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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 506 U.S. 1079

## Text

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
. ]
Hd t pr ide “li | { state officials! arisin
Sma ned i weiwpey ( ndiference | CUONS
( © if } iT Ter. \/ I] ho Tin’ } d | >
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lor suct poll is not dependent upon the existence
rel nsf] { Wee] al Pacrals nad the mdi
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\ ( CS \( le POLICY, |
ae | | 1 here \ I ¢ 1) perp pal ib
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meal rCUILS Gecision Ins
Phis case hpin. Therefore, it must be
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‘ been t have duty to prot
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supreme Court suggested ha
I Die tor] hire? rot | hil 1) , in) fOSTE)
Ol | fitil por CULL 4 Middvedr) i) LOSLCT
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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BYU LS yy U.S.L.W. at 4221 n. 9
+? ) 1} > > oF ' 1 by to? } sf
. iit i{ il Prey Were PCQUIPE Ny SUL hiWw
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 pro

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1615%3A2. Public record. Not legal advice.