PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2000

_____________

BRITTANY MORROW; EMILY MORROW, 

Minors, In Their Own Right, And By Their Parents 

and Natural Guardians, Bradley Morrow and Diedre Morrow; 

BRADLEY MORROW; DIEDRE MORROW, Individually,

 Appellants

v.

BARRY BALASKI, Individually; THE BLACKHAWK 

SCHOOL DISTRICT

_____________

On Appeal from the District Court

for the Western District of Pennsylvania

(No. 2:10-cv-00292)

Chief Magistrate Judge Lisa Pupo Lenihan

_____________

Argued on October 10, 2012

Before: McKEE, Chief Judge, SLOVITER, SCIRICA, 

RENDELL, AMBRO, FUENTES, SMITH, FISHER, 

CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., 

VANASKIE and NYGAARD, Circuit Judges.

(Opinion Filed: June 05, 2013)

Albert A. Torrence, Esq. (ARGUED)

640 Fourth Street

Beaver, Pennsylvania 15009

Attorney for Appellants
2

Charles W. Craven, Esq. (ARGUED)

John J. Hare, Esq.

Marshall, Dennehey, Warner, Coleman & Goggin

2000 Market Street, Suite 2300

Philadelphia, PA 19103

Scott G. Dunlop, Esq. 

Teresa O. Sirianni, Esq.

Marshall, Dennehey, Warner, Coleman & Goggin

600 Grant Street

2900 U.S. Steel Tower

Pittsburgh, PA 15219

Attorneys for Appellees

_____________

OPINION OF THE COURT

_____________

McKEE, Chief Circuit Judge, with whom SLOVITER, 

SCIRICA, RENDELL, AMBRO (joins Section III B of the 

majority only), SMITH, FISHER, CHAGARES, 

HARDIMAN, and GREENAWAY, JR., Circuit Judges join.

As is so often the case, the issues in this appeal arise 

from unsettling facts presented by sympathetic plaintiffs.1

We are asked to decide whether public schools have a 

constitutional duty to protect students from abuse inflicted by 

fellow students under the circumstances alleged here. 

Appellants, Brittany and Emily Morrow, and their 

parents, Bradley and Diedre Morrow, brought this action 

against Blackhawk School District and Blackhawk High 

School‟s Assistant Principal, Barry Balaski.

2

 The Morrows 

 

1

 See D.R. v. Middle Bucks Area Vocational Technical 

School, 972 F.2d 1364, 1365 (3d Cir. 1992) (en banc), 

wherein Judge Seitz noted that such cases as this present “a 

classic case of constitutional line drawing in a most 

excruciating factual context.”

2

 We will refer to the Blackhawk School District and 

Assistant Principal Balaski collectively as the “Defendants.”
3

claim that Brittany and her sister Emily were subjected to 

bullying in the form of a series of threats, assaults, and acts of 

racial intimidation at the hands of a fellow student and her 

accomplice. Unable to obtain help from school officials, the 

Morrows were ultimately compelled to remove their children 

from their school. Thereafter, the Morrows brought suit 

alleging that school officials denied them substantive due 

process under the Fourteenth Amendment by not protecting 

Brittany and Emily. The Third Amended Complaint (the 

“Complaint”) asserted a cause of action under 42 U.S.C. § 

1983 and a supplemental state law claim for “negligence 

and/or gross or willful misconduct.” 

The District Court dismissed the Complaint based on 

our decision in D.R. v. Middle Bucks Area Vocational 

Technical School, 972 F.2d 1364 (3d Cir. 1992) (en banc). 

There, we concluded that the school did not have a “special 

relationship” with students that would give rise to a 

constitutional duty to protect them from harm from other 

students given the alleged facts. See id. at 1372 (finding that 

“no special relationship based upon a restraint of liberty exists 

here”). The District Court also held that the injury the 

Morrows complained of was not the result of any affirmative 

action by the Defendants. Accordingly, the court held that 

the Defendants are not liable under the “state-created danger” 

doctrine. The District Court therefore dismissed the 

Morrows‟ Complaint, and this appeal followed. The appeal 

was initially argued before a panel of this Court. Thereafter, 

we granted en banc review to reexamine the very important 

questions raised by the allegations in the Complaint. 

We now affirm the judgment of the District Court and 

hold that the allegations do not establish the special 

relationship or the state-created danger that must exist before 

a constitutional duty to protect arises under the Fourteenth 

Amendment. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background
4

Brittany and Emily Morrow attended Blackhawk High 

School in Beaver County, Pennsylvania.3 Beginning in 

January 2008, they were subjected to a series of threats and 

physical assaults by Shaquana Anderson, a fellow student. 

Specifically, on January 5, 2008, Anderson threatened 

Brittany by phone and on a MySpace blog.4 Two days later, 

Anderson physically attacked Brittany in the school‟s lunch 

room. Pursuant to its “No Tolerance Policy,” the school 

suspended both girls for three days. Brittany‟s mother also 

reported Anderson to the local police at the recommendation 

of Assistant Principal Balaski. As a result, Anderson was 

charged with simple assault, terroristic threats, and 

harassment. Nevertheless, Anderson continued to bully 

Brittany and Emily. In fact, shortly after she returned to 

school, Anderson again attacked Brittany by attempting to 

throw her down a set of stairs. During that incident, 

Anderson allegedly called Brittany a “cracker,” told her that 

she was “retarded” and “had better learn to fight back,” and 

asked “why don‟t you learn to talk right?” 

On April 9, 2008, Anderson was placed on probation 

by the Court of Common Pleas of Beaver County, Juvenile 

Division, and ordered to have no contact with Brittany. Five 

months later, Anderson was adjudicated delinquent by a 

Juvenile Master of that court, and was again ordered to have

no contact with Brittany. Copies of both of these “nocontact” orders were provided to the school and to Assistant 

Principal Balaski. 

 

3

 Since this is an appeal from the District Court‟s grant of the 

Defendants‟ Motion to Dismiss pursuant to rule 12(b)(6) of 

the Federal Rules of Civil Procedure, we must accept the 

factual allegations contained in the Morrows‟ Complaint as 

true. Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d 

Cir. 2011). 

4

 “MySpace” is a popular social-networking website that 

“allows its members to create online „profiles,‟ which are 

individual web pages on which members post photographs, 

videos, and information about their lives and interests.” Doe 

v. MySpace, Inc., 474 F. Supp. 2d 843, 845 (W.D. Tex. 2007).
5

Despite the court‟s intervention, on September 12, 

2008, Anderson boarded Brittany‟s school bus, even though 

that bus did not service Anderson‟s home route. Anderson 

threatened Brittany, and she elbowed Brittany in the throat at 

a school football game that evening. A few days later, Abbey 

Harris, Anderson‟s friend, struck Emily in the throat. These

incidents were reported to school officials. 

The Morrows subsequently met with school officials, 

but they responded by telling the Morrows that they could not 

guarantee Brittany and Emily‟s safety. Instead, rather than 

removing Anderson and her confederate from the school, 

school officials advised the Morrows to consider another 

school for their children. In October 2008, the Morrows

enrolled their daughters in a different school. 

B. Procedural History

The Morrows thereafter filed this suit pursuant to 42 

U.S.C. § 1983, alleging a violation of their Fourteenth 

Amendment substantive due process rights.5 They also 

included a supplemental state law claim against Assistant 

Principal Balaski for “negligence and/or gross and willful 

misconduct.” The Morrows acknowledge that the Fourteenth 

Amendment‟s Due Process Clause does not generally impose 

an affirmative duty on the state to protect individuals from 

harm caused by private citizens. However, they argue that 

the general rule is not applicable because the Defendants had 

a “special relationship” with Brittany and Emily. They also 

argue that the Defendants are liable because they created the 

dangerous situation in which Brittany and Emily found 

themselves, and that circumstance gave rise to a duty to 

protect the Morrow sisters from that danger.

The District Court dismissed the Morrows‟ Complaint 

with prejudice, and declined to exercise supplemental 

jurisdiction over the state law claim.6 In its written opinion, 

 

5

 The Morrows seek: 1) compensatory damages as to all 

Defendants; 2) punitive damages as to defendant Balaski; and 

3) attorneys‟ fees. 

6

 Because the District Court dismissed the Complaint with 

prejudice, it was not necessary for the court to reach the 
6

the District Court explained that we have held that there is no 

special relationship between public school authorities and 

students. The court also concluded that the Morrows had 

“identified no action of the Defendants that utilized their 

authority in a way that rendered Minor Plaintiffs more 

vulnerable than they would have been otherwise.” Morrow v. 

Balaski, No. 10-cv-292, 2011 WL 915863, at *5 (W.D. Pa. 

Mar. 16, 2011). Although the District Court noted that it was 

“sympathetic to Plaintiffs‟ plight,” it nevertheless concluded 

that the Morrows “have not stated a cause of action under 

current Third Circuit case law.” Id.

This appeal followed.7

II. STANDARD OF REVIEW

Our review of a district court‟s dismissal under Federal 

Rule of Civil Procedure 12(b)(6) is plenary. Great W. Mining 

& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163 (3d 

Cir. 2010). “Under Rule 12(b)(6), a motion to dismiss may 

be granted only if, accepting all well-pleaded allegations in 

the complaint as true and viewing them in the light most 

favorable to the plaintiff, a court finds that plaintiff‟s claims 

lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 

643 F.3d 77, 84 (3d Cir. 2011). Although we must accept the 

allegations in the complaint as true, “we are not compelled to 

accept unsupported conclusions and unwarranted inferences, 

or a legal conclusion couched as a factual allegation.” 

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) 

(citations and internal quotation marks omitted).

III. DISCUSSION

To state a claim under 42 U.S.C. § 1983, a plaintiff 

must allege a person acting under color of state law engaged 

in conduct that violated a right protected by the Constitution 

or laws of the United States. Nicini v. Morra, 212 F.3d 798, 

 

issues of municipal liability and qualified immunity that the 

Defendants raised in their Motion to Dismiss. 

7

 The District Court had subject matter jurisdiction pursuant 

to 28 U.S.C. §§ 1331 and 1343. We have appellate 

jurisdiction pursuant to 28 U.S.C. § 1291.
7

806 (3d Cir. 2000) (en banc). Accordingly, “[t]he first step in 

evaluating a section 1983 claim is to „identify the exact 

contours of the underlying right said to have been violated‟ 

and to [then] determine „whether the plaintiff has alleged a 

deprivation of a constitutional right at all.‟” Id. (quoting 

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)). 

As we noted at the outset, the Morrows‟ § 1983 claim 

rests on the Due Process Clause of the Fourteenth 

Amendment. The Due Process Clause provides that a state 

shall not “deprive any person of life, liberty, or property, 

without due process of law.” U.S. Const. amend. XIV, § 1. 

The Morrows invoke the substantive component of due 

process, which “protects individual liberty against „certain 

government actions regardless of the fairness of the 

procedures used to implement them.‟” Collins v. City of 

Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v. 

Williams, 474 U.S. 327, 331 (1986)). Specifically, the 

Morrows allege that school officials violated a liberty interest 

by failing to protect Emily and Brittany from the threats and 

assaults inflicted by fellow students.

Like the District Court, we are sympathetic to the 

Morrows‟ plight. Brittany and Emily were verbally, 

physically and—no doubt—emotionally tormented by a 

fellow student who was adjudicated delinquent based on her 

actions against the Morrow sisters. When the Morrows 

requested that the Defendants do something to protect 

Brittany and Emily from the persistent harassment and 

bullying, school officials responded by suggesting that the 

Morrows consider moving to a different school rather than 

removing the bully from the school. 

We therefore certainly understand why the Morrows 

would conclude that the school‟s response to the abuse 

inflicted on their daughters was unfair and unjust. 

Nevertheless, our adjudication of the Morrows‟ claims must 

be governed by Supreme Court precedent. As we shall 

explain, it is also guided by authoritative Supreme Court 

dicta. 

The Supreme Court has long established that “[a]s a 

general matter, . . . a State‟s failure to protect an individual 
8

against private violence simply does not constitute a violation 

of the Due Process Clause.” DeShaney v. Winnebago Cnty. 

Dep’t of Social Servs., 489 U.S. 189, 197 (1989). The Due 

Process Clause forbids the state itself from depriving

“individuals of life, liberty, or property without „due process

of law,‟ but its language cannot fairly be extended to impose 

an affirmative obligation on the State to ensure that those 

interests do not come to harm through other means.” Id. at 

195. 

In DeShaney, the Winnebago County Department of 

Social Services received ongoing reports from family friends 

and medical personnel that a four-year old boy (“Joshua”)

was suffering physical abuse at the hands of his father. At 

one point, the state obtained a court order placing Joshua in 

the temporary custody of the local hospital, but later returned 

him to the custody of his abusive father. Following Joshua‟s 

return, the county social worker assigned to the case 

continued to document multiple incidents of suspected abuse. 

Despite these reports, the county failed to remove Joshua 

from his father‟s custody. Eventually, the father beat Joshua 

so badly that the boy suffered permanent brain damage. 

Joshua and his mother sought redress by suing the county

under § 1983. They argued that the county had denied them 

substantive due process under the Fourteenth Amendment by 

not protecting Joshua from his father. Id. at 191-93. 

Despite these “undeniably tragic” facts, id. at 191, the 

Supreme Court held that the county‟s failure to provide 

Joshua with adequate protection against his father‟s violence 

did not amount to a substantive due process violation. The 

Court explained that the Due Process Clause limits state 

governments but does not generally impose an affirmative 

obligation upon states to protect individuals from private 

citizens. Id. at 195-96. However, the Court carved out a very 

narrow exception to that general rule wherein the Constitution 

does “impose[] upon the State affirmative duties of care and 

protection with respect to particular individuals.” Id. at 198. 

That exception has come to be known as the “special 

relationship” exception. It applies when a special relationship 

has been established because “the State takes a person into its 

custody and holds him there against his will.” Id. at 199-200.
9

In addition to the special relationship exception, we 

have recognized that the Due Process Clause can impose an 

affirmative duty to protect if the state‟s own actions create the 

very danger that causes the plaintiff‟s injury. See Kneipp v. 

Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996). In Kneipp, police 

officers stopped Kneipp and her husband for causing a 

disturbance on a highway while they were walking home 

from a bar, but they thereafter allowed Kneipp‟s husband to 

continue to their home to tend to their son. Kneipp‟s husband 

later testified that because his wife was drunk, he assumed the 

officers would take her to the hospital or to the police station. 

However, the officers abandoned her despite her obvious 

intoxication, thereby forcing her to walk home alone in the 

cold. She subsequently fell down an embankment and 

suffered hypothermia resulting in permanent brain damage. 

Id. at 1201-03. In the subsequent suit against the state under 

§ 1983, we held that the officers‟ conduct denied Kneipp her 

Fourtheenth Amendment right to substantive due process 

because the actions of the police created the danger that 

caused her injury. Id. at 1213.

Accordingly, the Morrows can state a claim under §

1983 if they have adequately alleged circumstances giving 

rise to a “special relationship” between their daughters and 

the Defendants pursuant to DeShaney, or if their Complaint 

adequately alleges affirmative conduct on the part of the 

Defendants to support the “state-created danger” exception 

that we adopted in Kneipp. 

A. Special Relationship

As the Court instructed in DeShaney, an affirmative 

duty to protect may arise out of certain “special relationships”

between the state and particular individuals. See DeShaney, 

489 U.S. at 197-98. The Supreme Court has found that the

relationship between the state and its incarcerated or 

involuntarily committed citizens is the kind of “special 

relationship” that creates an affirmative duty upon the state to

provide adequate medical care to incarcerated prisoners, see 

Estelle v. Gamble, 429 U.S. 97, 103 (1976), and to ensure the 

“reasonable safety” of involuntarily committed mental 

patients, Youngberg v. Romeo, 457 U.S. 307, 324 (1982). 

Estelle and Youngberg, “[t]aken together . . . stand . . . for the 
10

proposition that when the State takes a person into its custody 

and holds him there against his will, the Constitution imposes 

upon it a corresponding duty to assume some responsibility 

for his safety and general well-being.” DeShaney, 489 U.S. at 

199-200. 

It is clear from the decision in DeShaney that the 

state‟s constitutional “duty to protect arises not from the 

State‟s knowledge of the individual‟s 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.” Id. at 200. In other words, “it is the State‟s 

affirmative act of restraining the individual‟s freedom to act 

on his own behalf—through incarceration, 

institutionalization, or other similar restraint of personal 

liberty—which is the „deprivation of liberty‟ triggering the 

protections of the Due Process Clause, not its failure to act to 

protect his liberty interests against harms inflicted by other 

means.” Id. (emphasis added).

A minor child attending public school most certainly 

does not have the freedom of action or independence of an 

adult.8 Nevertheless, the Supreme Court has not had occasion 

to specifically decide whether that is sufficient to create a 

special relationship between public schools and their students 

under the Due Process Clause. We have, however, previously 

considered the application of the special relationship doctrine 

in the public school context. In D.R. v. Middle Bucks Area 

Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992), a 

sixteen-year-old hearing and communication-impaired 

student (“D.R.”) and a seventeen-year-old classmate (“L.H.”) 

alleged that several male students physically, verbally, and 

sexually assaulted them during a graphic arts class during the 

school day over a period of several months. The male 

students forced them into the classroom‟s unisex bathroom or 

darkroom and physically abused and sexually molested the 

plaintiffs multiple times per week. A student teacher was 

 

8

 “[T]he preservation of order and a proper educational 

environment requires close supervision of schoolchildren, as 

well as the enforcement of rules against conduct that would 

be perfectly permissible if undertaken by an adult.” New 

Jersey v. T.L.O., 469 U.S. 325, 339 (1985).
11

present in the classroom when the abuses occurred. Although 

D.R. did not claim to have informed her of the situation, D.R.

alleged that the teacher either heard the assaults or should 

have heard them. L.H. alleged that she complained to the 

school‟s assistant director about the boys‟ conduct, but he 

took no action. Middle Bucks, 972 F.2d at 1366.

Although we recognized the horrific nature of the 

allegations, we nevertheless held that “the school defendants‟ 

authority over D.R. during the school day cannot be said to 

create the type of physical custody necessary to bring it 

within the special relationship noted in DeShaney.” Id. at 

1372. We rejected the plaintiffs‟ argument that 

Pennsylvania‟s compulsory school attendance laws and the 

school‟s exercise of in loco parentis authority over its 

students so restrain the students‟ liberty that they can be 

considered to have been in state “custody” during school 

hours for Fourteenth Amendment purposes. Id. at 1370-72. 

Our conclusion was largely informed by the fact that “parents 

remain the primary caretakers, despite their [children‟s] 

presence in school.” Id. at 1371. We explained that “[t]he 

Estelle-Youngberg type custody referred to by the Court in 

DeShaney . . . is to be sharply contrasted with D.R.‟s 

situation.” Id. Although the doctrine of in loco parentis

certainly cloaks public schools with some authority over 

school children, see, e.g., Morse v. Frederick, 551 U.S. 393, 

413-14 (2007) (reviewing legal doctrine of in loco parentis), 

that control, without more, is not analogous to the state‟s 

authority over an incarcerated prisoner or an individual who 

has been involuntarily committed to a mental facility.

Nonetheless, when we decided Middle Bucks, the 

Supreme Court‟s jurisprudence allowed room to debate this 

issue because the Court had not enumerated the parameters of 

the control or custody required for the creation of a special 

relationship under the Fourteenth Amendment. Accordingly, 

in a compelling dissent to the Middle Bucks majority, thenChief Judge Sloviter argued for a “functional” approach to 

“custody”: 

I believe that we are free to decide . . . that the 

state compulsion that students attend school, the 

status of most students as minors whose 
12

judgment is not fully mature, the discretion 

extended by the state to schools to control 

student behavior, and the pervasive control 

exercised by the schools over their students 

during the period of time they are in school, 

combine to create the type of special 

relationship which imposes a constitutional duty 

on the schools to protect the liberty interests of 

students while they are in the state‟s functional 

custody. 

Middle Bucks, 972 F.2d at 1377 (Sloviter, C.J., dissenting, 

joined by Mannsmann, Scirica and Nygaard, JJ.); see also 

Maldonado v. Josey, 975 F.2d 727, 733 (10th Cir. 1992) 

(Seymour, J., concurring) (“I would . . . hold that a child 

legally required to attend school and thereby forced into the 

temporary day-time custody of the state‟s agents is 

constitutionally entitled to some level of protection from 

harm and care for basic safety.”).

However, after our decision in Middle Bucks, the 

Supreme Court decided Vernonia School District 47J v. 

Acton, 515 U.S. 646 (1995). There, the Court clarified the 

applicability of DeShaney‟s special relationship exception in 

the context of public schools. The specific issue in Vernonia

was whether a public school‟s policy requiring student 

athletes to submit to random drug testing violates the Fourth 

Amendment. Id. at 648. In holding that such a policy does 

not violate the Fourth Amendment, the Court noted: 

“Central, in our view, to the present case is the fact that the 

subjects of the Policy are (1) children, who (2) have been 

committed to the temporary custody of the State as 

schoolmaster.” Id. at 654. The Court then stated: “[W]e 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.‟” Id. at 655 (citing DeShaney, 

489 U.S. at 200). 

Although that statement is technically dictum, we have 

previously explained that we cannot lightly ignore the force 

of Supreme Court dicta. See In re McDonald, 205 F.3d 606, 

612-13 (3d Cir. 2000).9 Moreover, although the statement 

 

9

 In In re McDonald, we explained:
13

was made in the context of the Court‟s analysis of a student 

athlete‟s reasonable expectation of privacy in public schools, 

the citation to DeShaney is no less pertinent to our inquiry 

because it provides insight into the Court‟s interpretation of 

DeShaney‟s application to public schools. Indeed, short of an 

actual holding on the precise issue here, it is difficult to 

imagine a clearer or more forceful indicator of the Court‟s 

own interpretation of DeShaney and the special relationship 

exception recognized there as applied to public schools. See

id. (“The Supreme Court uses dicta to help control and 

influence the many issues it cannot decide because of its 

limited docket.”).

In addition, every other Circuit Court of Appeals that 

has considered this issue in a precedential opinion has 

rejected the argument that a special relationship generally 

exists between public schools and their students. See, e.g., 

Hasenfus v. LaJeunesse, 175 F.3d 68, 69-72 (1st Cir. 1999); 

Doe v. Covington Cnty. Sch. Dist., 675 F.3d 849, 857-58, 863 

(5th Cir. 2012) (en banc); Doe v. Claiborne Cnty., 103 F.3d 

495, 509-10 (6th Cir. 1996); J.O. v. Alton Cmty. Unit Sch. 

Dist. 11, 909 F.2d 267, 268, 272-73 (7th Cir. 1990); Dorothy 

J. v. Little Rock Sch. Dist., 7 F.3d 729, 731-33 (8th Cir. 

1993); Patel v. Kent Sch. Dist., 648 F.3d 965, 972-74 (9th 

Cir. 2011); Maldonado v. Josey, 975 F.2d 727, 729-33 (10th 

 

[E]ven if the discussion . . . could be accurately 

characterized as dictum[,] . . . we should not 

idly ignore considered statements the 

Supreme Court makes in dicta. . . . Appellate 

courts that dismiss these expressions in dicta 

and strike off on their own increase the disparity 

among tribunals (for other judges are likely to 

follow the Supreme Court‟s marching orders) 

and frustrate the evenhanded administration of 

justice by giving litigants an outcome other than 

the one the Supreme Court would be likely to 

reach were the case heard there.

Id. at 612-13 (citation and internal quotation marks 

omitted). 
14

Cir. 1992); Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 568-69 

(11th Cir. 1997).10 

Accordingly, the Supreme Court‟s dictum in Vernonia 

as well as the consensus from our sister Circuit Courts of 

Appeals both reinforce our conclusion that public schools, as 

a general matter, do not have a constitutional duty to protect 

students from private actors. We know of nothing that has 

occurred in the twenty years since we decided Middle Bucks

that would undermine this conclusion. We therefore find the 

dissent‟s assertion here that “factual developments since 

Middle Bucks have further undercut its rationale,” Fuentes 

Dissent 18, unpersuasive. The first two examples our 

dissenting colleagues offer of “schools exercising greater 

control over students” include the use of technology tracking 

student movement to ensure they are in class11 and the 

monitoring of social media activity by students.12 Id. Such 

examples merely illustrate new precautionary measures some 

schools have undertaken in response to emerging technology. 

It is difficult to see how such measures constitute limitations 

on a student‟s “freedom to act on his own behalf,” see 

DeShaney, 489 U.S. at 200, that are so severely restrictive as 

to equate public school students with prisoners or those who 

are involuntarily committed to secure mental institutions. 

Similarly, a school‟s exercise of authority to lock 

classrooms in the wake of tragedies such as those that have 

 

10

 The Court of Appeals for the Second Circuit has not 

squarely decided this issue. However, district courts in the 

Second Circuit have generally held that compulsory 

attendance laws do not create a special relationship between 

students and school districts resulting in a duty to protect 

against private actors. See, e.g., Chambers v. N. Rockland 

Cent. Sch. Dist., 815 F. Supp. 2d 753, 763 n. 10 (S.D.N.Y. 

2011) (“The consensus among the courts is that the „special 

relationship‟ doctrine does not apply to the school setting.”).

11

 Fuentes Dissent 18 (citing Maurice Chammah and Nick 

Swartsell, Student IDs That Track the Students, N.Y. TIMES,

OCT. 6, 2012, http://nyti.ms/ThvbFq).

12

 Id. (citing J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 

650 F.3d 915, 915 (3d Cir. 2011)).
15

occurred in Newtown, Connecticut and Colombine, Colorado, 

see Fuentes Dissent 18-19, may be a relevant factor in 

determining whether a special relationship or a state-created 

danger exists in those specific cases. However, the fact that 

certain schools may resort to such restrictions does not 

advance our inquiry here or allow us to conclude that the facts 

alleged in the Complaint are sufficient to give rise to a special 

relationship or a state created danger. 

In arguing that we should find a special relationship 

here, Judge Fuentes cites to Judge Becker‟s statement in 

dissent in Middle Bucks that “a special relationship [between 

a public school and its students] may exist under certain 

narrow circumstances.” Fuentes Dissent 3. We do not 

disagree. In holding that public schools do not generally have 

a constitutional duty to protect students from private actors 

and that the allegations here are not sufficient to establish a 

special relationship, we do not foreclose the possibility of a 

special relationship arising between a particular school and 

particular students under certain unique and narrow 

circumstances. However, any such circumstances must be so 

significant as to forge a different kind of relationship between 

a student and a school than that which is inherent in the 

discretion afforded school administrators as part of the 

school‟s traditional in loco parentis authority or compulsory 

attendance laws. 

The circumstances that our dissenting colleagues rely 

upon to insist that a special relationship exists under the facts 

alleged here are not “certain narrow” circumstances at all. 

Instead, they are endemic in the relationship between public 

schools and their students. The dissent would hold that a 

special relationship exists such that “Blackhawk undertook a 

limited obligation to keep the Morrows safe . . . because 

Blackhawk compelled school attendance, exercised extensive 

control over not only the student victims but also the specific 

threat at issue in the case—a violent bully subject to two 

restraining orders—and enforced school policies that 

prevented the Morrows from being fully able to protect 

themselves.” Fuentes Dissent 3. However, those factors do 

not distinguish the circumstances here from those that arise in

the general relationship between public schools and their 

students.
16

As discussed above, we cannot hold that a special

relationship arose from compulsory school attendance laws 

and the concomitant in loco parentis authority and discretion 

that schools necessarily exercise over students, or the school‟s 

failure to do more to protect Brittany and Emily, without 

ignoring the analysis in DeShaney, and the “considered dicta” 

in Vernonia School District. In arguing to the contrary, our 

dissenting colleagues exaggerate the extent of a school‟s 

control over its students. Judge Fuentes insists that “[t]he 

State‟s authority over children while they are in school 

extends beyond their well-being and is nearly absolute.” 

Fuentes Dissent 9 (emphasis added). However, the mere fact 

that a school can require uniforms, 24 Pa. Stat. Ann. § 13-

1317.3, or prescribe certain behavior while students are in 

school, 22 Pa. Code § 12.2, does not suggest a special 

relationship at all. Rather, such commonly accepted authority 

over student conduct is inherent in the nature of the 

relationship of public schools and their pupils.13 They do not 

suggest that a concomitant constitutional duty to protect 

students necessarily arises from that authority. 

Significantly, our dissenting colleagues do not purport 

to argue that compulsory attendance laws and the school‟s 

authority over students are themselves sufficient to satisfy the 

limited exception carved out in DeShaney. Thus, the dissent 

attempts to characterize the specific circumstances of this 

 

13

 Moreover, the generic responsibilities and authority 

prescribed by state law are not nearly as compelling and 

authoritarian as our dissenting colleagues suggest. For 

example, Judge Fuentes cites 22 Pa. Code § 12.2 in arguing 

that state law requires that students “engage in conscientious 

effort in classroom work and homework.” Fuentes Dissent 9. 

However, it is doubtful that parents or students really fear that 

the awesome authority or weight of the state will come 

crashing down upon students who do not hand in homework 

or conscientiously participate in class. It is also not at all 

clear how the state‟s authority to require such “conscientious 

effort” restricts parents‟ ability to protect their children, or the 

students‟ ability to protect themselves, while in school. 
17

case as so extraordinary and compelling that a constitutional 

duty to protect arose under DeShaney. We are not persuaded. 

The fact that “the specific threat at issue in this case” 

was “a violent bully subject to two restraining orders,” 

Fuentes Dissent 3, does not necessarily give rise to a special 

relationship. The restraining orders to which the dissent 

refers were addressed to Anderson, not the Defendants, and 

the orders themselves do not impose any affirmative duties on 

the Defendants. Indeed, we very much doubt that any 

Defendant was a party to the proceedings that resulted in the 

orders, and no such involvement has been alleged. Although 

the Defendants, and other third parties, are prohibited from 

making contact with the Morrow children on Anderson’s 

behalf, the no-contact orders cannot reasonably be interpreted 

as imposing any obligation on the Defendants to ensure 

Anderson‟s compliance with the orders or to otherwise 

enforce them. Cf. Town of Castle Rock v. Gonzales, 545 U.S. 

748, 768 (2005) (holding that police department‟s failure to 

enforce restraining order did not constitute a violation of due 

process under the Fourteenth Amendment). 

Moreover, whether our dissenting colleagues are 

referencing the school‟s “No Tolerance Policy,” or the policy 

that allegedly required Anderson‟s expulsion from school, in 

arguing that the Defendants “enforced school policies that 

prevented the Morrows from being fully able to protect 

themselves,” Fuentes Dissent 3, neither the mere existence of 

such common disciplinary policies, nor the school‟s exercise 

of discretion in enforcing them, altered the relationship 

between the school and its students to the extent required to 

create a constitutional duty under the Supreme Court‟s

precedent.14

 

14

 Indeed, Judge Fuentes‟s suggestion that the school‟s “No

Tolerance Policy” limited “the Morrows‟ ability to protect 

themselves,” Fuentes Dissent 14, is both unavailing and 

troubling. The manner in which the school interpreted and 

enforced the policy here is certainly open to question as it 

appears Brittany was suspended for resisting Anderson‟s 

attack. However, that does not begin to approach the kind of 

restriction on freedom required to give rise to a special 

relationship under DeShaney. Were we to accept Judge 
18

The Morrows‟ attempt to distinguish their situation 

based on the Defendants‟ “actual knowledge of Anderson‟s 

criminal conduct in this case” is similarly unpersuasive. 

They argue that such knowledge, combined with “the quasicustodial relationship that exists in all cases between a public 

school and its pupils,” created a special relationship for 

substantive due process purposes.

DeShaney suggests otherwise. Neither our decision in 

Middle Bucks, nor the dictum in Vernonia, necessarily 

forecloses the possibility of a special relationship arising in 

an appropriate case. However, the Court has instructed that 

any such relationship “arises not from the State‟s knowledge 

of the individual‟s 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.” 

DeShaney, 489 U.S. at 200. Thus, under DeShaney, the 

Defendants‟ knowledge—of both the no-contact orders and 

Anderson‟s threats and conduct—may be relevant to 

determining whether the Defendants‟ conduct was 

sufficiently egregious to violate a previously existing duty to 

protect the Morrow children, but that knowledge cannot 

create a duty that did not otherwise exist.

To find a special relationship here, our dissenting 

colleagues rely, in part, on our analysis in the foster care 

context in Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000) (en 

banc). See Fuentes Dissent 10. However, we explained there 

that “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. at 808 (alteration in original) (citation omitted)

(quoting Middle Bucks, 972 F.2d at 1372). By “„finding the 

children and placing them with state approved families . . . , 

 

Fuentes‟s proposition, school policies prohibiting the carrying 

of weapons or even cellular telephones at school could 

theoretically also give rise to a constitutional duty to protect 

because such policies can also be interpreted as limiting 

students‟ ability to protect themselves.
19

the state assumes an important continuing, if not immediate, 

responsibility for the child‟s wellbeing.‟” Id. (quoting 

Middle Bucks, 972 F.2d at 1372).15

As we explained in Middle Bucks, unlike children in 

foster care, students in public schools continue to be primarily 

dependent on their parents for their care and protection, not 

on their school. Despite the students‟ compulsory attendance 

in school during the school day and the school‟s authority to 

act in loco parentis during that time, the school‟s authority 

and responsibility neither supplants nor replaces the parent‟s 

ultimate responsibility for the student absent more than is 

alleged here. Unlike foster care, the restrictions that schools 

place on students generally, and the specific restrictions 

alleged here, are different in kind from the restrictions faced 

by the prisoners at issue in Estelle or the institutionalized 

persons in Youngberg. 

This point is illustrated by the fact that schools 

generally may not administer medical treatment to students 

without first obtaining parental consent. See Parents United 

for Better Sch., Inc. v. Sch. Dist. of Phila. Bd. of Educ., 646 

A.2d 689, 691 (Pa. Commw. Ct. 1994) (“The principle that 

parental consent must be secured before [schools may 

provide] medical treatment . . . is time honored and has been 

recognized by both the courts and the legislature.”). In 

 

15

 The foster care cases from other circuits cited by Judge 

Fuentes also turn on the fact that the state had displaced the 

parents‟ role as primary caregiver and transferred such 

responsibility to the foster family, an agent of the state. See 

e.g., Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289, 

293 (8th Cir. 1993) (“In this case, a special custodial 

relationship . . . was created by the state when it took Taureen 

from his caregiver and placed him in foster care. . . . In foster 

care, a child loses his freedom and ability to make decisions 

about his own welfare, and must rely on the state to take care 

of his needs. It cannot be seriously doubted that the state 

assumed an obligation to provide medical care.”); Yvonne L. 

v. N.M. Dep’t of Human Servs., 959 F.2d 883, 893 (10th Cir. 

1992) (“[I]f the persons responsible place children in a foster 

home or institution they know or suspect to be dangerous to 

the children[,] they incur liability if the harm occurs.”). 
20

contrast, when a minor enters foster care, state actors have the 

authority to bypass parental consent by obtaining a court 

order authorizing medical treatment. See 55 Pa. Code §§ 

3130.91, 3800.19(b); 42 Pa. Stat. Ann. § 6357 (stating that the 

custodian, to whom legal custody of a child has been given by 

the Court of Common Pleas under the Juvenile Act, has “the 

right to determine the nature of the care and treatment of the 

child, including ordinary medical care”).

16

 When a state 

agency has custody of a minor child for whom a decree of 

termination of parental rights has been entered, the agency 

acquires authority to consent to all medical examination or 

treatment, including major medical, psychiatric and surgical 

treatment of the minor even without obtaining a court order. 

See 23 Pa. Stat. Ann. § 2521(c). 

The dissent‟s citation to Smith v. District of Columbia, 

413 F.3d 86 (D.C. Cir. 2005), is also unavailing. In Smith, 

the court found a special relationship between the District of 

Columbia and “an adjudicated delinquent whom the District 

had, by affirmative exercise of its police power, placed with 

its agent, [an independent living program], through a court 

order revocable only by another court order.” Id. at 94. The 

dissent argues that “[l]ike the children in Smith, the Morrows 

were technically free to „come and go‟ from school after 

certain hours but „risk[ed] punishment‟ for „fail[ing] to obey 

[the State‟s] restrictions on [their] . . . freedom‟ while in 

school.” Fuentes Dissent 13 (alterations in original) (quoting 

Smith, 413 F.3d at 94). However, the fact that the juvenile in 

Smith enjoyed a degree of freedom of movement while 

housed at the independent living program is not 

determinative. The state‟s liability arose from the fact that 

 

16 See also Lordes M. Rosado, Consent to Treatment and 

Confidentiality Provisions Affecting Minors in Pennsylvania, 

Juvenile Law Center, Jan. 2006, at 13, available at

http://www.jlc.org/resources/publications/consent-treatmentand-confidentiality-provisions-affecting-minors-pennsylvani

(“As a matter of practice, upon accepting a new child for 

services, private [foster care] agencies have the child‟s 

parent/guardian sign a general release authorizing the agency 

to obtain routine medical examination and treatment for the 

child. The private agencies in turn authorize the foster parent 

to obtain [such treatment] for the children.”). 
21

the state, through court order, had removed the juvenile from 

the care and custody of his parents and required him to live 

under the care and custody of the independent living program, 

which was acting as the state‟s agent under a very detailed 

contract between the program and the state. 

In DeShaney, the Supreme Court expressly noted that 

“[h]ad the State by the affirmative exercise of its power 

removed [the child] from free society and placed him in a 

foster home operated by its agents, we might have a situation 

sufficiently analogous to incarceration or institutionalization 

to give rise to an affirmative duty to protect.” DeShaney, 489 

U.S. at 201 n.9. That is precisely what happened in Nicini; it 

is not what happened here. Moreover, the Court 

acknowledged in DeShaney that “several Courts of Appeals 

have held, by analogy to Estelle and Youngberg, that the State 

may be held liable under the Due Process Clause for failing to 

protect children in foster homes.” Id. Citing this footnote, 

the court in Smith found that the independent living program 

there “presents a scenario close to the one described in the 

DeShaney footnote.” Smith, 413 F.3d at 94. 

The dissent contends that this “focus on who remains 

the victim‟s primary caregiver . . . contrast[s] sharply with our 

holding in Horton v. Flenory, 889 F.2d 454 (3d Cir. 1989).” 

Fuentes Dissent 6 n.3. We agree that the facts of Horton are 

instructive, but believe that they clearly counsel against 

imposing a constitutional duty here. 

In Horton, the owner of a nightclub suspected an 

employee, Powdrill, of burglarizing the club. The owner and 

another employee began interrogating Powdrill about the 

burglary. During that interrogation, Powdrill was severely 

beaten. The owner was a retired veteran of the local police 

department, 889 F.2d at 456, and the township where the club 

was located had “[a]n official policy of deferring to private 

owners with respect to the investigation of crimes in private 

clubs.” Id. at 458. Nevertheless, the owner did eventually 

call police. An officer, who had served on the police force 

with the owner, subsequently arrived, but the officer left 

Powdrill alone in the owner‟s custody noting that Powdrill 

was “in good hands”—despite observing blood and evidence 

of a beating. Id. at 456. After the officer left, Powdrill was 
22

beaten again and subsequently died from his injuries. His 

estate brought an action against the municipality and the 

responding officer under § 1983. We held that the township 

could be liable because the jury could have found that the 

township had “delegated . . . its traditional police functions” 

to the owner of the club. Id. at 458. The responding officer 

“used his official status to confirm that [the owner] was free 

to continue the custodial interrogation even though Mr. 

Powdrill was in fear for his safety and wanted to leave.” Id. 

Although we framed the precise issue there as whether or not 

Powdrill “was in state custody at the time of the fatal 

beating,” id., our inquiry focused on whether the defendant 

had so limited Powdrill‟s ability to act in his own interest as 

to create the special relationship required for constitutional 

liability. We explained:

DeShaney requires that the state have imposed 

some kind of limitation on a victim‟s ability to 

act in his own interests. While specifically 

referring to imprisonment and 

institutionalization—the Estelle and Youngberg

examples—the court acknowledges that other 

similar state-imposed restraints of personal 

liberty trigger a state duty to prevent harm.

Id.

Our finding of a special relationship in Horton also 

turned on the fact that the abuser there acted pursuant to 

delegated state authority. 

From the evidence the jury could find that New 

Kensington delegated to [the owner] its 

traditional police functions . . . . [A] state can 

be held responsible for a private action if the 

private actor has exercised coercive power with 

significant encouragement, overt or covert, 

from the state. The function of investigating 

crimes is clearly a governmental function. An 

official policy of deferring to private owners 

with respect to the investigation of crimes in 

private clubs, which the jury could have found 

from the evidence, suffices to permit a legal 
23

conclusion that [the owner], maintaining 

custody over Mr. Powdrill, was exercising a 

delegated state function. 

Id. (citations omitted).

The custody that the plaintiff in Horton was subjected 

to when he was fatally beaten was thus akin to the state‟s 

custody over prisoners. The township had ceded its police 

authority to detain and interrogate to the club owner. The 

control a school has over its students does not begin to 

approximate the restriction of freedom of movement and 

isolation from possible assistance that existed in Horton or 

other cases prescribed by DeShaney and its progeny. 

Despite our dissenting colleagues‟ suggestion that the 

school‟s passivity here amounted to affirmative conduct, 

there is no assertion that Anderson acted under authority 

delegated by the school or that she “exercised coercive 

power with significant encouragement . . . from” the school. 

See id. In fact, Anderson was disciplined for her conduct. 

Although the school‟s response may well have been as 

inadequate as it was unfair to the Morrow children, the 

school certainly did not give Anderson or her confederate the 

authority to harass or bully the Morrow children. We 

therefore see no conflict between our analysis here and our 

analysis in Horton. 

In reaching this conclusion, we reiterate that we both 

appreciate the Morrows‟ concerns and that we are 

sympathetic to their plight. Parents in their position should be 

able to send their children off to school with some level of 

comfort that those children will be safe from bullies such as 

Anderson and her confederate. Indeed, the increasing 

prevalence of the kind of bullying alleged here has generated 

considerable discussion and legislative action. See T.K. v. 

New York City Dep’t of Educ., 779 F. Supp. 2d 289, 297-98

(E.D.N.Y. 2011) (discussing the problem of school bullying 

in the United States).17 Nonetheless, “the Constitution does 

 

17

 See also Jackie Calmes, Obamas Focus on Antibullying 

Efforts, N.Y. Times, Mar. 10, 2011, available at 

http://www.nytimes.com/2011/03/11/us/politics/11obama.htm
24

not provide judicial remedies for every social . . . ill.” 

Lindsey v. Normet, 405 U.S. 56, 74 (1972). Given the 

limitations of DeShaney, and the language in Vernonia, it is 

now clear that the redress the Morrows seek must come from 

a source other than the United States Constitution.

Our dissenting colleagues take us to task for 

expressing concern for the Morrows‟ plight without providing 

a remedy and suggest that the very fact that we are troubled 

by the result counsels in favor of a constitutional remedy. See 

Fuentes Dissent 2 (“The Morrows are today left without a 

legal remedy for these actions. That future victims may seek 

relief from State legislatures is of no help to them. We do not 

adequately discharge our duty to interpret the Constitution by 

merely describing the facts [of these cases] as „tragic‟ and 

invoking state tort law.”) (internal citation and quotation 

marks omitted) (alteration in original); Ambro Partial 

Concurrence and Partial Dissent 1 (“I share Judge Fuentes‟ 

concern that failing to hold a school accountable for violence 

done to students creates an incentive for school administrators 

to pursue inaction when they are uniquely situated to prevent 

harm to their students.”). 

However, “the due process clause is not a surrogate for 

local tort law or state statutory and administrative remedies.” 

Hasenfus v. LaJeunesse, 175 F.3d 68, 74 (1st Cir. 1999). Nor 

is “[s]ubstantive due process . . . a license for judges to 

supersede the decisions of local officials and elected 

legislators on such matters.” Id. 

Obviously, neither our holding here nor the Supreme 

Court‟s jurisprudence forecloses states from providing public 

school students and their parents with personally enforceable 

remedies under state law. We realize that Pennsylvania‟s 

courts have held that school districts are “the beneficiaries of 

immunity pursuant to the [Political Subdivision Tort Claim] 

 

l. In light of the growing problem of school bullying, 49 

states, including Pennsylvania, see 24 Pa. Cons. Stat. § 13-

1303.1-A, have now passed anti-bullying laws. U.S. Dep‟t of 

Health & Human Servs., Policies & Laws, 

www.stopbullying.gov/laws/index.html (last visited Jan. 7, 

2013). 
25

Act” (now codified at 42 Pa. Cons. Stat. § 8541) and are not 

subject to “tort liability . . . when students are injured in the 

course of the school day, even if, assuming arguendo, there 

was negligence on the part of the school officials.” Auerbach 

v. Council Rock Sch. Dist., 459 A.2d 1376, 1378 (Pa. 

Commw. Ct. 1983). However, state legislatures retain the 

authority to reconsider and change such restrictions in order 

to better respond to the kind of bullying that happened here 

and that appears to be all too pervasive in far too many of 

today‟s schools. See T.K. v. New York City Dep’t of Educ., 

779 F. Supp. 2d at 297-98.

For the reasons we have explained, we cannot fashion 

a constitutional remedy under the special relationship theory 

based on the facts alleged in this case.

B. State-Created Danger

The Morrows alternatively argue that the Defendants 

had a duty to protect Brittany and Emily because they created 

or exacerbated a dangerous situation. As we explained above, 

in Kneipp v. Tedder, 95 F.3d at 1201, we first adopted the 

state-created danger theory as a way to establish a 

constitutional violation in suits brought under § 1983. We 

confirmed that liability may attach where the state acts to 

create or enhance a danger that deprives the plaintiff of his or 

her Fourteenth Amendment right to substantive due process. 

Kneipp, 95 F.3d at 1205. To prevail on this theory, the 

Morrows must prove the following four elements: 

1) the harm ultimately caused was foreseeable 

and fairly direct; 

2) a state actor acted with a degree of 

culpability that shocks the conscience; 

3) a relationship between the state and the 

plaintiff existed such that the plaintiff was a 

foreseeable victim of the defendant‟s acts, or a 

member of a discrete class of persons subjected 

to the potential harm brought about by the 

state‟s actions, as opposed to a member of the 

public in general; and
26

4) a state actor affirmatively used his or her 

authority in a way that created a danger to the 

citizen or that rendered the citizen more 

vulnerable to danger than had the state not acted 

at all.

Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 

2006) (citations and internal quotation marks omitted). 

The Defendants focus on the last prong of the test.18 

They argue that the Morrows have failed to allege any 

affirmative action by school administrators that made the 

Morrow children more vulnerable than they would have been 

had the administrators stood by and done nothing at all. The 

Morrows argue that the Defendants‟ affirmative act was 

suspending Anderson, and then implicitly inviting her to 

return to school following the suspension. In other words, the 

Morrows argue that by permitting Anderson to return to 

school rather than expelling her, school officials affirmatively 

used their authority to create a danger that Anderson would 

attack Brittany and Emily once again. The Morrows also 

point to the “affirmative act” of allowing Anderson to board 

the Morrow children‟s school bus, where Anderson 

threatened to attack Brittany. 

We have explained that the line between action and 

inaction is not always easily drawn. “„If the state puts a man 

in a position of danger from private persons and then fails to 

protect him, it will not be heard to say that its role was merely 

passive; it is as much an active tortfeasor as if it had thrown 

him into a snake pit.‟” Middle Bucks, 972 F.2d at 1374 

(quoting Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 

1982)). However, the Morrows‟ Complaint simply attempts 

to redefine clearly passive inaction as affirmative acts. Cf. 

Sanford v. Stiles, 456 F.3d 298, 311-12 (3d Cir. 2006) 

(holding that, where a high school guidance counselor failed 

to properly evaluate the sincerity of a student‟s comment to 

another student that he wanted to kill himself, she had not 

 

18

 The Defendants claim that the Morrows cannot prove the 

first three prongs of the test either, but their primary focus is 

on prong four. 
27

committed an affirmative act but rather failed to prevent his 

death).

We are not persuaded by the Morrows‟ argument that 

the Defendants affirmatively created or enhanced a danger to 

Brittany and Emily by suspending Anderson and then 

allowing her to return to school when the suspension ended. 

Although the suspension was an affirmative act by school 

officials, we fail to see how the suspension created a new 

danger for the Morrow children or “rendered [them] more 

vulnerable to danger than had the state not acted at all.” 

Bright, 443 F.3d at 281. To the contrary, the suspension 

likely made the Morrows safer, albeit temporarily. In 

addition, the fact that Defendants failed to expel Anderson, 

or, as the Morrows would describe it, “permitted” Anderson 

to return to school after the suspension ended, does not 

suggest an affirmative act. 

While the Morrows make much of the fact that 

Defendants‟ failure to expel Anderson after she was 

adjudicated “guilty of a crime” may have been contrary to a 

school policy mandating expulsion in such circumstances, we 

decline to hold that a school‟s alleged failure to enforce a 

disciplinary policy is equivalent to an affirmative act under 

the circumstances here. 

The dissent argues that Defendants‟ failure to expel 

Anderson constitutes an affirmative “exercise of authority” 

that contributed to the danger the Morrows faced, thereby 

triggering a duty to protect. Under this reasoning, however, 

every decision by school officials to use or decline to use

their authority, disciplinary or otherwise, would constitute 

affirmative conduct that may trigger a duty to protect. The 

dissent claims that “state authority necessarily brings with it 

discretion as to whether or not to take specific actions, and 

the decision to take one action over another—or to take no 

action at all—is itself an „affirmative exercise of authority‟ 

that may carry serious consequences.” Fuentes Dissent 24. 

Thus, were we to accept the dissent‟s formulation here, the 

state-created danger exception would swallow the rule. 19 

 

19

 Judge Ambro also makes a very forceful point in 

expressing a concern that “creating a constitutional tort out of 
28

Schools would always be liable, under the Dissent‟s view, for 

any injury that could be linked to either action or inaction. 

Any and all failures to act would be transformed into an 

affirmative exercise of authority. 

The Morrows also rely on the fact that the Defendants 

permitted Anderson to board Emily and Brittany‟s bus despite 

knowing about the no-contact orders against Anderson, and 

knowing that that bus did not service Anderson‟s home route. 

However, the only reasonable interpretation of that allegation 

is that the Defendants failed to take any affirmative steps to 

ensure that Anderson did not board the Morrow children‟s 

bus.20 Here again, the Complaint attempts to morph passive 

inaction into affirmative acts. However, merely restating the 

Defendants‟ inaction as an affirmative failure to act does not 

alter the passive nature of the alleged conduct. 

As Judge Ambro explains, the requirement of an actual 

affirmative act “is not intended to turn on semantics of act 

and omission. Instead, the requirement serves . . . to 

distinguish cases where . . . officials might have done more . . 

. [from] cases where . . . officials created or increased the risk 

itself.” Ambro Partial Concurrence and Partial Dissent 1. 

We therefore hold that the Complaint also fails to state a 

cause of action under the state-created danger exception.

IV. CONCLUSION

 

a school‟s 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.” Ambro Partial Concurrence and Partial Dissent 3.

20

 For example, school authorities could have alerted the 

appropriate bus drivers of the no-contact orders against 

Anderson and given drivers a photograph of Anderson so they 

could identify her and prevent her from boarding the wrong 

bus.
29

For all the reasons set forth above, we will affirm the 

District Court‟s order granting the Defendants‟ Motion to 

Dismiss.21

 

21

 Because the Morrows cannot make out a claim under 

either the special relationship or state-created danger theories 

of constitutional liability, we need not address whether 

defendant Balaski should be afforded qualified immunity or 

whether the School District may be held liable as a municipal 

defendant.
1

SMITH, Circuit Judge, concurring.

I join Chief Judge McKee‘s well-reasoned majority 

opinion in its entirety. I write separately only to explain the 

limited circumstances under which I believe we may overrule 

one of our prior en banc decisions.

―Stare decisis should be more than a fine-sounding 

phrase.‖ Oregon ex rel. State Land Bd. v. Corvallis Sand & 

Gravel Co., 429 U.S. 363, 394 (1977) (Marshall, J., 

dissenting). Yet it is nothing more than that if it does not 

require us, in the ordinary course, to adhere to a precedent 

with which we disagree. And even sitting en banc, we do not 

conduct a plenary re-examination of our prior decisions; we 

instead remain constrained by our precedent ―to the degree 

counseled by principles of stare decisis.‖ Bolden v. Se. Pa.

Transp. Auth., 953 F.2d 807, 813 (3d Cir. 1991) (en banc). 

Indeed, ―even in constitutional cases‖ such as this one, the 

doctrine of stare decisis ―carries such persuasive force‖ that 

departing from it has ―always required‖ some ―special 

justification.‖ Arizona v. Rumsey, 467 U.S. 203, 212 (1984). 

According to the Supreme Court, those justifications 

must be nothing short of ―exceptional.‖

1

 Randall v. Sorrell, 

 

1

This is not to say that courts never encounter longstanding 

precedent that must be consigned to the dustbin of history. 

The clearest example is Plessy v. Ferguson. In Plessy, the 

Supreme Court concluded that state-mandated racial 

segregation in educational facilities could satisfy equal 

protection as long as the facilities were physically equivalent. 

Plessy v. Ferguson, 163 U.S. 537, 551 (1896). The Court did 
2

 

so largely because it rejected the argument that enforced 

segregation laws were intended to ―stamp[] [blacks] with a 

badge of inferiority.‖ Id. The next sixty years of experience, 

however, directly disproved this premise, showing that 

separate-but-equal facilities nonetheless had the effect of 

creating unequal educational opportunities based on race. 

Brown v. Bd. of Educ. of Topeka, Shawnee Cnty., Kan., 347 

U.S. 483, 493–95 (1954) (―Whatever may have been the 

extent of psychological knowledge at the time of Plessy v. 

Ferguson, this finding is amply supported by modern 

authority.‖). Such experience justified—indeed, required—

the Court to correct its clearly erroneous interpretation of the 

purpose behind the enforced segregation laws and overrule 

Plessy. See id. at 495.

A less egregious example of precedent that was rightly 

discarded is Dr. Miles Medical Co. v. John D. Park & Sons 

Co. In Dr. Miles, the Supreme Court held that vertical price 

agreements between a manufacturer and its distributors were 

per se antitrust violations. 200 U.S. 376, 407–08 (1911). The 

Court reasoned that such vertical agreements were 

economically analogous to unlawful horizontal agreements 

among competing distributors because vertical agreements 

always tended to restrict competition and decrease output. Id.

at 408. Nearly a century later, though, the Supreme Court 

recognized the ―differences in economic effect between 

vertical and horizontal agreements, differences the Dr. Miles 

Court failed to consider.‖ Leegin Creative Leather Prods., 

Inc. v. PSKS, Inc., 551 U.S. 877, 889 (2007). With the 

―economic literature [] replete with procompetitive 

justifications‖ for vertical price agreements between 
3

548 U.S. 230, 244 (2006) (quoting Rumsey, 467 U.S. at 212). 

If its precedent‘s reasoning was clearly wrong, then stare 

decisis loses some (though not all) of its force. See Dickerson 

v. United States, 530 U.S. 428, 443 (2000) (―Whether or not 

we would agree with Miranda‘s reasoning and its resulting 

rule[] were we addressing the issue in the first instance, the 

principles of stare decisis weigh heavily against overruling it 

now.‖); see also McDonald v. City of Chi., Ill., 130 S. Ct. 

3020, 3050 (2010) (Scalia, J., concurring) (―Despite my 

misgivings about Substantive Due Process as an original 

matter, I have acquiesced in the Court‘s incorporation of 

certain guarantees in the Bill of Rights because it is both long 

established and narrowly limited.‖ (quotation marks and 

citation omitted)). Perhaps a prior case has become 

unworkable—that is, newly discovered facts have 

undermined the case‘s reasoning, subsequent legal 

developments have unmoored the case from its doctrinal 

anchors, or ―experience has [otherwise] pointed up the 

precedent‘s shortcomings.‖ Pearson v. Callahan, 555 U.S. 

223, 233 (2009); Leegin Creative Leather Prods., Inc. v. 

PSKS, Inc., 551 U.S. 877, 887–88 (2007). And if the 

precedent is particularly recent and has not generated any 

serious reliance interests, the rigging controlling the sails of

stare decisis carries additional slack. See, e.g., Citizens 

United v. FEC, 130 S. Ct. 876, 912–13 (2010); Montejo v. 

Louisiana, 556 U.S. 778, 793 (2009).

As other courts of appeals have concluded, these same 

considerations should guide our own stare decisis analysis.

 

manufacturers and distributors, the Supreme Court properly 

overruled Dr. Miles. Id.
4

United States v. Burwell, 690 F.3d 500, 504 (D.C. Cir. 2012) 

(en banc) (applying the Supreme Court‘s stare decisis factors 

in deciding whether to overrule a previous case); United 

States v. Sykes, 598 F.3d 334, 338 (7th Cir. 2010) (same); 

United States v. Heredia, 483 F.3d 913, 918–19 (9th Cir. 

2007) (en banc) (same); Shi Liang Lin v. U.S. Dep’t of 

Justice, 494 F.3d 296, 310 (2d Cir. 2007) (en banc) (same); 

Glazner v. Glazner, 347 F.3d 1212, 1216 (11th Cir. 2003) (en 

banc) (same); Festo Corp. v. Shoketsu Kinzoku Kogyo 

Kabushiki Co., 234 F.3d 558, 575 (Fed. Cir. 2000) (en banc) 

(same), overruled on other grounds by 535 U.S. 722 (2002); 

Stewart v. Dutra Constr. Co., Inc., 230 F.3d 461, 467 (1st Cir. 

2000) (same), overruled on other grounds by 543 U.S. 481 

(2005); Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1137–

38 (5th Cir. 1995) (en banc) (same); McKinney v. Pate, 20 

F.3d 1550, 1565 n.21 (11th Cir. 1994) (en banc) (same). 

None of these special justifications are present here.

Middle Bucks‘s interpretation of the Supreme Court‘s 

decision in DeShaney v. Winnebago County Department of 

Social Services, 489 U.S. 189, 196–97 (1989), was correct at 

the time it was decided. DeShaney held that substantive due 

process does not confer a right to state protection except 

when the state affirmatively acts to restrict a person‘s 

―freedom to act on his own behalf, through imprisonment, 

institutionalization, or other similar restraint of personal 

liberty.‖ Id. at 200. In D.R. v. Middle Bucks Area Vocational 

Technical School, we interpreted ―other similar restraint of 

personal liberty‖ to require total and involuntary state custody 

with no access to private assistance. 972 F.2d 1364, 1371 (3d 

Cir. 1992) (en banc) (―Institutionalized persons are wholly 
5

dependent upon the state for food, shelter, clothing, and 

safety. It is not within their power to provide for themselves, 

nor are they given the opportunity to seek outside help to 

meet their basic needs. Obviously, they are not free to 

leave.‖). We then concluded that, unlike prisoners and 

institutionalized individuals, students are not rendered totally 

dependent on the state just because the state requires them to 

attend school. Id.

The reasonableness of that interpretation of 

DeShaney‘s state-restraint requirement is self-evident. To be 

sure, the Middle Bucks dissent viewed DeShaney‘s staterestraint requirement more expansively to reach not only 

custodial restraints such as incarceration and involuntary 

institutionalization but also situations in which an individual 

faces ―substantial [state] compulsion.‖ Id. at 1379 (Sloviter, 

J., dissenting). But compared to incarceration and 

institutionalization, substantial state compulsion is not a

―similar restraint of personal liberty‖: a state can substantially 

compel a person without ―so restrain[ing] [his] liberty that it 

renders him unable to care for himself‖ while ―fail[ing] to 

provide for his basic human needs.‖ DeShaney, 489 U.S. at 

200. Even if, as the majority notes, ―the Supreme Court‘s 

jurisprudence [at the time of Middle Bucks] allowed room to 

debate this issue,‖ Majority Op. at 13, the very point of stare 

decisis is to forbid us from revisiting a debate every time 

there are reasonable arguments to be made on both sides. 

Agostini v. Felton, 521 U.S. 203, 235 (1997) (explaining that 

stare decisis reflects ―a policy judgment that  ̳in most matters 

it is more important that the applicable rule of law be settled 

than that it be settled right‘‖ (quoting Burnet v. Coronado Oil 

& Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., 
6

concurring))). Middle Bucks‘s reasoning was not so clearly 

wrong that we may—or should—cast it aside.

And that is especially true when one considers the

limited nature of en banc review. En banc review is primarily 

reserved for correcting and maintaining consistency in panel 

decisions involving difficult and important questions of law. 

Fed. R. App. P. 35(a); see, e.g., United States v. GamesPerez, 695 F.3d 1104, 1124 (10th Cir. 2012) (Gorsuch, J., 

dissenting from the denial of rehearing en banc) (―[S]urely it 

is uncontroversial to suggest that the point of the en banc 

process, the very reason for its existence, is to correct grave 

errors in panel precedents when they become apparent . . . .‖

(emphasis added)); Pfizer, Inc. v . Apotex, Inc., 488 F.3d 

1377, 1380–81 (Fed. Cir. 2007) (Newman, J., dissenting from 

the denial of rehearing en banc) (―The function of en banc 

hearings . . . is not only to eliminate intra-circuit conflicts, but 

also to correct and deter panel opinions that are pretty clearly 

wrong.‖ (emphasis added) (internal quotation marks and 

citations omitted)). We do not sit en banc to ―reopen settled 

issues which have already been given en banc treatment‖ 

absent intervening developments undermining our earlier 

decision. Igartua v. United States, 654 F.3d 99, 100 (1st Cir. 

2011) (Lynch, J., concurring in the denial of en banc review); 

see also McKinney, 20 F.3d at 1565 n.21 (―[T]his is the first 

time this court sitting en banc has addressed this issue; thus, 

the implications of stare decisis are less weighty than if we 

were overturning a precedent established by the court en 

banc.‖). Absent such exceptional intervening developments, 

the ―essence of stare decisis is that the mere existence of 

[Middle Bucks] becomes a reason for adhering to [its] 

holding[] in subsequent cases.‖ United States v. Reyes-
7

Hernandez, 624 F.3d 405, 412 (7th Cir. 2010) (internal 

quotation marks and citations omitted).

Intervening legal and factual developments have only 

strengthened our decision in Middle Bucks. Since then, the 

Supreme Court has sharply circumscribed substantive due 

process, limiting its protections to only those ―carefully 

described,‖ unenumerated rights that are ― ̳deeply rooted in 

this Nation‘s history and tradition‘‖ and ― ̳implicit in the 

concept of ordered liberty.‘‖ Chavez v. Martinez, 538 U.S. 

760, 775 (2003) (quoting Washington v. Glucksberg, 521 U.S. 

702, 720–21 (1997)); see also Dist. Att’y’s Office for Third 

Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009) (refusing to 

recognize a liberty interest protected by due process unless it 

is ―so rooted in the traditions and conscience of our people as 

to be ranked as fundamental‖ (internal quotation marks and 

citation omitted)).

It can hardly be said that ―neither liberty nor justice 

would exist,‖ id., by forgoing a judicially enforceable right 

against the states to protect students from private harm. 

History points the other way. Under the doctrine of in loco 

parentis, states have long permitted schools to exercise 

control over students on the theory that parents delegated part 

of their parental authority to the schools during the school 

day. See, e.g., 24 Pa. Cons. Stat. § 13-1317. 

―[S]choolteachers and administrators had almost complete 

discretion to establish and enforce the rules they believed 

were necessary to maintain control over their classrooms‖—

discretion that the ―judiciary was reluctant to interfere‖ with. 

Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 

383, 398 (2009) (Thomas, J., concurring) (internal quotations 
8

and citations omitted); see also D.O.F. v. Lewisburg Area 

Sch. Dist. Bd. of Sch. Dirs., 868 A.2d 28, 33 (Pa. Commw. Ct. 

2004) (noting that ―local school boards have broad discretion 

in determining school disciplinary policy‖ and that a court 

may not act as ―a  ̳super‘ school board‖ by ―substituting its 

own judgment for that of the school district‖); Washington v. 

Seattle Sch. Dist. No. 1, 458 U.S. 457, 481 (1982) (―No single 

tradition in public education is more deeply rooted than local 

control over the operation of schools . . . .‖ (quoting Milliken 

v. Bradley, 418 U.S. 717, 741 (1974))). Faced with a 

tradition that once permitted almost no judicial limitations on 

schools‘ disciplinary authority, id. at 416, I cannot conclude 

that substantive due process enshrines the opposite—a right 

to judicial intervention in school disciplinary decisions. The 

―mere novelty of such a claim is reason enough to doubt that 

 ̳substantive due process‘ sustains it.‖ Osborne, 557 U.S. at 

72 (internal quotation marks and citation omitted).

Just as the constriction of substantive due process has

bolstered Middle Bucks‘s vitality, there are no new factual 

developments that undermine the decision‘s reasoning. To be 

sure, a body of intervening research has revealed that school 

bullying undeniably causes serious harm to its victims. This 

evidence, however, has no bearing on Middle Bucks‘s twopart rationale. First, the severity of harm caused by bullying 

is irrelevant to Middle Bucks‘s constitutional judgment that 

substantive due process is not triggered by substantial state 

compulsion. See, e.g., Planned Parenthood of Se. Pa. v. 

Casey, 505 U.S. 833, 860 (1992) (acknowledging that ―time 

has overtaken some of [Roe v. Wade‘s] factual assumptions‖ 

about when a fetus is viable and when abortions are safe for 

the mother, but concluding that these developments ―have no 
9

bearing‖ on the ―soundness or unsoundness of [Roe‘s] 

constitutional judgment‖ that ―viability marks the earliest 

point at which the State‘s interest in fetal life is 

constitutionally adequate to justify a legislative ban on 

nontherapeutic abortions‖). After all, substantive due process 

―does not entail a body of constitutional law imposing 

liability whenever someone cloaked with state authority 

causes harm.‖ Cnty. of Sacramento v. Lewis, 523 U.S. 833, 

848 (1998).

Second, empirical revelations about bullying‘s effects 

do not change Middle Bucks‘s factual judgment that 

compulsory education laws fall short of making students 

wholly dependent on the state. If anything, students are 

subjected to less state compulsion today than at the time of 

Middle Bucks. With increased availability of private 

schooling, homeschooling, private tutoring, online and 

distance education, and charter schools, modern families have 

more options to satisfy the compulsory school laws. And 

school authority over students has significantly eroded in 

favor of parental control and private sources of assistance. 

See New Jersey v. T.L.O., 469 U.S. 325, 336 (1985) (―More 

generally, the Court has recognized that the concept of 

parental delegation as a source of school authority is not 

entirely consonant with compulsory education laws. Today‘s 

public school officials do not merely exercise authority 

voluntarily conferred on them by individual parents; rather, 

they act in furtherance of publicly mandated educational and 

disciplinary policies.‖ (internal quotation marks and citations 

omitted)). The most serious disciplinary problems are 

handled by police officers and the legal system, not school 

administrators and the disciplinary code. See, e.g., In re R.H., 
10

791 A.2d 331 (Pa. 2002); Commonwealth v. Williams, 749 

A.2d 957 (Pa. Super. Ct. 2000). States no longer permit 

schools to inflict corporal punishment. See, e.g., 22 Pa. Code 

§ 12.5(a). And so forth.

Students these days also have the protection of state 

tort laws that did not exist when we decided Middle Bucks. 

Nearly every state has enacted anti-bullying laws since we 

decided Middle Bucks, showing that our decision has not 

prevented states from experimenting with their own solutions

to the problems of bullying. There is ―no institutional need to 

send judges off on [a]  ̳mission-almost-impossible‘‖ to 

prevent and cure the effects of school bullying when 

legislators ―are able  ̳to amass the stuff of actual experience 

and cull conclusions from it.‘‖ McDonald, 130 S. Ct. at 3128 

(Breyer, J., dissenting) (quoting United States v. Gainey, 380 

U.S. 63, 67 (1965)). ―To suddenly constitutionalize this area 

would short-circuit what looks to be a prompt and considered 

legislative response.‖ Osborne, 557 U.S. at 73. If the people 

of Pennsylvania, Delaware, New Jersey and the Virgin 

Islands want to expose their schools to greater liability for 

inaction, or if they desire different solutions to the problem

that all on this en banc court agree bullying to be, it is their 

prerogative to do so. Middle Bucks does not stand in their 

way. 

In fact, Pennsylvania, like many other states, has 

deliberately chosen not to make schools and other local 

government agencies liable for claims like the Morrows‘.

Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.

Cons. Stat. §§ 8541–42; see Sanford v. Stiles, 456 F.3d 298, 

315 (3d Cir. 2006) (per curiam) (explaining that local state 
11

agencies, including school districts, are ―given broad tort 

immunity‖ under the Pennsylvania Political Subdivision Tort 

Claims Act); Tackett v. Pine Richland Sch. Dist., 793 A.2d 

1022, 1025 (Pa. Commw. Ct. 2002) (holding that the 

Pennsylvania Political Subdivision Tort Claims Act 

immunized a school district from liability where a teacher‘s 

alleged failure to supervise students‘ chemistry experiment 

caused an explosion and severely burned a student); 

Auerbach v. Council Rock Sch. Dist., 459 A.2d 1376, 1378 

(Pa. Commw. Ct. 1983) (holding that the Political 

Subdivision Tort Claims Act immunized a school district 

from liability for student-on-student injuries, even if school 

district allegedly failed to protect the victim or supervise the 

attacker); Husser v. Sch. Dist. of Pittsburgh, 228 A.2d 910, 

910–11 (Pa. 1967) (holding that a school district was entitled 

to governmental immunity for a student‘s on-campus 

mugging even if school officials knew of ―similar criminal 

acts [that had] occurred with great frequency . . . in the 

months immediately prior to the attack‖ and took no 

precautionary measures). And of course, state law usually

provides victims with the ability to sue and recover from 

bullies who assault, inflict emotional distress on, or commit 

other torts against fellow students and from the parents whose 

negligent care allow the bullies to do so. See Restatement 

(Second) of Torts §§ 283A (discussing children‘s tort

liability), 316 (discussing a parent‘s tort liability for 

negligently controlling his child); see, e.g., Condel v. Savo, 39 

A.2d 51, 53 (Pa. 1944) (permitting a tort action against 

parents who ―kn[e]w of the habit of their child of striking 

other children with sticks‖ and took ―no steps to correct, or 

restrain‖ the child).
12

Lastly, even though Middle Bucks is only two decades

old, schools have come to rely on it in developing their 

personnel and behavioral policies. Schools have long

operated under a regime in which they have no affirmative 

federal duty to protect students from private violence during 

the school day. There is no reason to upset these expectations 

by imposing an amorphous, judicially created standard that 

raises more questions than it answers—especially when states 

have proven themselves capable of addressing the problem of 

bullying. Osborne, 557 U.S. at 74 (―It is hard to imagine 

what tools federal courts would use to answer [such 

questions]. . . . [T]here is no reason to suspect that their 

answers to these questions would be any better than those of 

state courts and legislatures, and good reason to suspect the 

opposite.‖); McDonald, 130 S. Ct. at 3101 (Stevens, J., 

dissenting) (―Another key constraint on substantive due 

process analysis is respect for the democratic process. If a 

particular liberty interest is already being given careful 

consideration in, and subjected to ongoing calibration by, the 

States, judicial enforcement may not be appropriate.‖). 

Abruptly reversing course would require precisely the sort of 

―extensive legislative response‖ that stare decisis aims to 

avoid. Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 202 

(1991) (noting that stare decisis ―has added force‖ when the 

legislature has relied on a previous decision in such a way 

that overruling that decision would ―require an extensive 

legislative response‖).

It comes as no surprise, then, that Middle Bucks is no 

―legal anomaly‖ deserving of abandonment. Randall, 548 

U.S. at 244. Aside from the Second and D.C. Circuits, which 

have not considered the issue, all other courts of appeals have 
13

held that compulsory school attendance, coupled with 

schools‘ authority over their students, does not trigger the 

protections of substantive due process. Doe v. Covington 

Cnty. Sch. Dist., 675 F.3d 849, 858 (5th Cir. 2012) (en banc); 

Patel v. Kent Sch. Dist., 648 F.3d 965, 968–69, 972–74 (9th 

Cir. 2011); Stevenson v. Martin Cnty. Bd. of Educ., 3 F. 

App‘x 25, 27, 30–31 (4th Cir. 2001); Hasenfus v. LaJeunesse, 

175 F.3d 68, 69–72 (1st Cir. 1999); Wyke v. Polk Cnty. Sch. 

Bd., 129 F.3d 560, 563, 568–70 (11th Cir. 1997); Sargi v. 

Kent City Bd. of Educ., 70 F.3d 907, 911 (6th Cir. 1995); 

Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 731–34 (8th 

Cir. 1993) (involving an intellectually disabled high school 

boy assaulted by another intellectually disabled student); 

Maldonado v. Josey, 975 F.2d 727, 728, 729–33 (10th Cir. 

1992); J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 

268, 272–73 (7th Cir. 1990). It is ―rarely appropriate to 

overrule circuit precedent just to move from one side of the 

conflict to another,‖ United States v. Corner, 598 F.3d 411, 

414 (7th Cir. 2010) (en banc), and no ―compelling basis‖ 

warrants our creating a conflict here where none exists,

Wagner v. PennWest Farm Credit, ACA, 109 F.3d 909, 912

(3d Cir. 1997) (―In light of such an array of [unanimous] 

precedent [from seven other courts of appeals], we would 

require a compelling basis to hold otherwise before effecting 

a circuit split.‖); Butler Cnty. Mem’l Hosp. v. Heckler, 780 

F.2d 352, 357 (3d Cir. 1985) (―[T]his Court should be 

reluctant to contradict the unanimous position of other 

circuits.‖). 

In short, nothing convinces me that ―adherence to 

[Middle Bucks] puts us on a course that is sure error.‖ 

Citizens United, 130 S. Ct. at 911–12. Departing from 
14

Middle Bucks would create a circuit split in exchange for 

forsaking the Supreme Court‘s repeated reluctance against 

expanding substantive due process. See NASA v. Nelson, 131 

S. Ct. 746, 756 n.10 (2011). That, to me, is a lose-lose 

proposition. 
1

AMBRO, Circuit Judge, concurring in part and dissenting in 

part

I share Judge Fuentes’s concern that failing to hold a 

school accountable for violence done to students creates an 

incentive for school administrators to pursue inaction when 

they are uniquely situated to prevent harm to their students. 

For that reason, as well as the others in Judge Fuentes’s 

exceptional opinion, I wholeheartedly join Part I of the 

dissent, and would hold that a special relationship exists 

between the School and its students. 

But I cannot agree that the facts of this case 

demonstrate a cause of action under our state-created danger 

theory. The majority concludes that the School’s decision not 

to expel Anderson is a failure to act and one that did not 

render the Morrows more susceptible to danger. I agree, but 

think we must delve further. Thus, while I join that part of 

the Court’s judgment, I write separately on this issue. 

The fourth requirement of our state-created danger 

claim is that ―a state actor affirmatively used his or her 

authority in a way that created a danger to the citizen or that 

rendered the citizen more vulnerable to danger than had the 

state not acted at all.‖ Bright v. Westmoreland Cnty., 443 

F.3d 276, 281 (3d Cir. 2006). This test, I believe, is not 

intended to turn on the semantics of act and omission. 

Instead, the requirement serves an important purpose: to 

distinguish cases where government officials might have done 

more to protect a citizen from a risk of harm in contrast to 

cases where government officials created or increased the risk 

itself. Following violence, suffering, and/or death of one of 

our citizens, we often wish that a state actor with the authority 

to do so had intervened. We are not comforted by concluding 

that officials failed to act when we could just as easily say 

that they affirmatively decided to do something. But we are 
2

limited by the protection afforded by the Constitution and the 

Supreme Court’s holding in DeShaney v. Winnebago Cnty. 

Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989) (―[A] State’s 

failure to protect an individual . . . simply does not constitute 

a violation of the Due Process Clause.‖). We have 

recognized a narrow exception to DeShaney’s rule: a 

constitutional remedy may exist when a government actor 

creates or increases the risk to a citizen. Id. at 201; Kneipp v. 

Tedder, 95 F.3d 1199 (3d Cir. 1996). 

Judge Fuentes makes the most compelling case 

possible: ―it may be inferred from the Complaint that the 

School did do something‖ by deciding to suspend rather than 

expel Anderson, and then continuing to keep her in school 

despite repeated acts of violence, criminal adjudication, and a 

disciplinary code that directed expulsion. Fuentes Dissent 26. 

But the context of the School’s decision—the prior violence, 

the no-contact order, the disciplinary code, and the ability to 

protect the Morrows by expelling Anderson—are factors 

relevant to the School’s special relationship with the 

Morrows. I do not believe we can consider these factors to 

deem the School’s behavior a creation of risk. The School 

acted no differently in failing to protect a vulnerable member 

of society from harm than defendants in cases where no statecreated danger exists, including DeShaney. 489 U.S. at 201 

(risk of abuse suffered by four year old left in the care of his 

father was not created by social workers who had previously 

removed him and returned him to the home); Sanford v. 

Stiles, 456 F.3d 298, 311–12 (3d Cir. 2006) (high school 

student’s risk of suicide not caused or increased by guidance 

counselor who met with him twice); Bright, 443 F.3d 276 

(risk of attack not created by police who failed to arrest 

attacker after he violated parole). 

Holding that the School’s actions—or lack thereof—in 

this case were sufficient to plead a state-created danger claim 
3

would substantially broaden this narrow exception. 

DeShaney is grounded in constitutional law, but has an 

important practical effect too. Federal courts cannot be the 

forum for every complaint that a government actor could have 

taken an alternate course that would have avoided harm to 

one of our citizens. I also worry that creating a constitutional 

tort out of a school’s failure to expel a student creates a tooeasy incentive for schools to expel quickly students who 

engage in any violent behavior in order to avoid liability or 

the threat of suit. 

The special relationship theory, which is far more 

circumscribed, does not present this same risk. Accordingly, 

I concur in part and dissent in part. 
1

FUENTES, Circuit Judge, with whom Judges Jordan, 

Vanaskie, and Nygaard join, and with whom Judge Ambro 

joins as to part I, dissenting:

Over the course of several months, minors Brittany 

and Emily Morrow (the “Morrows”) suffered repeated 

physical and verbal assaults at the hand of a bully and her 

friend, classmates in their public school in the Blackhawk 

School District in Pennsylvania (the “School” or 

“Blackhawk”).1 The attacks included racially motivated 

assaults, verbal harassment of the Morrows in their home and 

on-line, attempting to push Brittany down a flight of stairs 

during school hours, and violent physical assaults on the 

Morrows at a School football game and on a school bus. 

Early on in this history of attacks, the bully was charged by 

the authorities with assault and making terroristic threats, was

eventually placed on probation by the Court of Common 

Pleas, and was ordered to have no contact with Brittany. 

School officials were aware of these proceedings and had 

even suspended the bully for a brief period before she was 

 

1

This appeal comes to us following the District Court‟s 

dismissal pursuant to Rule 12(b)(6). Therefore, all that is 

required is that the Complaint “contain sufficient factual 

matter, accepted as true, to state a claim to relief that is 

plausible on its face.” Ill. Nat’l Ins. Co. v. Wyndham 

Worldwide Operations, Inc., 653 F.3d 225, 230 (3d Cir. 2011) 

(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal 

quotation marks omitted). “[W]e accept as true all allegations 

in the plaintiff‟s complaint as well as all reasonable 

inferences that can be drawn from them, and we construe 

them in a light most favorable to the non-movant.” Monroe v. 

Beard, 536 F.3d 198, 205 (3d Cir. 2008).
2

placed on probation. Nevertheless, the bully was readmitted 

to School and some of the instances of violence described 

above occurred after her return. Eventually, the bully was 

adjudicated a juvenile delinquent and was again ordered to 

have no contact with Brittany. It also bears noting that many

of the bully‟s attacks occurred after Blackhawk officials had 

suspended the Morrows themselves for their involvement in 

the dispute, pursuant to the School‟s “No Tolerance Policy.” 

It is reasonable to infer that, to the Morrows, application of 

the policy (which could have led to their permanent expulsion 

from the School) meant that they risked disciplinary action 

should they act to forestall attacks by the bully. Despite all 

this, Blackhawk officials refused to protect the Morrows from

danger. When the Morrows sought help, they were told that 

the School would not guarantee their safety and, surprisingly, 

that their best course of action would be to find another 

school.

The Morrows are today left without a legal remedy for 

these actions. That future victims may seek relief from State

legislatures, Majority Op. at 23-25, is of no help to them. 

“We do not adequately discharge our duty to interpret the 

Constitution by merely describing the facts [of these cases] as 

„tragic‟ and invoking state tort law.” Doe ex rel. Magee v. 

Covington Cnty. Sch. Dist., 675 F.3d 849, 886-87 (5th Cir. 

2012) (en banc) (Weiner, J., dissenting) (citing Maldonado v. 

Josey, 975 F.2d 727, 735 (10th Cir. 1992) (Seymour, J., 

concurring)). 

Worse, today‟s result is wrong as a matter of law. The 

legal and factual relationship between students and school 

officials during the school day, the coercive power that the 

state exercises over school children, and the role of the school 
3

officials in this case in placing the Morrows in greater danger,

all dictate a result contrary to that reaffirmed and endorsed 

today.

I. The Existence of a “Special Relationship” Between 

The Morrows And Blackhawk School Officials

Twenty years ago, a narrow majority of this Court 

decided in D.R. v. Middle Bucks Area Vocational Technical 

School, 972 F.2d 1364 (3d Cir. 1992) (en banc), that school 

officials have no obligation to protect school children from 

any physical harm that may occur during school hours. Close 

analysis of the reasoning in Middle Bucks, however, shows

that its entire legal basis was a misunderstanding of the 

Supreme Court‟s seminal decision in DeShaney v. Winnebago 

County Social Services, 489 U.S. 189 (1989), and of the 

relationship between the State and school children. 

 

Reconsidering the coercive power that the State 

exercises over students, and the ways in which the State may 

restrict a student and his or her parents‟ ability to protect that 

student from harm, we would conclude, like Judge Becker in 

Middle Bucks, that a special relationship may exist under 

certain narrow circumstances. See Middle Bucks, 972 F.2d at 

1384 (Becker, J., dissenting). As pertains to this case, we

would hold that Blackhawk undertook a limited obligation to 

keep the Morrows safe from harm at the hands of the bully 

because Blackhawk compelled school attendance, exercised 

extensive control over not only the student victims but also 

the specific threat at issue in the case—a violent bully subject 

to two restraining orders that victimized the Morrows over an 

extended period of time—and enforced school policies that 
4

prevented the Morrows from being fully able to protect 

themselves.

A.

As the majority outlines, in DeShaney the Supreme

Court held that the Due Process Clause of the Fourteenth 

Amendment did not impose on the State of Wisconsin a 

blanket affirmative duty to interfere with the parental 

relationship between Randy DeShaney and his son Joshua, 

and that therefore the State was not liable for harm the child

suffered or was likely to suffer at the hands of his father. 489 

U.S. at 195-96. The Court noted that an affirmative duty to 

protect arose only if there was a “special relationship” 

between the State and the imperiled individual, and that the 

State‟s actions in taking temporary custody of Joshua and 

later returning him to his father, who was known to be 

abusive, were insufficient to give rise to such a relationship. 

Id. at 197-198. 

The DeShaney Court referred to two cases that

exemplify when a State enters into a special relationship. In 

Estelle v. Gamble, the Court had held that the Eighth 

Amendment imposed a duty to provide “adequate medical 

care” to prisoners given that they were unable to procure such 

care on their own “by reason of the deprivation of [their] 

liberty” by the State. Id. at 198-99 (quoting Estelle v. 

Gamble, 429 U.S. 97, 103-04 (1976)). And in Youngblood v. 

Romeo, the Court extended Estelle‟s holding to require States 

to provide “involuntarily committed mental patients with such 

services as are necessary to ensure their „reasonable safety‟ 

from themselves and others.” Id. at 199 (quoting Youngblood

v. Romeo, 457 U.S. 307, 314-325 (1982)).
5

Three years later, in Middle Bucks, we held that a 

“special relationship” did not exist between the State and 

school children, despite Pennsylvania‟s compulsory education 

laws. 972 F.2d at 1371-73. As the majority recognizes today, 

the crux of our holding in Middle Bucks is that although the 

State exercises in loco parentis authority over children during 

school hours, the parents “remain the primary caretakers” 

over their children. Id. at 1371. In other words, Middle 

Bucks‟ central premise is that a student, unlike a prisoner or

the involuntarily committed, is not subjected to “full time 

severe and continuous state restriction.” Id.

But 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. See id. at 1379

(Sloviter, C.J., dissenting). Were the existence of either fact

dispositive in Estelle, Youngblood, or even DeShaney itself, 

the Supreme Court surely would have said so explicitly. 

Instead, the Court explained that the common thread that 

unites Estelle and Youngblood is that a person is left “unable 

to care for himself” by the “State‟s affirmative act of 

restraining the individual‟s freedom to act on his own behalf.” 

DeShaney, 489 U.S. at 200. The Court contrasted these 

situations to Joshua‟s case by noting that returning Joshua to 

his father‟s care did not constitute a restraint on his liberty to 

act on his own behalf. Id. The result in DeShaney is also 

explained by other facts, none of which turns on the lack of 

permanent physical custody: (1) that the “harms Joshua 

suffered occurred not while he was in the State‟s custody;” 

(2) that the State “played no part in [the] creation” of the 
6

danger; and (3) that the State did not do “anything to render 

[Joshua] any more vulnerable.” Id. at 201.2

Because DeShaney itself did not provide the Middle 

Bucks majority with the absolute physical custody 

requirement, it relied on our prior decision in Philadelphia 

Police to conclude that DeShaney “set[] out a test of physical 

custody.” Middle Bucks, 972 F.2d at 1370 (citing 

Philadelphia Police & Fire Ass’n v. Philadelphia, 874 F.2d 

156, 167 (3d Cir. 1989)). Philadelphia Police had held that 

the State is not responsible for harm suffered by mentally 

handicapped individuals living at home, but it neither requires

absolute physical custody nor turns on who the primary 

caregiver was. See Philadelphia Police, 874 F.2d at 167. 

 

2 Moreover, the duty assumed in Estelle was commensurate 

with the restriction the State had imposed on the individual‟s 

liberty: a prisoner is restrained from seeking medical help on 

his own, so under Estelle the State must provide it. 

DeShaney, 489 U.S. at 198-99 (citing Estelle, 429 U.S. at 

103-104). Estelle does not recognize a generalized duty to 

protect prisoners from all harm, despite the fact that prisoners 

are under the permanent physical custody of the State. And 

the only gloss on Youngblood provided in DeShaney was to 

note that because the mentally committed were less culpable 

than the incarcerated and “may not be punished at all,” the 

State takes upon itself a duty, broader than in Estelle, to keep 

such individuals safe. Id. at 199 (citation omitted). This 

analysis suggests that the Court favored a more nuanced look 

at the relationship between the individual and the State, 

certainly one more flexible than the rigid test of Middle 

Bucks.
7

Indeed, the case arguably implies that the State could be held 

liable for harm suffered by the individual while in temporary 

State custody. To be sure, Philadelphia Police and DeShaney

foreclose any argument that the State is responsible for the 

safety of school children while in their own homes. But 

Philadelphia Police does not bridge the gap between 

DeShaney and an “absolute physical custody” requirement. 

Thus, it is clear that Middle Bucks‟ gloss on DeShaney has no 

doctrinal foundation.3

 

3 Middle Bucks‟ absolute physical custody requirement and its 

focus on who remains the victim‟s primary caregiver also 

contrast sharply with our holding in Horton v. Flenory, 889 

F.2d 454 (3d Cir. 1989). In Horton, we held that a special 

relationship existed between the employees and the 

proprietors of a nightclub, who had been delegated law 

enforcement authority by the local police, and that there was a 

duty to protect an employee from harm while he was in the 

temporary physical custody of the owners. Id. at 458. 

Although we sat en banc in Middle Bucks, the Middle Bucks‟

majority‟s failure to address Horton‟s interpretation of 

DeShaney is significant. “[R]eturning to the intrinsically 

sounder doctrine established in prior cases may better serve 

the values of stare decisis.” Citizens United v. Fed. Election 

Comm’n, 130 S.Ct. 876, 920 (2010) (Roberts, C.J., 

concurring) (quotation marks and citation omitted). We do 

not suggest that there is a “conflict” between today‟s analysis

and Horton. See Majority Op. at 23. Horton merely 

illustrates that Middle Bucks‟ absolute physical custody 

requirement was ill-advised and doctrinally unfounded.
8

B.

As the Supreme Court has observed, “[t]he State exerts 

great authority and coercive power through mandatory 

attendance requirements.” Edwards v. Aguillard, 482 U.S. 

578, 584 (1987). Reexamining the relationship between 

school children and the State in light of our understanding of 

DeShaney leads to the inescapable conclusion that a special 

relationship may exist under certain specific circumstances.

In Pennsylvania, attending school is obligatory for

children between the ages of eight and seventeen. 24 Pa. Stat. 

Ann. §§ 13-1326, 1327(a). Parents who fail to comply with 

these mandates face punishment as severe as imprisonment. 

Id. §1333(a)(1).4 Once the State compels attendance, it has 

considerable power over the child‟s well-being as a matter of 

both law and fact. Pennsylvania‟s in loco parentis statute 

gives school officials “the same authority as to conduct and 

behavior over the pupils attending . . . school . . . as the[ir] 

parents.” Id. § 13-1317. And “[t]he rights and liabilities 

arising out of an in loco parentis relationship are . . . exactly 

the same as between parent and child.” T.B. v. L.R.M., 786 

A.2d 913, 916-17 (Pa. 2001). This may be an 

understatement. A parent may punish a child for 

“incorrigibility,” but he may not, like the State, initiate 

juvenile delinquency proceedings. 24 Pa. Stat. Ann. § 13-

1338. 

 

4

The State‟s first intrusion into the lives of its citizens in the 

school context may be considered to be when it enrolls all 

parents as the funders of public schools via taxation. 
9

It is true that parents retain the ultimate legal custody 

and responsibility over the child. But a parent‟s immediate 

ability to protect his child is significantly curtailed during the 

time the child is in the physical custody of school officials. 

During that time, the State may well be the only caregiver to 

which children may turn to for help. Middle Bucks attempted 

to dilute the strength of this reasoning by noting that it cannot

“be denied that a parent is justified in withdrawing his child 

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

threatened.” 972 F.2d at 1371 (quoting Zebra v. Sch. Dist. of 

Pittsburgh, 296 A.2d 748, 751 (Pa. 1972)). But this

overlooks that this right is extremely narrow, limited to

situations in which a child‟s safety is “positively and 

immediately threatened.” Commonwealth ex rel. Sch. Dist. of 

Pittsburgh v. Ross, 330 A.2d 290, 292 (Pa. Commw. Ct. 

1975). In Ross, a parent could not withdraw a student 

although the child had been pushed into a wall and cut with 

scissors by other students. Id. at 291. And in Zebra, a parent 

could not withdraw his child even though he was threatened 

with physical harm “if any reports were made to the school 

authorities” regarding a bully‟s extortion attempt, and 

“[m]any of the . . . students became ill, developed nervous 

conditions, required medical treatment, [and] were afraid 

while attending [the school].” Sch. Dist. of Pittsburgh v. 

Zebra, 287 A.2d 870, 872 (Pa. Commw. Ct. 1972), order 

reversed by Zebra, 296 A.2d 748. Thus, a Pennsylvania 

parent appears not to be free to withdraw a child absent the 

most egregious conditions. Indeed, “[m]ost parents, 

realistically, have . . . little ability to influence what occurs in 

the school.” Morse v. Frederick, 551 U.S. 393, 424 (2007) 

(Alito, J., concurring).
10

The State‟s authority over children while they are in 

school extends beyond their well-being and is nearly absolute, 

covering what they may wear and how they may behave. See

generally 24 Pa. Stat. Ann. § 13-1317.3; 22 Pa. Code § 12.2 

(detailing student responsibility to engage in “conscientious 

effort in classroom work and homework”). Officials may 

“proceed against said child before the juvenile court” for 

misbehavior. 24 Pa. Stat. Ann. § 13-1338. At thirteen, the 

child is also subject to penalties for failure to comply with 

compulsory school laws. Id. § 13-1333(b).5

The Blackhawk Student Handbook reflects these

restrictions on students‟ liberty and on their parent‟s ability to 

act on the child‟s behalf, and goes further by regulating

student conduct in classrooms, school buses, cafeterias, and 

sporting activities; providing that students missing class will 

be required to attend the School for detention on Saturdays

and that officials “may consider corporal punishment” upon a 

student; and prohibiting students from having cell phones. 

See Blackhawk High School Student Handbook “Statement of 

Student Behavior,” available at

http://blackhawk.bhs.schoolfusion.us/modules/cms/pages.pht

 

5

That these measures are “inherent in the nature of the 

relationship of public schools and their pupils,” Majority Op. 

at 16, is of no moment. See also id. at 15. Restrictions on 

liberty are also “inherent” in the relationship between the 

State and the imprisoned or involuntarily committed, but the 

significance of such restrictions is not diminished by the fact 

that the State has a vested and even necessary power to 

impose them.
11

ml?pageid=41593 (hereinafter “Handbook”); see also 24 Pa. 

Stat. Ann. § 13-1317.6

In DeShaney, the State simply left Joshua where it 

found him; he was not harmed while in the State‟s physical 

custody or by anyone or anything over which the State had 

any immediate authority. Here, by contrast, the State 

affirmatively removed the children from their parents‟ 

custody for a period of time, limited what both the children

and the parents could do respecting the children‟s safety 

during that period, and exercised control over a continuous

threat the children faced over an extended period of time. 

This is enough to hold that a special relationship existed 

between the School and the Morrows. But if more were 

needed, one may look at cases involving the special 

relationship between the State and children it places in foster 

care.

 

6 Given the prohibition against students carrying means of 

communicating with their parents during school hours, which 

in 1992 represented a ban on pagers, it is obviously difficult, 

if not practically impossible, for a student to seek help from a 

parent during school hours. Middle Bucks largely overlooked 

this. 972 F.3d at 1372 (noting that “channels for outside 

communication were not totally closed” during school hours). 

Contrary to the majority‟s suggestion, we do not question the 

wisdom of school policies aimed at student safety or 

discipline, see Majority Op. at 17 n.14, and we doubt schools 

will change any policies to avoid liability under the narrow 

circumstances described here. But we look to those policies 

to better understand the nature of the relationship between 

students and the State.
12

Since Middle Bucks, several Courts of Appeals have 

answered the question left open by the Supreme Court in 

DeShaney regarding the existence of a special relationship 

between the State and the children it places in foster homes. 

See 489 U.S. at 201 n.9. These courts have held that a special

relationship exists in such cases because the State, in placing 

a child in foster care, “renders the individual substantially 

dependent upon the state . . . to meet [his or her] basic needs.” 

Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (en banc) 

(quotation marks and citation omitted); see also Lintz v. 

Skipski, 25 F.3d 304, 305 (6th Cir. 1994); Norfleet v. Ark. 

Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir. 1993);

Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 893 

(10th Cir. 1992).

Our own case, Nicini, involved a child who was not in 

the State‟s absolute care but was placed in a foster home. The 

child‟s parents had signed a foster care placement agreement 

with the State, and the State permitted the child to stay on a 

temporary basis with another family, the Morras, after the 

child ran away from home. The child sued the State on the 

theory that it had failed to sufficiently investigate the Morras, 

whom he alleged sexually abused him. Although we 

“recognize[d] that the analogy between foster children . . . 

and prisoners and institutionalized persons” from Estelle and 

Youngblood was “incomplete,” and that foster children “enjoy 

a greater degree of freedom and are more likely to be able to 

take steps to ensure their own safety,” we held that a special 

relationship existed because the child was effectively in State 
13

custody and was “substantially dependent” on the State for 

his safety. 212 F.3d at 808 (quotation marks omitted).

7

Nicini thus “discredit[s]” not just the “underlying

reasoning” of Middle Bucks, but also its reading of DeShaney. 

Citizens United, 130 S. Ct. at 921 (Roberts, C.J., concurring)

(explaining that “stare decisis does not control” when the 

“underlying reasoning” of precedent in question has been 

“discredited”). Nicini makes clear that physical custody 

cannot be the lynchpin of a DeShaney special relationship

because the child there was not under the State‟s control at 

the time the harm occurred. Moreover, the State in Nicini

was not the primary caregiver. As the D.C. Circuit has 

recognized, the result and reasoning in the foster care cases 

have thus created “tension [with the] public school cases” 

 

7 Middle Bucks places some emphasis on the fact that schools 

do not restrict a child‟s ability to provide for his basic needs, 

see Middle Bucks, 972 F.2d at 1372, but this is not the proper 

rubric of analysis under DeShaney. The State did not restrict 

the individual‟s ability to provide for his basic needs in 

Youngblood or in the foster care cases. The individual‟s 

ability to do so was restricted by circumstances over which 

the State had no control and in which it played no part. At 

most, the State undertook some responsibility when it stepped 

into the lives of such individuals. So too in the school 

context. Minors are unable to provide for their basic needs 

without their parents on account of age. By compelling 

attendance in school, the State does not alter that reality, but 

does temporarily curtail a parent‟s ability to be a caregiver, 

thereby undertaking that responsibility—albeit a more limited 

one—in the same way it does in Youngblood and Nicini.
14

because “[b]oth involve state constriction of a child‟s liberty 

. . . yet only the former triggers DeShaney custody.” Smith v. 

District of Columbia, 413 F.3d 86, 96 (D.C. Cir. 2005). And

Smith itself demonstrates that the fact that children return to 

their parents at the end of the school day is not dispositive. 

There, the Court held that a State has a special relationship 

with juvenile delinquents the State places in an “independent 

living” youth program, but over which it exerts neither 

absolute physical control nor supervision. See id. at 94.8

 

Moreover, not only do these cases provide reason to 

revisit the legal underpinning of Middle Bucks, they provide 

further support for holding that a special relationship exists in 

this case. Here, unlike in Nicini or DeShaney, the State had

custody of the children at the time of the injury in question, 

and the children were “substantially dependent” on the State 

for their safety during school hours, despite the existence of 

other caregivers. Nicini, 212 F.3d at 808 (quotation marks 

omitted). Like the children in Smith, the Morrows were

technically free to “come and go” from school after certain 

hours but “risk[ed] punishment” for “fail[ing] to obey [the 

State‟s] restrictions on [their] . . . freedom” while in school. 

 

8

Indeed, even though a student returns home after the school 

day, the State may continue to exercise some control over 

some of the student‟s activities. See J.S. ex rel. Snyder v. 

Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) 

(addressing propriety of school action under the First 

Amendment). If students have a cause of action under § 1983 

against school administrators who attempt to discipline them 

for out-of-school internet postings as we held in J.S., then 

surely students also have a cause of action against school 

administrators who fail to protect them from in-school harms. 
15

Smith, 413 F.3d at 94. If anything, the existence of a special 

relationship is clearer here than in Nicini because the State in 

this case had physical custody over both the victim and the 

aggressor and was thus uniquely positioned to protect the 

child from harm. Neither factor existed in Nicini or in 

DeShaney. Fairly read, the additional element of control that 

existed in the relationship between the State and Nicini that 

did not exist in DeShaney is that in Nicini the State entered 

into a temporary agreement with Nicini‟s parents pursuant to 

which the parents consented to have their son placed in foster 

care. More is present here. Compulsory schooling laws, 

together with the restrictions on parents‟ and their children‟s 

ability to free themselves from State control, arguably impose 

on the State a greater obligation here than that which it 

undertook in Nicini.

The majority seizes on the temporary nature of the 

student/State relationship and also attempts to distinguish 

Nicini and Smith on the ground that parents remain the 

primary caregivers over school children. But this fact does 

not negate that during school hours the State has the 

“immediate [] responsibility for the child‟s wellbeing.” 

Nicini, 212 F.3d at 808. In our view, this fact demonstrates, 

at most, that the difference between the State‟s relationship 

with the Nicini children and schoolchildren is a difference in 

degree, not kind, and suggests that the proper course is to 

impose a constitutional duty on schools only under limited 

circumstances. See Middle Bucks, 972 F.2d at 1384 (Becker, 

J., dissenting). In Middle Bucks, Judge Becker found the 

existence of a special relationship based on the state‟s 

compulsory attendance laws, the student‟s disability, and the 

“affirmative steps [the school took] to confine the student to 

situations where she was physically threatened.” Id. Under 
16

the circumstances before us—Pennsylvania‟s compulsory 

schooling laws, the existence of the restraining orders that 

prohibited contact between the bully and the Morrows, the 

fact that the School had custody and control over the very 

threat that harmed the Morrows, and the enforcement of the 

“No-Tolerance” Policy, all suggesting that the Morrows‟

ability to protect themselves was limited—we “have no 

difficulty deciding” that a special relationship arose between 

the School and the Morrows. Id. 

Restrictions on a person‟s liberty to protect him- or 

herself from danger are the lynchpin of DeShaney. See 489 

U.S. at 199-201. An approach that abandons Middle Bucks‟

doctrinally unsound requirements and focuses on whether a 

State substantially restricted a student‟s ability to defend 

herself from a particular danger, in addition to the general 

restraints on liberty imposed by compulsory schooling laws, 

is therefore more in line with DeShaney and simply makes 

more sense. Adopting such an approach and considering the 

specific circumstances of this case, we would hold that the 

Complaint has adequately pled the existence of a special 

relationship between the Morrows and the School vis-à-vis 

the bully, and remand the case for discovery on that claim.9

 

9

I would also note that, in the school context, children are 

placed under State control for the undeniably important goal 

of “prepar[ing them] for citizenship in the Republic.” Bethel 

Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) 

(citation omitted). This restraint on the liberty of students is 

justified by the State‟s own overarching interest in education.

 

In addition, if it is unconstitutional to confine in unsafe 

conditions the mentally infirm, then surely it must be 
17

C.

Today‟s majority does not quarrel with the foregoing 

or fully reject the dissenters‟ reasoning in Middle Bucks. 

Majority Op. at 11-12 (instead calling the Middle Bucks

dissent “compelling”). Nevertheless, the Court refuses to 

revisit Middle Bucks, asserting that the matter has been settled

by dictum in a decision of the Supreme Court. But neither 

that comment nor principles of stare decisis preclude us from 

revisiting Middle Bucks or control the outcome of this case. 

1.

In Vernonia School District 47J v. Acton, the Supreme 

Court upheld under the Fourth Amendment a school policy 

requiring athletes to submit to drug tests. The Court relied on

the lowered expectations of privacy that students have in 

schools, because they are “committed to the temporary 

custody of the State.” 515 U.S. 646, 654 (1995). The Court 

commented that it did not mean to “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.‟” 

Id. at 655 (citing DeShaney, 489 U.S. at 200). Seizing on this 

language, the majority concludes that “it is difficult to 

 

unconstitutional to refuse to protect from harm school 

children whose liberty the State restricts on its own accord. 

See DeShaney, 489 U.S. at 199 (“If it is cruel and unusual 

punishment to hold convicted criminals in unsafe conditions, 

it must be unconstitutional . . . to confine the involuntarily 

committed—who may not be punished at all—in unsafe 

conditions.” (citation omitted)). 
18

imagine a clearer or more forceful indicator of the Court‟s 

interpretation of its holding in DeShaney.” Majority Op. at 

13.

But the Vernonia dictum cannot bear the great weight 

the majority places on it.10 Simply put, this case is not a 

“general matter.” Vernonia, 515 U.S. at 655. The School

administrators here had custody of a bully, who was 

prohibited from contact with Brittany Morrow by two court 

 

10 That is particularly true because much of the dicta in 

Veronia that both precedes and follows the language quoted 

by the majority points in the opposite direction. In framing 

the degree of control that public school officials exercise over 

their students, the Court began with the premise that 

“unemancipated minors lack some of the most fundamental 

rights of self-determination—including even the right of 

liberty in its narrow sense, i.e., the right to come and go at 

will.” 515 U.S. at 654. The Court also noted that it had 

“rejected the notion that public schools . . . exercise only 

parental power over their students,” a “view of things” that it 

said is “not entirely consonant with compulsory education 

laws.” Id. at 655 (internal quotation marks omitted). And the 

Court “emphasized[] that the nature of that power is custodial 

and tutelary, permitting a degree of supervision and control 

that could not be exercised over free adults,” id., following 

its passing reference to DeShaney with a recitation of the 

various ways in which “school authorities ac[t] in loco

parentis” and a statement that the nature of constitutional 

freedoms enjoyed by students “is what is appropriate for 

children in school.” Id. at 655-56 (internal quotation marks 

omitted).
19

orders. Despite the State‟s knowledge of a very specific, 

continuing, and serious threat against a particular student, the 

School failed to prevent subsequent attacks and instead took 

action against the victims themselves pursuant to the “No 

Tolerance Policy.” When faced with a specific request for 

help, the School told the Morrows that it could not offer

assistance, and even suggested it would be best if they, not 

the bully, left and attended another school.

To be sure, we do not “lightly ignore” Supreme Court 

dicta, Majority Op. at 13, and the Vernonia dictum

undoubtedly “invites some caution,” Hasenfus v. LaJeunesse, 

175 F.3d 68, 71 (1st Cir. 1999). But we also ought not to 

stretch dicta beyond the specific question it controls, so as to

curtail constitutional rights. While the Vernonia dictum 

precludes us from holding that school districts have as “a 

general matter” a duty to protect students, it does not 

foreclose finding a special relationship under specific 

circumstances.

11

2.

Nor do we lightly suggest that our precedent be 

overturned. But even assuming that the same stare decisis 

concerns that cabin the Supreme Court‟s discretion to revisit 

its own precedent apply with equal force to the Courts of 

 

11 Notably, one of the decisions by our sister Circuits cited by 

the majority specifically refuses to read the dictum in 

Vernonia to preclude finding a special relationship in the 

school context under all circumstances. See Hasenfus, 175 

F.3d at 71-72.
20

Appeals, those principles do not stand in the way of revisiting 

Middle Bucks.

We should revisit Middle Bucks because its underlying 

premise, that the special relationship test turns on the 

existence of permanent physical custody, was clearly 

erroneous and set our jurisprudence astray from the contours 

of the special relationship test. See supra Part I.A. The fact 

that the majority does not defend the outcome of Middle 

Bucks as standing on its own suggests that the decision 

remains sufficiently controversial as to counsel “a greater 

willingness to consider new approaches capable of restoring 

our doctrine to sounder footing.” Citizens United, 130 S. Ct.

at 922 (Roberts, C.J., concurring). Even the Supreme Court, 

when it “has confronted a wrongly decided, unworkable 

precedent calling for some future action . . . [,] ha[s] chosen . 

. . to overrule the precedent.” Payne v. Tennessee, 501 U.S. 

808, 842-43 (1991) (Souter, J., concurring).12 

 

12 Moreover, Middle Bucks has been subject to criticism. See, 

e.g., Deborah Austern Colson, Note, Safe Enough to Learn: 

Placing an Affirmative Duty of Protection on Public Schools 

under 42 U.S.C. § 1983, 30 HARV. C.R.-C.L. L. REV. 169,

183, 196 (1995) (denouncing “mechanical” analysis of the 

relationship between students and school officials, and 

suggesting that we should “make case-by-case, fact-intensive 

inquiries into state action”); Robert C. Slim, Comment, The 

Special Relationship Doctrine and a School Official’s Duty to 

Protect Students from Harm, 46 BAYLOR L. REV. 215 (1994); 

Case Comment, Third Circuit Finds No Affirmative Duty of 

Care by School Officials to Their Students: D.R. v. Middle 

Bucks Area Vocational Technical School, 106 HARV. L. REV. 

1224 (1993). 
21

In addition, although the record before us on this 

question is bare, one might also argue that at least some 

factual developments since Middle Bucks have further 

undercut its rationale and provide additional reasons to 

reexamine it. The proper question is whether Middle Bucks‟

assumptions about the level of control that schools exert over 

students have been challenged. There are now abundant 

examples of schools exercising greater control over students, 

ranging from technology tracking student movements at all 

times to ensure they are in class, see Maurice Chammah and 

Nick Swartsell, Student IDs That Track the Students, N.Y.

TIMES, OCT. 6, 2012, http://nyti.ms/ThvbFq, to monitoring 

online social media activity within and outside school 

premises, see, e.g., J.S.., 650 F.3d at 915, and, in the wake of 

recent tragic school shootings, locking classrooms in further 

restriction of student movement. See, e.g., Stephen Ceasar 

and Howard Blume, To lock classroom doors or not?, LOS 

ANGELES TIMES, Jan. 13, 2013, http://soc.li/2N96T3f (noting 

increase in locked classrooms in the wake of the Newtown, 

Connecticut shootings, and how such measures have resulted 

in other problems such as an instance of a teacher sexually 

assaulting students).13 Stare decisis does not require us to 

 

13 We do not contend that the limitations on students‟ 

freedoms are comparable to those imposed on prisoners or the 

involuntarily committed. See Majority Op. at 14-15. The 

examples do show, however, that the relationship between 

school children and the State is far more intrusive than the 

relationship between Joshua DeShaney and the social services 

department, and that in some ways the relationship restricts 

the freedom of students, as a factual matter, more so than the 

relationship between the State and the children in Nicini and 

Smith.
22

definitively settle the questions raised by these new 

circumstances, nor does it preclude us from revisiting Middle 

Bucks while sitting en banc. 

II. Blackhawk May Have Also Created the Danger 

That Harmed The Morrows

The Morrows also argue that the School may be liable 

under the “state-created danger” theory.14 The majority 

concludes that this cause of action must also be dismissed 

because the Morrows have failed to plead an “affirmative act” 

by the School. Majority Op. at 26-27. Although we have 

acknowledged that “the line between action and inaction may 

not always be clear” in the context of these kinds of claims,

Bright v. Westmoreland Cnty., 443 F.3d 276, 282 (3d Cir. 

2006), the consequence of that line becomes sadly clearer 

with the Court‟s decision in this case: administrators who let 

violence run rampant can take shelter under the label 

“inaction.” Dereliction of duty becomes a school‟s best 

defense. This outcome is contrary to an appropriate 

understanding of the state-created danger doctrine. Indeed, 

although the doctrine represents a narrow exception to 

DeShaney, the majority narrows the exception to the 

vanishing point by saying that school officials are free to 

ignore court orders and their own disciplinary code, enabling 

a pattern of physical abuse to persist.

 

14 We and other Circuits derived this theory from the 

Supreme Court‟s statement in DeShaney that “[w]hile the 

State may have been aware of the dangers that [plaintiff] 

faced in the free world, it played no part in their creation.” 

489 U.S. at 201. 
23

To prove a state-created danger, a plaintiff must 

demonstrate that:

(1) the harm ultimately caused was foreseeable 

and fairly direct; (2) a state actor acted with a 

degree of culpability that shocks the conscience;

(3) a relationship between the state and the 

plaintiff existed such that the plaintiff was a 

foreseeable victim of the defendant‟s acts, or a 

member of a discrete class of persons subjected 

to the potential harm brought about by the 

state‟s actions, as opposed to a member of the 

public in general; and (4) a state actor 

affirmatively used his or her authority in a way 

that created a danger to the citizen or that 

rendered the citizen more vulnerable to danger 

than had the state not acted at all.

Id. at 281 (quotation marks and citations omitted). The first 

and third elements are not in dispute in this case.15 We 

therefore discuss the second and fourth elements to 

 

15 The first prong is satisfied by the two court orders directing 

the bully to have no contact with the Morrows, which were 

delivered to the School, because the threat posed by the bully 

was both “foreseeable” by the School and “fairly direct” as to 

the Morrows. The third prong is satisfied because the 

assignment of the Morrows to Blackhawk under the 

compulsory school attendance law made them part of a 

“discrete class of person subject to the potential harm” 

brought about by the School‟s conduct. 
24

demonstrate that the Morrows‟ complaint adequately pleads 

this cause of action.

16

A.

The second prong of the state-created danger test sets

“deliberate indifference” as “[t]he level of culpability 

required to shock the conscience . . . in cases where 

deliberation is possible and officials have time to make 

unhurried judgments.” Sanford v. Stiles, 456 F.3d 298, 309 

(3d Cir. 2006) (quotation marks omitted). The “deliberate 

indifference” formulation applies here because the decision 

with respect to the bully and the Morrows was neither “splitsecond” nor made in a “matter of hours or minutes,” id. at 

310 (citation omitted), but rather was made and sustained 

over eight months stretching from January to October 2008.

In addition, the Complaint here supports an inference 

of deliberate indifference on the part of the School principal, 

Balaski. Balaski knew that the bully was not permitted to 

contact the Morrows. Moreover, the Handbook mandates 

some action by officials in response to students who commit 

“Level IV” offenses, which include assault and battery, and 

 

16 Because, as noted, this case comes to us from a ruling on a 

motion to dismiss, we must draw all reasonable inferences in 

the Morrows‟ favor. Monroe, 536 F.3d at 205. If, based on 

the facts pled in the Morrows‟ Complaint, “we cannot 

reasonably conclude at this juncture of the case that the harm 

. . . came about by means apart from the state,” Middle Bucks, 

972 F.2d at 1382 (Sloviter, C. J., dissenting), the Morrows 

should have the opportunity for discovery to determine the 

precise nature of the School‟s conduct.
25

arguably calls for their expulsion. However, Balaski ignored 

the import of the no-contact orders and decided not to abide 

by the school‟s own Disciplinary Code. His decisions are 

alleged to have put the bully in proximity to and contact with 

the Morrows, despite ample reason to believe the bully would 

continue to assault the Morrows. Consequently, they have 

adequately pled deliberate indifference and satisfied the 

second prong of the state-created danger theory.

B.

Under the fourth prong of the theory, “liability . . . is 

predicated upon the states‟ affirmative acts which work to the 

plaintiffs‟ detriment in terms of exposure to danger.”17 

 

17 It is worth noting that DeShaney does not actually compel 

the inclusion of the “affirmative act” requirement into the 

fourth element of the state-created danger test. When we first 

considered the state-created danger theory, we said that 

DeShaney holds “that a state‟s failure to take affirmative 

action to protect a victim from the actions of a third person 

will not, in the absence of a custodial relationship between the 

state and the victim, support a civil rights claim.” Brown v. 

Grabowski, 922 F.2d 1097, 1100-01 (3d Cir. 1990). 

However, DeShaney used the phrase “affirmative act” only to 

refer to state conduct sufficient to create a special 

relationship. See, e.g., DeShaney, 489 U.S. at 200. By 

contrast, in contemplating the possibility of a state-created 

danger, the Court simply suggested that the State must have 

“played [some] part” in the creation of that danger. Id. at 

201. Much like the requirement that the State have absolute 

physical custody in the context of the special relationship test, 

the “affirmative act” element is our own addition, and one 
26

Bright, 443 F.3d at 282 (quoting Middle Bucks, 972 F.2d at 

1374). But it is not easy to discern from our cases what 

constitutes an affirmative act and what does not.

In Kneipp v. Tedder, we held that there was a 

substantive due process violation when police stopped an 

intoxicated couple on the street and then permitted the wife to 

go home alone, resulting in her fall down an embankment and 

ultimate death. 95 F.3d 1199, 1211 (3d Cir. 1996). Then, in 

Rivas v. City of Passaic, we held liable emergency medical 

technicians (“EMTs”) who told police officers that a man in 

the midst of a seizure had assaulted them but did not inform 

the officers of the man‟s medical condition. 365 F.3d 181, 

195 (3d Cir. 2004). We said that the state had created a 

danger in Kneipp because the defendants “used their authority 

as police officers to create a dangerous situation or to make 

[the victim] more vulnerable to danger [than] had they not 

intervened.” 95 F.2d at 1209. In Rivas, we aggregated an 

earlier action (the EMTs‟ call that brought the police) with 

the inaction that was the actual cause of harm (the failure to 

inform the police of the victim‟s condition) and decided it 

was sufficient because such sequence “created an opportunity 

for harm that would not have otherwise existed.” 365 F.3d at 

197. 

As these cases demonstrate, virtually any action may 

be characterized as a failure to take some alternative action or 

vice-versa. See, e.g., Covington Cnty., 675 F.3d at 864, 866 

(describing the police officers in Kneipp as having “sent” the 

victim home alone, but recasting parents‟ allegation that a 

 

that is not necessarily helpful to safeguarding constitutional 

rights. 
27

school released their child to an unauthorized person in 

violation of school policy as a “failure to adopt a stricter 

policy”).

18

 

Moreover, any conduct pled as the source of a statecreated danger is likely to include a combination of action 

and inaction, depending on how far back in the causal chain a 

court goes. See Bright, 443 F.3d at 291 (Nygaard, J., 

 

18 We also struggled with the “action/inaction” determination 

in Middle Bucks when we distinguished two cases in which 

the state indisputably created a danger by a failure to act. The 

first case was Horton, where a club owner empowered by the 

police to act as law enforcement beat up one of his employees 

while interrogating him about an alleged theft. The club 

owner then called a police officer who failed to remove the 

employee from the club owner‟s custody, despite evidence of 

severe physical mistreatment. We held that the police officer 

was potentially liable. See Horton, 889 F.2d at 458. In the 

other case, a minor was committed to a foster home based on 

a charge of assault and battery upon her father. The state later 

learned, but failed to disclose, the fact that the parents had 

fabricated the assault charge. The First Circuit held that the 

state was liable because its failure to disclose the false charge 

resulted in continued custody of the daughter in foster homes 

and other placements. See Germany v. Vance, 868 F.2d 9 (1st 

Cir. 1989). We distinguished those cases from Middle Bucks, 

in which we held that a failure to act did not support a statecreated danger claim, because we “read both cases to turn 

upon a finding of „functional‟ custody,” 972 F.2d at 1375, 

that we believed did not exist in Middle Bucks, but we 

provided no justification for that distinction.
28

dissenting) (“By cabining Bright‟s claim based solely on an 

ensuing delay in taking action, the majority lops off the initial 

affirmative act so it can conclude that there was no 

affirmative act.”). Indeed, in Kneipp and Rivas, the 

immediate harm to the victims was due to the defendant‟s 

failure to act. Therefore, the better way of understanding 

these cases, contrary to the majority‟s embrace of the 

“affirmative act” requirement today, is to recognize that “the 

dispositive factor appears to be whether the state has in some 

way placed the plaintiff in a dangerous position that was 

foreseeable, and not whether the act was more appropriately 

characterized as an affirmative act.” Morse v. Lower Merion 

Sch. Dist., 132 F.3d 902, 915 (3d Cir. 1997).

19

 

19 Given that, as noted, the “affirmative act” requirement is 

not actually present in DeShaney, it is not surprising that we 

have not always required an “affirmative act” as part of the 

fourth prong of the state-created danger test. As Judge 

Nygaard noted in Bright, “[s]ince Kneipp . . . enunciated our 

state-created danger test, not one of our cases [had] inserted 

the word „affirmatively‟ into the fourth element of the test” 

prior to Bright. 443 F.3d at 288 (Nygaard, J., dissenting). 

Rather, we consider whether “the state actor used his 

authority to create an opportunity for danger that otherwise 

would not have existed.” Kneipp, 95 F.3d at 1208; see 

generally Bright, 443 F.3d at 288 (Nygaard, J., dissenting) 

(collecting cases). Judge Nygaard rightly observed in Bright

that these cases “shifted away from inquiring into the 

existence of affirmative acts as a standard to establish the 

fourth element of our test for a compelling reason: to so hinge 

our inquiry would center us squarely in the troublesome 

decisional thicket governing the distinction between action 

and inaction.” Bright, 443 F.3d at 289. 
29

The majority in Bright suggested that there is “no 

conflict” between the “use of authority” and “affirmative act” 

formulations of the fourth prong of the state-created danger 

test because “state actors cannot use their authority to create . 

. . an opportunity [for injury to the plaintiff] by failing to act.” 

443 F.3d at 283 n.6 (quotation marks omitted). But that 

statement is wrong both linguistically and logically. It is 

wrong linguistically because authority is a broader concept 

than action. See Ye v. United States, 484 F.3d 634, 639-40 

(3d Cir. 2007) (treating “affirmative action” as a specific 

instance of the “exercise of authority”). And it is wrong 

logically because state authority necessarily brings with it 

discretion whether to take specific actions, and the decision to 

take one action over another—or to take no action at all—is 

itself an “affirmative exercise of authority” that may carry 

serious consequences. In many, if not most, state-created 

danger cases, the state actor will have made a decision to act 

in the context of some set of policies. For example, police 

departments have procedures with respect to the enforcement 

of restraining orders, and their enforcement decisions must be 

viewed in the context of those policies. See, e.g., Sheets v. 

Mullins, 287 F.3d 581, 589 (6th Cir. 2002) (considering 

sheriff‟s liability in the context of court-mandated process for 

restraint orders); Freeman v. Ferguson, 911 F.2d 52, 55 (8th 

Cir. 1990) (considering whether police chief interfered with 

standard police procedures with respect to enforcement of 

restraint order).

The exercise of authority by school officials must 

similarly be viewed in the context of policies and procedures 

whose express purpose is to protect students while they are

under school control. If a school exercises its authority to 

contravene a policy designed to protect students, then “the 
30

school officials‟ role [is] not merely passive or simply 

negligent.” Covington Cnty., 675 F.3d at 882 (Wiener, J., 

dissenting). It cannot rightly be said of a school‟s decision to 

exercise its authority to violate or suspend a policy that would 

protect a student that “it placed [that student] in no worse 

position than that in which he would have been had [the state] 

not acted at all.”20 DeShaney, 489 U.S. at 201. As we said in 

Middle Bucks, “[i]f the state puts a man in a position of 

danger from private persons and then fails to protect him, it 

will not be heard to say that its role was merely passive; it is 

as much an active tortfeasor as if it had thrown him into a 

snake pit.” 972 F.2d at 1374 (citation omitted). The 

majority‟s argument that our view of the state-created danger 

exception threatens to “swallow the rule,” Majority Op. at 26,

ignores the key role played by school disciplinary policies, as 

well as other policies that cabin officials‟ discretion, in our 

formulation of the state-created danger exception. 

 

20 One might argue that holding public schools liable under 

the state-created danger theory based on their own protective 

policies creates an incentive to eliminate or weaken those 

policies. However, those policies are typically mandated by 

the State. For example, Pennsylvania requires that each 

school “adopt a code of student conduct that includes policies 

governing student discipline.” 22 Pa. Code § 12.3(c). Also, 

under its “Safe Schools” statute, Pennsylvania requires each 

school to have a policy relating to bullying that must be 

incorporated into its code of student conduct and disciplinary 

code. 24 Pa. Stat. Ann. § 13-1303.1-A(a). Moreover, we 

doubt that any rational school district will opt for eliminating 

policies designed to protect children, and permit teachers to 

abandon children to danger, simply to avoid liability in 

egregious cases such as this.
31

Ultimately, the misguided effort to equate “affirmative 

act” and “exercise of authority” begs the real question at 

issue: whether a state actor increased the risk someone faced. 

Regardless of whether a state-created danger requires either 

an “affirmative act” to place an individual in danger or an 

“exercise of authority” that renders him more vulnerable to 

danger, the facts pled in the Complaint, accepted as true, 

together with the reasonable inferences we are required to 

draw, satisfy either standard. 

While the majority reasons there was no affirmative 

act on the part of the School, it may be inferred from the 

Complaint that the School did do something. Principal 

Balaksi engaged in decision-making as to the implementation 

of a provision of the Disciplinary Code. The Disciplinary 

Code states that Level IV offenses “are clearly criminal in 

nature and are so serious that they always require 

administrative action resulting in the immediate removal from 

school.” Compl. ¶ 16 (emphasis added). Therefore, it may be

reasonably inferred that the School affirmatively exercised its 

discretion to permit the bully to return to school after she was 

adjudicated a delinquent and made the subject of the two nocontact orders. Moreover, the School conceded at oral 

argument that the principal could have initiated the hearing 

process that would have been necessary prior to permanently 

expelling the bully from the School, but that he did not do so. 

Consequently, it is fairly inferable from the Complaint that 

there were internal discussions that preceded the decision to 

decline enforcement of the Disciplinary Code against the 

bully. Those discussions, and that decision, put the Morrows 
32

at a heightened risk of harm and satisfy the fourth element of 

the state-created danger test.21

The majority‟s conclusion to the contrary turns on its

assumption that the bully would have continued to attend 

school had she not been suspended. See Majority Op. at 26-

27. But this is plainly incorrect in light of the Disciplinary 

Code that obligated School officials to do something about 

the bully‟s continued criminal behavior after her return from 

school. Without explanation, the majority “decline[s] to hold 

that a school‟s alleged failure to enforce a disciplinary code is 

equivalent to an affirmative act.” Id. at 27. Precisely 

because, in choosing to ignore that mandate, the School 

officials contributed to the danger the Morrows faced, we 

would reach the opposite conclusion.

C.

Like Kneipp, this case presents “unique facts,” 95 F.3d 

at 1208, that distinguish it from Middle Bucks and set it apart 

from the majority of state-created danger cases that we have 

 

21 One might also reasonably infer that the School officials 

affirmatively acted in a way that increased the danger to the 

Morrows by putting them and the bully in the same lunch 

room or allowing the bully to board the Morrows‟ school bus 

despite the fact that it did not serve her home route. See, e.g., 

Compl. ¶ 18. The School argues that the incident on the 

school bus cannot constitute the basis of liability because the 

Morrows were less restrained by the School when they were 

on the bus. This argument confuses the physical restraint 

component of the special relationship test with the statecreated danger theory.
33

seen. In Middle Bucks, where the question was “extremely 

close,” 972 F.2d at 1374, we held that, “[a]s in DeShaney, 

„the 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.‟” Id. at 1376 (quoting 

DeShaney, 489 U.S. at 203). But the high school principal

here, Balaski, was not confronted with “suspicious 

circumstances.” He was confronted with a student who had 

been charged with assault and making terroristic threats and 

harassment, had been adjudicated a delinquent, had 

repeatedly attacked the Morrows over the course of several 

months, and had been the subject of two no-contact orders 

that were delivered to the School. And Balaski‟s 

decisionmaking did not occur in a vacuum but instead 

operated under a Disciplinary Code and an Anti-Bullying 

Policy that the School was required to adopt by the 

Pennsylvania legislature. See supra note 20. In Middle 

Bucks, we said that the defendants “did not subject plaintiffs 

to an inherently dangerous environment,” 972 F.2d at 1375, 

but, here, Balaski‟s decision not to expel the bully 

unquestionably subjected the Morrows to an inherently 

dangerous environment. This is evidenced by his own 

statement to the Morrows‟ parents that the school “could not 

guarantee the safety” of their daughters. Compl. ¶ 20. The 

Morrows should therefore be permitted to take their statecreated danger cause of action past the pleadings stage.

III. Conclusion

It has been suggested that the “elephant in the room” 

in cases of this nature is a desire by the federal courts to avoid 

becoming the forum for all disputes involving everyday 

schoolyard quarrels. See, e.g., Middle Bucks, 972 F.3d at 
34

1384 (Sloviter, C.J., dissenting); Oral Arg. Audio Tr. 26:39-

27:08 (Ambro, J.). But there exist sufficient evidentiary and 

procedural protections to assuage any concerns that a limited 

review of Middle Bucks will open the floodgates to all schoolrelated litigation. See Middle Bucks, 972 F.2d at 1384 

(Sloviter, C.J., dissenting). And to plead a plausible special 

relationship cause of action, the student must clear another 

hurdle by pointing to other circumstances beyond the 

restraints imposed ordinarily by compulsory schooling laws. 

Run-of-the-mill schoolyard fights, isolated or random acts of 

violence, or matters where a school played no part in 

exacerbating the threat, would likely not be covered.

But regardless of the efficacy of these devices, we

ought not refuse to grant relief that is warranted simply to 

stem future litigation. While turning away the Morrows may 

be convenient as a matter of management of judicial 

resources or as a matter of school policy, it is neither 

expedient nor sound as a matter of constitutional law. The 

majority avers that students and concerned parents may seek 

redress from their legislatures, but concedes that the law as it 

exists today, at least in Pennsylvania, immunizes schools 

from such suits. See Majority Op. at 25 (citing Auerbach v. 

Council Rock Sch. Dist., 459 A.2d 1376, 1378 (Pa. Commw. 

Ct. 1983)). Perhaps students may seek redress under other 

federal statutes for certain instances of pervasive or racemotivated harassment.22

 But these limited remedies will not 

 

22 See, e.g., Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655 

(2d Cir. 2012) (permitting cause of action to proceed against 

school district under Title VI for permitting plaintiff to be 

bullied on account of race); Shore Regional High Sch. Bd. of 

Educ. v. P.S., 381 F.3d 194 (3d Cir. 2004) (recognizing claim 
35

be available for all cases, and we should not require that the 

level of attacks reach frightening extremes before school 

officials are required to intervene. “When claims like these 

fall through the cracks, § 1983 seems less than the powerful 

tool to vindicate constitutional rights it was designed to be.” 

Black v. Indiana Area Sch. Dist., 985 F.2d 707, 715 (3d Cir. 

1993) (Scirica, J., concurring).

Most ironically, today‟s victory may be pyrrhic for 

school officials. To the detriment of schools‟ ability to 

manage their own affairs, concerned parents could seek 

greater control and awareness over the moment-to-moment 

safety of their children, knowing that the school officials to 

whom they entrust their children are under no legal obligation 

to protect them from harm. Some parents may even take 

unilateral acts to protect their children. See, e.g., Ryan 

Raiche, Parents of boy who brought butcher knife to school 

say it was to defend himself from bullies, ABC Action News 

WFTS-TV, Jan. 14, 2013, http://shar.es/jEG8P. At worst, 

schools may be unwittingly encouraging the law of the jungle 

to be the reigning norm. We hope this is not the case.

It cannot be denied that schools both create and 

regulate the conditions to which students are subject during 

the school day. When a State interrupts even temporarily the 

 

against school based on the Individuals with Disabilities 

Education Act). Notably, the existence of alternative causes 

of action further undercuts implicit reliance on a desire to 

shield school officials from suits as a reason to depart from 

sound constitutional principles. Bullying-related suits will 

continue as long as the issue is in the public eye regardless of 

today‟s decision.
36

provision of care by a parent to a child, steps into the shoes of 

that parent, and restricts the ability of the child to defend

herself from a specific threat, the State ought to be seen as 

incurring a narrow, concomitant responsibility to act as one 

would expect the child‟s parents to act: to protect the child 

from that danger. The School‟s explicit refusal to do so 

should give us more pause than it does today. Moreover, 

when a school official chooses not to remove a student who 

has committed violent acts against another student, despite 

policies that call for such removal, that official has surely 

placed the victim in a worse position than if the disciplinary 

policy had run its ordinary course. And when a school 

creates an atmosphere in which serious violence is tolerated 

and brings no consequence, it acts in a manner that renders all 

students more vulnerable. 

We respectfully dissent.
1

Nygaard, Circuit Judge, dissenting.

More than twenty years ago, we took up the troubling 

appeal of two female high school students who had been 

sexually assaulted by seven male students in a classroom, 

during a graphic arts class. See D.R. v. Middle Bucks Area 

Vocational Technical School, et al., 972 F.2d 1364, 1366 (3d 

Cir. 1992). Despite compulsory education laws, we held that 

schools do not have an affirmative constitutional duty to 

protect students from the actions of third parties while they 

attend school. Id. at 1371-72.

I joined several of my colleagues in dissenting from 

that decision. Id. at 1377 (Sloviter, J., dissenting). I believed 

then that the Appellants had stated viable constitutional 

claims against the school district. My position has not 

changed, and today, I would hold the same in this case. I 

therefore dissent.1

 

1 My colleague, Judge Fuentes, has also written an opinion in 

dissent, which I agree with in toto and join.