The University of New Hampshire Law Review
Keeping Schools Safe: Why Schools Should Have an Affirmative Duty to Protect Students from Harm by Other Students
[Excerpt] "Federal statutes have attempted to make schools safer by providing grants to assist schools in becoming violence-free. Similarly, some states have passed “bullying laws,” which mandate procedures for school officials to follow when dealing with bullying. These statutes, however, do not provide adequate remedies for students who are harmed by their peers during the school day. The majority of courts that have addressed student- on-student violence have declined to hold that compulsory education creates the type of special relationship needed to impose an affirmative duty on schools to protect students from harm by other students. While I agree that compulsory education laws do not restrain students’ freedom in the same manner as, for example, a jailor restrains a prisoner, compulsory education laws do restrict students’ freedom by requiring students to attend school, under the care of their teachers. When teachers or school officials reasonably believe that students are being harmed by their peers, they should be required to inform their superiors who in turn should inform the parents. Teachers who know that one student is harming another student should have a duty to protect that student from harm. Requiring school officials to protect students from actual harm would, at the very least, make schools feel safer to students, thereby creating school environments more conducive to learning.
This article argues that federal law should impose on school officials an affirmative, albeit limited, duty to protect students from harm by other students when school officials know, or reasonably should know, that students are harming other students. Part II of the article contains a brief historical overview of the official liability under 42 U.S.C. § 1983, as well as the current theories for holding state officials liable for harm caused by private actors. Part III discusses some recent cases where parents of children injured at school by other students have sued a school or school official( s) under section 1983. The decisions in these cases represent the majority view that schools do not have an affirmative duty under the Due Process Clause to protect students from harm by other students. Part IV discusses the minority view, which imposes a duty under certain circumstances. Part V describes other remedies available to students who are harmed by other students, and discusses some state responses to school violence. Part VI argues that courts should adopt the minority view and impose a limited duty on schools, thus requiring school officials to protect students when they are aware or have a reasonable belief that students are being harmed by other students. The article concludes with the policy reasons that support a limited duty, and the implications of imposing such a duty on schools."
Alison Bethel, Keeping Schools Safe: Why Schools Should Have an Affirmative Duty to Protect Students from Harm by Other Students, 2 Pierce L. Rev. 183 (2004), available at http://scholars.unh.edu/unh_lr/vol2/iss2/7