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Article Preview: Morrow v. Balaski: When Good Intentions Go Bad

Bullying, both in schools and online, has become a topic of national discussion. In response, many state legislatures have enacted anti-bullying statutes which prohibit bullying both on and off school property. These laws define bullying behavior and require schools to devise and adopt strategies for prevention and intervention. Notably, they do not provide victims of bullying with a private right of action against schools under the bullying statute.

The plaintiffs in Morrow v. Balaski brought such a cause of action, filing a 42 U.S.C. § 1983 claim against Blackhawk High School in Pennsylvania. Brittany and Emily Morrow claimed that the school’s inaction and failure to protect them from bullying by another student violated their substantive Due Process rights under the Fourteenth Amendment. Primarily, they argued the school had a “special relationship” with its students, therefore establishing a duty to protect them from dangerous situations. The Third Circuit disagreed with the plaintiffs, reaffirming that there is no “special relationship” between public schools and their students; absent that “special relationship,” a school has no duty to protect students from third party actions.

Wendy Hansen’s Article, Morrow v. Balaski: When Good Intentions Go Bad, examines the Third Circuit’s decision. The Article, which will be featured in the New England Law Review’s Volume 49, Book 2, argues that while the court reached the correct result by following the established “special relationship” precedent, they failed to articulate a legal test based on a state control approach. A uniform test to be employed when determining the existence of a “special relationship” would produce consistent, equitable results. Further, Hansen contends that, in addition to victims’ rights, the court should have considered the effects that bullying statutes and zero tolerance policies have on bullies themselves in contributing to the School-to-Prison pipeline.

The Supreme Court has established that the state does not have an affirmative duty to intervene and protect citizens against third-party actions. An exception to this rule occurs when the state has a “special relationship” with a citizen, such as when a person is imprisoned or confined to a mental institution. Public school students do not have this “special relationship” with the state because parents retain physical custody and control over their children, therefore their liberty is not restricted.

Hansen argues that the Third Circuit correctly upheld this established precedent in Morrow. However, the court missed an opportunity to clarify the law by adopting a four-part test derived from the D.R. v. Middle Bucks opinion to determine whether a “special relationship” between the school and student exists. Hansen contends that while the Middle Bucks court described their analysis as a “physical custody test,” substantively it is a test of control.

The proper test to establish a special relationship would require: “(1) full time severe and continuous state restriction of liberty; (2) [the citizen is not] given the opportunity to seek outside help to meet [his or her] basic needs; (3) they are not free to leave or provide for themselves; and (4) are wholly dependent on [the] state for food, shelter, clothing, and safety.” Hansen applies this test to prior decisions to demonstrate that this approach would yield the same results as well as provide “consistency and predictability” in the outcomes of future cases.

Lastly, Hansen considers the effect of permitting a cause of action against a school for failing to expel a bully. She questions the disciplinary purpose of suspending both the bully and the victim, as was the case in Morrow. Additionally, Hansen argues that a zero tolerance policy-based disciplinary system does not effectively curb bullying, but rather contributes to the School-to-Prison Pipeline—funneling students from the classroom into the juvenile and criminal justice systems. Schools should instead consider alternative forms of punishment which do not remove students from the classroom and which constructively address bullying behavior.

Be sure to read the full article in the New England Law Review, Volume 49, Book 2, due to be posted here in late Spring.

Contributing Editor: Heather Reid

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