"special relationship" between the Kansas Adult Authority and the plaintiffs.
In the present case, the question is whether the defendants were in a "special relationship" with the endangered "identifiable group," female students (or band members) at the Bradford high school. We find that the defendants owed a duty to protect its students from sexual abuse by its teachers. We think this duty is at least as clear as those owed to the tenants in P.L.C., the abused women in Thurman, or the visitors to the medical center in Beck. The people and the legislature of Pennsylvania trust their children to the care and supervision of school officials, and grant those officials in loco parentis authority over those children while they attend school.
In addition, school districts are statutorily authorized to fire teachers for "immorality," which has been held to include uninvited advances by teachers toward students. 24 P.S. § 11-1122; see Keating v. Bd. of School Directors of Riverside School District, 513 A.2d 547, 99 Pa. Commw. 337 (1986), app. denied, 522 A.2d 51, 514 Pa. 626 (1987). As we stated in Stoneking v. Bradford Area School District, "abuse of this type is not tolerated when the victim is a prison inmate or a patient in a state hospital. Clearly then, the constitution must offer school children similar protections." 667 F. Supp. 1088, 1095 (W.D. Pa. 1987) [citations omitted]. We find that a "special relationship," with an accompanying duty to protect, exists between a student and her school district, school district superintendent, principal and vice principal.
The defendants raise the factual distinction that this assault took place off school grounds at the teacher's home, at the beginning of summer vacation. The defendants argue that "in no sense of the word could any 'special relationship' exist at the time of this alleged assault." Defendants' Brief in Support, p. 17 n. 7. Under the facts of this case, we do not agree. The increased threat to female students created by the defendants' alleged tolerance for sexual abuse was not the sort of danger that disappeared when those students packed up their instruments and walked out of the band room. Because Wright conducted marching band practices during the summer months, his opportunity to abuse his female band students, opportunity he possessed by virtue of his position as a teacher and director of the band, did not disappear when the school bell sounded the end of day or the beginning of vacation-time. Presumably it would have made little difference if the maintenance man in P.L.C. v. Housing Authority of the County of Warren had been off-duty, or on vacation, when he used his housing authority key to enter the rape victim's apartment. Similarly, it is irrelevant to this Court in determining the existence of a "special relationship," whether Sowers was assaulted while she was picking up a marching band tape for band practice to be held during the school year or during the summer months. The timing and circumstances of the assault may or may not be relevant to the factual determination of causation of Sowers' injury, but, as we will discuss later in this decision, the question of proximate cause requires factual development and is therefore inappropriate to decide on a motion to dismiss.
D. Requirements for Liability Under § 1983 For A Failure To Act
The defendants are alleged to have fostered a practice, custom and/or policy of reckless indifference and/or active concealment of instances of known or suspected sexual abuse. The complaint alleges that this practice, custom and/or policy was the result of both overt activity and failures to act on the part of the defendants. Government officials may be held liable under § 1983 for a failure to do what is required as well as for overt activity which is unlawful and harmful. See Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Doe v. New York City Dept. of Social Services, 649 F.2d 134, 141 (2d Cir. 1981) [Doe I]; Duchesne v. Sugarman, 566 F.2d 817, 822 (2d Cir. 1977) ("where conduct of the supervisory authority is directly related to a denial of a constitutional right, it is not to be distinguished as a matter of causation, upon whether it was action or inaction"). For a § 1983 cause of action to arise where an official is charged with failing to exercise an affirmative duty, the failure to act must have been a substantial factor leading to the violation of a constitutionally protected liberty or property interest. Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976). The official having the responsibility to act must also have displayed " deliberate indifference " or " gross negligence." Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied sub nom. Turpin v. West Haven, 449 U.S. 1016, 101 S. Ct. 577, 66 L. Ed. 2d 475 (1980) ("deliberate indifference" standard); Doe v. New York City Dept. of Social Services, 709 F.2d 782, 789-790 (2d Cir. 1983) [Doe II], cert. denied sub nom. Catholic Home Bureau v. Doe, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983) ("gross negligence" standard) (citing Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 2462, 73 L. Ed. 2d 28 (1982)). As our reasoning below will explain, we believe that these two requirements, an alleged violation of a protected liberty interest and an alleged display of "deliberate indifference" or "gross negligence," are met in the plaintiff's complaint.
1. Violation of a Liberty Interest: Substantive Due Process
The first of the two requirements for a § 1983 claim for a failure to act is that the failure to act must have been a substantial factor leading to the violation of a constitutionally protected liberty or property interest. As to whether the plaintiff has alleged that the defendants' failures to act amounted to a substantial factor leading to the constitutional violation, we believe the complaint does so allege. Furthermore, as we will explain later in the statute of limitations section of this opinion, the question of causation is not amenable to determination on the basis of pleadings alone. We will therefore move on to the question of whether the plaintiff has properly alleged a constitutionally protected liberty interest.
The liberty interest which the plaintiff alleges was deprived her was a substantive due process right to be free from sexual abuse. Substantive due process rights are significantly different from procedural due process rights. Procedural due process involves expectations created by state law. As to these rights, the state may take them away by affording pre-deprivation hearings, post-deprivation hearings or other safeguards. Substantive due process, on the other hand, is concerned with rights such as those listed in the Bill of Rights and those rights held to be so fundamental that a state may not take them away regardless of the fairness of the procedures used to do so. Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 663, 88 L. Ed. 2d 662, 668 (1986). Justice Frankfurter noted that the scope of due process protection is not subject to precise definition:
Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are so rooted in the traditions and conscience of our people as to be ranked as fundamental, Snyder v. Massachusetts, 291 U.S. 97, 105 [54 S. Ct. 330, 332, 78 L. Ed. 674 (1934)], or are implicit in the concept of ordered liberty. Palko v. Connecticut, 302 U.S. 319, 325 [58 S. Ct. 149, 152, 82 L. Ed. 288 (1937)].