On April 17th, 2024, a student, using a stainless steel Stanley cup, brutally struck a classmate in front of a crowded lunchroom at Pennbrook Middle School in the suburbs of Philadelphia. The victim of this attack was left with head injuries and a concussion, and the shocking nature of this attack sparked parent protests, debate at school board meetings, and a district-wide school safety forum. 

Now, over a year after the attack, the parents of the victim have filed a federal civil rights lawsuit, under the 14th Amendment’s guarantees of substantive due process, against the school district, claiming their daughter’s rights to bodily integrity and human dignity were deprived. However, since these rights were infringed on by the victim’s classmate, this lawsuit is being brought against the school district under the “state-created danger” theory. This exception, as established by many federal appeals courts around the nation, applies in cases where “state acts to create or enhance a danger” that comes from a private actor. The 3rd Circuit Court of Appeals, where this case is occurring, has applied this standard to similar cases, such as one involving bullying and harassment at school.

In exploring this theory’s origins, this article will demonstrate that courts should consider situations of state-created dangers, such as those suggested in this lawsuit, only if a special relationship exists between the government and harmed individuals because this better aligns with Supreme Court precedent and stops treating torts as constitutional violations under the 14th Amendment. 

1. Legal Background

Because public schools in Pennsylvania are protected from most tort liability under the Pennsylvania Political Subdivision Tort Claims Act, the family in this lawsuit is seeking relief under 42 U.S.C. § 1983, which holds agents of state and municipal government, like school districts, accountable for violations of federal laws or deprivation of constitutional rights.

In this lawsuit, since the victim’s rights to bodily integrity and human dignity were infringed on by her attacking classmate, this family’s case falls under the Supreme Court’s holding in DeShaney v. Winnebago County DSS. In DeShaney, Joshua DeShaney’s mother sued the Winnebago County Department of Social Services (DSS) for failing to remove Joshua from the custody of his father, who severely beat and injured the boy. Although Joshua was under the Department of Social Service’s supervision, the Court held “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.”

Notably, the Court explicitly carved out one exception for substantive due process claims against the government when individuals face injury or harm from private actors: “special relationships”. These relationships can arise when the government is required to provide basic needs like food, clothing, medical care, or reasonable safety to individuals who are incarcerated or institutionalized.

In K-12 public school environments, the 3rd Circuit has settled that special relationships do not typically exist between students and the school. In Morrow v. Balaski, the 3rd Circuit Court of Appeals reaffirmed earlier findings that compulsory attendance laws do not give schools the same level over students like prisons or psychiatric institutions did under Deshaney. This finding was supplemented by a Supreme Court dictum in Vernonia School District v. Acton that said public schools’ control over children, including even monitoring student social media activity, does not equate to the “duty to protect” DeShaney identified when individuals are incarcerated or institutionalized. 

While the Morrow majority signaled that special relationships can exist in public schools in narrow circumstances that go beyond schools’ traditional compulsory attendance laws or in loco parentis authority, the Morrow court affirmed that, by and large, students in general educational environments do not have special relationships with public schools.

In sum, since K-12 students in public schools differentiate themselves from children in foster care or prisoners through the type of custody they are under from the State, the 3rd Circuit has rejected the special relationship theory for most general education students. Since the victim in this lawsuit was a general education student and had no unique circumstances in comparison to other students, this case would likely fall outside the special relationship exception.

2. The Status-Quo of the State-Created Danger Theory

Consequently, the family is not bringing this lawsuit under the special relationship exception but rather through another exception: state-created dangers. Although DeShaney does not enumerate this an official exception, many Circuit Appeals Courts, including the 3rd Circuit, have read DeShaney as “[leaving] open the possibility” for substantive due process claims when the “state acts to create or enhance a [third-party] danger that deprives” a plaintiff of their rights.

This theory arises from circuit courts reading an obiter dictum in DeShaney as suggesting that the State in this case “played no part” in creating danger for Joshua DeShaney and did not do “anything to render [him] any more vulnerable to them.” Courts have interpreted that by the use of this language, if the State had intentionally placed Joshua with a foster family or parent it knew was going to harm the child, Joshua’s mother could have brought a viable substantive due process claim against the DSS even without a special relationship between the State and Joshua. 

Using this “flexible” language, various Circuit Courts, through a variety of legal tests, have considered if government actions enabled the violent actions or harm of private actors or placed individuals in more vulnerable positions to harm; courts have sometimes understood this theory as the government placing individuals inside of a “snake pit.” Thus, for over almost 30 years in the 3rd Circuit and for a little longer in other Circuits, state-created dangers have been a viable method for seeking remedy from the government for the harms of private actors, which is why the family in this present lawsuit is utilizing this legal theory.

3. A Critical Reexamination of DeShaney’s Text

Since this theory of state-created dangers in this lawsuit and numerous preceding lawsuits across the federal circuits hinge on this one sentence of DeShaney’s majority opinion, further analysis of the context around this sentence is helpful to understand if lower courts are applying this theory correctly. First, it is important to note that DeShaney only had three explicit holdings:

1. There generally exists no violation of the Due Process Clause when the State fails to protect individuals from private violence. 
2. There is only an affirmative constitutional duty of the government to protect individuals when the State limits their ability to act on their own behalf, not when the State knows of individuals’ situations or expresses intent to help them.
3. State tort law may require the State to provide certain duties or care to individuals, but such tort laws are not automatically transformed into constitutional violations of the Due Process Clause.

Under these holdings, the Supreme Court does not explicitly grant a state-created dangers exception to the victim in the Stanley Cup incident and her family to use. They are bound by the fact that, regardless of the State’s awareness of the dangers to the victim, this was a third-party attack, there is no tort liability for such an attack in Pennsylvania, and the victim likely had no special relationship with the school, as explained above. 

Furthermore, the sentence from DeShaney lower courts rely upon to establish the state-created dangers exception falls squarely within the Court’s second holding about special relationships. In this section of the opinion, the Court is differentiating the special relationships the government has with incarcerated or institutionalized individuals from the State’s relationship with Joshua DeShaney. Specifically, the Court is differentiating the prior cases of Estelle v. Gamble and Youngberg v. Romeo from this situation because Joshua was not incarcerated or institutionalized, and even the State’s temporary custody over him did not make it “the permanent guarantor of” his safety.

Given this context around this critical sentence for the lower courts, the sentence gains an entirely new meaning which does not establish state-created dangers as their own channel for substantive due process claims. Rather, these dangers are elements of special relationships. For instance, when the Court describes how the State “played no part in” Joshua’s abuse, the Court is suggesting that the State did not restrain or control Joshua in a way that his abuse was enabled or perpetrated by the State. Furthermore, in asserting that the State did not “do anything to render” Joshua more vulnerable to abuse, the Court was concerned with the State’s brief custodial supervision of Joshua, not the likelihood of future injury or abuse from his father. Although the Court was aware of Joshua’s abusive father and his history, its focus was on the State’s custody of Joshua and not its placement of the child into a potentially dangerous environment.

Instead of asserting that the government can sometimes create or make individuals more vulnerable to a private actor’s violence, the DeShaney court was seeking to clarify that the relationship in the case did position the State in a way that allowed it to control how individuals experience outside harms or injuries. Put differently, the Court intended to show that Joshua had no “restraint of personal liberty” and was not dependent on the State for “basic human needs,” so the government had no control over the dangerous circumstances he experienced. As Judge Patrick Bumatay of the 9th Circuit noted in a different state-created dangers dissent and as the 5th Circuit formerly understood in Beltran v. City of El Paso, the state-created danger theory is subsumed by the special relationship exception. The State can only create danger or make individuals vulnerable to private injuries when there exists a special relationship in the first place. 

If the current popular practice of an independent exception for state-created dangers continues to persist, it will ultimately contravene DeShaney’s third holding that the 14th Amendment should not be turned into a vessel for tort law. The special relationship exception is already narrow given that due process was only intended to stop the government “‘from abusing [its] power, or employing it as an instrument of oppression.’” Even when the government is aware of serious dangers, like the ones Joshua DeShaney tragically faced or the ones the victim in this lawsuit faced from her bullier-turned-attacker, the government in most cases does not need to provide “governmental aid.” However, the state-created dangers theory allows for State actions to be scrutinized under the due process clause if injuries arise later from these State actions because of private actors. This creates a system of constitutional tort liability the DeShaney court hoped to reject.

4. Conclusion

Under this reading of DeShaney, the state-created dangers doctrine that many Circuit courts have devised over the past 30-plus years would be rendered moot. This would only allow them to review substantive due process claims against the government for private actions when individuals have special relationships with the government. Although this narrows the scope of claims that can be brought under the 14th Amendment, this reading of DeShaney serves to ensure that not “all common law duties owed by government actors [are]…constitutionalized” under substantive due process and that “mere failure to protect an individual…does not violate the Due Process Clause.”

Importantly, this article only considers the state-created danger doctrine as a subset of the narrow special relationship exceptions in DeShaney, but it does not consider the 5th Circuit’s ruling in Fisher v. Moore, which declined to adopt or extend the state-created danger doctrine because of the Supreme Court’s treatment of substance due process in Dobbs v. Jackson Women’s Health Organization. Future research can explore whether the recent ruling of Dobbs provides a more clear and forceful reasoning for courts to reject state-created dangers than this textualist reconsideration of DeShaney.

When reflecting on the appalling events of April 17, 2024 at Pennbrook Middle School and the victim’s lawsuit against the school district, it appears if this article’s prognosis for state-created dangers leaves the future bleak for this family, other Pennsylvania families, or families in any states with tort immunity for public schools; there appears to be no legal remedies for children who face pervasive bullying, harassment, or assaults in public schools without the special relationship exception applying to them.

Still, there exist many options for legal relief in the case where the children experience some harm, either through pressing criminal charges or initiating a civil lawsuit against a third-party that has wronged them. Beyond these options, parents can also ask state legislatures to carve out more exceptions for bullying, harassment, or assault into the tort immunity laws; this will ultimately ensure “‘the due process clause is not a surrogate for local tort law or state statutory and administrative remedies.’”