The United States Supreme Court has consistently held that, under most circumstances, government actors have no obligation to protect citizens from harm caused by a third party. In Deshaney v Winnebago County, 489 U.S. 189 (1989), the United States Supreme Court examined the actions of the Department of Social Services of Winnebago County with respect to a child abuse investigation. Joshua Deshaney first came to the attention of the Winnebago County DSS in January of 1982. After receiving a report that two-year old Joshua may be the victim of abuse, the DSS interviewed his father. Mr. Deshaney denied the allegation. Over the following two years, DSS received numerous reports of suspected child abuse from emergency room that treated Joshua for varying suspicious injuries. As part of the DSS investigation Mr. Deshaney entered into an agreement with DSS however he failed to comply with the requirements of the agreement. Though there were numerous reports of suspected abuse in Joshua's file, the DSS took no action. In 1994 Joshua's father beat him so severely that the little boy fell into a life-threatening coma. It was later determined that Joshua had suffered numerous head injuries over a prolonged period of time and would have to be institutionalized for the rest of his life.

A suit filed on Joshua's behalf ended up before the United States Supreme Court. The Court held "nothing in the language of the Due Process Clause itself requires the state to protect life, liberty, and property of its citizens against the invasion of private actors." Since "the Due Process Clause does not require the state to provide its citizens with particular protective services, it follows the state cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them." The Court did note that when "the state takes a person into custody and holds him there against his will, the Constitution imposes on it a corresponding duty to assume responsibility for his safety and general well-being ... The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." It is this language that has led to a great deal of school litigation claiming an obligation on the part of public school officials to protect students from Constitutional harm.

Some courts have adopted a "functional custody" theory of liability for public schools. The theory is that since states mandate school attendance then a student has no choice but to attend school. Thus, the students are in the "functional custody" of the state. See, Lichtler v County of Orange, 813 F. Supp. 1054 (S.D. N.Y. 1993) (holding: "A state imposing compulsory attendance on school children must take reasonable steps to protect those required to attend from foreseeable risks of personal injury or death.) In Hasenfus v LaJeunesse, 175 F.3d 68 (1st Cir. 1999) the First Circuit Court of Appeal suggested that they may, under some circumstances, recognize a duty on the part of school officials to protect students stating: "We are loath to conclude, now and forever that inaction by a school toward a pupil could never give rise to a due process violation."

The majority of courts around the country have rejected the "functional custody" theory of liability. See Shrum v Muck, 249 F. 3d 773 (8th Cir. 2001), holding: "[School districts are not susceptible to this state created danger theory of [liability for constitutional violations] because there is no constitutional duty of care for school districts, as state mandated school attendance does not entail so restrictive a custodial relationship as to impose a duty upon the state.' [cite omitted] Consequently, public schools do not have a duty to protect school children from private harm."

In Doe v Hillsboro Independent School District, 113 F. 3d 1412 (5' Cir. 1997), the Fifth Circuit Court of Appeals refused to adopt the functional custody theory and dismissed the claim of a fourteen year old student who had been raped in an empty classroom by the school's custodian. The Court concluded that the Texas statute mandating compulsory school attendance was insufficient to create functional custody. The court also rejected a claim that the school had done an insufficient background check on the janitor because the plaintiff offered no information indicating that this particular custodian had a prior criminal record.