In the past, courts refused to find a constitutional due process violation when a school district took no action or insufficient action to protect its students against violence from a private individual. However, the court in Estate of Montana Lance v. Lewisville Independent School District[1] has laid new groundwork for schools in their anti-bullying efforts by allowing a case to proceed based on a "special relationship" between the school and student.  The federal court in the Eastern District of Texas found that a special relationship existed between the school district and Montana (a learning-disabled, special education student with emotional disturbances and a speech impairment) and allowed the plaintiffs' civil rights' claim under 42 U.S.C. §1983 to survive dismissal.  The case is currently set for pretrial conference and jury trial setting on July 9, 2012. 

Montana was nine years old during the 2009-2010 school year and had a long history with the district. Two years earlier, the Admission, Review and Discharge ("ARD") Committee met to discuss repeated bullying he faced and his resulting depression and suicidal thoughts. Montana was later identified during that school year as an "at risk" student by the school psychologist after he represented that he felt like he wanted to die. Montana's parents alleged they were never informed of the school psychologist's findings or Montana's suicidal statements.

The ARD committed developed an Individualized Education Plan ("IEP") and Behavioral Intervention Plan ("BIP") to address Montana's emotional disturbances in the classroom. Despite these efforts, Montana had numerous disciplinary issues that school year, including pushing a student, placement in alternative school for pulling a pen knife during an altercation with students who threatened to "beat him up again," an altercation with three other boys, and blurting out in class that he "pooped his pants."

Sadly, during the 2009 - 2010 school year, Montana locked himself in the restroom and hung himself with his belt.  Montana's parents filed suit against several school officials and the school district (and later amended to only sue the district) alleging that the district violated Montana's substantive due process rights under the Fourteenth Amendment of the United States Constitution based on a special-relationship theory.[2]

The court held that the allegations sufficiently stated a claim for violation of Montana's substantive due process rights via Section 1983.  Although school districts generally are not liable for failing to protect their students from private violence, federal courts have recognized two exceptions-(1) a special relationship theory and (2) a state-created danger theory. Although the trial court dismissed the latter, it held that a special relationship theory was stated.

The court, relying on Doe v. Covington County School District,[3] outlined when a special relationship may exist:

(1) when the student is very young,

(2) when the student is physically restrained (or unable to leave the school's custody), and

(3) when the student is secluded or kept apart from teachers and other pupils who may witness or protest mistreatment.

The court, identifying Montana's very young age, special education status, emotional disturbances, learning disability and speech impairment, opined that Montana had a lower level of social functioning and less ability to assess threats to his safety. The court also explained that the school's repeated punishment of Montana for his involvement in altercations with other students taught him that the school would not protect him and gave rise to a greater obligation of the school to do so. Finally, when Montana was placed in in-school suspension and isolated from the regular classroom, the "special relationship" was solidified, and the court refused to dismiss plaintiffs' Section 1983 claim.

Although the ruling was made at the early stages of the lawsuit, the case will likely serve as an authoritative example of when school districts reach that level of a "special relationship." The moral duty of protecting students from bullying may, in certain circumstances, now turn into a legal one.  To better serve students as well as thwart potential legal ramifications, school districts should carefully develop and implement BIPs. Further, consistent updates to a student's guardian, especially when discipline referrals and/or behavior intervention is called for, not only opens the lines of communication but can potentially prevent the scenarios faced by students like Montana. Finally, school districts may, in some circumstances, owe students that are removed from the regular classroom a greater duty of protection.  Districts should review their practices and should be cognizant of the students to whom an increased duty may exist given a special relationship.