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The dramatic school shootings in Columbine, Little Rock, and locally at Rocori High and Red Lake have kept the issue of school safety at the forefront of the news in recent years. Schools have been scrambling to adopt policies on suicide prevention and "anti-bullying" programs as schools have been facing increasing litigation over student suicides, assaults, and even homicide.
This article seeks to briefly examine the connection between bullying and student suicide/homicide, review available statistics on teen suicide and bullying, and then consider the development of the law relating to school liability for teen suicide and/or bullying, both on the national and local levels. Finally, the policy implications for and against the imposition of liability on schools for teen suicide and bullying will be discussed.
Statistics on Bullying and Teen Suicide Connections
Focus Adolescent Services defines bullying as abusive behavior by one or more students against a victim or victims.1 It can involve direct attacks, such as teasing, taunting, threatening, coercion, stealing, and physical assault, or indirect attacks, such as gossip, spreading rumors, or intentional exclusion of the victim from favored groups. The common thread between both types of bullying is that it is physical or psychological intimidation that occurs repeatedly over time to create an environment of harassment, abuse, and fear. Bullying increases through the elementary school years, peaks during the middle school/junior high school years, and slowly declines through the senior high school years.
According to By Request: Schoolwide Prevention of Bullying, a booklet series by the Northwest Regional Educational Laboratory (2001), an estimated 30 percent of American children are regularly involved in bullying, either as bullies, victims, or both.2 Approximately 15 percent of students are "severely traumatized or distressed" by encounters with bullies, and 8 percent report being victimized at school at least once per week.3
In High v. Pasco School District, Franklin County, Wa., Court File No. 99-2-50510-0 (1999), Dr. Alan L. Berman, an expert in adolescent suicide, testified that the consequences of bullying are significant: clinical depression and suicide are a foreseeable consequence of a school’s failure to identify and constrain bullies from victimizing other students. He described clinical depression as one of the greatest risk factors for suicide among all age groups, and particularly so for children and adolescents. Bullied children are five times more likely to develop depression than students who have not been so victimized. Victims of bullying are twice as likely to develop severe suicidal ideation. According to Fight Crime: Invest in Kids, a study by the Secret Service found that most of the attackers in Columbine and other school shootings had experienced severe and long-standing forms of bullying and harassment.4
According to Focus Adolescent Services, children who bully have a need to feel powerful and in control. Bullies who regularly bully tend to be defiant toward adults, antisocial, and apt to break school rules. They appear to have little anxiety and strong self-esteem, contrary to the popular belief that bullies are secretly insecure and have low self-esteem. They also tend to do well in school. In addition, chronic bullies often continue their bullying behaviors into adulthood, and they are more likely to experience legal or criminal problems as adults.
Who Gets Bullied?
In contrast, victims of bullying tend to have low self-esteem, lack social skills and friends, and thus already are socially isolated. They fear school and often stay home "sick" in order to avoid school. Victims of bullying often suffer from impaired social and emotional development as well as school performance as a result of bullying. Some victims have committed suicide or attempted suicide in an effort to avoid the continuing abuse. Others have taken out their anger and frustration in violence. Most of the young people involved in school-related violent deaths have been victims of bullying.5
Of interest and concern is the fact that even children who merely witness bullying suffer from a less secure learning environment, fear that the bully may target them next, and feel that going to an adult for help will not stop bullying behavior.6
The National Resource Center for Safe Schools reports that the sense that adults will not help stop bullying behavior is supported by statistical evidence as well.7 Bullying behavior is rarely detected by teachers and is even less frequently taken seriously. The available research overwhelmingly shows a significant gap between educators’ perceptions and the actual incidence of bullying at school. In one study, classroom teachers identified and intervened in only 4 percent of bullying incidents.8 Part of the problem is that bullying is more likely to occur in places where adults are not present. However, lack of understanding of the nature and severe consequences of bullying behavior also contributes significantly to many adults’ inability or unwillingness to get involved.9
Thus, it is clear that understanding and taking seriously the dynamics of bullying behavior is essential if we are to maintain safe and secure schools.
The statistics on teen suicide are equally as disturbing. The National Youth Violence Prevention Resource Center, sponsored by the Centers for Disease Control and Prevention and Federal Partners Working on Youth Violence, reports that during the year 2000, suicide was the third-leading cause of death for young people 10 to 19 years old. More teenagers die from suicide than from cancer, heart disease, AIDS, birth defects, stroke, pneumonia and influenza, and chronic lung disease combined. In 2000, a reported 1,921 young people ages 10 to 19 died by suicide in the United States. While suicide is still relatively rare among youth under the age of 15, the rate has increased by 70 percent since 1981. Survey data from 2001 showed that 19 percent of high-school-aged children had seriously contemplated suicide, almost 15 percent had made suicide plans, and 9 percent made a suicide attempt during the year preceding the survey.10
The center also notes that some teens are at greater risk for suicide than others. Risk factors include:
• Previous suicide attempts
• Depression and/or alcohol or substance abuse
• Family history of mental disorders, substance abuse, or suicide
• Stressful situations or loss
• Easy access to guns
• Exposure to other teenagers who have committed suicide
School Liability for Teen Suicide and/or Bullying: A National Review
Procedural and Substantive Due Process Claims
Plaintiffs suing schools for harm caused by schoolyard bullying most often base the claims upon state tort claims for negligence. Plaintiffs suing schools for teen suicide have faced difficult challenges nationally, for several reasons. First, the idea that schools may have some responsibility to prevent teen suicide and playground bullying is relatively new and the cases are sparse. Second, issues of qualified immunity and official immunity must be overcome. Third, plaintiffs bringing claims under 42 U.S.C., section 1983 of the United States Code, typically must allege conduct on the part of the school that is egregious and that "shocks the conscience"—a very difficult burden to meet.
In spite of the difficult challenges plaintiffs face, the carnage that has resulted from mass homicides during school shootings means plaintiffs will continue to bring these cases. Schools are being forced to take a hard look at the way they operate, and to come up with new ideas on how to prevent such tragedies in the future.
On a national level, most of the reported cases involving teen suicide have been brought as section 1983 actions, with varying degrees of success.11 For example, in Martin v. Shawano-Gresham School District, 295 F.3d 701 (7th Cir.2002), a student [Timijiane] who was suspended from school for having cigarettes went home on the bus, entered the basement of her home, and hanged herself. The case was brought in federal court in Wisconsin based on alleged substantive and procedural due process violations, an equal protection claim, and supplemental state law claims for common law negligence.
The student’s parents brought suit against the school, the school district, and various school officials. They first contended that the defendants violated the student’s procedural due process rights by suspending her without providing parental notice and a hearing before the suspension. The equal protection claim was based on the assertion that Timijane and another student also suspended for the same offense on the same day were treated differently in that the other student’s parent was notified of the suspension and allowed to pick her daughter up from school, while Timijane’s parents were not notified and Timijane was sent home on the school bus. The substantive due process claim was based upon the argument that the suspension caused Timijane severe emotional distress, the school district failed to protect her from that distress, and the distress was the proximate cause of her suicide.
The school district’s motion for summary judgment on the federal claims was granted by the court. The state law claims were dismissed without prejudice. The Seventh Circuit Court of Appeals affirmed, stating that no due process or equal protection rights were violated. The Seventh Circuit based its opinion primarily upon DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 195, 109 S.Ct. 998, 102 L.Ed.2d 249 (1989), which sets forth the basic law concerning substantive due process claims against state actors in similar situations.
In DeShaney, the U.S. Supreme Court held that "the Due Process clause forbids the state itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means."12
However, DeShaney also established that there are two limited sets of circumstances, which can create an affirmative duty on the state. The first is when the state itself deprives the individual of "alternate avenues of aid," as in the case of prisoners from whom the state has taken their liberty, and who thus are unable to help themselves. Such circumstances create a "special relationship" with that individual as a result of the prisoner’s complete dependence upon the state. School-student relationships are not "special relationships," even though the school has temporary custody of the student during the school day and in some ways acts in loco parentis.13
The second exception is when the state itself creates the danger, which deprives a person of life, liberty, or property, or renders a person more vulnerable to a danger that already exists.14 The Seventh Circuit rejected the Martins’ argument that the school either created the risk that Timijane would commit suicide or rendered Timijane more vulnerable to the risk of suicide by suspending her from school. The court explained that "due process protects people from being unlawfully restrained; it provides no right to be restrained, lawfully, or otherwise." In other words, the school did not violate Timijane’s substantive due process rights by failing to restrain her from returning home from school on the school bus.
The "state-created danger exception" was also interpreted by the Tenth Circuit Court of Appeals in Armijo v. Wagon Mound Public Schools, 159 F.3d 1253 (10th Cir.1998). In this case, a special education student who had been suspended for misbehavior threatened violence against the teacher who had reported his misbehavior. Earlier in the year, the student had told a counselor that he [the student] would be "better off dead." In a subsequent conversation with a counselor, the student had said, "I’m just going to shoot myself."
When the student was suspended for misbehavior, the principal of the school directed the student’s counselor to drive the student home from school, because the principal considered him to be at risk for committing violence. This action was in violation of the school’s disciplinary policy. The counselor had actual knowledge that the student lived in a home where guns were readily available. The student shot himself when he returned home.
The Tenth Circuit Court of Appeals found that the school was liable because of the "affirmative action" of bringing the student home in the middle of the day without his parents’ knowledge, and with actual knowledge of the student’s state of mind and the availability of firearms. The court wrote that "the key to state-created danger cases lies in the state actors’ culpable knowledge and conduct in affirmatively placing an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid. Thus the environment created by the state actors must be dangerous; they must know it is dangerous; and, to be liable, they must have used their authority to create an opportunity that would not otherwise have existed for the third party’s acts to occur." 15
Armijo also articulated that under the state-created danger standard, the school’s conduct must be such that it "shocks the conscience." The court explained that because the U.S. Supreme Court has specifically admonished that a substantive due process violation requires more than an ordinary tort, the "shock-the-conscience" standard requires a high level of outrageousness.
Furthermore, in order to discern whether the facts of a particular case "shock the conscience," in Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995), the Tenth Circuit Court of Appeals articulated a five-part test to determine whether a defendant created a special danger for the plaintiff: The plaintiff must demonstrate that (1) the plaintiff was a member of a limited and specifically definable group; (2) the defendants’ conduct put the plaintiff at substantial risk of serious, immediate, and proximate harm; (3) the risk was obvious and known; (4) the defendants acted recklessly in conscious disregard of that risk; and (5) such conduct, when viewed in total, is conscience shocking.
The Tenth Circuit cited the fact scenario in DeShaney to demonstrate this test. In DeShaney, a child was returned to an abusive father who beat the child so severely upon return that the child sustained permanent brain damage. The Armijo court found that DeShaney did not meet the criteria of that five-part test. The court explained that the state cannot create a danger that already existed and could not be held liable for a danger it did not create. However, the court of appeals did find that the facts in Armijo were sufficient to meet the five-part test, based upon the school’s prior knowledge of the student’s emotional and psychological state, its knowledge of his access to firearms, and its affirmative conduct in driving the student home without notifying his parents, in violation of the school’s discipline policy. The Martin court distinguished Armijo in determining that the school did not violate Timijane’s substantive due process rights. Unlike the facts in Armijo, in Martin Timijane’s suicidal intent, although reported to friends, never was reported to school officials, so they had no knowledge of the danger. Finally, there was no conscious disregard of "an obvious and known danger" that Timijane would go home and kill herself.
Discretionary and Official Immunity
Even assuming that the facts of a given case establish due process violations or common law negligence, plaintiffs must overcome the additional hurdle of the defenses of discretionary and official immunity. Schools are governmental entities and as such are entitled to assert certain immunities from suit. There are two principal doctrines under which a school may be immune from suit. They are "discretionary immunity" and "official immunity." Under the doctrine of discretionary immunity, municipalities are protected from tort liability for "any claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused."16 In order to be granted immunity from tort liability, the decision for which a defendant seeks immunity must be a discretionary decision. This applies to any policymaking decision, which balances competing political, social, or economic interests. However, the court has consistently held that immunity does not apply to operational decisions, that is, decisions that do not require any independent judgment and are simply ministerial applications of established policies and procedures.17
Under the doctrine of official immunity, "a public official charged by law with duties that call for the exercise of judgment or discretion is not personally liable to an individual for damages unless the official’s actions are wrongful or malicious." 18 In addition, the school district has the burden of establishing that it is entitled to the immunity.19
In Killen v. Independent School Dist. No. 706, 547 N.W.2d 113 (Minn.App. 1996), the Minnesota Court of Appeals applied the immunity doctrines to a student suicide case. The court in Killen held that a school’s decision not to create a suicide prevention plan was a protected, discretionary action, or rather inaction. Since it was the result of a conscious decision not to implement a policy, it was protected. Therefore, the school could not be held liable for failing to prevent a student’s suicide, despite having four direct reports of the student’s suicidal intent over a period of months.
Importantly, Killen was overturned in S.W. v. Spring Lake Park School Dist. No. 16, 580 N.W.2d 19, 23 (Minn. 1998), where the Minnesota Supreme Court held that "conduct flowing from a governmental entity’s failure or refusal to enact a policy is conduct at an operational level and therefore is not entitled to statutory immunity under Minn. Stat. § 466.03, subd. 6. To the extent that the court of appeals decision in Killen is inconsistent with our holding here, Killen is expressly overruled." The Court reasoned that if it were to hold that a government entity’s failure to enact a policy was protected by statutory immunity, government entities would have an incentive to "avoid making the difficult decisions which the statute was designed to protect."
School Liability for Teen Suicide and/or Bullying: Minnesota Law
Minnesota has consistently held that a school is liable for the injury of one student by another if it was a reasonably foreseeable injury, and if reasonable supervision could have prevented the injury. For example, in Sheehan v. St. Peter’s Catholic School, 188 N.W.2d 868 (Minn.1971), a school was found liable for the injury of a student caused by another student throwing rocks at her. The Court held that supervision by a teacher would have stopped the rock throwing, which lasted several minutes, and "a jury could properly find that the teacher present would have put a stop to this dangerous activity before the Plaintiff was struck."
The same issue of supervision was also raised in Raleigh v. Independent School Dist. No. 625, 275 N.W.2d 572 (Minn.1978), in which a student was robbed and attacked at a school-sponsored field trip. The trip was to a movie theater to see a film on the civil rights movement. The school district was aware of racial tensions at St. Paul Central High School and welcomed the opportunity to show students the movie, which was mainly comprised of news reports and stories of individuals in the civil rights movement. It was controversial, and ignited several racially-motivated incidents in the movie theater. Raleigh was injured during one of the incidents and brought a claim of negligent supervision against the school district. The school district argued that it had no way of preventing the criminal actions of one or two students, as it did not have enough chaperones.
The Supreme Court disagreed with the defendant, stating that while there is no requirement of constant supervision of all movements of all pupils at all times, the school is nevertheless liable for foreseeable conduct which could have been prevented by the exercise of ordinary care. The conduct was foreseeable since the racial tensions in the high school were escalating, and the movie and subject matter were likely to ignite some strong emotions. In fact, during the screening of the movie, several racial comments were made by students in the audience. Those factors made a racially motivated incident "reasonably foreseeable."
In Killen, discussed above in the context of discretionary and official immunity, the parents of a student who killed herself sued the school district for failing to report to them some suicidal statements the student had made shortly before she committed suicide. After the first report of the student’s suicidal intent, her guidance counselor telephoned the student’s parents and suggested counseling for the suicidal statements. The parents secured counseling immediately. After another report, the counselor again confronted the student, who denied having any immediate suicidal thoughts or plans. The counselor let it go and never informed the student’s parents of the second conversation. The student stayed home from school for two days about a month later and killed herself on the second day.
The student’s parents sued the school district, alleging among other claims that the school district’s failure to establish a suicide prevention policy was negligent. The court of appeals disagreed, holding that the failure to adopt a suicide prevention policy was a protected discretionary act, entitling the school district to statutory immunity. It reasoned that the purpose of immunity is to afford officials the discretion to exercise their judgment without the threat of legal consequences. In addition to protecting a decision not to have a policy, this immunity also protected the decision of the guidance counselor not to tell the student’s parents.
As noted above, the Minnesota Supreme Court overruled this holding in Killen and held that a failure to adopt a policy is an operational decision not entitled to statutory immunity.
Public Policy Considerations
In making a determination whether to impose liability upon a school district for negligent or egregious conduct which proximately causes a student to commit suicide, courts not only should examine the facts in light of the applicable law, they also should consider the public policy implications of their decisions. A very good discussion of such public policy considerations can be found in the Maryland Supreme Court’s decision in Eisel v. Board of Education of Montgomery County, 324 Md. 376, 597 A.2d 447 (1991). The Eisel Court held that the lower court erred in granting summary judgment in favor of the school board, where the parents of a student within the school district sued the school board after their daughter committed suicide. In Eisel, friends of the decedent Nicole Eisel reported Nicole’s intent to commit suicide to two school counselors. The counselors then summoned Nicole to their office and questioned her. Nicole denied making any such statements. Neither counselor notified Nicole’s parents or the school administration of the alleged suicidal statements. Thereafter, Nicole and a friend participated in a murder/suicide, in which Nicole’s friend first shot Nicole, then shot herself.
In determining whether the school owed a tort duty to Nicole, the Maryland Supreme Court noted that "[a] tort duty is ‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’"20 The Court held that several factors must be analyzed in order to determine whether a tort duty should be imposed. Those factors included the following:
• the foreseeability of the harm to the plaintiff;
• the degree of certainty that the plaintiff suffered the injury;
• the closeness of the connection between the defendant’s conduct and the injury suffered;
• the moral blame attached to the defendant’s conduct;
• the policy of preventing future harm;
• the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach; and
• the availability, cost, and prevalence of insurance for the risk involved.21
The Eisel Court concluded that foreseeability of harm "is the most important variable in the duty calculus…and without it there can be no duty to prevent suicide." The Court held that the student’s suicide in the case before it was foreseeable because the school had direct evidence [reports of friends] of Nicole’s intent to commit suicide.
Although Nicole denied any suicidal intent when questioned by counselors at school, that did not necessarily compel the conclusion that Nicole’s suicide was no longer foreseeable. The Court noted that a government-sponsored memo recognized that students contemplating suicide are more likely to confide in friends than in a teacher or parent. However, all adults—parents, teachers, administrators, service providers, and friends—can learn what the warning signs are and what to do.
With respect to the other factors to be considered in determining whether to impose a tort duty, the Court noted that the Maryland legislature’s enactment of the Youth Suicide Prevention School Programs Act indicated that the legislature felt prevention of youth suicide was an important public policy and that schools should be at the forefront of the prevention effort.
The Court next addressed the defendant’s argument that Nicole’s suicide was a deliberate, intentional, and intervening act that precluded a finding of any liability on the part of the school for the suicide. The Court rejected this argument, holding that an adolescent’s suicide should not be treated as a superceding cause when there was evidence that schools had the potential to intervene effectively.
The moral blame attached to the defendant for its conduct does not require that there have been an intent to cause harm. Moral blame can be attached to the defendant’s conduct when it is the sense of the community that an obligation to intervene existed under the circumstances. The Court found that the enactment of the Youth Suicide Prevention School Programs Act, which called for an awareness of and response to emotional warning signs, was evidence that the community felt there should be intervention in the presence of emotional indicia of suicide.
Finally, the Court weighed the burden on the defendant of the imposition of liability for negligently failing to prevent a suicide against the magnitude of the risk of harm. As the magnitude of the risk increases, the Court noted that the burden on the defendant must also correspondingly increase in order for the defendant to escape liability. In the context of a case alleging failure to prevent a youth suicide, the magnitude of the risk was "total and irreversible for the child, and severe for the child’s family." In contrast, the burden on the defendant school was determined to be slight—the counselors could have discharged their duty to prevent the suicide by simply making a telephone call to the student’s parents.
There are at least two additional and conflicting public policy considerations to consider in determining whether a duty to prevent a suicide should be recognized. The public policy of preventing youth suicide supports establishment of a duty to intervene. However, the public policy against creating a duty that might "open the floodgates" of litigation suggests that a duty should not be recognized, because schools could be sued in every single case where a youth who committed suicide attended elementary or secondary school at the time of the suicide.
The plaintiff in a failure-to-prevent-suicide case has the burden of proving by a preponderance of the evidence that a duty existed on the part of the school, that the school breached that duty, and that the breach proximately caused the suicide. These proof requirements make it less likely that a frivolous suit could successfully be maintained against a school district. And, of course, immunity defenses often are available to protect the school’s ability to make policy decisions without fear of liability.
School "Anti-bullying" Programs: Are They Worthwhile?
School districts may argue that to impose a duty upon a school to prevent student bullying and/or suicides places an impossible burden upon the school of guessing which students might be victims of bullying and potentially suicidal and then determining what steps should be taken to prevent a particular student from committing suicide. While imposing a duty on the school certainly does place an additional burden on the school, it is not an impossible burden.
In fact, between 1999 and 2001, at least eight states considered and/or adopted legislation directing schools to develop anti-bullying policies or programs.22 For example, in one trial "bullying-prevention" program developed in Norway, the results showed a 50 percent reduction in bullying incidents after two years of implementation in the schools.23 This report also notes that this program, the only program approved by the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency Prevention and the Center for the Study and Prevention of Violence at the University of Colorado, was found to be a proven, exemplary, and replicable program meeting strict standards of effectiveness. The program was designed by Dan Olweus in 1983 and has been used in Norway’s schools with great effectiveness.
The key to the effectiveness of the program is providing a comprehensive, schoolwide framework for intervention at the school, classroom, and individual levels. The tri-level intervention framework is designed to ensure that students are given a consistent, coordinated, and strong message by everyone in the school that bullying will not be tolerated. An important part of the program is making sure that adults respond quickly to student concerns, and that the responsibility for stopping the problem is on adults rather than on the children themselves. Another important aspect of the program is teaching children that bystanders have a responsibility to prevent bullying either by refusing to support bullying or by reporting bullying incidents to an adult.
When bullying is reported, the program has a three-step process that emphasizes education rather than punishment. The first offense is noted in a student’s file with a warning that adults will be watching the student closely for further incidents. The second offense requires that the bullying student sign a behavioral contract not to bully others, and teachers contact the student’s parent. The third offense requires parental notification and "re-education" counseling.
Both teacher and student education are important factors in the success of the program. Each year, teachers attend a half-day seminar on bullying prevention. Teachers from each grade form a task force that focuses on development of bullying-prevention curricula. Teachers then tailor the lesson plans to their own classes. Surveys are given to students to assess the extent of the bullying problem in the school, and to focus adults’ attention on the problem.
What is clear from a review of all currently existing school bullying prevention programs is that "one-shot workshops" do not work. There are no quick fixes; success requires re-making the entire school climate.24 Effective anti-bullying programs are ongoing throughout the school year and are integrated with the curriculum, the school’s discipline policies, and other violence prevention efforts at school. A handful of isolated lessons is unlikely to produce significant change. In order to change the overall culture of a school, the entire school community (including parents) must be engaged, committed, and involved.
During the 2003-2004 and the 2005-2006 Minnesota legislative sessions, bills were introduced which would have required all elementary and secondary schools to adopt anti-bullying policies. During the 2005 special session, a provision, to be codified as 121A.0695, was incorporated into the final education bill. It is a single sentence requiring that all schools "adopt a written policy prohibiting intimidation and bullying of any student." Given the success of anti-bullying programs in other states, developing such programs in Minnesota may not only reduce the number of incidents of bullying; it may reduce schools’ potential liability for injuries and/or suicides caused by bullying.
2At 3, citing National Resource Center for Safe Schools 2001.
3By Request at 3, citing Hoover, J.H. & Oliver, R., The Bullying Prevention Handbook: A Guide for Principals, Teachers, and Counselors, Bloomington, IN, National Education Service, 1996; and Skiba, R. & Fontanini, A., Fast Facts: Bullying Prevention, Bloomington, IN, Phi Delta Kappa International, 2000.
6By Request at 3.
7The Safety Zone 3 (1), at 1-2.
8Skiba & Fontanini, 2000.
9U.S. Department of Education, 1998.
11Under section 1983, a claimant may bring an action against the state if the complaint alleges that the state actors, acting under color of state law, deprived the claimant of life, liberty, physical safety, or family integrity in violation of the Fourteenth Amendment to the U.S. Constitution. DeShaney v. Winnebago County Dept. of Social Svcs., 489 U.S. 189, 193 (1989); Hasenfus v. LaJeunesse, 175 F.3d 68, 70 (1st Cir. 1999).
12DeShaney, 489 U.S. at 195.
13Martin, 295 F.3d at 708 n. 6.; Hasenfus, 175 F.3d at 71. See also Dorothy J. v. Little Rock School District 7, F.3d 729 (8th Cir.1993). Mandatory attendance does not render the child’s guardians incapable of meeting the child’s needs. In loco parentis is not enough to meet the DeShaney test for a "special relationship." But see Eisel v. Board of Education, 597 A.2d 447 (Md. 1991), in which the Maryland Supreme Court held that because a school stands in loco parentis with its students, the school is under a special duty to exercise reasonable care to protect students from foreseeable harm, including suicide.
14Martin, 295 F.3d at 708, known as the "state-created danger exception."
15Id. at 1263 (quoting Johnson v. Dallas Ind. Sch. Dist., 38 F.3d 198, 201 (5th Cir.1994)).
16Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn. 1992)(quoting Minn. Stat. § 466.03, subd. 6 (1990)(municipal immunity); See also Minn. Stat. § 3.736, subd. 3(b)(1990) (state immunity).
17See Rico v. State, 472 NW2d 100, 107 (Minn.1991).
18Elwood v. Rice County, 423 NW2d 671, 677 (Minn.1988) (emphasis added).
19Nusbaum v. Blue Earth County 422, NW2d 713 (Minn.1988).
20Id. at 452.
21Eisel, 597 A.2d at 452.
22By Request at 4.
23By Request at 18.
24By Request at 27.