UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Filed: December 31, 1991.
D.R., A MINOR CHILD, BY HER PARENT AND NATURAL GUARDIAN, L.R., AND L.R., INDIVIDUALLY AND IN HER OWN RIGHT, APPELLANTS,
MIDDLE BUCKS AREA VOCATIONAL TECHNICAL SCHOOL; WILLIAM GOODE; JAMES C. BAZZEL; MARTHA RICHINO; SUSAN PETERS; BUCKS COUNTY INTERMEDIATE NO. 22; CHRISTINA TUTTLE; PENN RIDGE SCHOOL DISTRICT; CHARLES FAMBRO; FRED FREEMAN; JAMES A. GALLAGHER; BRIAN MILLER; MARC R. RATCLIFFE; JAMES M. SPERLING; LESTER SUTPHIN AND L.H., BUCKS COUNTY, PENNSYLVANIA, APPELLANT, V. MIDDLE BUCKS AREA VOCATIONAL TECHNICAL SCHOOL; AND WILLIAM GOODE AND JAMES C. BAZZEL AND MARTHA RICHINO AND SUSAN PETERS AND JAMES A. GALLAGHER AND BRIAN MILLER AND MARC R. RATCLIFFE AND JAMES M. SPERLING AND LESTER SUTPHIN
Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil No. 90-03018 and 90-03060
Before: Sloviter, Chief Judge, Greenberg and Seitz, Circuit Judges.
Opinion OF THE COURT
SEITZ, Circuit Judge.
Plaintiffs, D.R., a minor child, by her parent, L.R. and L.H., both high school students, as well as L.R. in her own right,*fn1 appeal the decision and order of the district court dismissing their amended complaints. Future references herein to "plaintiffs" will include only D.R., by her parent and L.H. unless otherwise noted. These complaints asserted claims under 42 U.S.C. §§ 1983, 1985(3), 1986 and 1988*fn2 as well as state law claims. Federal jurisdiction was asserted under 28 U.S.C. §§ 1341 and 1343 and pendant jurisdiction over the state law claims. This court has jurisdiction pursuant to 28 U.S.C. § 1291.
Because the district court granted defendants' motions to dismiss each of the complaints under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim, this court must "accept as true the facts alleged in the amended complaints and all reasonable inferences that can be drawn therefrom." Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). We therefore turn to the allegations in the amended complaints.
I. AMENDED COMPLAINTS
Plaintiffs were two female students in a graphics arts class at Middle Bucks Area Vocational Technical School ("Middle Bucks").*fn3 They allege that while attending the arts class for several months during the 1989-90 school year several male students [hereinafter the "student defendants"] in the same class physically, verbally and sexually molested them. This conduct took place primarily in the unisex bathroom and a darkroom, both of which were part of the graphic arts classroom.
Plaintiff, D.R., avers that the student defendants grabbed her and either forced or carried her into the bathroom or darkroom on a regular basis and physically abused her. She asserts that such conduct took place on an average of two to four times per week from January to May of 1990. Plaintiff, L.H., claims that some of the student defendants molested her two to three times per week from December 1989 to May of 1990. Plaintiffs allege that the sexual molestation consisted of offensive touching of their breasts and genitalia, sodomization and forced acts of fellatio. The student defendants also allegedly forced plaintiffs to watch similar acts performed on other students.
Defendant Susan Peters was the student-teacher in the graphic arts classroom during the time of the conduct in question. Plaintiffs do not claim to have informed Peters of the molestation but assert that Peters was or should have been in the classroom during the time of the acts complained of and either heard or should have heard the incidents taking place. Peters did experience difficulty in controlling the class generally and allegedly was exposed to a variety of misconduct including obscene language and gestures, and physically, but not sexually, offensive touching of females including herself in the main classroom.
Plaintiff, L.H., avers that in December of 1988, she told defendant Bazzel, Assistant Director of Middle Bucks, of an attempt by one student defendant to force her into the darkroom for the purpose of engaging in sexual conduct. She alleges that Bazzel did not take action to correct the situation. Plaintiffs also allege that other individual defendants had knowledge of the severe non-sexual misconduct occurring in the classroom.
Based on the foregoing allegations, the amended complaints assert violations of plaintiffs' civil rights under 42 U.S.C. §§ 1983 and 1985(3) by Middle Bucks, Penn Ridge School District, Bucks County Intermediate Unit No.22, and the teachers and officials individually named [hereinafter the "school defendants"]. The student defendants were also joined. However, since they were not state actors, those claims were properly dismissed by the district court.
II. DISTRICT COURT RULING
On the basis of the record then before it, the district court found that defendants, Goode, Peters and Bazzel were entitled to qualified immunity under section 1983. D.R., L.R. and L.H. v. Middle Bucks Area Vocational Technical School, No. 90-03018 and 90-03060, at *17-18 (E.D.Pa. Feb. 1, 1991). Rather than dismissing on that basis, however, the district court's order granted the motions of the defendants to dismiss each of the complaints for failure to state a claim.
The district court first held that a special custodial relationship between plaintiffs and the school defendants was established by virtue of the state's compulsory attendance laws, thus creating an affirmative constitutional duty on the part of the school defendants to protect plaintiffs from the types of acts committed by the student defendants. D.R.. L.R. and L.H., at *27; 24 Pa. Cons. Stat. Ann. §§ 13-1327, 13-1333, 13-1343 (Purdon 1982). The court found that the existence of the affirmative duty to act was complemented by Pennsylvania law which gives school officials in loco parentis standing to take any action necessary to prevent disciplinary infractions and educationally disruptive behavior. 24 Pa. Cons. Stat. Ann. § 13-1317 (Purdon 1982). Nevertheless, the court concluded that the amended complaints failed to allege sufficient knowledge on the part of the school defendants to charge them with the requisite reckless indifference to plaintiffs' rights to support a section 1983 claim.
Plaintiffs contend that their amended complaints alleged the school defendants' knowledge of the physical, verbal and sexual abuse committed by the student defendants and a policy of laxity toward such conduct. They assert that the district court impermissibly narrowed their allegations by focusing solely on the issue of the school defendants' awareness of the sexual misconduct. Thus, as a consequence, they argue that the district court erred in granting the Rule 12(b)(6) motion, given the more expansive allegations and theories presented in their amended complaints.
Appellees respond that the district court's dismissal can be affirmed by this court without reaching the issue of the sufficiency of the factual allegations of the school defendants' knowledge of the conduct of the student defendants. They assert that, contrary to the district court's ruling, no special relationship of constitutional proportions existed between plaintiffs and the school defendants. Thus, they say that this section 1983 action is not maintainable. We turn to that important and complex issue in this most wrenching factual setting.
A. Standard of Review
This court's scope of review of the district court's dismissal for failure to state a claim is plenary. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Construing the pleadings in favor of plaintiffs, we must "determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-666 (3d Cir. 1988), cert. denied 489 U.S. 1065 (1989).
B. Legal Sufficiency of the Complaints
The first issue in a section 1983 case is whether plaintiffs sufficiently allege a deprivation of any right secured by the constitution, Baker v. McCollan, 443 U.S. 137, 140 (1978). Plaintiffs' amended complaints essentially assert two theories of liability under § 1983. The first is predicated upon the finding of a special relationship between plaintiffs and the school defendants giving rise to a duty to protect the students such as those here involved. We turn to that issue.
1. Constitutional Duty Analysis
We commence our analysis by addressing one of the seminal Supreme Court cases shedding light on § 1983 liability in this area. In DeShaney by First v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Court declined to impose a duty upon a state to protect the life, liberty or property of a citizen from deprivations by private actors absent the existence of a special relationship. DeShaney involved the state's repeated receipt of reports of abuse of a minor by his father. Notwithstanding the notice provided by the reports to the state agency, it did not remove the child from his father's custody. The father subsequently beat the child resulting in permanent brain damage. The child and his mother filed a section 1983 action against state officials claiming that their official inaction deprived the minor of his liberty in violation of the fourteenth amendment.
The Supreme Court stated at the outset that the due process clause itself does not impose an affirmative duty upon the state to protect its citizens but rather serves as a limitation on the state's power to act. Id. at 195. Further, the Court observed that the purpose of the due process clause "was to protect the people from the State, not to ensure that the State protected them from each other." Id. Thus, as a general matter, "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197.
The Court went on to acknowledge, however, that "in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." DeShaney, 489 U.S. at 198. The Court noted that it first recognized such an exception in Estelle v. Gamble, 429 U.S. 97 (1976), reh. denied, 429 U.S. 1066 (1977). The Court in Estelle held that the state had an affirmative duty to provide adequate medical care for prisoners since incarceration prevents an inmate from caring for himself. Id. at 103-04.
The Court extended the Estelle exception from the eighth amendment context to a fourteenth amendment due process claim in Youngberg v. Romeo, 457 U.S. 307 (1982). It there held that the Constitution imposed a duty upon the state to provide involuntarily committed mental patients "such services as are necessary to ensure their 'reasonable safety' from themselves and others." DeShaney, 489 U.S. at 199. The Court also pointed out in DeShaney, without editorial comment, that several Courts of Appeals had analogized foster children to individuals who fall within the Estelle and Youngberg exceptions. These courts imposed liability on the state for failing to protect children that the state placed in the care of foster parents when such placement resulted in abuse. DeShaney, 489 U.S. at 201 n.9.
In commenting on each situation constituting a departure from the general rule the DeShaney Court noted:
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.
DeShaney, 489 U.S. at 200. Focusing on the element of restraint, the Court concluded that the Estelle-Youngberg exception was inapplicable to Joshua DeShaney's case since the conduct did not occur while the child was in the state's custody.
Although the court decided that Joshua's situation did not amount to state custody, it left open the possibility that the duty owed by a state to prisoners and the institutionalized may also be owed to other categories of persons in custody by means of "similar restraints of personal liberty." Id. at 200. We must decide therefore whether, as appellants assert, state compulsory attendance laws so restrain school children's liberty that plaintiffs can be considered to have been in state "custody" during school hours for fourteenth amendment purposes. We consider this to be an open question in this circuit.*fn4
In order to decide whether a special relationship of constitutional proportions exists by virtue of the compulsory school attendance laws, we must attempt to discern the rationale for the Estelle-Youngberg exception as articulated by the Supreme Court. In determining that the state did not owe Joshua a duty, the Court in DeShaney shed light on what might constitute a special relationship which would give rise to a duty. It found no special relationship between the state and the abused child because the harm occurred while Joshua was in the custody of his father who was not a state actor. Further, the Court noted that "while the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him more vulnerable to them." DeShaney, 489 U.S. at 201.
Our court has read Deshaney as primarily setting out a test of physical custody. Philadelphia Police & Fire Ass'n for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156, 167 (3d Cir. 1989) ("the state continues to owe an affirmative duty to protect those physically in its custody"). See also , Fialowski v. Greenwich Home for Children, Inc., 921 F.2d 459 (3d Cir. 1990) (deciding no Youngberg duty of care for mentally retarded adult voluntarily placed at institution because state has not substantially curtailed his freedom). The issue in Philadelphia Police was whether the state could be held liable for withdrawing vocational and support services provided in a daily program for mentally handicapped children. While admitting that cessation of services would be detrimental to the children, this court refused to expand the Estelle-Youngberg custody exception to these children since it was "impossible to find an affirmative duty to protect the mentally retarded living at home." Id. at 168. In essence, the court did not "believe that such intermittent custody gives rise to an affirmative duty on the state's part." Id. at 168 n.9.
Plaintiffs argue that, unlike the plaintiffs in Philadelphia Police who chose to receive state services, they were required by law to attend school and therefore were in the state's custody during school hours under the Estelle-Youngberg exception. But the Supreme Court explained that "taken together, [ Estelle and Youngberg ] stand only for the 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. Thus, although plaintiffs' characterization fits in a general way within DeShaney characterization of Estelle-Youngberg, the similarities go no further.
The state's duty to prisoners and involuntarily committed patients exists because of the severe restriction of liberty in both environments. Institutionalized persons are wholly dependant 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.
As noted previously, some courts have imposed a constitutional duty to protect foster children by analogy to involuntarily institutionalized individuals. See, Doe v. New York City Dept. of Social Services, 649 F.2d 134 (2d Cir. 1981), after remand, 709 F.2d 782, cert. denied sub nom, Catholic Home Bureau v. Doe, 464 U.S. 864 (1983); Taylor by and through Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987), cert. denied sub nom, Ledbetter v. Taylor, 489 U.S. 1065 (1991). Although the situation of a public school child is closer to that of a foster child than to an institutionalized person, the foster care analogy is not decisive. A special relationship between the state and foster children arises out of the state's affirmative act in finding the children and placing them with state-approved families. Taylor, 818 F.2d at 794-97. By so doing, the state assumes pervasive responsibility for the child's well-being. In addition, the child's placement renders him dependant upon the state, through the foster family, to meet his or her basic needs. Id. A foster child is completely unable to seek other living arrangements and thus may well fall within the Estelle-Youngberg rationale.
Students, on the other hand, do not depend upon the schools to provide for their basic human needs. Instead, parents or others remain a child's primary caretakers. To the extent that the child is able to take care of himself or herself, attending school does not effectively preempt that responsibility. Schoolchildren, like the institutionalized, may complain to officials, however, unlike prisoners and mental patients, they may also turn on a daily basis to others such as their parents for help. By requiring plaintiffs to attend assigned classes, the school defendants did not cut off all meaningful sources of help for those in plaintiffs' positions.*fn5 Consequently, plaintiffs' case fails the DeShaney test which imposes liability only "when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to provide for his basic human needs. . . ." DeShaney, 489 U.S. at 200.
We hold that compulsory attendance laws cannot be viewed as creating a special custodial relationship between schools and students akin to that between a state and its prisoners or those otherwise involuntarily committed. Our view is in accord with the only other appellate case to directly confront the issue to date. J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267 (7th Cir. 1990). The Court of Appeals for the Seventh Circuit found that compulsory attendance laws did not liken school children to prisoners and the involuntarily committed, both of whom are unable to provide for their own basic human needs. Instead, the Seventh Circuit determined that parents have primary responsibility to provide for the basic needs of their children and that both school children and parents "retain substantial freedom to act." Id. at 272. We therefore conclude that plaintiffs amended complaints fail to state a constitutional duty that the school defendants could have breached.
2. Policy, Custom or Practice Analysis
We read plaintiffs' amended complaints to assert a second theory of liability that is viable even in the absence of a DeShaney duty. In Stoneking II, 882 F.2d 720 (3d Cir. 1989), cert. denied, 110 S. Ct. 840 (1990), this court held a school district liable for deliberately and recklessly establishing and maintaining a custom, practice or policy which caused harm to a student. In Stoneking II a teacher sexually molested a student. We stated there that the district was liable for maintaining the policies "in deliberate indifference to actions taken by their subordinates," id. at 725 and emphasized that Deshaney was distinguishable because the abuse there "resulted at the hands of a private actor." Id. at 724.
We agree with the district court that this case lacks the linchpin of Stoneking II, namely a violation by state actors. Sexual molestation committed by an agent of the state is readily distinguishable from the situation here pressed since the due process clause itself imposes limitations on the state's conduct. Thus, section 1983 liability may not be predicated upon a Stoneking II -type theory where private actors committed the underlying violative acts.
C. Qualified Immunity Under Section 1983
Although we have ruled that the section 1983 claims were properly dismissed for failure to state a claim under Rule 12(b)(6), we feel compelled to note that before granting defendants' motion to dismiss, the trial court ruled that defendants Goode, Peters and Bazzel were entitled to qualified immunity.*fn6 This court stated in Black v. Bayer, 672 F.2d 309 (3d Cir. 1982) that the affirmative defense of qualified immunity could not be successfully asserted through a 12(b)(6) motion since it must be developed by affidavits at the summary judgment stage or at trial. Id. at 316. We think that subsequent Supreme Court rulings have so undermined the rule enunciated in that case that to the extent Black is to the contrary, it is no longer viable. See, Harlow v. Fitzgerald, 457 U.S. 800 (1982); Mitchell v. Forsyth, 472 U.S. 511 (1985); see e.g., Hidahl v. Gilpin County DSS, 938 F.2d 1150, 1155 (10th Cir. 1991). In view of the fact that we have concluded that plaintiffs failed to assert a constitutional claim, the district court correctly determined that these defendants were also entitled to qualified immunity. See, Siegert v. Gilley, 111 S. Ct. 1789 (1991).
D. Section 1985(3) Liability
Plaintiffs also charge that defendants engaged in a conspiracy to interfere with their civil rights in violation of 42 U.S.C. § 1985(3). In order to prevail, plaintiffs must show a conspiracy on the part of the school defendants to deprive them of equal protection or equal privileges and immunities motivated by "class-based, invidiously discriminatory customs and practices of failing to protect female students from sexual, physical and verbal abuse. Specifically, the amended complaints assert that the school defendants' acts in setting up the graphics arts classroom to include a darkroom and unisex bathroom constituted a deliberate and reckless indifference to female students' rights.
We agree with the district court that plaintiffs failed to assert any facts from which any type of conspiratorial agreement between the school defendants and the student defendants can be inferred. Neither do the pleadings establish that the alleged discriminatory policies or practices were due to plaintiffs' membership in the class of female students. "Mere conclusory allegations of deprivations of constitutional rights," Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.), cert. denied, 409 U.S. 1042 (1972), are insufficient to state a section 1985(3) claim. Id.
In view of our affirmance of the district court's dismissal of the constitutional claims, we will also affirm the dismissal of the pendent state law claims.
The order of the district court will be affirmed.
SLOVITER, Chief Judge, dissenting.
Ever since the Supreme Court's opinion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the inferior federal courts have struggled to draw the line that will distinguish between those state-citizen relationships where the state bears no responsibility for harm resulting from private conduct and those relationships where the state's actions and the private conduct are so intermingled that the state cannot disclaim its responsibility for the harm that results. The case of children subjected to harm within the confines of a school that they are compelled to attend by state law offers perhaps the most acute of the scenarios raising this issue.*fn1 The majority holds that notwithstanding the state's custody over school children and its duty to act in loco parentis during school hours, the state bears no responsibility because the school is not the child's primary caretaker. That holding at least draws the line neatly and decisively. However, because I believe it relieves the state from accountability in this case
not only for harm for which it shares responsibility but also for harm to a student to whom it owed a particularized duty, I respectfully dissent.
Focusing primarily on D.R., as the majority does, if the allegations in her complaint are true, she was subject to violent, sexual assault over a five-month period while attending school. App. at 225-26. There is no question that D.R. has a liberty interest in "safety and freedom from bodily restraint." Youngberg v. Romeo, 457 U.S. 307, 319 (1982). As in DeShaney, the question here is whether the State deprived D.R. of her liberty interest in "'freedom from . . . unjustified intrusions on personal security.'" 489 U.S. at 195 (citing Ingraham v. Wright, 430 U.S. 651, 673 (1977)).
The majority believes that this case is closer to DeShaney than the situation where a state places a child with a foster family.*fn2 I cannot agree. The harm caused by the father in DeShaney or by a foster parent in the majority's hypothetical was not inflicted on state premises under the purview of state officials. Under the allegations here, the state school
significantly contributed to the harm by requiring these minor plaintiffs to remain in a chaotic classroom situation, constructing and maintaining a unisex lavatory where they could be assaulted without observation, assigning an apparently unqualified and ineffectual student teacher as the only supervisor in an out-of-control classroom, and adopting the position of the three monkeys who see, hear and speak no evil.
Barring unusual circumstances, school attendance up until the age of seventeen is mandatory in the state of Pennsylvania. Pa. Stat. Ann. tit. 24, §§ 13-1326, 1327 (Purdon's Supp. 1991); In re D.M., 19 D & C.3d 514, 520 (1981).*fn3 During the school day, school officials exercise substantial control over students, either because they are considered to stand in loco parentis toward the students, Pa. Stat. Ann. tit. 24, § 13-1317 (Purdon's Supp. 1991), or, as the Supreme Court has stated, because "the concept of parental delegation has been replaced by the view - more consonant with compulsory education laws - that the State itself may impose . . . corporal punishment . . . 'for the maintenance of group discipline.'" Ingraham v. Wright, 430 U.S. 651, 662 (1977) (quoting 1 F. Harper & F. James, Law of Torts § 3.20, p.292 (1956)) (emphasis added). These rationales are frequently invoked by school officials in an attempt to claim immunity for their actions, see New Jersey v. T.L.O., 469 U.S. 325, 336-37 (1985) (rejecting state's defense on ground that in loco parentis authority does not excuse school authorities from limits of Fourth Amendment), and also have been relied upon by the Court to recognize the special relationship between school officials and the students they supervise. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 684 (1986) (recognizing "the obvious concern on the part of . . . school authorities acting in loco parentis, to protect children . . . from exposure to sexually explicit, indecent, or lewd speech").
The majority of secondary school students are minors and the law recognizes that their judgment may not be fully mature and developed: children cannot vote, U.S. CONST. amend. XXVI; they cannot serve in the armed forces, 10 U.S.C. § 505(a) (1983); if arrested, they are tried in juvenile courts, 42 Pa. Cons. Stat. Ann. §§ 6301, 6322 (Purdon's Supp. 1991); and if pregnant, they must ask a parent for permission to have an abortion, 18 Pa. Cons. Stat. Ann. § 3206 (Purdon's Supp. 1991).
In their capacity as "parents," school officials can exercise control over the movements of their students. In discussing the general acceptance of corporal punishment in public schools, Justice Powell, speaking for a majority of the Court, stated that "the prevalent rule in this country today privileges such force as a teacher or administrator 'reasonably believes to be necessary for [the child's] proper control, training or education.'" Ingraham, 430 U.S. at 661 (quoting the Restatement (Second) of Torts § 147 (2) (1965)). The obvious corollary to this control is the principle that the school child is not free do anything or go anywhere she pleases while at school.
In this case, for example, D.R. claims that in order to avoid the situation in the classroom lavatory, she repeatedly requested a pass to use a different lavatory. Peters, the student teacher in charge of D.R.'s class, either ignored her or refused. App. at 228. As a result, D.R. was obliged by the actions of the school itself to use the unisex lavatory.
In DeShaney, the Supreme Court emphasized that Joshua DeShaney suffered all of his injuries at the hands of and while in the custody of his father. 489 U.S. at 201. The Court stated that although the State itself may not deprive people of their liberty, the Due Process Clause does not "impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means." Id. at 195 (emphasis added). Quoting its opinion in Harris v. McRae, 448 U.S. 297, 317-18 (1980), the Court noted that the Due Process Clause "'does not confer an entitlement to such [government aid] as may be necessary to realize all the advantages of that freedom.'" DeShaney, 489 U.S. at 196. It added that "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197 (emphasis added). Finally, the Court noted that "while the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." Id. at 201.*fn4
This is nothing like the situation of D.R. In this case, the injury to D.R. did not come about through "other means," allowing the state to claim, as it did in DeShaney, that it did not play some role in creating the danger to the plaintiff or making her "more vulnerable." The most extreme sexual misconduct allegedly went on in a unisex lavatory, designated as such by school officials, with an inside lock. Appellants allege that the teacher of that classroom witnessed daily the chaotic behavior that took place in her classroom and was present when the male students grabbed at D.R., touched her breasts, pushed her down, and dragged her into the bathroom. App. at 222, 226-28. The teacher's general reaction was to ignore the behavior or walk away. App. at 229. The other school officials also knew and did not try to remedy the situation. App. at 230-232. On one occasion Peters even made the students open the bathroom door when she knew a number of boys and girls were in there. App. at 228. Apparently a videotape of the class was made by a male student which showed "open lewdness" while the teacher was sitting at her desk watching. App. at 222-23, 739-41.
I do not see how we can say that in this situation the harm to D.R. came about by means apart from the state and that the state had no role in creating the dangers to plaintiff. This is not "private violence": some of it was carried out right in front of the teacher and the behavior in the lavatory, although outside of the teacher's immediate sight, was most likely well within her knowledge.
Despite the majority's reference to Philadelphia Police, 874 F.2d 156, this is not a case of a plaintiff claiming entitlement to government aid which has been withdrawn and which the government has no duty to provide in the first place, nor is it a case where the court needs to draw fine lines between the need for disciplinary measures in the school setting and the constitutional prohibition of cruel and unusual punishment. See Ingraham, 430 U.S. 651. Rather, this is a claim that if the government is going to require that minor children spend most of their waking hours subject to its control and disciplinary rules, id., the government owes some duty to those children that their most profound liberty interest, the interest in personal security and dignity, is not brutally violated by means that were completely within the power of the state to prevent.
The foregoing analysis is, at least on the face of the complaints, applicable to both D.R. and L.H. However, it is apparent from the record of the juvenile hearing before the state judge at which the perpetrators were found to be delinquent that D.R. qualified as an "exceptional child," see Majority Typescript Op. at 4 n.3, because she is "almost totally hearing impaired" and "her powers of articulation are seriously limited." App. at 744.*fn5 The majority leaves open the door for claims of elementary school age children, Majority Typescript Op. at 15 n.5, presumably because those children have immature judgment and may not be sufficiently independent of the school authorities to complain to their parents about constitutional deprivation occurring at school. D.R., notwithstanding her age, was apparently in a similar situation.
The record before us shows that D.R. also was unwilling to disobey her teacher and, in a poignant revelation of her own vulnerability, stated that she was afraid that if she complained about the brutality to anyone and was removed from the classroom, she would have nowhere to go. App. at 232, 746. The fact is that she suffered these indignities for many months before telling anyone. Presumably her fear arose from the fact that she had already been removed from a regular public school to go to this vocational school. There is little question, if we take the allegations of the complaint to be true, that Ms. Peters and other school officials knew about D.R.'s disability and about at least some of the offenses to which she was being subjected. App. at 229.
I believe that under these circumstances DeShaney is distinguishable. Unless and until the Supreme Court takes DeShaney a step beyond its already extensive applicability, I believe that there is still room to apply the protections provided by section 1983 to the fact pattern alleged in these complaints. Because I do not agree with the majority's limited view of the viability of the constitutional claims asserted here, I also disagree with its disposition of the qualified immunity defenses proffered by the individual defendants.