Legal Question: In terms of legal liability, what level of access control and supervision of students should a school have for before and after school programs?

The answer to the above question can be answered, at least in the federal Constitutional liability sense, from examining a case from the Fifth Circuit Court of Appeals.  In Leffall v. Dallas Independent School District, Ms. Leffall’s son attended a student dance.ⁱ  After the dance, he and many other students congregated in a school parking lot.  Leffall’s son was shot and killed by this random gunfire. 

Ms. Leffall filed a § 1983 action and alleged that the school district violated her son’s Fourteenth Amendment rights based on two theories.  First, she alleged that the school district owed her son a “special relationship” and, thus the school district had a duty to protect him from harm.  Second, she alleged that the school district created a dangerous environment by holding the dance and not providing adequate security. 

As to the first theory where she alleged that the school district had a special relationship with her son, the Fifth Circuit, following the Third, Seventh, Eighth and Tenth Circuits, held that there is no special relationship between a school district and a student participant of an after school dance.  Since there is no special relationship, the school district is not required to protect participants of the after school, voluntary, function from harm.  The Fifth Circuit specifically stated that they are not deciding whether or not compulsory school attendance creates a special relationship; however, it is important to note that the Third, Seventh, Eighth, and Tenth have gone so far as to hold that even compulsory school attendance does not create a special relationship. 

Regarding the second theory based up the “state created danger,” the general rule is that “if the state puts a man in a position of danger from private persons and then fails to protect him,” there may exist liability.  However, the standard that must be reached to establish this liability is “deliberate indifference,” which is more than negligence and even more than gross negligence.  In this case, the school district provided two unarmed security guards.  This defeated the standard of deliberate indifference and therefore there was not liability.

To further illustrate the “state created danger” theory, we can also examine King v. East St. Louis School District 189, in which a student stayed after school for a conference with a counselor.ⁱⁱ  After the conference, the student had missed the bus.  She tried to re-enter the school to arrange transportation, but a hall monitor would not let her back into the school, citing that it was against school policy. 
The girl, who left campus to seek public transportation, was abducted and raped. 

Her mother sued on her behalf and argued that an official school policy (not to allow re-entry into school) led to the alleged Fourteenth Amendment violation of her daughter because the policy created a “state created danger.”  The Seventh Circuit held that three criteria must be met for the “state created danger” theory to impose liability.  First, for the Fourteenth Amendment to impose a duty to protect, the state must undertake an affirmative act that creates or increases the danger to a person.  Second, the failure of the state to protect the person must be the proximate cause of the person’s injury.  Third, the states failure to protect the person must “shock the conscience.”  Under this third element, in order to “shock the conscience,” the state’s conduct must be deliberately indifferent to the rights of the individual. 

In the King case, the court found that the school may have been negligent, in failing to arrange transportation to the student; however, the deliberate indifference standard is more than negligence.  Therefore, the school did not have liability.

Note:  This answer only considered Constitutional liability based upon the Fourteenth Amendment and did not consider any state claim that may exist under the statutes of the individual states.

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