William & Mary Bill of Rights Journal
And What of the Meek?: Devising a Constitutionally Recognized Duty to Protect the Disabled at State Residential Schools
Section 1983 provides a statutory right to a remedy for Fourteenth Amendment due process violations. The Supreme Court has suggested that the state only has a duty to protect when an individual is incarcerated, involuntarily institutionalized, or has other similar restraints of his or her personal liberty. Based on this, courts generally have found that schools have no constitutional duty to protect their students against injury from other students or staff members. Lower courts have struggled with what constitutes other similar restraints, but have generally been unwilling to find that a state has a constitutional duty in all but the most egregious situations.
This Note posits that handicapped students at residential schools are in situations sufficiently similar to incarceration or involuntary institutionalization that the schools should have a constitutional duty to protect these students. The proposed duty would allow those students least able to protect themselves an avenue of recovery while preserving the general no-duty rule in the more universal public school settings.