance upon alleged

violations of other state law duties under the Pennsylvania

School Code and the common law. Stoneking v. Bradford Area

School District, 882 F.2d 720, 723 (3d Cir. 1989), cert. denied,

110 S.Ct. 840 (1990) (After DeShaney, “we can no longer rely

on the statutory and common law duties imposed in

Pennsylvania on school officials as the basis of a duty to

protect students from harm occurring as the result of a third

person.’)

\-3.

tle was not, however, constitutionally compelled to

do so.”)

In sum, plaintiffs’ allegations are insufficient to

show, as required under DeShaney, that the school

defendants — either impermissibly limited the

freedom of the plaintiffs to act on their own behalf,

or barred their access to outside support. Nor do

they demonstrate that defendants violated a

constitutional duty by creating or exacerbating the

danger posed by the student defendants. See

Brown, 922 F.2d at 1116. It Is not our province

to say what the state responsibility is or should

be in situations like the present. We do say that

the Fourteenth Amendment does not automatically

embrace such conduct.

C. State Established Policy, Custom or Practice

We read plaintiffs’ amended complaints to assert

a third theory of constitutional liability that 1s

viable even in the absence of a special relationship

duty. Stoneking v. Bradford Area School District,

882 F.2d 720, 725 (3d Cir. 1989), cert. denied,

110 S.Ct. 840 (1990) (“Stoneking I”). In Stoneking

II. this court recognized that state defendants may

be held liable for deliberately and recklessly

establishing and maintaining a custom, practice or

policy which caused harm to a student when a

teacher sexually molested a student. We stated

there that nothing in DeShaney “suggests that

state officials may escape liability arising from

their policies maintained in deliberate indifference

to actions taken by their subordinates.” Id. at 725.

We emphasized that DeShaney was distinguishable

because the abuse there “resulted at the hands of

a private actor.” Id. at 724.

Eee

—s

\-83

We agree with the district court that this case

lacks the linchpin of Stoneking II, namely, a

violation by state actors. Sexual molestation

committed by an agent of the state is readily

distinguishable from the situation present here

since the Due Process Clause itself imposes

limitations on the state’s conduct. Thus, § 1983

liability may not be predicated upon a Stoneking

II-type theory because private actors committed the

underlying violative acts.

Since we have concluded that plaintiffs failed to

assert a constitutional claim under § 1983, the

district court correctly determined that defendants

Goode, Peters and Bazzel were entitled to a

dismissal based on _ qualified immunity. See,

Siegert v. Gilley, 111 S.Ct. 1789 (1991). It also

properly dismissed the § 1983 claims against the

other school defendants for failure to assert a

federal claim.

D. Conspiracy to Deprive Plaintiffs

of Constitutional Rights

Plaintiffs also charge that defendants engaged in

a conspiracy to interfere with their civil rights in

violation of 42 U.S.C. § 1985(3). In order to

prevail, plaintiffs must show a conspiracy on the

part of the school defendants to deprive them of

equal protection or equal _ privileges and

immunities motivated by “class-based, invidiously

discriminatory customs and practices of failing to

protect female students from sexual, physical and

verbal abuse.” Specifically, the amended

complaints assert that the school defendants’ acts

in setting up the graphics arts classroom to

include a darkroom and_= unisex bathroom

ae

A-84

constituted a deliberate and reckless indifference

to female students’ rights.

We agree with the district court that plaintiffs

failed to assert any facts from which any type of

conspiratorial agreement between the school

defendants and the student defendants can be

inferred. Neither do the pleadings establish that

the alleged discriminatory policies or practices

were due to plaintiffs’ membership in the class of

female students. “[MJjere conclusory allegations of

deprivations of constitutional rights,” Robinson v.

McCorkle, 462 F.2d 111, 113 (3d Cir.), cert. denied,

409 U.S. 1042 (1972), are insufficient to state a

§ 1985(3) claim. Id.

VI. CONCLUSION

No one could help but be shocked by the factual

allegations in this case. But in DeShaney the

Supreme Court rejected the “shock the conscience”

test of Rochin v. California, 342 U.S. 165, 172

(1952), as a standard for imposing § 1983 liability.

To do otherwise would readily convert much

tortious conduct into constitutional violations at

the expense of a decent regard for federalism.

While the line is certainly blurred, we are not

prepared to say that the conduct charged to the

school defendants here crossed the line.’

In view of our affirmance of the district court's

dismissal of the constitutional claims, we will also

affirm the dismissal of the pendent state law

claims.

13. In view of our affirmance of the order of the district court

dismissing the complaints, we need not decide whether

different standards of culpability might apply among the

school defendants.

Re ee ee

The order of the district court will be affirmed.

SLOVITER, Chief Judge, dissenting, with? whom

Judge Mansmann, Judge Scirica and Judge

Nygaard join.

The majority opinion is based on the premise

that the types of relationships which can give rise

to a constitutional duty of a state to protect its

school children from harm from third parties is

mandated by the Supreme Court's opinion in

DeShaney v. Winnebago County Dept. of Social

Servs., 489 U.S. 189 (1989). I believe that is too

narrow a reading of DeShaney, and that the scope

of the Due Process Clause’s duty to protect, while

limited, extends beyond the narrow compass of

those persons involuntarily committed to prisons

and mental institutions.

The majority reads this court's prior opinions as

limiting the applicability of such a duty to

situations in which the state has total and

continuous custody of the individuals. I believe

that our cases do not enunciate such a principle,

that those cases arose out of fact patterns

markedly different from the one presented here

involving school children compelled to attend —

school on a regular basis, and that, in any event,

as panel opinions they are not binding on this

court when sitting in banc.

I believe that we are free to decide, as I would

hold, that the state compulsion that students

attend school, the status of most students as

minors whose judgment is not fully mature, the

discretion extended by the state to schools to

control student behavior, and the pervasive control

exercised by the schools over their students during

\-86

the period of time they are in school, combine to

create the type of special relationship which

imposes a constitutional duty on the schools to

protect the liberty interests of students while they

are in the state’s functional custody.

I.

The majority does not address the question

whether the plaintiffs adequately asserted a claim

under the standards of culpability applicable to

claims under 42 U.S.C. § 1983. That was the basis

upon which the district court dismissed the

complaint. Because I disagree with the majority's

disposition of this case, I cannot avoid that issue

and would hold that the complaint alleges a claim

sufficient to withstand dismissal under Fed. R.

Civ. P. 12(b)(6).

There is no question that D.R. has a liberty

interest in “safety and freedom from __ bodily

restraint.” Youngberg v. Romeo, 457 U.S. 307, 319

(1982). Focusing primarily on D.R., as the majority

does, if the allegations in her complaint are true,

she was subject to violent, sexual assault two to

four times a week over a five-month period while

attending school. App. at 225-26. D.R. alleges,

inter alia, that the conduct included

(a) Touching by the Perpetrator Defendants, and

each of them, of the genital parts of minor

Plaintiff;

(b) Touching the breasts of minor Plaintiff;

(c) Forcing and causing minor Plaintiff to

masturbate the Perpetrator Defendants, and each

of them;

\-87

(d) Causing and _ forcing minor Plaintiff to

commit fellatio on the Perpetrator Defendants,

and each of them;

(e) The commission of acts of sodomy on minor

Plaintiff;

(f} Causing and forcing minor Plaintiff to watch

and observe the Perpetrator Defendants, and

each of them, perform similar offensive sex acts

on one or more other female students in the

graphics occupations classes;

(g) Causing and forcing minor Plaintiff to watch

and observe the Perpetrator Defendants have

offensive physical~ contact _— apparently

non-sexual — with one or more of the school

teachers including, but not limited to, Defendant

Peters.

App. at 225.

These allegations belie the majority's

characterization of the conduct as “non-sexual

pandemonium,” Maj. typescript op. at 27, and its

conclusion that harm from sexual assault was not

a foreseeable risk. The most extreme sexual

misconduct allegedly went on in a lavatory with

an inside lock, designated as a unisex facility by

school officials, that was part of the graphic arts

classroom. D.R. alleges that the student teacher

put in charge of that classroom, Susan Peters,

witnessed daily the chaotic behavior that took

place in her classroom and was present when the

male students grabbed at D.R., touched her

breasts, pushed her down, and dragged her into

the bathroom. App. at 222, 226-28. The teacher's

general reaction was to ignore the behavior or walk

away. App. at 229. On one occasion Peters made

the students open the bathroom door when she

knew a number of boys and girls were in there.

App. at 228. Peters even commented once about

“those boys and their raging hormones.” App. at

229. Apparently a videotape of the class was made

by a male student which showed “open lewdness”

while the teacher was sitting at her desk watching.

App. at 222-23, 739-41.' The other school officials

also knew about the situation in the graphic arts

classroom and did not try to remedy it. App. at

230-32.

Thus, the complaint _ sufficiently alleges

deliberate and reckless indifference by school

officials to the safety and physical well-being of

the students while they were in the functional

custody of the school. See Colburn v. Upper Darby

Township, 838 F.2d 663, 669-70 (3d Cir. 1988),

cert. denied, 489 U.S. 1065 (1989). However, since

the harm was inflicted by other students, rather

than by a school official, cf. Stoneking v. Bradford

Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989)

(Stoneking ID, cert. denied, 493 U.S. 1044 (1990),

I agree with the majority that the question here is

whether it can be fairly stated that the state

deprived D.R. of her liberty interest in “freedom

from . . . unjustified intrusions on _ personal

security.” DeShaney, 489 U.S. at 195 (quoting

Ingraham v. Wright, 430 U.S. 651, 673 (1977)).

Phrased differently, the only issue before us is

whether we can say, as a matter of law, taking all

1. For example, D.R.’s complaint alleged that the boys filmed

each other “touching and grabbing various parts of the female

students’ bodies, signs on which profanities were written, one

of the [boys] ‘mooning’ the camera (Le., exposing his bared

backside).” App. at 223.

\-39

of the allegations of the complaint as true, that

the limited duty to protect encompassed in the

Due Process Clause is inapplicable to public

school children.

II.

In its holding in DeShaney that a minor who

was returned by state agents to the custody of his

father at whose hands he later suffered grievous

harm could not maintain an action against the

County and its agents, the Supreme Court

emphasized that Joshua DeShaney suffered all of

his injuries at the hands of and while in the

custody of his father. The Court stated.

“Petitioners concede that the harm Joshua suffered

did not occur while he was in the State’s custody,

but while he was in the custody of his natural

father, who was in no sense a state actor.” Id. at

201 (emphasis added). In this case. unlike

DeShaney, the harm was inflicted while the victim

was in the state’s custody and/or care.

The majority emphasizes the Court's language

referring to the “affirmative act of restraining the

individual's freedom to act on his own behalf.” id.

at 200, as the crux of DeShaney. However, as the

majority itself recognizes, the Supreme Court

Stated that a duty to protect can arise from “the

State's affirmative act of restraining the

individual's freedom to act on his own. behalf

through incarceration, institutionalization, or other

similar restraint of personal liberty... .” Id.

(emphasis added). The Court did not say “other

similar types of custody,” which it could easily

have done if it had so meant. Involuntary custody

is just one type of “limitation which [the State can]

\-90

impose[] on [an individual's} freedom to act on his

own behalf.” Id.’

DeShaney contains no language to support the

majority's holding that the duty to protect can be

triggered only by involuntary, round-the-clock,

legal custody. Nothing in the opinion suggests that

compulsory school attendance cannot qualify as

the type of state restraint of personal liberty which

gives rise to a duty to protect. As this court has

previously recognized, “DeShaney requires that the

state have imposed some kind of limitation on a

victim's ability to act in his own interests.” Horton

v. Flenory, 889 F.2d 454, 458 (3d Cir. 1989).

However, we continued, “While — specifically

referring to imprisonment and institutionalization

. the [DeShaney] court acknowledges that other

similar state-imposed restraints of personal liberty

will trigger a state duty to prevent harm.” Id. In

fact, the DeShaney Court left open the possibility

that the state might have a special relationship

with a child it places in foster care, 489 U.S. at

201, n.9, even though it would no longer be the

state that had the direct daily contact with the

child.

Admittedly, in DeShaney the Court did focus

upon the voluntariness vel non of the custody, see

489 U.S. at 200. Although a student is not held

in school under shackles, there is substantial

compulsion associated with schooling. Barring

2. One commentator has suggested that “A proper analysis

should look to the[] implications of custodial control, rather

than only to the control itself, because it is the underlying

dependency that actually obligates the state to act, not the

state's legal status as custodian.” See Note, Affirmative Duties

in the Public Schools after DeShaney, 90 Colum. L. Rev. 1940,

1957 (1990).

\-9]

unusual circumstances, school attendance up

until the age of seventeen is mandatory in the

State of Pennsylvania. Pa. Stat. Ann. tit. 24,

§§ 13-1326, 1327 (Purdon 1962 & Supp. 1992); In

re D.M., 19 D & C.3d 514, 520 (1981).

The majority of secondary school students are

minors, and the law recognizes that their judgment

may not be fully mature and developed: children

cannot vote, U.S. Const. amend. XXVI; they cannot

serve in the armed forces, 10 U.S.C. § 505(a)

(1988); if arrested, they are tried in juvenile courts,

42 Pa. Cons. Stat. Ann. §§ 6301, 6322 (Purdon

1982 & Supp. 1992); and if pregnant, they must

ask a parent for permission to have an abortion,

18 Pa. Cons. Stat. Ann. § 3206 (Purdon Supp.

1992).

During the school day, school officials exercise

substantial control over students, either because

they are considered to stand in loco parentis

toward the students, Pa. Stat. Ann. tit. 24,

§ 13-1317 (Purdon Supp. 1992), or because proper

discipline so requires. Ingraham v. Wright, 430

U.S. 651, 662 (1977). These rationales are

frequently invoked by school officials in an attempt

to claim immunity for their actions, see New

Jersey v. T.L.O., 469 U.S. 325, 336-37 (1985)

(rejecting state’s defense on ground that in loco

parentis authority does not excuse school

authorities from limits of Fourth Amendment), and

also have been relied upon by the Supreme Court

to recognize the special relationship between

3. D.R. was sixteen at the time of the incidents alleged in

their complaint. Although L.H. at seventeen may not have

been compelled to attend school, | see no reason to draw an

age distinction between students who, in fact, are attending

a state school

school officials and the students they supervise

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675,

684 (1986) (recognizing “the obvious concern on

the part of . . . school authorities acting in loco

parentis, to protect children . . . from exposure to

sexually explicit, indecent, or lewd speech’).

In their capacity as “parents,” school officials

can exercise control over the movements of their

students. In discussing the general acceptance of

corporal punishment in public schools, Justice

Powell, speaking for a majority of the Court, stated

that “[t]he prevalent rule in this country today

privileges such force as a teacher or administrator

‘reasonably believes to be necessary for [the

child's] proper control, training or education.”

Ingraham, 430 U.S. at 661 (quoting Restatement

(Second) of Torts § 147(2) (1965)).

The majority minimizes the impact’ of

compulsory education laws for reasons I find

totally unpersuasive. The compulsory nature of

public school attendance its not lessened by the

fact that a few fortunate students have the option

to attend private school or be educated at home.

For the vast majority of children of school age, this

is no choice at all. Their families are not in a

financial position to fund a= private = school

education.* Even fewer are in the rare position of

being able to provide their children an adequate

education at home.” Nor does the fact that parents

4. Only 12 percent of the school-age population is enrolled in

private schools. See Muriel Cohen, A Schooling Tradition Turns

350 Today, Boston Globe, April 14, 1992, at 24

5. This is analogous to the court's discussion of choice versus

compulsion in Lee v. Weisman, 60 U.S.L.W. 4723, 4727 (U.S

June 24, 1992), where the Court, rejecting the argument that

may remove a child from school for specified

reasons, such as_ religious’ instruction, or

participate in planning the education of a special

education student mean that the child is in the

parents’ custody, rather than in the school's

custody, for the period that s/he is in school.

I find inexplicable the majority's conclusion on

the record before us that “the school defendants

did not restrict D.R.’s freedom to the extent that

she was prevented from meeting her basic needs.”

Maj. typescript op. at 19-20. In the complaint,

D.R. claims that in order to avoid the situation in

the classroom lavatory, she repeatedly requested a

pass to use a different lavatory. Peters either

ignored her or refused. App. at 228. As a result,

D.R. was obliged by the actions of the school itself

to use the unisex lavatory. Nor could D.R. have

simply walked out of school without permission

during school hours without calling into play the

truancy laws. See Pa. Stat. Ann. tit. 24,

§ 13-1333, 1343 (Purdon 1962 & Supp. 1992).

Moreover counsel for Amicus Curiae, the

Pennsylvania School Boards Association, conceded

in the argument before us that the school would

not have permitted D.R.’s mother to attend school

to provide assistance or a watchful eye over the

chaotic classroom conditions.

It is the majority's thesis that students, unlike

prisoners, have meaningful access to sources of

help. See Maj. typescript op. at 20. Yet the

reluctance of children to disclose sexual abuse is

there is no compuision accompanying a high school graduation

ceremony, stated “Law reaches past formalism. And to say ea

teenage student has a real choice not to attend her high schoo!

graduation is formalistic in the extreme

generally acknowledged. See Myers v. Morris, 810

F.2d 1437, 1459-66 (8th Cir.) (noting “unique

reluctance” of children to disclose sexual abuse),

cert. denied, 484 U.S. 828 (1987); Doe v. New York

City Dept. of Social Servs., 709 F.2d 782, 785 (2d

Cir.) (doctor testified that great majority of abused

children deny abuse), cert. denied, 464 U.S. 864

(1983). Elementary school age _ children = are

unlikely to be sufficiently independent of the

school authorities to complain promptly to their

parents about constitutional deprivation occurring

at school, and even older students may be in

comparable situations. There is, at least, a factual

issue presented in this case as to whether D.R.

was in a position effectively to seek help. D.P.

qualified as an “exceptional student,” see Majority

typescript op. at 5 n.5, because she is “almost

totally hearing impaired” and “|hjer powers of

articulation are seriously limited.” App. at 744.°

D.R. alleges that she was unabie to disclose the

assaults because of her disability and her fear. See

app. at 232. In a_ poignant revelation of her

vulnerability, D.R. stated that she was afraid that

if she complained about the brutality to anyone

and was removed from the classroom, she would

have nowhere to go. App. at 232, 746. Presumably

her fear arose from the fact that she had already

been removed from a regular public school to go

to this vocational school. The fact is that she

suffered these indignities for many months before

telling anyone.

6. These facts appear in the record of the juvenile hearing

before the state judge at which the perpetrators were found

to be delinquent. The transcript of the state proceeding was

attached to defendants’ motion to dismiss

\-95

Unless custody is limited to incarceration and

involuntary institutionalization (and the DeShaney

language suggests otherwise), the duty of state

entities to protect those already within their charge

should be broad enough to extend at least to

young children and those who, because of

disability or other impairment, are not likely to

seek assistance promptly. In fact, prisoners are

probably much more articulate about their

complaints about mistreatment than are school

chiidren, particularly when the treatment consists,

as in this case, of sexual abuse.

Moreover, in DeShaney the Court emphasized

the relevance of the State's responsibility in

placing the person in a position of danger. The

Court stated,

Petitioners concede that the harm Joshua

suffered did not occur while he was in the State's

custody, but while he was in the custody of his

natural father who was in no sense a state actor.

While the State may have been aware of the

dangers that Joshua faced in the free world, it

played no part in their creation, nor did it do

anything to render him any more vulnerable to

them. That the State once took temporary

custody of Joshua does not alter the analysis,

for when it returned him to his father’s custody,

it placed him tn no worse position than that itn

which he would have been had it not acted at

all; the State does not become the permanent

guarantor of an individual's safety by having

once offered him — shelter. Under these

circumstances, the State had no constitutional

duty to protect Joshua.

\ Qty

489 U.S. at 201 (footnote omitted; emphasis

added).

The DeShaney opinion is in line with Supreme

Court cases that decline to impose upon state

entities a constitutional duty to come to the aid

of the vast general public. As the Court stated, the

Due Process Clause does not ‘impose = an

affirmative obligation on the State to ensure that

[the life, liberty and property of its citizens] do not

come to harm through other means.” Id. at 195

(emphasis added). Even knowledge that an

identified victim, as distinguished from

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