Brum v. Town of Dartmouth

Ireland, J.

(concurring, with whom Abrams and Marshall, JJ., join). I agree that G. L. c. 258, § 10 (j), as it has been written, and DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189 (1989), compel the result we reach today in both of these cases. I believe, however, that the result in Brum vs. Dartmouth is unfortunate. Although constrained by the words of the statute and the reasoning of the United States Supreme Court in DeShaney to reach that result, I believe that the practical effect of today’s ruling is wrong because I think that parents reasonably should be able to expect that the schools to which they entrust their children will take reasonable steps to protect their children from harm where, as here, the school officials are put on notice that the children are or may well be in jeopardy.

*709Local schools lie at the heart of our communities. Each morning, parents across the Commonwealth send their children off to school. They entrust the schools with nothing less than the safety and well-being of those most dear to them — their own children. No arm of government touches more closely the core of our families and our children than our schools. Care & Protection of Charles, 399 Mass. 324, 334-335 (1987), reminds us of the “crucial importance” we all place “in the education of [our] children.” Id. at 335. Underlying the crucial role schools play in our children’s lives and, in fact, the entire relationship between school and family is the parents’ basic assumption that school officials will do all they can to protect the children who they entrust to the school’s care. In apparent recognition of this responsibility, the Legislature requires that each school district implement and publish “standards and procedures to assure school building security and safety of students and school personnel” (emphasis supplied). G. L. c. 71, § 37H. One could reasonably assume from that that the security measures mandated by the statute are intended to protect students against dangers “originally caused” by persons other than “the public employer” who happens to be on school property.

In the present case, the school principal was told that the assailants had threatened to return to the school and retaliate against the students who were involved in a prior altercation. Apparently, the school took no action in response to that warning. Several school officials then witnessed three armed individuals enter the school, but again they took no action. Those armed individuals then stabbed Robinson to death in front of his classmates as he sat in a classroom. At the time that he was stabbed, the school’s security “standards and procedures” — if one could refer to them as such.— consisted of a “no-trespassing” sign and a sign asking visitors to report to the school office. See ante at 691. On such facts, parents should be able to submit to a jury the claim that the school breached a duty owed to them.

While G. L. c. 71, § 37H, G. L. c. 258, § 10 (j), and De-Shanery, supra, may compel the outcome we reach today, I believe that parents should be entitled to believe that the school officials to whom they entrust their children will not be deliberately indifferent and simply stand by and do nothing when made aware of an imminent threat to the safety of their *710children. I believe, too, that school officials should not be allowed to figuratively shrug and say, “the problem did not originate with us, so we are not responsible.” While not absolute guarantors of safety, school officials should, at the least, be expected to take reasonable measures to protect children when they have advance notice of danger.

This entire matter is within the control of the Legislature, which, I hope, will act to impose an obligation on school districts, and to ensure that the restrictions in the Massachusetts Tort Claims Act do not apply to these cases.