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Morrow v. Balaski: When Good Intentions Go Bad
WENDY L. HANSEN*
ABSTRACT
Bullying has become a new-found crusade. Due to recent events
involving safety in public schools, the nation is taking a closer
look at how to handle aggressive behavior. Many parents worry about
the safety of their children. However, the school does not
necessarily have the duty to protect that one would expect. Courts
have held there is no duty to protect students from third-party
actions. This is because there is no special relationship. A
special relationship is an exception for when the state has an
affirmative duty to protect. However, courts have yet to define the
reasoning behind the exception of a special relationship and
therefore, the jurisprudence is murky and unclear. It is important
for courts to consider the likelihood of bullying incidents arising
again. Creating a clear-cut, well-defined test, would allow for
easier decisions in the future without the risk of inequitable
results.
Furthermore, courts should consider a childs right to education
and the effect of excluding a child from school. The
School-to-Prison pipeline is a phenomenon within the United States
where children are criminalized for misconduct in the classroom.
This results in earlier prison time, future delinquent behavior,
and most importantly, lack of opportunity to further the childs
education. The objective of every public school is to educate.
Rather than simply brushing the problem aside, schools should
attempt to teach children when disciplinary issues arise. Creating
a duty to protect
* Candidate for Juris Doctor, New England Law | Boston (2015).
B.A., History, Brigham
Young UniversityIdaho (2011). I would like to thank my parents,
Rhonda and Victor Hansen,
who have supported me throughout law school and all the stress
that ensued. Id also like to
thank Kristy Wilson and Suzanne Donnelly for being great
supportive friends on Law Review
and reading my Comment multiple times. Most importantly Id like
to thank Joan Meschino
and all those who worked at Massachusetts Appleseed Center for
Law and Justice. Thank you
for showing me your passion for helping those who cannot help
themselves. In memory of
Sondra H. Peskoe.
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298 New England Law Review v. 49 | 297
against bullies, widens the discretion given to administrators
and places a childs education, and further opportunities in life,
in peril. Courts should consider this in their analysis when
determining a schools duty to protect students from third-party
actions.
INTRODUCTION
nti-bullying has become a new-found crusade amongst legislators
and activist groups alike.1 After many recent stories in the news
about bullies and the effects they have on their victims, the
nation
has taken acute notice of what was once considered part of
growing up.2 Many states have responded with legislation,
encouraging schools to properly train their staff and students on
how to handle and respond to bullying.3 As commendable as this
crusade is, it is always important to consider both sides.4 In
Morrow v. Balaski, the Third Circuit ruled that a public school
does not have a duty to protect students from bullies.5 It would
appear that this ruling is a step backwards for anti-bullying
campaigns and can frustrate ones sense of justice.6
This Comment argues that the Morrow decision was correct because
it properly adhered to current legal doctrine. Furthermore, it will
ultimately help schools create a better environment for all
students as it will keep children in the classroom rather than
expelling them and potentially excluding them from educational
opportunities. While the Court was correct to follow established
precedent of the special relationship, the decision would have been
more effective had it considered the underlying principles of a
special relationship and determined a test based on the states
control. More importantly, the dissent and the majority failed to
consider the consequences of each child affected by bullying, not
just the victim.
Part I of this Comment discusses what effects zero-tolerance
policies have on bullies and how that relates to the
School-to-Prison pipeline. It also discusses the case law
surrounding the states duty to protect against third-party actions
and special relationships. Part II discusses the facts of
1 See Emily Bazelon, Op-Ed., Defining Bullying Down, N.Y. TIMES,
March 12, 2013, at A23. 2 Id. 3 Policies and Laws,
STOPBULLYING.GOV, http://www.stopbullying.gov/laws/index.html
(last
visited Apr. 6, 2015). 4 Find Out What Happened,
STOPBULLYING.GOV, http://www.stopbullying.gov/respond/
find-out-what-happened/index.html (last visited Apr. 6, 2015). 5
Morrow v. Balaski, 719 F.3d 160, 164 (3d Cir. 2013). 6 See id.
A
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2015 When Good Intent i ons Go Bad 299
Morrow v. Balaski and the Courts holding and reasoning. Part III
argues that the majority failed to address an opportunity to create
a legal test that will produce equitable results in determining
whether there is a special relationship. Part IV addresses the need
to consider all sides of the matter and how the court and
legislature should consider the School-to-Prison pipeline when
discipline is an issue.
I. Background
A. Bullying
1. What is Bullying?
While there are varying definitions and types of bullying,7 it
is generally defined as unwanted, aggressive behavior among
school-age children that involves a real or perceived power
imbalance.8 Two main components of bullying are: (1) a perceived or
real imbalance in power, and (2) repeated behavior.9 Additionally,
bullying can be physical or verbal.10 Physical bullying is an
unwanted physical touching, and verbal bullying consists of
teasing, taunting, or name-calling.11 An emerging type of bullying
takes place through the Internet and has been termed
cyber-bullying.12 Current social media created a gateway for
cyber-bullying, which is bullying that takes place using electronic
technology . . . includ[ing] devices and equipment such as cell
phones, computers, and tablets as well as . . . social media sites,
text messages, chat, and websites.13 In 2011, a survey conducted by
the U.S. Department of Health and Human Services concluded that
about 20.1% of students nationwide experienced bullying while on
school property, and 16.2% of students were electronically
bullied.14 Regardless of the form, the effect is the sameshort and
long-term psychological trauma.15
7 Bazelon, supra note 1. 8 Bullying Definition,
STOPBULLYING.GOV, http://www.stopbullying.gov/what-is-bullying/
definition/index.html (last visited Apr. 6, 2015). 9 Id. 10 Id.
11 Id. 12 What is Cyber Bullying?, STOPBULLYING.GOV,
http://www.stopbullying.gov/cyberbullying
/what-is-it/ (last visited Apr. 6, 2015). 13 Id. 14 U.S. Dept of
Health and Human Servs., Youth Risk Behavior SurveillanceUnited
States,
2011, 61 SURVEILLANCE SUMMARIES 1, 9 (2012), available at
http://www.cdc.gov/mmwr/pdf/ss/
ss6104.pdf. 15 Bazelon, supra note 1; see also Effects of
Bullying, STOPBULLYING.GOV http://www.stop
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300 New England Law Review v. 49 | 297
2. Massachusettss Anti-Bullying Statute
To address this issue, in 2010, Massachusetts passed an
anti-bullying law that prohibited bullying on and off school
property if it creates a hostile environment for the victim at the
school.16 It defines bullying as:
[R]epeated use by one or more students of a written, verbal or
electronic expression or a physical act or gesture or any
combination thereof, directed at a victim that: (i) causes physical
or emotional harm to the victim or damage to the victims property;
(ii) places the victim in reasonable fear of harm to himself or of
damage to his property; (iii) creates a hostile environment at
school for the victim; (iv) infringes on the rights of the victim
at school; or (v) materially and substantially disrupts the
education process or the orderly operation of a school. For the
purposes of this section, bullying shall include
cyber-bullying.17
The statute implements training programs for teachers and
students to be instructed on bullying prevention as part of their
school curriculum.18 Each school is required to devise a plan that
includes appropriate strategies to prevent bullying, effective
interventions to stop bullying, research findings on bullying, how
parents can implement this plan at home, and methods to address
cyberbullying.19 However, the final clause reads: Nothing in this
section shall supersede or replace existing rights or remedies
under any other general or special law, nor shall this section
create a private right of action.20 Stated otherwise, there is no
cause of action under this bullying statute.21
3. How Do Anti-Bullying Laws Affect the Bully?
This legislation does not just affect the school environment or
the victimit also affects the bully.22 Most school policies
encourage administrators to suspend or expel bullies for their
inappropriate or violent
bullying.gov/at-risk/effects/ (last visited Apr. 6, 2015). 16
MASS. GEN. LAWS ch. 71, 37O(b) (West 2009 & Supp. 2014). 17 Id.
37O(a). 18 Id. 37O(c). 19 Id. 37O(d). 20 Id. 37O(i) . 21 Id. 22 The
Roles Kids Play, STOPBULLYING.GOV,
http://www.stopbullying.gov/what-is-
bullying/roles-kids-play/index.html (last visited Apr. 6,
2015).
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2015 When Good Intent i ons Go Bad 301
behavior.23 These actions lead to what is called the
School-to-Prison pipeline phenomenon.24
B. What is the School-to-Prison Pipeline?
Current practices have the effect of pushing schoolchildren out
of classes and into the prison system; this channel is known as the
School-to-Prison pipeline which is defined as policies and
practices that push our nations schoolchildren . . . out of
classrooms and into the juvenile and criminal justice systems. This
pipeline reflects the prioritization of incarceration over
education.25 In Massachusetts from 2009 to 2010, nearly 5,200
students were excluded from school for ten days or longer.26
Children as young as four years old were excluded for at least one
day, and children as young as ten years old were permanently
excluded, either through suspension or expulsion.27
By way of illustration, in Philadelphia County Schools, the
number of arrests went from 1,632 between 1999 and 2000 to 2,194
between 2002 and 2003.28 Houston Independent School District
reported 4,002 arrests in 200217% for disrupting class and 26% for
disorderly conduct.29 Further, Boston Public Schools reported that
28% of school arrests were for public order offenses between 2009
and 2010.30 Public order offenses and disturbing school assembly
offenses are broad infractions that include talking back to the
teacher or not having a hall pass.31 Some argue this
23 MASS. APPLESEED CTR. FOR LAW AND JUSTICE, KEEP KIDS IN CLASS:
NEW APPROACHES TO
SCHOOL DISCIPLINE 5 (2012), available at
http://www.massappleseed.org/pdfs/kkic_newappro
aches.pdf. 24 What Is the School-to-Prison-Pipeline?, AM. CIV.
LIBERTIES UNION, https://www.aclu.org/
racial-justice/what-school-prison-pipeline (last visited Apr. 6,
2015). 25 Id.; see also Stop the School-to-Prison Pipeline,
RETHINKING SCHOOLS (Winter 20112012),
available at
http://www.rethinkingschools.org/archive/26_02/edit262.shtmlschool-to-prison;
How High Stakes Testing Feeds the School-to-Prison Pipeline
Infographic, FAIRTEST,
http://fairtest.org/pipeline-infographic (last visited Apr. 6,
2015); School to Prison Pipeline,
SUSPENSIONSTORIES,
http://www.suspensionstories.com/school-to-prison-pipeline/
(last
visited Apr. 6, 2015) (illustrating how standardized testing
affects the School-to-Prison
pipeline). 26 MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra
note 23, at 7. 27 Id. 28 ADVANCEMENT PROJECT ET AL., EDUCATION ON
LOCKDOWN: THE SCHOOLHOUSE TO
JAILHOUSE TRACK 15 (2005). 29 Id. 30 ROBIN L. DAHLBERG, ARRESTED
FUTURES: THE CRIMINALIZATION OF SCHOOL DISCIPLINE IN
MASSACHUSETTS THREE LARGEST SCHOOL DISTRICTS 22 (2012). 31 Cf.
id. at 9.
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statistic is a reflection of the heightened police presence in
schools and zero-tolerance policies.32
1. Zero-Tolerance Policies in Schools Contribute to the
School-to-Prison Pipeline
One of the major factors contributing to the School-to-Prison
pipeline are zero-tolerance policies.33 Such policies are generally
school implemented and have become more popular due to school
shootings and low funding for public schools.34 These
zero-tolerance policies automatically impose severe punishment
regardless of circumstances.35 This means that there is no mental
state intent requirement.36 It gives broad discretion to
administrators to suspend and expel students.37 Though some
supporters argue that these policies are fair, others argue that
they unfairly affect at-risk students whose infractions are minor
under the circumstances, but who nevertheless . . . get pushed out
school doors.38 Opponents argue these policies ultimately widen the
offenses from serious chargeslike drug or weapon possessionto the
infamous catchall offense: disturbing school assembly.39 These
trends can lead to complex issues when bullies are suspended and
expelled from school.40
2. The States Duty
While schools have their own policies, states rely on the
Fourteenth Amendments Due Process Clause, which provides that no
state shall deprive any person of life, liberty, or property,
without due process of law.41 There are two components to the Due
Process Clause: procedural and substantive.42 Substantive Due
Process determines whether the government has an adequate reason
for taking away ones life, liberty, or property.43 [It] looks to
whether there is a sufficient justification for the
32 See id. 33 AM. CIVIL LIBERTIES UNION, supra note 24. 34 Id.;
Christopher D. Pelliccioni, Is Intent Required? Zero Tolerance,
Scienter, and the
Substantive Due Process Rights of Students, 53 CASE W. RES. L.
REV. 977, 978 (2003). 35 AM. CIVIL LIBERTIES UNION, supra note 24.
36 MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 5.
37 See Pelliccioni supra, note 34, at 978. 38 MASS. APPLESEED CTR.
FOR LAW AND JUSTICE, supra note 23, at 5. 39 Id. 40 See infra notes
Part IV. 41 U.S. CONST. amend. XIV, 1. 42 ERWIN CHEMERINSKY,
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 557 (4th ed. 2011). 43
Id. at 558.
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governments action.44
In DeShaney v. Winnebago Cnty.,45 the Supreme Court held that
the state did not have a duty to protect against third-party
actions under the Fourteenth Amendments substantive Due Process
Clause.46 In DeShaney, Joshua DeShaneys father beat him so that he
suffered permanent mental impairment.47 Joshuas mother sued the
Department of Social Services for violating his due process rights,
alleging the Department failed to intervene to protect Joshua
against the risk of violence.48 The Court stated that even though
there was a history of violence and the Department was aware of
that history, it still did not create an affirmative duty for the
state to intervene and protect.49
However, there is an exception where the state does have an
affirmative duty; this is called special relationship.50 In
Youngberg v. Romero,51 the Court held that the state possessed a
duty to provide healthy and safe living conditions as well as
freedom from injury when a person is confined involuntarily in a
mental institution.52 Similarly, Estelle v. Gamble53 held that
prisoners had to show acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs in order
to show the state had a duty to protect.54 In these situations, the
Court has determined there was a special relationship triggering
certain rights for the plaintiff.55 When the state has a special
relationship with a citizen, it follows that it has a duty to
protect that person from third-party actions.56 More specifically,
in these two cases, those exceptions took effect while the citizens
were imprisoned or in a mental institution against their will.57
Both instances are similar because the citizens had no choice but
to be in that situation due to their confinement; their ability to
remove themselves was
44 Id. 45 DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489
U.S. 189, 191, 193 (1989). 46 Id. at 192. 47 Id. at 19293. 48 Id.
at 193. 49 Id. at 195. 50 Id. at 19798. 51 Youngberg v. Romero, 457
U.S. 307, 309 (1982). 52 Id. at 324. 53 Estelle v. Gamble, 429 U.S.
97, 99 (1976). 54 Id. at 106. 55 DeShaney, 489 U.S. at 194. 56 Id.
at 197. 57 See Youngberg, 457 U.S. at 324; Estelle, 429 U.S. at
10304.
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impeded.58 The Court reasoned that the state needs to protect
this special class of persons from third-party actors because of
the states control.59
Regarding public schools, courts have reasoned that there is no
duty to protect against third-party actions; thus students do not
fall into the special relationship category.60 This means courts
have determined that school children do not fall within the class
of persons whose liberty is restricted, and the state has no
responsibility to protect against third-party actors.61 For
example, the Third Circuit held in D.R. v. Middle Bucks62 that
parents remain the primary caretakers of their children and
therefore do not fall into the category set out by Youngberg and
Estelle.63 The court ultimately rejected the plaintiffs argument
that mandatory attendance and in loco parentis64 created a duty for
the school to protect.65 The court relied on physical custody and
the exertion of control over the third-party and the citizen.66 The
Zebra court also held that parents have an unrestricted right to
move their child to a different school.67
The Third Circuit later expanded upon the special relationship
doctrine, though not specifically related to public schools.68
Nicini v. Morra dealt with the states duty to protect foster
children.69 The child was sent to a foster family and unfortunately
was sexually assaulted by his foster parent.70 The court held that
the state had a duty to protect foster children
58 Compare DeShaney, 489 U.S. at 191 (recognizing a fathers
control over his infant sons
freedom of location as he moved both of them across state
borders), with D.R. v. Middle Bucks
Vocational Sch., 972 F.2d 1364, 137172 (3d Cir. 1992) (Middle
Bucks) (holding the
requirement of a teenager to attend high school classes was not
a restriction of freedom). 59 DeShaney, 489 U.S. at 18999;
Youngberg, 457 U.S. at 324; Estelle, 429 U.S. at 103; see
Middle
Bucks, 972 F.2d at 1371. 60 See Hasenfus v. LaJeunesse, 175 F.3d
68, 71 (1st Cir. 1999) (holding there was no duty to
protect a student from bullying, even when it resulted in the
student committing suicide);
Middle Bucks, 972 F.2d at 1371 (quoting Pa. State Educ. Assns v.
Dept. of Pub. Welfare, 449
A.2d 89, 92 (1982)); Dorothy J. v. Little Rock Sch. Dist., 7
F.3d 729, 731 (8th Cir. 1993) (holding
there was no duty to protect student from another students
violent actions). 61 See DeShaney, 489 U.S. at 201. 62 Middle
Bucks, 972 F.2d at 1371. 63 Id. 64 BLACKS LAW DICTIONARY 907 (10th
ed. 2014) (Of, relating to, or acting as a temporary
guardian or caretaker of a child, taking on all or some of the
responsibilities of a parent.). 65 Middle Bucks, 972 F.2d at 1371.
66 See id. 67 Zebra v. Sch. Dist. of Pittsburgh, 296 A.2d 748, 751
(Pa. 1972). 68 See generally Nicini v. Morra, 212 F.3d 798 (3d Cir.
2000). 69 See id. at 800. 70 Id. at 804.
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under the special relationship exception to the Fourteenth
Amendment.71 All of these cases were considered in the Morrow
opinion.72
71 Id. at 807. 72 Morrow v. Balaski, 719 F.3d 160, 16471 (3d
Cir. 2013).
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II. Court Opinion in Morrow v. Balaski
A. Facts
Brittany and Emily Morrow were students at Blackhawk High School
in Pennsylvania and were subjected to a series of physical assaults
and threats by Shaquana Anderson (Anderson).73 Anderson threatened
Brittany over the phone and on her MySpace account.74 Two days
later, Anderson attacked Brittany in the lunchroom.75 Both girls
were suspended due to the zero-tolerance policy that the school
implemented.76 Brittanys mother reported Anderson to the local
police, who subsequently charged her with harassment, terroristic
threats, and assault.77 However, once Anderson returned to school,
she continued to bully the Morrow girls and tried to throw Brittany
down a set of stairs.78 Anderson was then placed on probation and
ordered to have no contact with Brittany.79 On April 9, 2008, the
Court of Common Pleas of Beaver County, Juvenile Division, placed
Anderson on probation.80 The court adjudicated Anderson delinquent
five months later and then imposed another no contact order.81
However, the physical assaults continued, and Anderson elbowed
Brittany in the throat at a football game.82 One of Andersons
friends, Abby Harris, struck Emily in the throat as well.83
Assistant Principal Balaski responded by telling Brittany and
Emilys parents that there was nothing the school could do to
guarantee their safety, and it would be best to consider
transferring Brittany and Emily to another school.84
B. Procedural History
The Morrows filed their claim under 42 U.S.C. 1983 stating that
the schools inaction and failure to protect their daughters
violated their Fourteenth Amendment substantive Due Process
right.85 They argued that
73 Id. at 164. 74 Id. 75 Id. 76 Id. 77 Id. at 164. 78 Morrow,
719 F.3d at 164. 79 Id. 80 Id. 81 Id. 82 Id. 83 Id. 84 Morrow, 719
F.3d at 16465. 85 Id. at 165.
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the school had a special relationship with Brittany and Emily.86
The Morrows also argued that the school was liable because it
created a dangerous situationwhich created a duty to protect
them.87
The district court dismissed the Morrows claim with prejudice,
stating that there is no special relationship between public
schools and students.88 Additionally, the court stated that the
Morrows specified no action in which the defendants used their
authority improperly.89 An appeal followed and the Third Circuit
took the case en banc.90
C. Reasoning and Holding
The Court relied on DeShaneys reasoning that an affirmative duty
arises not from the States knowledge of the individuals predicament
or from its expressions of intent to help him, but from the
limitation which it has imposed on his freedom to act on his own
behalf.91 They also relied on Middle Bucks to determine that
compulsory attendance laws and in loco parentis do not restrain
parents authority as to equate a schools custody with the
situations in Youngberg and Estelle.92 The majority also
highlighted that the Supreme Court in Vernonia stated we do not, of
course, suggest that public schools as a general matter have such a
degree of control over children as to give rise to a constitutional
duty to protect.93 Ultimately, the Court held there is no special
relationship between public schools and their students, and
therefore, the school did not violate any duty to Brittany and
Emily Morrow.94
D. The Dissent
The dissent argued, Middle Bucks provides no basis to conclude
that DeShaney endorses an all-or-nothing approach that turns on the
existence of round-the-clock physical custody or on who remained
the primary caregiver.95 Instead, the dissent argued that Middle
Bucks should not be
86 Id. 87 Id. For the purposes of this Comment, the
state-created-danger doctrine will not be
discussed. 88 Id. 89 Id. 90 Morrow, 719 F.3d at 165. 91 See id.
at 168 (quoting DeShaney v. Winnebago Cnty. Dept of Soc. Servs.,
489 U.S. 189,
200 (1989)). 92 See id. at 168. 93 Id. at 169 (quoting Vernonia
Sch. Dist. v. Acton, 515 U.S. 646, 655 (1995)). 94 Id. at 177. 95
Id. at 18889 (Fuentes, J., dissenting).
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followed because it had no basis to determine that full physical
custody was needed from DeShaney.96 The dissent also parallels
Nicini with Morrow, arguing that there was more physical custody in
Morrow than in Nicini so there should be a special relationship.97
The Morrow dissent reasoned that the school may have had a duty to
protect because the parent could not immediately protect the child
in the situation.98
ANALYSIS
III. The Majority Missed an Opportunity to Clarify the Law
While the Court does an excellent job relying on established
precedent, it did not dive deeply enough into the Middle Bucks
reasoning, which is similar to the Morrow case.99 In failing to do
so, it still has not completely closed the gap with regard to the
states special relationship in certain circumstances.100 Had the
majority come up with a test, as they implicitly did in their prior
decision in Middle Bucks, they would have effectively created a
rule that future courts could use to apply in similar
situations.101 The majority erred in not applying this test.102
A. Morrow Should Have Relied on the Middle Bucks Reasoning to
Come to Its Conclusion Because it Creates a Clear Test and Stronger
Precedent
Both Morrow and Middle Bucks deal with whether the state has a
duty to protect students from third-party actions.103 Both cases
rely upon DeShaney, Estelle, and Youngberg.104 Both cases reason
that the state does not have a duty and there is no special
relationship.105 The Morrow majority mentions Middle Bucks, but
does not rely heavily on it.106 Had the Court
96 See Morrow, 719 F.3d at 18889 (Fuentes, J., dissenting). 97
See id. at 193.
98 Id. at 188.
99 See infra Parts III.AB (discussing the importance of the
Middle Bucks reasoning). 100 See infra Part III. 101 See infra
Parts III.AC (determining that the job of the court is to do more
than come out
with a correct decision, rather they are to come up with the
correct reasoning). 102 See infra Parts III.AC. 103 Morrow v.
Balaski, 719 F.3d 160, 168 (3d Cir. 2013); L.R. ex rel. D.R. v.
Middle Bucks
Area Vocational Tech. Sch., 972 F.2d 1364, 1371 (3d Cir. 1992).
104 Morrow, 719 F.3d at 168; Middle Bucks, 972 F.2d at 1371. 105
Morrow, 719 F.3d at 168; Middle Bucks, 972 F.2d at 1371. 106
Morrow, 719 F.3d at 168.
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relied upon this case and dove deeper into the reasoning, it
would have created a stronger precedent and an easily applicable
test.107
The Middle Bucks court uses a physical custody test,this test,
however, has more to do with control rather than physical
custody.108 The physical custody test determines whether the state
has a special relationship with the injured party.109 If the state
has physical custody, then it has a duty to protect.110 Some may
argue that relying on physical custody is not in accordance with
established precedent because physical custody is not a factor.111
However, one should not be fooled by the name.112 Though Middle
Bucks calls it a physical custody test, the underlying elements of
that test correlate to control, which is in accordance with
established precedent.113 The test in Middle Bucks looks at four
components between the relationship of the state and the citizen
under DeShaney, Estelle, and Youngberg.114 The four components are:
(1) full time severe and continuous state restriction of
liberty;115 (2) citizens are not given the opportunity to seek
outside help to meet their basic needs;116 (3) they are not free to
leave or provide for themselves;117 and (4) they are wholly
dependent on [the] state for food, shelter, clothing, and
safety.118 This is not a simple, broad test of round-the-clock
physical
107 See infra notes 108155 and accompanying text (describing the
elements set out in Middle
Bucks that manifest control rather than physical custody). 108
972 F.2d at 1371. 109 Id. 110 Id.
The rationale for this principle is simple enough: when the
State by the
affirmative exercise of its power so restrains an individuals
liberty that it
renders him unable to care for himself, and at the same time
fails to
provide for his basic human needse.g., food, clothing, shelter,
medical
care, and reasonable safety . . . .
DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 498 U.S. 189,
200 (1989) 111 Morrow, 719 F.3d at 188 (Fuentes, J., dissenting).
112 See id. at 189. The dissent relies heavily upon the term
physical custody and believes that
the Morrow and Middle Bucks opinions rely solely on whether
there is full-time physical
custody. However, this is a weakness in their argument and will
be discussed in more detail.
See infra Part III.C. 113 Contra Middle Bucks, 972 F.2d at 1370
(Our court has read DeShaney primarily as setting
out a test of physical custody.). 114 See id. 115 Id. 116 Id.
117 Id. 118 Id. at 1371.
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custody.119 Rather, these components, together with the element
of physical custody, help determine whether the state has a special
relationship with the student and is more based on control.120
B. An Applied Physical Custody Test Produces Equitable
Results
The Morrow Court had the opportunity to create a test from
Middle Bucks that would clarify the case law concerning special
relationships, but it failed to do so.121 If this test is applied
again to prior decisions, those decisions come out to the same
reasonable result, further showing that this test not only yields
reasonable results, but also adds consistency and predictability to
this area of law.122
To demonstrate this, if the Middle Bucks test is applied to
Nicini, the result would still be the same.123 The Nicini court
held that though the child was not in the states absolute physical
custody, there was still a special relationship with a foster
child.124 Under the first prong, the childs restriction of liberty
has to be full-time and severe.125 Applying this to the case of
foster children, a representative from Child Services monitors
everything the child does and children do not have the ability to
go wherever they please.126 The second prong states that the child
cannot seek outside help for basic needs.127 For foster children,
the primary caregiver is the state; they are assigned to foster
parents by the state and cannot seek help at other places.128 Prong
three articulates that the child cannot provide
119 See DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489
U.S. 189, 199 (1989); Middle
Bucks, 972 F.2d at 1371. Contra Morrow v. Balaski, 719 F.3d 160,
188 (3d Cir. 2013) (arguing
that the Middle Bucks opinion creates a test that demands
round-the-clock physical custody in
order to have a special relationship). 120 See Middle Bucks, 972
F.2d at 1370. 121 See supra Part III.A; see also Morrow v. Balaski,
719 F.3d 160, 16876 (3d Cir. 2013). 122 See infra notes 123155 and
accompanying text. 123 Middle Bucks, 972 F.2d at 1371. 124 Nicini
v. Morra, 912 F.3d 798, 809 (3d Cir. 2013). 125 Middle Bucks, 972
F.2d at 1371. 126 See Nicini, 212 F.3d at 808 (stating that foster
children, like those who are incarcerated,
do not have the ability to seek living elsewhere). 127 See
Middle Bucks, 972 F.2d at 1371. 128 Nicini, 212 F.3d at 808.
A relationship between the state and foster children arises out
of the
states affirmative act in finding the children and placing them
with state-
approved families. . . . By so doing, the state assumes an
important
continuing, if not immediate, responsibility for the childs
well-being. In
addition, the childs placement renders him or her dependent upon
the
state, through the foster family, to meet the childs basic
needs.
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for himself or herself.129 Because these are children, they are
not able to take care of themselves properly and would not be able
to live on their own.130 The fourth prong states that they are
wholly dependent upon the state for food, shelter, clothing, and
safety.131 Foster parents are paid to care for foster children by
paying for their food, shelter, and clothing.132 A foster childs
life is controlled completely by the state.133 Therefore, Nicinis
reasoning comes out the same under the Middle Bucks test.134
One can even apply this test to DeShaney, in which the Supreme
Court established that the state does not have a duty to protect
against third parties.135 Joshua DeShaney was living at his fathers
house for the entire two years he was visited by the Department of
Social Services; therefore, the state did not restrict his liberty
as the first prong requires.136 Because help could have come from
many places other than the state, Joshua was not completely under
the states control as he was still living with his father; thus,
the second prong is not satisfied.137 The third prong also fails
because though Joshua could not have taken care of himself, the
state did not take care of himhis father did.138 Therefore, he was
still able to care for himself through his parent.139 Joshua
DeShaney did not rely upon the state for food, shelter, clothing,
or safety as the fourth prong requires; he
Id. (quoting Middle Bucks, 972 F.2d at 1372). 129 See Middle
Bucks, 972 F.2d at 1371. 130 Nicini, 212 F.3d at 808.
Nonetheless, any distinctions between children placed in foster
care and
the prisoners at issue in Estelle or the institutionalized
mentally retarded
persons at issue in Youngberg are matters of degree rather than
of
kind . . . . In each of these cases the state, by affirmative
act, renders the
individual substantially dependent upon the state . . . to meet
[his or her]
basic needs.
Id. (citation omitted). 131 See Middle Bucks, 972 F.2d at 1371.
132 Cf. Nicini, 212 F.3d at 809 n.7. 133 Id. at 807. 134 Id. at
809; Middle Bucks, 972 F.2d at 1371. 135 DeShaney v. Winnebago
Cnty. Dept of Soc. Servs., 489 U.S. 189, 201 (1989). 136 Compare
DeShaney, 498 U.S. at 201, with Middlebucks, 972 F.2d at 1371. The
Court rejected
the parallel of DeShaneys facts to Youngberg, reasoning that
because the prisoner is unable
by reason of the deprivation of his liberty [to] care for
himself, it is only just that the State
be required to care for him. DeShaney, 498 U.S. at 19899 (citing
Estelle v. Gamble, 429 U.S.
97, 104 (1976)). 137 Compare DeShaney, 498 U.S. at 191, with
Middle Bucks, 972 F.2d at 1371. 138 Compare DeShaney, 498 U.S. at
193, with Middle Bucks, 972 F.2d at 1371. 139 DeShaney, 498 U.S. at
192.
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relied on his father to provide them.140 The Middle Bucks test
applied to DeShaney comes out with the same resultthat there is no
special relationship, and the state does not have a duty to
protect.141
If the Middle Bucks test is applied to Morrow, the result would
again be the same and show that the majority should have adopted
this test to add consistency to this area of law.142 The Morrows go
home every day to their parents: they have the choice to go to
another school, a private school, or be home-schooled; therefore,
there is no full time and severe restriction of their liberty.143
The second prong fails because the Morrows are not at the school
all day, and their basic needs and outside help are never limited
to the school.144 Further, they are free to leave the school every
day when class is over and be withdrawn if needed.145 In fact,
Zebra held that a parent cannot be denied the right to move a child
from the school when his or her health and safety are
threatened.146 Though the Morrows parents cannot take care of their
children while they are in school, the parents still have ultimate
power and control over their children.147 Thus, prong three failed
because the Morrows are able to be cared for by someone other than
the state.148 Although the students rely temporarily on shelter and
sometimes food, through school lunches, they do not wholly rely on
the state or the school for these items.149 Parents provide their
clothing, food, shelter, and safety.150 Therefore, the Middle Bucks
test applied to the Morrow facts produces the same result.151
Despite the fact that Middle Bucks stated, [o]ur court has read
DeShaney primarily as setting out a test of physical custody,152
the principles behind the test relate less to full-time physical
custody and more
140 Compare DeShaney, 498 U.S. at 192, with Middle Bucks 972
F.2d at 1371. 141 DeShaney, 498 U.S. at 202; Middle Bucks, 972 F.2d
at 1371. 142 See infra notes 14350 and accompanying text. 143
Compare Morrow v. Balaski, 719 F.3d 160, 183 (3d Cir. 2013), with
Middle Bucks, 972 F.2d
at 1371. 144 Compare Morrow, 719 F.3d at 183, with Middle Bucks,
972 F.2d at 1371. 145 Morrow, 719 F.3d at 183. 146 Zebra v. Sch.
Dist. of Pittsburgh, 296 A.2d 748, 751 (Pa. 1972). 147 Morrow, 719
F.3d at 169; Middle Bucks, 972 F.2d at 1372 (However, even when
enrolled
in public school parents retain the discretion to remove the
child from classes as they see
fit . . . .). 148 See Morrow, 719 F.3d at 160. 149 Compare
Morrow, 719 F.3d at 170, with Middle Bucks, 972 F.2d at 1371. 150
See Morrow, 719 F.3d at 170. 151 See supra notes 14249 and
accompanying text. 152 Middle Bucks, 972 F.2d at 137071.
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to the degree of control.153 The majority had a prime
opportunity to address this hot-bed issue, but they slept on it.154
Had they scrutinized the Middle Bucks reasoning, they would have
created a test that produced equitable results and provided a
clear-cut analysis for future courts.155
C. The Misunderstanding of Control
The Morrow dissent argues that Middle Bucks should not be relied
upon because the physical custody test did not follow precedent.156
However, as previously established, the physical custody test does
not rely on physical custody alone.157 Rather, as prior decisions
by the court show, the test relies on degree of control.158 The
dissent relied specifically on Nicini and determined that even
though there was no round-the-clock care for foster children, the
state still had a special relationship; therefore there should be a
special relationship in Morrow.159 However, the dissent failed to
see the foundation that controls Nicini and Middle Bucks.160 It is
a determination of controlnot physical custody alone.161
The dissent further used this parallel argument of physical
custody to state that there was a special relationship in
Morrow.162 The dissent also
153 Id. 154 See supra Parts III.AB. 155 See supra Parts III.AB.
156 Morrow v. Balaski, 719 F.3d 160, 188 (3d Cir. 2013) (Fuentes
J., dissenting). 157 See supra Parts III.AB. 158 See Ali Davison,
Note, Shackled and Chained in the Schoolyard: A New Approach to
Schools
Section 1983 Liability Under the Special Relationship Test, 19
CARDOZO J. L. & GENDER 273, 286
(2012) (Therefore, the question is not whether the individual is
in the physical custody of the
state, but instead whether the state has imposed some kind of
limitation on the individuals
ability to act in his or her own interests.); supra Parts
III.AB; see also DeShaney v. Winnebago
Cnty Dept of Soc. Servs., 489 U.S. 189, 200 (1989) (The
affirmative duty to protect arises not
from the States knowledge of the individuals predicament or from
its expressions of intent to
help him, but from the limitation which it has imposed on his
freedom to act on his own
behalf.). 159 Morrow, 719 F.3d at 188, 192 (Fuentes, J.,
dissenting). 160 See supra Part III.B (discussing the reasoning
behind the special relationship is that of
control); see also Deborah Austern Colson, Note, Safe Enough to
Learn: Placing an Affirmative
Duty of Protection on Public Schools Under 42 U.S.C. Section
1983, 30 HARV. C.R.-C.L. L. REV. 169,
174 (1995) (discussing that courts use custody and special
relationship interchangeably but
that DeShaney did not confine the meaning of special
relationship to custodial situations). 161 See supra Part III.A;
see also Davison, supra note 158, at 287. 162 Morrow, 719 F.3d at
188, 193 (Fuentes, J., dissenting) (arguing that because the court
in
Nicini held that the state had a special relationship to foster
children, then it should have it
in Morrow because there was no full-time physical custody and
the school has compulsory
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argued that the special relationship existed because the parent
had no immediate control of the situation.163 Of course there is no
immediate controlthe very nature of third-party aggression is that
no one has control.164 The only time there is control is when there
is a special relationship.165 Simply paralleling cases that are
similar to one another is only half of the analysis; the dissent
failed to look at the crux of the issue.166 The dissent mentions
that it is a difference in degree, not kind; however, the factors
the dissent uses are those of kind and not degree.167 The factors
look to the issue of physical custody and not control over third
parties and the victim.168 The factors consider physical custody in
the school, compulsory attendance laws, and the inability for
parents to remove their children.169 These factors point to the
solidity of physical custody the school has over students but not
the degree of control the school has over the actions of individual
students.170 Mandatory attendance does not determine the ability to
control third party actions, which is essential to determine
whether a special relationship exists.171 The dissent failed to
understand the underlying question that the precedent sets forth:
what degree of control does the state have over the victim and
third party actors?172 The dissent essentially grasped at straws to
make the foundation of its argument, and ended up arguing in a
circle.173
attendance laws thus arguing there is a stronger case for Morrow
than Nicini). 163 See id. at 188. 164 But see id. 165 See supra
Part III.A; see also DeShaney v. Winnebago Cnty. Dept of Soc.
Servs., 489 U.S.
189, 203 (1989) (Brennan, J., dissenting).
The most that can be said of the state functionaries in this
case is that they
stood by and did nothing when suspicious circumstances dictated
a more
active role for them. In defense of them it must also be said
that had they
moved too soon to take custody of the son away from the father,
they
would likely have been met with charges of improperly intruding
into the
parent-child relationship, charges based on the same Due Process
Clause
that forms the basis for the present charge of failure to
provide adequate
protection.
Id. 166 See supra Part III.A. But see Morrow, 719 F.3d at 188.
167 See Morrow, 719 F.3d at 193. 168 Id. at 19293. 169 Id. at 193.
170 See id. 171 See id. 172 See id. at 168; supra Part III.A. 173
See Morrow, 719 F.3d at 188 (Fuentes, J., dissenting).
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Simply relying on the fact that there is no immediate control of
the situation does not set this case apart from DeShaney, Estelle,
Youngberg, or Middle Bucks.174 The reason why a special
relationship exists is because in those particular situations, the
state does have control over the third party and the victim.175
Simply relying on the fact that there is no immediate control
eliminates the foundational principle of control in general, which
is essential to establishing whether the state has a duty.176
D. Going Forward, Courts Should Adopt the Middle Bucks Test
Going forward, in determining whether the state has a duty to
protect under the special relationship exception, courts should
look at the elements set forth in Middle Bucks, namely: (1)
fulltime severe and continuous state restriction of liberty;177 (2)
[the citizen is not] given the opportunity to seek outside help to
meet [his or her] basic needs;178 (3) the citizen is not free to
leave or provide for themselves;179 and (4) the citizen is wholly
dependent on the state for food, shelter, clothing and safety.180
Looking at these elements will allow the court to clearly determine
what should constitute a special relationship according to
precedent.181 The majority opinion would have created a stronger
precedent had it analyzed Middle Bucks more thoroughly and created
a
174 See DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489
U.S. 189, 196200 (1989);
Youngberg v. Romero, 457 U.S. 307, 324 (1982); Estelle v.
Gamble, 429 U.S. 97, 106 (1976);
Morrow, 719 F.3d. at 16571; D.R. v. Middle Bucks Vocational
Sch., 972 F.2d 1364, 1371 (3d Cir.
1992). 175 See Davison, supra note 158, at 28081 (stating there
is a current confusion with special
relationship and custody and that courts generally rely only on
the presence of physical
custody); supra Part III.A. 176 See supra Part III.A. 177 Middle
Bucks, 972 F.2d at 1371. 178 Id. 179 Id. 180 Id. 181 Id.; see also
Davison, supra note 158, at 292.
Rather than focusing on bright-line rules involving physical
custody or a
students age, courts should adhere to DeShaney by looking to how
the
student is limited in providing his or her own constitutional
freedoms
during the day. This provides a workable balancing of factors
that
decreases errors of under-and over-inclusiveness. A balancing
framework
gives more discretion than rules and allows the trier of fact to
take into
account all relevant factors or the totality of the
circumstances.
Id.
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test.182 Ultimately, Morrow was a reasonable, fair decision, but
a courts reasoning is just as important as its holding; and Morrow
failed to take advantage of this opportunity to create a test that
would add uniformity and predictability to special relationship
jurisprudence.183
IV. It Is Valuable Policy to Keep Children in School
The dissent and the majority do not account for what the
concurrence illustrates: I also worry that creating a
constitutional tort out of a schools failure to expel a student
creates a too-easy incentive for schools to expel quickly students
who engage in any violent behavior in order to avoid liability or
the threat of suit.184 The schools job is to educate children.185
Appropriate discipline is a great educational experience if done
correctly.186 Therefore, going forward, courts should consider this
in their analysis.187
A. How Zero-Tolerance Policies Affect Bullies
Zero-tolerance policies are unproductive mechanisms for
discipline.188 They do not consider the students mental state to
determine whether the child knowingly committed the offense.189
This blanket consequence affects students learning in and out of
school.190 It affects students outside of school because they are
not receiving an education while suspended or expelled.191 In
school, children fall behind in their learning and have difficulty
catching up, thus leading to frustration and more disciplinary
issues.192 Even in this case, both victim (Brittany) and bully
(Anderson) were suspended.193 What disciplinary purpose does that
serve?194 What
182 See supra notes 12122 and accompanying text. 183 See supra
notes 14251 and accompanying text. 184 Morrow v. Balaski, 719 F.3d
160, 164 (3d Cir. 2013) (Ambro, J., concurring in part and
dissenting in part). 185 Pelliccioni, supra note 34, at 1006.
186 Id. 187 AM. PSYCHOLOGICAL ASSN ZERO TOLERANCE TASK FORCE, ARE
ZERO TOLERANCE
POLICIES EFFECTIVE IN THE SCHOOLS? AN EVIDENTIARY REVIEW AND
RECOMMENDATIONS 12
(2006) [hereinafter ZERO TOLERANCE TASK FORCE]; MASS. APPLESEED
CTR. FOR LAW AND
JUSTICE, supra note 23, at 1. 188 MASS. APPLESEED CTR. FOR LAW
AND JUSTICE, supra note 23, at 5. 189 Pelliccioni, supra note 34,
at 978. 190 AM. CIV. LIBERTIES UNION, supra note 24. 191 See MASS.
APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 910. 192 See
id. at 10. 193 Morrow v. Balaski, 719 F.3d 160, 164 (3d Cir. 2013).
194 MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at
10.
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does that teach children?195 It only teaches children that even
the victim gets punished.196 Zero-tolerance policies are a way for
school administrators to ignore problems without truly addressing
the issue at hand.197 With zero-tolerance policies, society ends up
dealing with the consequences in the long run.198 Keeping children
out of school is not a proper incentive to dissuade bad
behavior.199 This can deprive them of opportunities later in
life.200
Those who argue for zero-tolerance policies claim they keep
children safe by creating a safe environment.201 However, this is
not the case.202 Children are less safe out of school because they
are usually unsupervised.203 In terms of a safer school
environment, studies show that zero-tolerance policies do not
reduce violence and create a negative school environment.204 The
negative environment comes from inconsistently and improperly
punishing the wrong behaviorchildren do not trust unfair
results.205 The only thing that changes is that more children are
on the street and have less faith in the fairness of their school
system.206
195 Id. 196 See, e.g., Morrow, 719 F.3d at 164. 197 See AM. CIV.
LIBERTIES UNION, supra note 24. 198 MASS. APPLESEED CTR. FOR LAW
AND JUSTICE, supra note 23, at 10.
The Commonwealth has a vested economic interest in seeing all of
its
children complete a high school education. Those who graduate
from
high school are more likely to earn a livable wage, pay taxes,
and be
productive members of society. Studies have linked
educational
attainment to overall good health. Additionally, the
Commonwealth
considers creation of a highly skilled workforce as an
economic
imperative which is an essential prerequisite to ensure that
Massachusetts remains a leader in technology and in the emerging
21st
Century economy.
Id. 199 Id. 200 Id. at 10. 201 ZERO TOLERANCE TASK FORCE, supra
note 187, at 12. 202 MASS. APPLESEED CTR. FOR LAW AND JUSTICE,
supra note 23, at 9. 203 Id. (Students who are repeatedly excluded
from school struggle to keep up with their
classmates, do not feel welcomed into the school community, and
often leave of their own
volition. Additionally, many of these students are unsupervised
while excluded from school,
leaving more time to engage in delinquent behavior.). 204 ZERO
TOLERANCE TASK FORCE, supra note 187, at 12. 205 See id. 206 See
MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 9.
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B. It Is Important to Keep Children in Class
Criminalizing children for their misbehavior in school is a
growing trend.207 This leads to early involvement with the juvenile
detention system.208 Children are more likely to come back to
prison as an adult if they have been in the system as a child.209 A
student who is suspended or expelled from school is thus placed at
greater risk for delinquent behavior and subsequent incarceration
when placed unsupervised on the streets of the community for days
or weeks at a time.210 The issue is: when should society pay for
the wrong behavior?211 During school when bad behavior is more
controllable and formidable in the childs life?212 Or after years
of legal trouble and paying for students to stay in prison?213
Many parents would protest, and rightfully so, to the idea of
having bullies at school.214 But simply placing blame and shifting
the problem to someone else does not solve the issue.215 Schools
are in a better position to help students realize the consequences
of their actions through constructive discipline rather than
kicking a child out of school.216 Schools should develop a system
to teach children why their behavior is wrong.217 There are many
constructive ways to discipline children without taking them out of
the classroom environment, for example: in-school suspension,
detention on Saturdays, service around the school, and alternative
school placements.218 Ultimately, state legislatures should
consider implementing
207 DAHLBERG, supra note 30, at 5; Carla Amurao, Fact Sheet: How
Bad is the School-to Prison
Pipeline?, PBS.ORG,
http://www.pbs.org/wnet/tavissmiley/tsr/education-under-arrest/school-
to-prison-pipeline-fact-sheet/ (last visited Apr. 6, 2015). 208
See DAHLBERG, supra note 30, at 910. 209 See id. at 9. 210 MASS.
APPLESEED CTR. FOR LAW AND JUSTICE, supra note 23, at 9 (quoting
ZERO
TOLERANCE TASK FORCE, supra note 187, at 43). 211 See id. at
910. 212 AM. CIV. LIBERTIES UNION, supra note 24; Emily Yu, Mission
Critical Documentary Calls
for End to School-to-Prison Pipeline, JUV. JUST. INFO. EXCHANGE
(Feb. 28, 2014),
http://jjie.org/mission-critical-documentary-calls-for-end-to-school-to-prison-pipeline/.
213 See AM. CIV. LIBERTIES UNION, supra note 24. 214 Evelyn Beck,
Bullying: How Parents Can Fight Back, SCH. FAM.,
http://www.schoolfamily.
com/school-family-articles/article/818-bullying-how-parents-fight-back
(last visited Apr. 6,
2015). 215 See Pelliccioni, supra, note 34, at 978. 216 See id.
217 See, e.g., MASS. APPLESEED CTR. FOR LAW AND JUSTICE, supra note
23, at 14. 218 E.g., id.
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systems in schools that attack both sides of the issue.219
Courts should also consider these trends when determining whether
schools have a duty to protect students from bullies.220
CONCLUSION
The Morrow majority had an opportunity to address and clarify
the issue of control in a special relationship, but failed to do
so. Though they came to the right decision, they failed to address
and articulate a legal test and correct a hot-bed issue. By failing
to take the opportunity to add to the jurisprudence, the Morrow
Court left the door open for future inequitable decisions. With
school bullying at an all-time high, this issue is bound to come to
a courtroom again. Many state legislatures have addressed bullying
problems. It would have been more effective and stronger had the
Morrow Court considered the underlying principles of special
relationship and determined a test for the states control. Without
a test to rely upon in future cases, one can only hope that future
plaintiffs and defendants are not bullied by the court system.
219 See, e.g., id. 220 See id.