By Sarah Zimmerman, ’22 (PDF Version)
I. Introduction
Generally, the Constitution does not require affirmative action on the part of the government, but rather describes restrictions on government power.[1] In this vein, the Due Process Clause is traditionally read to “protect the people from the State,” rather than to confer a right to government aid.[2] In certain contexts, however, the Constitution charges governments with affirmative duties to protect individuals from private harm.[3] One such situation is where the state and the individual are in a “special relationship,” such that the state has constrained the individual’s liberty. Courts have refused to extend this exception to students, in spite of the national ubiquity of compulsory attendance statutes and the nature of schools providing for students’ basic needs. This Article will argue that the failure of courts to apply the “special relationship” exception to students is a constitutional oversight that (i) denies the practical realities of modern schooling in America and (ii) fails to protect children from harm.