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

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## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1615%3A3. Public record. Not legal advice.