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

Ss

NO. 92-816

In the Supreme Court

of the Hnited States

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,

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

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

ANDREW E. Faust, Esquire JAMES J. DONOHUE, Esquire

CURTIN AND HEEFNER Rosert G. Devine, Esquire

140 E. State Street WHITE AND WILLIAMS

Box 150 One Liberty Place

Doylestown, PA 18901 1650 Market Street, Suite 1800

(215) 348-5827 Philadelphia, PA 19103

Attorneys for Respondents, (215) 864-7035 _

Bucks County Intermediate Attorneys for Respondent,

Unit No. 22 and Christina Tuttle Susan Peters

SMITH-EDWARDS-OUNLAP COMPANY, 2067 £. ALLEGHENY AVENUE, PHILADELPHIA, PA 10134 (218) 428-8800

Larry D. Jackson, Esquire

HARRIS AND SILVERMAN

1515 Market Street

Suite 1000

Philadelphia, PA 19102

(215) 575-2000

Attorneys for Respondents,

Middle Bucks Area Vocational

Technical School and

Martha Richino

Harry A. Sort, JR., Esquire

LEIBERT, SHORT AND HIRSHLAND

1901 Market Street

Philadelphia, PA 19103

(215) 557-4011

Attorneys for Respondent,

William Goode

RicHARD K. Masterson, Esquire

MASTERSON, BRAUNFELD,

HIMSWORTH AND MAGUIRE

702 One Montgomery Plaza

Norristown, PA 19401

(215) 277-1700

Attorneys for Respondent,

James C. Bazzel

Epwin F.. McCoy, Esquire

LaBrRuM AND Doak

1700 Market Street, Suite 700

Philadelphia, PA 19103

(215) 587-4322

Attorneys for Respondent,

Penn Ridge School District

{

:

{

I. QUESTION PRESENTED FOR REVIEW

The question to which the Petition for Writ of Certiorari in

this case addresses itself is more accurately stated as follows:

Whether compulsory school attendance as it exists un-

der the law of Pennsylvania creates a custodial relation-

ship between public school employees and students suf-

ficient to establish a Constitutionally-cognizable “special

relationship” and concomitant affirmative duty to pro-

tect public school students from private misconduct.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW. ..............

STATUTES INVOLVED IN THE CASE .................

Reasons For Denying The Writ ..................

1.

~

Compulsory-School Attendance Laws Of Pennsyl-

vania Do Not Create A “Special Relationship”

Giving Rise To A Concomitant Constitutional Duty

On The Part Of School Defendants To Protect

Students From Private Misconduct And The

Circuit Court Correctly Applied The DeShaney

a, eer ey ere ee ee re re

The Obiter Dictum Of The Fifth Circuit In A Case

Not Involving Private Misconduct Is Insufficient

To Create A Conflict With The Decisions Of The

Third, Seventh and Tenth Circuits To Warrant

i os a , aR

eo re ee rr rn ree eee re

STATUTES INVOLVED IN THE CASE

This case also involves the various compulsory school

attendance provisions of the Pennsylvania Public School Code

of 1949, Act of March 10, 1949, PL. 30, art. XIII, §§1326, 1327,

1327.1, 1329, 1330, 13833, as amended, Pa. Stat. Ann. tit. 24,

$§15-1326, 13-1327, 13-1327.1, 13-1329, 13-1330 and 13-1333,

and the implementing provisions of the Pennsylvania State

Board of Education, 22 Pa. Code Chapt. 11. Since these provi-

sions are lengthy, respondents shall set forth their full text in

their brief on the merits, in the event that this Court grants the

Writ, in accordance with Supreme Court Rule 24.1(f).

ill

TABLE OF AUTHORITIES -

‘ 'A SA WS age

Appeal of Diane B., 456 Pa. 429, 321 A.2d 618 (1974) ... 10

Artell v. LaPenna, 323 F Supp. 1077 (W.D. Pa. 1971) =... 12

Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) ......... 8

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985)... 6

Butner v. United States, 440 U.S. 48 (1979) ........... 6

Collins v. City of Harker Heights, US. , 1128S.

Ch. TOG CERI 6 an ee ee eee 7

Com. er rel. School District of City of Pittsburg v. Ross,

17 Pa. Commw. 105, 330 A.2d 290 (1975) ............. 10

Commonwealth v. Barnhart, 345 Pa. Super. 10, 497 A.2d

616 (1985), allocatur denied, 517 Pa. 620, 538 A.2d 874

cert. denied sub nom, Barnhart v. Pennsylvania, 488

ORs CIR) oo ccc a cn eee eee 10

Cornelious v. Town of Highland Lake, 880 F.2d 348 (11th

ere career o/s, a S

D.R.v. Middle Bucks Area Vo. Tech. School, 972 F2d 1364

(ane Cir SORE) oases yayees eee eee 8,13

D.T. by M.T. v. Independent School District No. 16, 894

F.2d 1176 (10th Cir. 1990), cert. denied, US.

cs UL, SRSEE OP. ss ca noewvnceereee tee 19

Daniels v. Williams, 474 U.S 327 (1986) 20.0000... 4

DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189 (1989) ......0000... 2, 4, 6, 7, 8, 18

Doe “A” v. Special School District of St. Louis ¢ ounty,

637 FE Supp. 1138 (E.D. Mo. 1986) ................... 17

Doe v. Taylor Independent School District, 975 F2d 137

(OG Cie, TORE) onde vce snsaueeeee eee 9, 15, 16

.

a

TABLE OF AUTHORITIES—/(Contin ued )

CASES -age

Dorothy J. v. Little Rock School District, 794 F Supp.

SOU Ne Hy ED oa Xe kk eke ee ee §

Estelle v. Gamble, 429 U.S. 97 (1976) ................. 6

Fenstermaker v. Nesfedder, 1992 U.S. Dist. Lexis 13129

RU SU ces Sees ose Bee ee ee 18

Frisby v. Schultz, 487 U.S. 474 (1989) ................ >

Haring v. Procise, 462 U.S. 306 (1983) ............... 6

Ingraham v. Wright, 430 U.S. 651 (1977) ......... ¥, 12, 16

J.O. v. Alton Community Unit School District 11, 909

Poe mee (te Cle IOBD) ... 6. cick cckcccccs, 9, 13, 14

Keller v. Adams-Campbell Company, 264 U.S. 314

CONE SEG s ACLU NRSC eee Sea TIT ae ones 15

Maldonado v. Josey, 975 F.2d 727 (10th Cir. 1992) .... 9. 13.

14, 15, 16

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

Sere Sas RS ere ete ete oe ee 3

Maynard v. Cartwright, 486 U.S. 356 (1989) .......... 6

Mills v. Rogers, 457 U.S. 291 (1982) .................. 6

Pagano v. Massapequa Public Schools, 714 F. Supp. 641

Can we MOE a 5) vara ne cudu vba aba encom eens 16, 17

Reeves by Jones v. Besonen, 754 F. Supp. 1135 (E.D. Mich.

PED uskivesseeuwecvcek Cua ruake cere eUnan es 19

Robert G. v. Newburgh City School District, 1990 U.S.

Sipe, SO Pk CR on as ek cc adaklucten 17

Rotolo v. Borough of Charleroi, 532 E2d 920 (3rd Cir.

MOP ae Cee tah Ao eevee Can ia 3 3

Salve Regina College v. Russell, US. mii. *

Ree We MOE Gok vical cs kooks oe eevee ae )

EE eeEGEGEGGeee—e—e——n

TABLE OF AUTHORITIES—( Continued)

CASES Page

Stauffer v. Orangeville School District, 1990 U.S. Dist.

Lexis 19133 and 19041 (N.D. Ill 1990) .....00... 16,17, 18

Stoneking wv. Bradford Area School District, 882

R2d 720 (38rd Cir. 1989), cert. denied, 110 S. Ct. 84°

ees See a ae aw eae oe eae ee ee te e's yee 16

Virginia v. American Booksellers Association, Ine., 484

he ee RU ge ee ee ee ee es ee ee eo ¥

Voorhies v. Conroe Independent School District, 610 F

CE CER POU. SOND. Seco bees aw eae ewe oe 19

Waechter v. School District No. 14-030, 773 F Supp. 1005

TR NE: MOE og acy eas ncreee Fee eae ek: 17

Whitt v. Deleu, 707 FE Supp. 1011 (W.D. Wis. 1989) ...... 17

Wood wv. Ostrander, 879 F2d 583 (9th Cir. 1989), cert.

denied, US. , 1118. Ct. 341 (1900) ......... ss

Youngberg v. Romeo, 457 U.S. 807 (A982) 20. eee. 6

Zebra v. School District of City of Pittsburgh, 449 Pa.

lk, BPO Pie PAE 6s as eas eta e eas cuas 10

STATUTES, CODES AND OTHER AUTHORITIES

ee Bac Ua EE. occ ss bus dese seduaw ks sean vs 11

” Gens Se RMU cv cava cs ce ban sauuevaees 11

20 U.S.C. §1415 and 34 C.ES. §§300.344, 300.345 and

SEE Sere eans seks pear eee ees 11

Oe Arn OE sy Fn a weg ban Keka whe na enews xe 1

Pennsylvania's Juvenile Act, 42 Pa. Cons. Stat. Ann.

EAA eat ee ee ye Ok Sa ar ee Pn 12

42 Pa. Cons. Stat. Ann. $6302 .............0.0000 10, 12

vi

ee |

STATUTES, CODES AND OTHER AUTHORITIES—(Continued )

Page

ce EC, BOE, OU oaks be bs he ceeded 19

Pennsylvania’s Mental Health Procedures Act, Pa. Stat

TU ae Ee oa eke eee ew ae 12

School Code, Pa. Stat. Ann. tit. 24, §§13-1326 2.2... 10)

ru. Rete. Amn. TH. 36, SIG IST kee vse ends 10, 12

Pa. Stat. Ann. tit. 24, §§13-1326, 13-1327, 13-1327.1.

13-1329, 13-1330 and 13-1333 .................... iii

Pa. Stat. Ann. tit. 24, §§13-1327, 18-1383 ............. 10

Pa. Stat. Ann. tit. 24 §§13-1827(b), 15-1501, 15-1504(a) 2.2. «11,.13

Pa. Stat. Ann. Tit. 24, §§ 13-1302, 13-1305, and 13-1306 2... 11, 12

Pa. Stat. Ann. Tit. 24 §13-1827(b), 15-1501, 15-1504(a)

( Rien OE ete, BOE). ee cc eee eees is

pe OE RE ho ok ed he ee eens i]

ee a Be a ec ae eee ee ee a ee iil

No. 92-816

In the Supreme Court

of the United States

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

STATEMENT OF THE CASE

Plaintiff, D.R., by her parent and natural guardian, L.R.,

filed her original Complaint on May 2, 1990. Plaintiff, L.H..

followed on May 3, 1990 with the jiling of her Complaint. In

their Complaints, each of the plaintiffs essentially raised a

substantive due process clause claim through the Federal Civil

Rights Act codified at 42 U.S.C. §1983.

The school defendants preliminarily moved to dismiss the

Complaints by filing motions to dismiss pursuant to Fed.R.C.P.

12(b)(6) arguing that no constitutionally protected Civil Right

had been involved, facts necessary to establish the “deliberate

indifference” standard had not been pleaded and that the indi-

vidual school defendants enjoyed qualified immunity. After oral

argument on the original motions to dismiss, the District Court

(Giles, J.), directed plaintiffs to amend their Complaints so as

to satisfy the heightened specificity requirement applicable to

pleading the deprivation of a Civil Right.

On October 16, 1990, plaintiffs filed their Amended Com-

plaints which still did not plead any discrete prior events so as

to put school defendants on notice of the alleged assaultive

behavior by the male students. Rather, plaintiffs’ Amended

Complaints alleged a panoply of disruptive behavior, i.e., stu-

dents jumping, breaking windows, uttering obscenities, etc., all

of a non-sexual nature.

School defendants renewed the motions to dismiss plain-

tiffs’ Amended Complaints pursuant to Fed.R.C.P. 12(b)(6). On

1

to

February 1, 1991, the District Court granted the motions to

dismiss the Federal Civil Rights claims. While the District Court

held a “special relationship” existed so as to give rise to a

constitutional duty to protect the students’ substantive due

process interest in bodily integrity, the District Court dismissed

the Amended Complaints because the facts, as pleaded, failed

to establish reckless indifference to a constitutionally protected

right. The District Court also believed the individual school

defendants would enjoy “qualified immunity”.

On appeal to the United States Court of Appeals for the

Third Circuit, on December 31, 1991 that court affirmed the

Order of Dismissal, albeit on a different basis. There, the court

reasoned that no constitutionally recognized interest had been

impugned because Pennsylvania's mandatory school attendance

laws are insufficiently custodial in nature to create a “special

relationship” to the point that a concomitant duty would be

placed on the school officials to protect high school students

from private misconduct relying, in large part, upon this court's

decision in DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189 (1989).

The Third Circuit revisited the precise issue again in an ev

banc rehearing and in applying VeShaney refused to include

students in that class of individuals subject to a restraint on

personal liberty similar to prisoners. '

roe COUNTER-STATEMENT OF FACTS

Procedurally, this matter involves a judgment in response

to a preliminary motion to dismiss pursuant to Fed.R.C.P.

12(b)(6) that plaintiffs’ Amended Complaints failed to allege a

deprivation of any right secured by the Constitution. The Third

Circuit enjoyed plenary review of the dismissal of the Amended

Complaints and accepted as true the facts alleged in the

1. Senior Circuit Judge Collin Seitz sat for the en banc argument with

the twelve active judges presently on the Third Circuit. Senior Circuit Judge

Seitz authored the majority panel opinion as well as the opinion of the court

upon rehearing ev banc. While the panel opinion, filed December 31, 1991 is

not officially reported and has been withdrawn by the court, the opinion of

the United States Court of Appeals for the Third Circuit (en banc) is reported

at 972 F.2d 1364 (3rd Cir. 1992).

Amended Complaints and all reasonable inferences drawn from

them. Markowitz ». Northeast Land Company, 906 F.2d 100,

103 (8rd Cir. 1990). Accordingly, the pertinent facts for purposes

of this matter at this stage can be gleaned from specific factual

allegations in the Amended Complaints excepting vague and

conclusory allegations. See, e.g. Rotolo ». Borough of Charlero?,

9382 F2d 920, 922 (8rd Cir. 1976).

Plaintiffs, D.R., then age 16, and L.H., then age 17, were

two female students in a high school graphic arts class at the

Middle Bucks Area Vocational Technical School during the 1989-

90 school year (App. at 336). Plaintiffs alleged that several

male classmates physically, verbally and sexually molested them

over a five to six month period.

Plaintiff, D.R., attended Middle Bucks pursuant to an agree-

ment with Penn Ridge School District and Bucks County Inter-

mediate Unit No. 22. Defendant, Susan Peters, had been the

teacher in the graphic arts classroom during all times relevant.

Other individual defendants, William Goode and James Baz-

zell, building administrators, as well as Martha Richino and

Christina Tuttle, guidance counselors, although not present in

the graphic arts classroom, allegedly failed to respond despite

plaintiffs’ allegations that they “should have known” of the

assaults. Significantly, plaintiffs do not allege that individual

defendants had been specifically informed of sexual molesta-

tion but assert that they Knew or should have known of such

sexually assaultive behavior based on other general allega-

tions of misconduct including students jumping, uttering ob-

scenities and remaining in the bathroom adjacent to the class-

room for extended periods of time. No specific knowledge as to

any school authority is appropriately alleged At most, plain-

tiffs’ allegations in the Amended Complaints indicate that the

2. Plaintiff, L.H., avers in paragraph 62 of her Amended Complaint that

in December, 1988 she told defendant, Bazzel, that one student defendant

had been trying to force her into the rest room. Defendant, Bazzel, attached

an Affidavit to his Motion to Dismiss pursuant to Fed.R.C.P. 12(b)(6) effee-

tively transforming it into a Motion for Summary Judgment pursuant to Rule

56. This Affidavit indicates that defendant, Bazzel, had not been employed as

the Assistant Director of Middle Bucks Area Vocational Technical School in

December, 1988.

students engaged in horseplay and other acts of misbehavior in

front of the teacher. No discrete events placing the teacher or,

for that matter, any school defendant, on actual knowledge of

sexually assaultive behavior is averred.

While plaintiffs have included extraneous material in the

reproduced record, specifically the transcript of the juvenile

delinquency hearing of the male-student defendants who were

adjudicated juvenile delinquent based upon their assaultive

behavior, the relevant inquiry here is limited to those facts and

inferences fairly deducible from the Amended Complaints them-

selves.

LEGAL ARGUMENT

REASONS FOR DENYING THE WRIT

Petitioners appear to offer two reasons in support of their

demand that the Court issue a Writ of Certiorari to the U.S.

Court of Appeals for the Third Circuit Court in this case. The

first is that the Circuit Court, in concluding that Pennsylvania

compulsory school attendance laws do not create a custodial

relationship between public school employees and students

sufficient to establish a Constitutionally-cognizable “special

relationship”, either misapplied the reasoning of this Court in

DeShaney v. Winnebago County Dept. of Social Services,

489 U.S. 189 (1989), or somehow decided an important and

unsettled question of federal law that warrants review by this

Court.’ The second is that the recent decisions of the Third,

Seventh and Tenth circuits — all of which concluded that com-

pulsory attendance laws do not give rise to a “special relation-

ship” within the meaning of DeShaney because the quality of

coercion in attending school is unlike incarceration or institu-

tionalization — appear to be inconsistent with obiter dictum

contained in a recent decision of the Fifth Circuit in a case that,

unlike DeShaney or the instant matter, involved misconduct by

a State actor.’ Your respondents, who were denominated the

3. Petitioners cite to Supreme Court Rule 10.1(c) in support of this

proposition.

4. Petitioners cite to Supreme Court Rule 10.1(a) in support of this

proposition.

“school defendants” in the courts below,’ contend that neither of

these proffered reasons constitute adequate ground for issuance

of a writ in this case. Respondents offer the following elaboration:

1. Compulsory School Attendance Laws Of

The Commonwealth Of Pennsylvania Do Not

Create A “Special Relationship” Giving Rise

To A Concomitant Constitutional Duty On

The Part Of School Defendants To Protect

Students From Private Misconduct And The

Circuit Court Correctly Applied The DeShaney

Standard

Petitioners do not appear to dispute that this case, which

concerns Claims raised under the Due Process Clause under

the Fourteenth Amendment for the alleged failure of public

employees to prevent misconduct by private actors, is gov-

erned by this Court’s constitutional analysis in DeShaney. The

question thus is not whether this Court has previously ad-

dressed and settled the important question of Federal law here

at stake, but whether it has done so with sufficient clarity. The

DeShaney decision has indeed offered the lower federal judi-

ciary a clear enunciation of the applicable Federal law. It has

done so with such clarity, in fact, that all three Federal Circuit

Courts that have needed to app!y DeShaney in the context of

public school compulsory attendance have ruled consistently

on the point. To the extent, moreover, that difficulties might

arise in the application of DeShaney principles to public schools,

the difficulties arise in the interpretation of the meaning and

breadth of various state compulsory school attendance laws."

The interpretation of state law is an area in which this Court

has traditionally deferred to the judgment of circuit courts. See

e.g., Frisby v. Schultz, 487 U.S. 474, 482 (1989) (“normal prac-

tice” is to defer to lower federal courts in construction of state

o. See App. at A-31 and A-56. The respondents who join in this brief are

Middle Bucks Area Vocational-Technical School, William Goode, James C.

Bazzel, Martha Richino, Susan Peters, Bucks County Intermediate Unit No.

22, Christina Tuttle and Penn Ridge School District.

6. Indeed, at the heart of the dissent raised in the circuit court's en

bane opinion lies a difference of opinion about the nature of compulsory

school attendance under Pennsylvania law. (App. at A-90 through A-94).

6

law); Maynard v. Cartwright, 486 U.S. 356, 360-361 (1989)

(“[w]Je normally defer to courts of appeals in their interpreta-

tion of state law”); Brockett ». Spokane Arcades, Inc., 472 U.S.

491, 499-500 (lower federal courts “are better schooled and

more able to interpret the laws of their respective states”);

Haring v. Procise, 462 U.S. 306, 314n.8 (1983) (it is our prac-

tice to accept a reasonable interpretation of state law by the

court of appeals”); Mills v. Rogers, 457 U.S. 291, 306 (1982)

(court of appeals “better situated” to determine significance of

changes in state law); Butner v. United States, 440 U.S. 48, 58

(1979) (“federal judges who deal regularly with questions of

state law in their respective districts and circuits are in a

better position than we [to interpret state law]”).

This Court could not have stated more directly in DeShaney

that “a State’s failure to protect an individual against private

violence simply does not constitute a violation of the Due Process

Clause.” DeShaney, 489 U.S. at 197. While the Court did recog-

nize in its precedents “ceriain limited circumstances” in which

the Due Process Clause might be read to impose upon public

employees “affirmative duties of care and protection” against

private misconduct, /d. at 198, the obvious intent to restrict this

limited exception to cases very similar to those which estab-

lished the precedent cannot be ignored. The precedent cited by

the Court in DeShaney for the most part concerned the duty to

provide medical care to prisoners restrained by the circum-

stances of incarceration from obtaining such care for them-

selves, see Estelle v. Gamble, 429 U.S. 97, 1038-104 (1976), and

the duty to ensure the “reasonable care and safety” of involun-

tarily committed mental patients, see Youngberg v. Romeo,

457 U.S. 307, 324 (1982). The Third Circuit majority in the

present case recognized that Youngberg expanded the affirma-

tive duty analysis beyond the Eighth Amendment penological

context of Estelle and into the broader realm of the Fourteenth

Amendment's Due Process Clause (App. at A-65) but did not

lose sight of the extremely narrow confines into which this

Court placed the Estelie-Youngberg exception in DeShaney.

Central to this Court’s reasoning in DeShaney was its

synthesis of the “affirmative duty” precedent presented in the

following oft-quoted passage:

The rationale for this principle is simple enough: when

the State by the affirmative exercise of its 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 — e.g. food,

clothing, shelter, medical care and reasonable safety

— it transgresses the substantive limits on State ac-

tion set by the Eighth Amendment and the Due Pro-

cess Clause. ... In the substantive due process anal-

ysis, it is the State’s affirmative act of restraining the

individual’s freedom to act on his own behalf —

through incarceration, institutionalization or similar

restraint of personal liberty, which is the “deprivation

of liberty” triggering the protections of the Due Pro-

cess Clause, not its failure to act to protect his liberty

interests against harms inflicted by other means.

DeShaney, 489 U.S. at 200. This core statement of principles

presents several clear standards directly applicable to this

case: (1) the State must affirmatively restrain the individual

from providing for his or her basic human needs; (2) the manner

of restraint must resemble or be similar to incarceration or

institutionalization, see also Collins v. City of Harker Heights,

—_US.__, 112 S. Ct. 1061, 1069-70 (1992) (minimal “custo-

dial standards” apply to “conditions of confinement”); (3) the

scienter of individual public employees or of the state in gen-

eral is irrelevant; and (4) the failure of individual public

employees or of the State in general to act to protect the

individual, even against known dangers, is irrelevant. To inject

into the analysis elements of sc/enfer, thus requiring an inquiry

into whether particular public employees knew or should have

known certain facts, or to establish a constitutional duty to act

under circumstances that would motivate a “reasonably pru-

dent public employee” to act, would run clearly contrary to the

well-established notion that the Due Process Clause is not a

vehicle through which common law tort principles are applied

to state actors, see Collins ». City of Harker Heights,

U.S. .112S. Ct. at 1070; DeShaney, 489 U.S. at 202; Daniels

». Williams, 474 U.S. 327, 332-33 (1986). This Court plainly

established in DeShaney that it would not invoke the substantive

protections of the Due Process Clause when “[t]he most that

can be said of the state functionaries ... is that they stood by

and did nothing when suspicious circumstances dictated a more

active role for them.” DeShaney, 489 U.S. at 203.

Petitioners nevertheless seek to re-define the “special re-

lationship” as recognized in DeShaney, Estelle and Youngberg

from one based primarily on physical custody or other similar

restraint to one based on the notion that constitutional liability

can result from conduct of school officials that increases the

risk of harm or danger from third parties. This proposed, sup-

posedly limited, extension of the Estelle/Youngberg exception

recognized in DeShaney, assuming arguendo its legitimacy,

would not apply to this case. The school defendants cannot be

said to have created plaintiffs’ peril, increased their risk of

harm or acted to render them more vulnerable to the student

defendants’ assaultive behavior in a constitutionally signifi-

cant manner, unless the Court is now willing to use the Due

Process Clause to impose upon public school officials tort-like

duties concerning the construction and maintenance of school

buildings or the supervision of classrooms.’ Accordingly, the

facts of the instant matter do not lend themselves to the “state

created danger” analysis suggested by petitioners and the writ

should not be granted to visit this supposed neutral principle

when the underlying allegations fail to establish any state-

created or imminently enhanced danger.

The two other circuit courts that have addressed the issue

tort duty outside of a custodial context, has been recognized by several

courts of appeals. Cornelious v. Town of Highland Lake, 880 F.2d 348 (11th

Cir. 1989); Wood «. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied,

U.S. 111 S. Ct. 341 (1990), as quoted in DR. by LR. v. Middle

Bucks Area Vocational Technical School, 972 F.2d at 1373. While the Su-

preme Court has not directly addressed this “state created danger” test in

the context of America’s schools, the instant case is not the appropriate

vehicle for consideration of this proposed tenet because there are no factual

allegations of an injury made more imminent by state action. See D.R., 972

“2d at 1375. Moreover, in the progeny of cases finding a duty created by the

affirmative act of the state placing a person in danger, the danger had been

imminent. See, e.g., Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (state

created general risk by releasing potentially dangerous man from state

custody as opposed to particular risk to plaintiff); see generally, Dorothy J.

vr. Little Rock School District, 794 F. Supp. 1405, 1417-1421 (ED. Ark. 1992)

of whether state compulsory school attendance laws establish

a “special relationship” and a concomitant affirmative duty to

protect students against private misconduct have had little

trouble applying DeShaney as the Third Circuit did in this

case. See Maldonado v. Josey, 975 E2d 727, 732-33 (10th Cir.

1992); /.0. ». Alton Community Unit School Dist. 11,909 F.2d

267, 272-73 (7th Cir. 1990). The distinction drawn for purposes

of constitutional analysis by the Third, Seventh and Tenth

Circuits between compulsory school attendance and more ac-

cepted notions of involuntary confinement such as incarcera-

tion and commitment is firmly rooted in the precedent estab-

lished by this Court. See Ingraham v. Wright, 430 U.S. 651,

670 (1977). The principles of Federal Jaw applicable to the

present case are thus well settled primarily by DeShaney but

also by guidance offered in the area of “constitutional tort” in

such eases as /ngraham and Collins. That three federal cir-

cuit courts have so consistently applied DeShaney in the con-

text of compulsory school attendance is ready confirmation

that the precedent is clear and further review by this Court is

unnecessary.”

This case necessarily and ultimately hinges, of course, on

the interpretation of state compulsory attendance law offered

by the Circuit Court. As noted above, this Court has tradition-

ally deferred to the circuit courts on such matters.” The Circuit

Court had a sound basis for its conclusion that, under Pennsyl-

vania law, “parents remain the primary caretakers, despite

[the student’s] presence in school” (App. at A-70) and that the

8. The contrary obiter dictum of the Fifth Cireuit in Doe +. Taylor

Independent School Dist., 975 F.2d 137 (Sth Cir. 1992), is discussed further

under the following argument heading, as are the decisions of the Seventh

and Tenth circuits in Maldonado and .J/.O. +. Alton and this Court in /mgra-

ham.

9. Respondents recognize that the district court in this case found that

compulsory attendance does create a “special relationship”. (App. at A-10

through A-11). The Court, however, essentially concedes this point arguendo

(App. at A-10) without much more than a cursory review of the applicable state

law. State law interpretations without substantiation do not receive the defer-

ence they might otherwise receive. See Virginia v. American Booksellers

Association, Inc., 484 U.S. 3838, 395 (1988). The circuit court, moreover, must

always conduct a plenary review of district court interpretations of state law.

See Salve Regina College v. Russell, US. ANS. Ct. 1217, 1221

(1991).

10

incidents of compulsory school attendance in Pennsylvania do

not create the sort of “special relationship” clearly contem-

plated by this Court in DeShaney.

In Pennsylvania, as elsewhere, parents are charged with

the duty of care and control of their children, including the

provision of such subsistence and education as is needed for

the child’s physical, mental and emotional health. See Appeal

of Diane B., 456 Pa. 429, 483, 321 A.2d 618, 620 (1974); Com-

monwealth v. Barnhart, 345 Pa. Super. 10, 18, 497 A.2d 616,

620-21 (1985), allocatur denied, 517 Pa. 620, 588 A.2d 874,

cert. denied sub nom, Barnhart v. Pennsylvania, 488 US.

S17 (1988). Indeed, the failure of the parent to meet the child’s

basic human needs, including education, can constitute grounds

for adjudicating the child “dependent”, see 42 Pa. Cons. Stat.

Ann. §6302, and can result in removal of the child from parental

custody, see /d. at §6351(a)(2). Although parents are subject to

fine if their child of compulsory school age is not receiving an

education through one of the prescribed means, see Public

Schools Code of 1949, Act of March 10, 1949, PL. 30, art. XII,

§§1327, 1833, as amended, Pa. Stat. Ann. tit. 24, §§13-1327, 13-

1333, the Circuit Court correctly noted (App. at A-70) that

under Pennsylvania law, any parent “is justified in withdrawing

his child from a school where the health and welfare of the child

is threatened,” notwithstanding the compulsory attendance pro-

visions of the School Code, Zebra ». School District of City of

Pittsburgh, 449 Pa. 482, 438, 296 A.2d 748, 751 (1972); see also

Com. ex rel. School District of City of Pittsburg v. Ross, 17

Pa. Commw. 105, 107, 109-10, 330 A.2d 290, 291, 292 (1975).

Compulsory school attendance in Pennsylvania is an extremely

limited concept. The compulsory attendance provisions of the

School Code, Pa. Stat. Ann. tit. 24, §§13-1326 through 13-1339,

require only that children ages eight through sixteen attend public

or private “day school”, a private trade or business school, or a

boarding school or receive instruction from a private tutor or

through a program of home education provided by the parent.""

(App. at 336) it does not appear the Pennsylvania compulsory school atten-

dance scheme could be the source of any constitutional duty to protect L.H.

from private misconduct.

ee

a

1]

See Id. at §§13-1327, 13-1327.1. Children of compulsory school

“ge are only required to attend school, when not legally ex-

cused, see 22 Pa. Code §§11.21 through 11.28, for a total of 180

days per year or, alternatively, for 990 hours per year at the

secondary level and 900 hours at the elementary level, see Pa.

Stat. Ann. tit. 24 §§13-1327(b), 15-1501, 15-1504(a); 22 Pa. Code

$11.1 through 11.3. Children whose parents opt to take advan-

tage of the free education offered in the public schools, more-

over, retain substantial personal freedom during their limited

time in school. See e.g., 22 Pa. Code §§12.5 (placing substantial

limitations on corporal punishment and use of force); 12.12

(protecting student's confidential communications with school

staff); 342.36 (severely limiting or prohibiting the use of re-

straints and corporal punishment for children with disabili-

ties).'' The numerous state and federal laws that govern opera-

tion of the public schools all rest on the assumption that the

child's parent or guardian retains control over the care and

education of the child. See, e.g., 20 U.S.C. §1232¢ and 34 C.ER.

Part 99 (affording parents access to and requiring parental

consent for release of “educational records”); 20 U.S.C. §1232h

and 34 C.ER. Part 98 (requiring parental consent for nonaca-

demic examinations, testing and treatment); 20 U.S.C. §1415

and 34 C.ES. §§300.344, 300.345 and 300.500 through 300.514

(requiring parental participation in the development of educa-

tional plans for and consent for the evaluation and placement

of children with disabilities); Pa. Stat. Ann. Tit. 24, §13-1302

(providing for entitlement to free public education in district

where parent resides); /d. at §14-1406 (placing responsibility

on parents to seek health care recommended by school physi-

cian or nurse); 22 Pa. Code §12.5(e) (authorizing parents to

prohibit use of corporal punishment); /d. at §§11.21 through

11.26 (authorizing temporary absences from school, upon pa-

rental request, for various reasons); /d. at §§14.25(b), (e), (f),

(h), (m)(3), 14.382(e)(1) and (h), 14.35(e), and 14.61 through

14.67 (granting parents of students with disabilities to partici-

pate in the evaluation and placement of, and program develop-

11. The additional rights afforded to children with disabilities under

both state and federal law are particularly relevant in the case of petitioner

1).R., who is deaf.

12

ment for, their children). Indeed, unlike the child who is placed

in a detention home or foster care arrangement under Pennsyl-

vania’s Juvenile Act, 42 Pa. Cons. Stat. Ann. §§6301 through

6365, or committed involuntarily to a mental health facility

under Pennsylvania's Mental Health Procedures Act, Pa. Stat.

Ann. Tit. 50 §7101 through 75038, a child attending public school

in Pennsylvania is not removed from the custody of his parents.

On the contrary, residence with a parent or agent acting in that

capacity is a condition of public school admission. See Pa. Stat.

Ann. Tit. 24, §§13-1802, 13-1305, and 13-1306.

Petitioners have relied on the doctrine of 77 loco parentis

to bolster their claim that public school officials somehow do

have a parental, and therefore “special”, relationship with pub-

lic school students. Pennsylvania’s Public School Code does

contain a typical (nv loco parentis provision that authorizes

school personnel to “exercise the same authority as to conduct

and behavior” of the student as the student’s parent may exer-

cise, Pa. State. Ann. Tit. 24, §13-1317. This provision, however,

does not vest school personne! with all of the rights and respon-

sibilities of parents. It affords only the right to exercise such

control over students as is necessary to p event disciplinary in-

fractions or interference with education. See, A.rtell v. LaPenna,

323 EF Supp. 1077, 1080 (W.D. Pa. 1971). The view of 7m loco

parentis as a grant of authority to maintain orderly schools, as

opposed to an obligation to do so, is entirely consistent with the

Court's discussion in /mgraham, 430 U.S. at 675-76, which

reviewed the doctrine in its common law context as a privilege.

In applying the clear precedent estabdlished by this Court

in DeShaney to its reasonable interpretation of Pennsylvania

compulsory school attendance law, the Circuit Court in this

case thus had every reason to conclude that compulsory school

attendance does not affirmatively restrain students whose par-

ents opt to use the public schools from providing for their basic

human needs. The Court was also thus justified in rejecting

petitioners’ attempts to liken compulsory attendance to incar-

ceration or involuntary institutionalization. Wb*- your respon-

dents certainly must agree that the issue presented in this case

is important to the day-to-day operation of Pennsylvania public

schools, the issue does not involve unsettled questions of federal

13

law and depends largely on the Circuit Court’s interpretation of

state law, to which this Court would typically and should here

defer.

2. The Obiter Dictum Of The Fifth Circuit In A Case Not

Involving Private Misconduct Is Insufficient To Create

A Conflict With The Decisions Of The Third, Seventh

and Tenth Circuits To Warrant Review By This Court

There is no conflict among the Circuit Courts of Appeals

with respect to whether compulsory attendance in public schools

is sufficiently custodial so as to give rise to a “special relation-

ship” between the school authorities and students. Absent a

“special relationship” no concomitant duty exists on the part of

the school to protect the students from private harm. Only the

Third, Seventh and Tenth Circuits have considered the specific

issue of whether public school students have had their ability

to provide for their own basic needs so limited by the state’s

mandatory attendance laws that the state has a duty to provide

for, among other things, their reasonable safety.”

The Third Circuit, in the reported en banc decision below,

specifically found that the school defendants’ authority over

students during the school day cannot be said to create the

type of physical custody necessary to bring it within the “spe-

cial relationship” noted in DeShaney, particularly when their

channels for outside communications were not totally closed.

D.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d at 1372.

In distinguishing the foster children situation from that of pub-

lic school students, the Court below recognized that unlike the

foster child who is dependent on the state selected foster family

for his basic needs the parents, not the school authorities, are

responsible for the student’s basic needs. 972 F.2d at 1372. The

public school year is only 180 six hour days of classroom atten-

dance. Pa. Stat. Ann. Tit. 24 §13-1327(b), 15-1501, 15-1504(a)

(1962 and Supp. 1991). Even during the school day, the parents

are responsible as the primary caretakers and decision-

12. DR. v. Middle Bucks Area Vo. Tech. School, 972 F2d 1364 (3rd

Cir. 1992); J.O. ». Alton Community Unit School District 11, 909 F.2d 267

(7th Cir. 1990); Maldonado v. Jose, 975 F.2d 727 (10th Cir. 1992).

ee

14

makers. Pa. Stat. Ann. Tit. 24 §13-1327. In short, the Pennsylva-

nia compulsory school attendance scheme does not so limit the

students’ liberty in the same fashion as incarceration or insti-

tutionalization that the protection afforded by the Due Process

Claus is triggered.

In J.O. ». Alton Community Unit School District 11, 909

E2d 267 (7th Cir. 1990), the Court of Appeals for the Seventh

Circuit also found that compulsory attendance laws are not the

functional equivalent of incarceration or involuntary institu-

tionalization. Like the Third Circuit, the Seventh Circuit rea-

soned that parents maintain primary responsibility to provide

for the basic needs of their children and that both school chil-

dren and their parents “retain substantial freedom to act”

thereby diluting any analogy to prisoners or the committed

who are wholly and completely dependent upon the state. 909

E2d at 272. In distinguishing the plight of the institutionalized

and imprisoned, the ./.O. court pointed out:

“At most, the state might require a child to attend

school, (citation omitted), but it cannot be suggested

that compulsory school attendance makes a child un-

able to care for basic human needs. The parents still

retain primary responsibility for feeding, clothing, shel-

tering and caring for the child. ... (T)hese children

and their parents retain substantial freedom to act.

The analogy of a school yard to a prison may be a

popular one for school-age children, but we cannot

recognize constitutional duties based on a child’s lament.”

The Seventh Circuit concluded that “the government, acting

through local school administrations, has not rendered its school

children so helpless that an affirmative constitutional duty to

protect arises.” 909 F.2d at 272.

Most recently, the Court of Appeals for the Tenth Circuit in

Maldonado v. Josey, 975 F.2d 727 (10th Cir. 1992), held that

compulsory attendance laws in no way restrain a child's liberty

so as to render the child and his parents unable to care for the

child’s basic needs, the defining factor in the DeShaney opin-

ion for a finding of a “special relationship” between the state

and the putative victim. The Maldonado court concluded that:

Although a child may well be in the “custody” of the

school authorities during school hours, this custody

does not amount to a restraint that prohibits the child

and his parents from caring for the basic needs of the

child. Compulsory attendance laws do not alter the

fact that parents retain ultimate responsibility for

their child’s food, shelter, clothing, medical care and

reasonable safety. ... The compulsory education laws

do not change the fact that the parents are the primary

‘aretakers of the student; those same parents - and

not the state - must determine and address the basic

needs that each child has.

Maldonado v. Josey, 975 F.2d 727 (1992).

Petitioners rely on a recent Fifth Circuit decision, Doe +.

Taylor Independent School District, 975 F2d 137 (Sth Cir.

1992), for the supposed “split” among the circuits concerning

the significance of compulsory attendance requirements for

school-age children in determining the coerciveness of the state’s

custody or control over students. The Doe decision does not

determine if a “special relationship” exists between school

authorities and students in the context of creating an affirma-

live state obligation to protect the students’ liberty interests

against harm inflicted from a private, as opposed to govern-

mental, source. In Doe, a state actor, a school teacher, as op-

posed to a private third party, violated the student's liberty

interest in her bodily integrity. While Doe ». Taylor Indepen-

dent School District does contain expansive language with

respect to a duty arising based upon the compulsory atten-

dance law, nevertheless such obiter dictum may not establish

a true “split” among the United States Circuit Courts of Ap-

peals. Aeller ». Adams-Campbell Company, 264 U.S. 314 (1924)

(mere dictum in a decision of one court of appeals conflicting

with the decision of another court of appeals is insufficient

reason to grant a Petition for Writ of Certiorar?).

There is a completely different rationale and theoretical

underpinning for school authorities to protect their students

from harm visited by one acting under color of state law such

as the teacher in Doe, supra, from the situation where a pri-

16

vate, third party creates the harm. This court has already held

in /ngraham v. Wright, 430 U.S. 651, 674 (1977) that where

“school authorities, acting under color of state law, deliberately

decide to punish a child for misconduct by restraining the child

and inflicting appreciable physical pain,” Fourteenth Amend-

ment liberty interests are implicated. In fact, the Third Circuit,

to whom this Writ is sought to be directed, has held that school

authorities may be found liable for establishing and maintain-

ing a policy, practice or custom with deliberate indifference to

the consequences when a student has been sexually abused by

a teacher. Stoneking v. Bradford Area School District, 882

F.2d 720 (3rd Cir. 1989) (er banc), cert. denied, 110 S. Ct. 840

(1990) (Stoneking //). Senior Circuit Judge Seitz specifically

distinguished Stoneking // and its progeny in the court below

because the harm resulted at the hands of a private actor. Just

as Senior Circuit Judge Seitz found that the instant matter

lacked the linchpin of Stoneking //, namely a violation by state

actors, the same linchpin is missing in Doe ». Taylor Independent

School District."

Several of the other authorities cited in footnote 12 in the

Petition for Writ of Certiorari for the proposition that a “spe-

cial relationship” has been found to exist concern individuals

acting under color of state law that violate the students’ con-

stitutional rights. In fact, of the seven decisions cited by peti-

tioners, only six'' are opinions of the court and of those only

two! involve situations where a private party has assaulted or

otherwise caused harm to the students.

13. Doe v. Taylor Independent School District, rather than evidenc-

ing a “split” in the Circuits regarding compulsory attendance laws creating

the same quality of personal restraint as imprisonment, is consistent with

Stoneking ITs analysis of DeShaney regarding a policy or practice of delib-

erate indifference to state, as opposed to private, abuse.

14. Petitioners list the concurring opinion in Maldonado v. Jose, 975

F.2d 727 (10th Cir. 1992) in the tabulation of federal judge views in petition-

ers’ footnote 12.

15. Only Pagano v. Massapequa Public Schools, 714 F. Supp. 641

(E.D. N.Y. 1989) and Stauffer v. Orangeville School District, 1990 U.S. Dist.

Lexis 19133 and 19041 (N.D. Ill. 1990) consider the issue of a private, non-

state actor inflicting harm on a student and Stauffer declined to recognize a

. “special relationship”.

—SSa_eeeeeeaeaeaa el

17

In Robert G. v. Newburgh City School District, 1990 U.S.

Dist. Lexis 91 (S.D.N.Y.), a student had been sexually assaulted

by a substitute teacher. In that case, in rejecting the defen-

dant’s reliance upon the DeShaney limitations on any duty, the

court pointed out that the plaintiff there alleged a deprivation

of a protected liberty interest at the hands of a public school

employee. In addition, in Doe “A” ». Special School District of

St. Louis County, 637 ESupp. 1138 (E.D. Mo. 1986), the issue

involved whether a school district could be made to answer for

the constitutional deprivation of a student's right to be free

from unconsented to sexual assaults by a student teacher.

Again, the issue of harm from a private party had not been

present. Moreover, in Whitt v. Deleu, 707 F Supp. 1011 (W.D.

Wis. 1989), a school employee allegedly sexually abused mi-

nors in his charge. Lastly, in Wuechter v. School District No.

14-030, 773 F Supp. 1005 (W.D. Mich. 1991), a teacher ordered a

student with a known congenital heart defect to run a 350 yard

sprint as punishment for talking with another classmate. The

teacher in Waechter directly caused the harm - a wholly dis-

parate scenario from harm visited by a private, third party.

Even Stauffer v. Orangeville School District, 1990 U.S.

Dist. Lexis 19133 (N.D. Ill. 1990), recognized the school has no

general duty to protect students from the torts of third parties

but, under the facts of that case, allowed plaintiff's Complaint

to survive a Preliminary Motion to Dismiss because the state

allowed plaintiff to go to a rest room unsupervised with another

student who had a prior history of sexually molesting others

and who had threatened plaintiff, thereby placing the plaintiff

in imminent danger. In fact, in rejecting the rationale of Pagano

v. Massapequa Public Schools, 714 FE Supp. 641 (E.D. NLY.

1989), the Stauffer court stated:

This court, however, does not find the reasoning in

Pagano persuasive. Although the state retires (sic)

children to attend school, this does not create a depri-

vation of liberty similar to that imposed on prisoners

or persons who are involuntarily committed to a state

institution. If this were the case then every time a

school child is assaulted by the class bully during

a

recess, there would be a tort of constitutional dimen-

sions under §1983.

Stauffer v. Orangeville School District, 1990 U.S. Dist. Lexis

19133 (N.D. Ill. 1990).

This Court has cautioned that the Due Process Clause

functions as a limitation on state power and only creates an

affirmative duty to protect its citizens when the state enters

into a special relationship with a particular citizen. DeShaney

». Winnebago County Dept. of Social Services, 489 U.S. 189,

195 (1989). It is the state’s affirmative act of restraining the

individual's freedom to act on his own behalf, through incarcer-

ation, institutionalization or other similar restraint of personal

liberty which is the “deprivation of liberty” under 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. The Due Process Clause is not a “guarantee of

certain minimal levels of safety and security.” /d. Petitioners’

effort to broaden the DeShaney standard for a “special rela-

tionship” to include students subject to compulsory education

rules, thereby acknowledging a similar degree of state coercion

over students as that exercised over prisoners or the involun-

tarily committed, must be refused. Not every tort occurring in a

school yard should be “federalized” into a constitutional depri-

vation because the school authorities have a limited license by

virtue of the ix loco parentis standing conferred by the Penn-

sylvania legislature.

Most recently, the United States District Court for the

Eastern District of Pennsylvania considered whether a high

school wrestling coach owed a constitutional duty to protect a

wrestler from his adversary. Fenstermaker v. Nesfedder, 1992

U.S. Dist. Lexis 13129 (E.D. Pa. 1992). This fact pattern illus-

trates the likely types of disputes the district courts will be

burdened to hear if a “special relationship” exists with a stu-

dent. There, the District Court, relying on D.#., found the plain-

tiff did not raise any deprivation of a right secured by the

Constitution because the coach did not directly injure him.

There have been other attempts to state a substantive due

19

process claim when no state action directly caused harm." In

each of these cases, the courts refused to stretch the definition

of a “special relationship” so as to find a duty absent direct

state action. One court eloquently articulated the need to halt

potential erosion of federalist principles by rejecting any duty

to protect football players from one another by stating:

“If the court were to accept the plaintiff's argument

here that the Constitution somehow imposes a duty

on school officials to provide for the safety of students

with respect to extracurricular activities, even though

their participation in these activities is wholly volun-

tary, then there would no longer be any practical dis-

tinction between ordinary state law negligence claims

and federal constitution violations, so long as the neg-

ligent party was acting under color of state law.”

Reeves by Jones v. Besonen, 754 EF Supp. 1135, 1139 (E.D.

Mich. 1991).

Whatever duty is owed by school authorities in the context

of protecting against injury from other than state actors is best

left to the individual states. While various states do have immu-

nity provisions for the actions of governmental officials'’, the

existence (or non-existence) of a state tort remedy is not deter-

minative of a substantive due process claim.

The reach of substantive due process cannot be extended

indefinitely. Although petitioners accuse Senior Circuit Judge

Seitz of shedding crocodile tears in the majority opinion below,

not every tort committed by a state actor is to be transformed

into a constitutional violation. D.T by M.T. v. Independent

School District No. 16, 894 F2d 1176, 1188 (10th Cir. 1990),

16. Reeves by Jones v. Besonen, 754 F. Supp. 1135, 1139 (E.D. Mich.

1991) (holding that no substantive due process claim is stated by a high

school football player injured during a hazing ritual on the team bus); Voorhies

». Conroe Independent School District, 610 F. Supp. 868, 872-73 (S.D. Tex.

1985) (dismissing a §1983 claim brought by a student injured by a table saw

operated without a safety guard in a high school workshop.

17. Pennsylvania, for instance, broadly immunizes political subdivi-

sions and their actors for negligent conduct. However, there are exceptions

to the grant of immunity, including but not limited to, willful misconduct. 42

Pa.C.S.A. §8541, et seq.

OO

20

cert. denied, U.S. _ 5S. Ct. 213 (1990). Given substan-

tive due process serves as a limitation on state action and

creates affirmative obligations on the part of the state in only

limited, narrow circumstances, i.e. the Estelle/Youngberg ex-

ceptions to the general rule of no duty, it is respectfully urged

that this court reject petitioners’ request for certiorari because

the opinion below appropriately found no “special relation-

ship” to exist by virtue of the mandatory attendance laws and

no “split” between the Circuits exists.

21

CONCLUSION

Since no “special relationship” exists between school au-

thorities and students such that the students and/or their par-

ents’ ability to provide for the students’ basic needs have been

so limited by state action, it is respectfully requested that this

court deny the Writ of Certiorari in this matter. Moreover, the

Third, Seventh and Tenth Circuits, the only circuit courts of

appeals to consider if a “special relationship” exists such as to

give rise to a concomitant duty to protect students against

harm from private actors, have uniformly held that compulsory

school attendance does not render students or their parents

unable to care for basic needs. The Writ of Certiorari directed

to the United States Court of Appeals for the Third Circuit is

also unnecessary to, as petitioners suggest, discern a neutral

principle finding a duty where the state played a role in creat-

ing any danger because instant plaintiffs have failed to plead

sufficient facts to demonstrate that the school defendants vio-

lated any constitutional duty by creating or exacerbating any

danger posed by the student defendants.

Respectfully submitted,

ANbREW E. Faust, Esquire

CURTIN AND HEEFNER

140 E. State Street

Box 150

Doviestown, PA 18901

Attorneys for Respondents,

Bucks County Intermediate

Unit No. 22 and Christiana Tuttle

Larry D. JACKSON, EsQuirt

HARRIS AND SILVERMAN

1515 Market Street

Suite 1000

Philadelphia, PA 19102

Attorneys for Respondents,

Middle Bucks Area Vocational

Technical School and Martha Richino

Harry A. SHort, Esquire

LeIBERT, SHORT AND HiRSHLAND

1901 Market Street

Philadelphia, PA 19103

Attorneys for Respondent,

William Goode

Respectfully submitted,

JAMES J. DononvE, Esouirt

Rogert G. Devine, Esouir

Wuirtr AND WILLIAMS

One Liberty Place

1650 Market Street, Suite 1S00

Philadelphia, PA 19103

Attorneys for Respondent,

Susan Peters

RicHarD K. Masterson, Esquiri

MASTERSON, BRAUNFELD,

HIMSWORTH AND MAGUIRI

702 One Montgomery Plaza

Norristown, PA 19401

Attorneys for Respondent,

James C. Bazzel

Epwin EF McCoy, Esouire

LABRUM AND Doak

1700 Market Street, Ste. 700

Philadeiphia, PA 19103

Attorneys for Respondent,

Penn Ridge School District

CERTIFICATE OF SERVICE

I, Robert G. Devine, Esquire, hereby certify that I have, on this

date copies of Respondent, Susan Peters’, Brief In Opposition to

Petition for a Writ of Certiorari to The United States Court of

Appeals For The Third Circuit to be served by regular, first-class

mail to:

THOMAS B. RuTTER, Esquire

RuTTER, TURNER, SOLOMON & DiPtERO

Suite 750

The Curtis Center

Independence Square West

Philadelphia, PA 19106

JOHN FREUND, IL, Esquire

KinGc, McCarp._e, HERMAN & FREUND

110-112 N. Sixth Street

Post Office Box 449

Allentown, PA 18105

JOSEPH M. O'NEILL, Esquire

Marks, Kent & O'NEILL

1315 Walnut Street

3rd Floor

Philadelphia, PA 19107-2331

Rosert G. Devine, ESQuIRE

DATE: December 9, 1992

errr