How "Loco" is In Loco Parentis?

By James A. Bosakowski, Esq.*

Key Points:

  • In Morrow v. Balaski, 2013 U.S. App. LEXIS 11246 (3d Cir. Jun. 5, 2013), under the circumstances alleged, children who are violently bullied in school were not protected by the Constitution because there was no "special" relationship between the school and the children.
  • The court also rejected the plaintiffs' state-created danger theory.
  • The court noted that parents of bullied children could look to the state legislature for legal remedies to bullying.


Who did not know a bully in high school?

A bully at Blackhawk High School threatened Brittany Morrow by phone and on MySpace. The bully got on Brittany's school bus—which was not the bully's bus—and called Brittany names and threatened her. After the bully attacked Brittany in the school cafeteria, both children were suspended from school under its "No Tolerance" policy. Criminal charges were filed against the bully, she was adjudicated a delinquent, and she was ordered to have no contact with Brittany. Unfortunately, the bullying continued. In fact, the bullying escalated to include Brittany's sister, Emily, as a target. The bully's friend hit Emily.

The Morrows met with the Blackhawk High School's principal, Balaski, and other school officials. Despite all of the bullying being reported to Blackhawk High School officials and the officials' awareness of the criminal proceedings against the bully, the Morrows were told that the school could not guarantee the safety of Brittany and Emily Morrow. Instead of expelling the bully, school officials suggested that the Morrows place their daughters in another school, a step they eventually took.

The Morrows sued school principal Balaski and the Blackhawk School District on the grounds that the Due Process Clause of the 14th Amendment to the Constitution protected the Morrow children from bullying at school. Not surprisingly, the district court was deeply troubled by the bullying of the Morrow children. Nonetheless, the court dismissed the Morrows' lawsuit, finding that there was no special relationship between public school authorities and students and because 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." This decision was upheld on appeal to the Third Circuit Court of Appeals, although the dissenting opinion was vigorous.

Why are children in public school not protected by the United States Constitution from violent bullies? The reasons given by the court are summarized as follows:

  • The Constitution does not generally impose an affirmative obligation on states (or, in this case a school district) to protect individuals from private citizens.
  • A state has a special relationship with, and a duty to care for and protect, individuals when the state takes that individual into its custody and holds him there against his will; for example, prisoners, institutionally committed mental patients or children in foster care. School children are different because parents, not schools, are the primary caregivers.
  • The orders adjudicating the bully a delinquent and directing her not to bother the Morrow children applied to the bully, not to the Blackhawk School District. Therefore, the school district had no obligation to enforce the orders against the bully.
  • State legislatures have the power to allow lawsuits against school districts for bullying of students by other students.
  • There is a difference between the school district creating a danger for the Morrow children ("action") and passive inaction by the school district in response to bullying. The Blackhawk School District did not create a new danger to the Morrow children nor make them more vulnerable to danger. A school's failure to enforce a disciplinary policy against the bully was not "action" by the school.
  • In agreeing with the majority, one judge thought that allowing the Morrows to sue because of the school's failure to expel a bully would give schools an incentive to quickly expel students for fear of lawsuits.


The dissenting judges argued that Constitutional protection should extend to protect children, like the Morrow children, from bullying. The dissent argued the following points:

  • Not holding a school accountable for violent bullying gives school officials an incentive to do nothing in response to bullying, instead of protecting students from violent bullying.
  • A special relationship can exist between a school and its students, giving the students Constitutional protection, because the school has control over the students in many ways. For example, school attendance is mandatory from age 8 to 17. The school in this case had the right to control the bully's behavior and the right to discipline her for bullying. The school policy of "No Tolerance" prevented the Morrow children from being fully able to protect themselves.
  • A parent's ability to protect his or her child is diminished when the child is in school. When the child is in school, the school is really the only caregiver that can help a child; schools may control what children wear to school and how they may behave in classrooms, school buses, on school property and at school events. Schools may conduct drug testing of their athletes. A special relationship existed between the school and the Morrow children, as restrictions upon a student's liberty to protect him or herself from danger are the key to a special relationship that gives Constitutional protection to the student. A special relationship should not turn on total physical custody, like a prisoner or a foster child or the involuntarily committed.
  • Schools today have even greater control over students and, thus, clearly have a special relationship with them—they track students to ensure that they are in class, monitor social media and lock classrooms to ensure student safety from outsiders who mean them harm.


The dissent also felt that the Morrows should have been permitted to take their state-created danger cause of action past the pleading stage. It was concerned that:

  • Blackhawk High School may, in fact, have created the danger that harmed the Morrow children. School administrators tolerated bullying by ignoring court orders and their own "No Tolerance" policy by not expelling the bully. In other words, when a school does nothing to protect its students, it is doing "something" by creating an opportunity for danger that otherwise would not have existed.
  • Concerned parents who think that school officials will not protect their children from danger may be tempted to let their children bring a weapon to school to protect themselves from bullies, making other students even more vulnerable to violence or, ironically, subjecting their own children to harsh discipline.


The court's opinion noted, in closing, that the dissent's concerns might be best addressed by the Pennsylvania legislature. The court indicated: "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."

*Jim is an associate in our Philadelphia, Pennsylvania, office. He can be reached at 215. 575.2708 or

Defense Digest, Vol. 19, No. 3, September 2013

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.