In the summer months following the Sandy Hook school shootings in Newtown, Conn., schools' authority to lock classroom doors was considered by Third Circuit Court of Appeals judges in a precedential case that could have changed the parental relationship of schools to students.
Locked classrooms, social media monitoring and technology used to ensure school attendance are new restrictions on student freedom since federal judges for Pennsylvania first ruled, two decades ago, on whether schools are liable for private harm done to students.
But none of those new limitations changed the schools' caretaker responsibility to that of prisons or foster homes, where limitations on people's freedoms require a duty to protect under the Constitution.
Mirror photo by Patrick Waksmunski
Bellwood-Antis High School students (from left) Courtney Watters, Paige Dinges and Daniel Hollen look over a poster from Aevidum, an anti-bullying organization, during a group discussion on Thursday.
"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," former Blair County Judge and current Third Circuit judge D. Brooks Smith wrote in an opinion this summer.
He was talking specifically about school bullies.
It was the first time all 14 judges of the Third Circuit bench, rather than a panel of judges, addressed the problem of bullying.
Parents Bradley and Diedre Morrow sought compensatory damages from Blackhawk School District in Beaver Falls and an assistant principal because their daughters were continually threatened, physically and emotionally, by two students deemed delinquent by the juvenile system and subject to no-contact orders by the family.
The court dismissed the Morrows' claim that school officials violated the 14th Amendment of the Constitution by not protecting their daughters.
The judges dismissed gross negligence and willful misconduct charges against Blackhawk School District and the assistant principal, who, instead of removing the bullies, said the district could not guarantee their daughters' safety and suggested the family look for educational opportunities elsewhere.
Judge Julio Fuentes, one of three dissenting judges, rejected the decision.
"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 officials in this case ... all dictate a result contrary to that endorsed today."
Currently, Altoona Area School District Police are reviewing footage of a group of girls jumping the daughter of David and Kelly Bradley.
The Bradleys' seventh-grade daughter is healing from a black eye and is receiving medical treatment for her writing wrist after being assaulted by four or five girls.
Some boys watched and taped the assault. That video is with the police, Kelly Bradley said.
Kelly Bradley said her daughter was surprised by the assault. The attackers had a friendly history with their daughter, she said.
"They would all go skating. I don't know why they turned on her."
What should result, according to the Altoona Area Student Handbook, is referral to district security and/or civil authorities for criminal charges.
"We are staying on the school police," Kelly Bradley said.
Juvenile allegations will be filed through the Blair County Juvenile Probation Office, according to the district. The charges will include simple assault, harassment and disorderly conduct.
But as the Blackhawk School District case showed, parents don't have complete assurance that school districts can keep bullies away from further harming their children. And school districts don't have an obligation to do so.
The courts' decision to support school officials' stated inability to ensure the safety of students "creates incentive for school districts to pursue inaction when they are situated uniquely to prevent harm from their students," dissenting judges stated.
School districts report few bullying incidents to the state department of education.
A vast majority of districts in the region report numerous bullying behavior as isolated incidents while reporting few to zero incidents categorized as bullying - an ongoing series of acts.
"Fights reported may not stem off of bullying," Chestnut Ridge Superintendent Mark Kudlawiec said.
He said the district has an anonymous bullying hotline for students and said he would be reluctant to say the district had no bullying.
However, the district reported zero incidents over the last three years. Altoona Area, with nearly 8,000 students, reported four bullying incidents last year, the same number that one of the smallest districts in the state, Williamsburg Community School District, reported. Bellwood-Antis School District reported 14 incidents of bullying, the most of 15 area school districts.
"We certainly address bullying issues, and that's why you see our statistics at
14," Bellwood Antis Superintendent Brian Toth said. "We address it and report it," he said. "We have an elementary program that has done wonders at identifying bullying. And at the high school, we have a new program in its second year."
Stemming bullying by enforcing no-contact orders between students is difficult for schools, said Blair Assistant District Attorney and Juvenile Prosecutor Deanne Paul.
"School districts do what they can, but in a school setting, it's difficult to separate them at all times. It's definitely concerning to parents, especially when you have a child in a particular assault that happened at school. Parents want to know what will happen when they continue going to school," she said. "In the juvenile system, we routinely request no-contact orders between the students."
In cases where no-contact orders are issued, Paul said the county juvenile probation office monitors delinquent behavior and school procedures of suspension, and expulsions can be used to remove the bully from the school.
The majority of judges who decided the Morrows' case could see mountains of bullying lawsuits in the future of schools if the court were to begin a precedent of exposing them to liability for not expelling students for bullying. And as a consequence, expulsions would rise.
"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, " Judge Thomas Ambro stated.
In Blair County last year, schools enacted 192 suspensions and two expulsions for violence. There were also 476 suspensions for conduct.
At Tyrone Area, despite 16 violent or threatening incidents and 20-plus suspensions for violence, only three bullying incidents were reported.
"Bullying is a repeated occurrence of using power over another person," Superintendent Cathy Harlow said. "Suspensions for violence can be for one-time incidents."
Asked whether any of the suspensions for violence may be linked to continuous bullying that was unreported, she said that it is possible.
At Hollidaysburg Area this year, school officials suspended students who played a game during class in which they disguised shouts of racial slurs, hoping not to be heard. Although there was a student of minority status in the room who was rumored to have taken offense to the words, Superintendent Bob Gildea said it was not a bullying situation.
The assault on the Bradleys' daughter at Altoona Area might not be classified by district officials at the end of the year as bullying.
The Bradleys said their daughter has been verbally harassed since the attack, however. And school officials punished their daughter for responding to her harasser.
Days after the assault, a boy harassed the Bradleys' daughter by making fun of her for not fighting back during the attack, Kelly Bradley said.
She punched him, and instead of school officials determining that her action was a response to bullying, she was suspended for three days.
Such "zero tolerance" policies at schools have been documented to doubly punish victims of bullying.
"Zero tolerance is a joke," David Bradley said. "Schools and principals want you to make them aware of bullying, but if they don't see anything, there is nothing they can do."
In arguing that the Blackhawk School District placed limitations on the Morrow girls that may give rise to a constitutional duty to protect them from private harm, some judges pointed to the district's zero tolerance policy.
The policy, which suspended the victim for fighting back against her bully during a lunchtime assault, limited her ability to protect herself, judges argued.
A majority of judges, however, decided that while the fairness of the policy was open to question, it did not restrict the victim's freedom, and so it did not require a corresponding duty by school officials to protect her from her bully.
While there is no federal law protecting students from bullying, state law provides some remedy to underlying mental and behavioral issues.
"There is a significant increase of documented discipline reports and bullying referrals [at Altoona Area High School]," states a district memo from the school counseling chairman to school officials.
Referrals for behavioral and social concerns to Altoona Area's behavioral support team, mandated by the state in the '80s, have increased from 153 referrals in 2008-09 to 293 referrals in 2011-12.
The proposal for an on-site Mobil Crisis and Mental Health Provider employed by UPMC Altoona was approved by the school board this year. A crisis counselor visits the school when needed to handle problems of students who, for example, show signs of suicidal thoughts.
UPMC Altoona provides that service to all Blair County school districts at no cost, 24 hours a day.
However, students facing ongoing social or behavioral problems are not receiving the extended care or consistent care due to limited resources, the memo informed district officials.
"It is typically the most difficult cases which go unattended due to lack of parent involvement or lack of funds," the memo stated.
The memo states statistically 10 percent of referrals for social and behavioral concerns will most typically warrant continued intervention that the district does not have personnel to deliver and that parents can't afford.
"If assessments warrant further services, we will refer to agencies that come into the school. ... For parents who are not engaged, who do not have insurance or cannot afford the co-payment, services are not delivered."
Bullying is only one part of bigger issues in a student's life, whether it be familial problems, addiction or anxiety, UPMC Crisis Counselor Chrisy Benzel said.
The Constitution does not provide judicial remedies for every social ill individual, the court opinion on the Morrows' case stated. And despite dissent of several judges, bullying remains one in that category.
"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," Brooks wrote.
In Pennsylvania, Political Subdivision Tort laws specifically grant schools immunity from liability in cases like the Morrows'.
The Morrow case presented a difficult and important question of law regarding the notion that schools don't have an affirmative duty to protect students from private harm, the Third Circuit opinion states.
Fuentes was adamant the court was wrong in not awarding compensatory damages to the Morrow family for school official negligence.
"When a state interrupts even temporarily the 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 responsibility to act as one would expect the child's parents to act: to protect the child from that danger."
Twenty-year-old Adam Lanza, who a year ago on Saturday fatally shot 26 children and six adult staff members at Sandy Hook Elementary, has been reported by the New York Daily News to have been bullied as a student at Sandy Hook Elementary School.
He would arrive home from school with bruises and was allegedly not emotionally together after his time at Sandy Hook.
Lanza's mother thought about suing the school for not doing anything to stop it, news reports stated.
All other court circuits of appeals aside from second and D.C courts have considered the issue of a school's relationship to students and ruled that cumpulsory school attendance coupled with school authority over students does not trigger protection of substantive due process under the constitution.
"In short, nothing convinces me that adherence to set precedence puts us on a course that is sure error," Smith wrote. "Departing from [precedence] would create a circuit split in exchange for forsaking the Supreme Court's repeated reluctance against expanding substantive due process. That to me is a lose-lose situation."
Mirror Staff Writer Russ O'Reilly is at 946-7435.