D.R. ex rel. L.R. v. Middle Bucks Area Vocational Technical School

OPINION OF THE COURT SEITZ, Circuit Judge. This appeal presents us with a classic case of constitutional line drawing in a most excruciating factual context. Plaintiffs, D.R., a minor child, by her parent, L.R. and L.H., both public high school students, as well as L.R. in her own right,1 appeal the decision and order of the district court dismissing their amended complaints against Middle Bucks Area Vocational Technical School (“Middle Bucks”), Penn Ridge School District (“Penn Ridge”), Bucks County Intermediate Unit No. 22 (“Unit No. 22”), and individually named teachers and officials2 (“school defendants”). Claims were also asserted against — 1366 — seven male students. Only two students, James Gallagher and Marc Ratcliffe, appeared, but because all seven were allegedly involved in the wrongful conduct we shall include all of them in referring to “student defendants.”3 Future references to “plaintiffs” will apply to D.R., by her parent, and L.H. unless otherwise noted. The amended complaints pleaded claims under 42 U.S.C. §§ 1983 and 1985(3) (1988), as well as state law claims. Federal jurisdiction was invoked under 28 U.S.C. §§ 1341 and 1343 (1988),4 and pendent jurisdiction over the state law claims. This court has jurisdiction pursuant to 28 U.S.C. § 1291 (1988). I. AMENDED COMPLAINTS Plaintiffs were two female students in a graphic arts class at Middle Bucks.5 They allege that while attending the arts class during the 1989-90 school year, several male students in the same class physically, verbally and sexually molested them. This conduct took place primarily in the unisex bathroom and a darkroom, both of which were part of the graphic arts classroom. Plaintiff, D.R., avers that the student defendants grabbed her and either forced or carried her into the bathroom or darkroom on a regular basis and physically abused her. She asserts that such conduct took place on an average of two to four times per week from January to May of 1990. Plaintiff, L.H., claims that some of the student defendants molested her two to three times per week from December 1989 to May of 1990. Plaintiffs allege that the sexual molestation consisted of offensive touching of their breasts and genitalia, so-domization and forced acts of fellatio. The student defendants also allegedly forced plaintiffs to watch similar acts performed on other students. Defendant Susan Peters was the student teacher in the graphic arts classroom during the time of the alleged conduct in question. Plaintiffs do not claim to have informed Peters of the molestation but assert that Peters was or should have been in the classroom during the time of the acts complained of and either heard or should have heard the incidents taking place. Peters admittedly experienced difficulty in controlling the class generally. She allegedly was exposed to a variety of misconduct by the student defendants including obscene language and gestures, and physically, but not sexually, offensive touching of females including herself in the main classroom. Plaintiff, L.H., avers that in December of 1988, she told defendant Bazzel, Assistant Director of Middle Bucks, that one student defendant was trying to force her into the bathroom for the purpose of engaging in sexual conduct. She alleges that Bazzel did not take action to correct the situation. Plaintiffs also allege that other individual school defendants had knowledge of the severe non-sexual misconduct occurring in the classroom. Based on the foregoing allegations, the amended complaints assert violations of plaintiffs’ civil rights by the school and student defendants under 42 U.S.C. §§ 1983 and 1985(3) as well as Pennsylvania law. II. DISTRICT COURT RULING On the basis of the record before it, the district court found that defendants Goode, Peters, and Bazzel were entitled to qualified immunity under § 1983. D.R., L.R. and L.R. v. Middle Bucks Area Vocation — 1367 — al Technical School, No. 90-03018 and 90-03060, 1991 WL 14082 at *9-10, 1991 U.S.Dist. LEXIS 1292 at *17-18 (E.D.Pa. Feb. 1, 1991). Rather than dismissing on that basis as to those defendants, however, the district court granted defendants’ motions6 to dismiss both complaints under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. The district court first held that a special custodial relationship between plaintiffs and the school defendants was established by virtue of the state’s compulsory attendance and truancy laws, Pa.Stat.Ann. tit. 24 §§ 13-1326-13-1330, 13-1333 and 13-1343 (1962 & Supp.1991), thus creating an affirmative constitutional duty on the part of the school defendants to protect plaintiffs from the types of acts committed by the student defendants. D.R., L.R. and L.R., 1991 WL 14082 at *6,1991 U.S.Dist. LEXIS 1292 at *27. The court found that the existence of the affirmative duty to act was complemented by Pennsylvania law which gives school officials in loco parentis standing to take any action necessary to prevent disciplinary infractions and educationally disruptive behavior. Pa.Stat. Ann. tit. 24 § 13-1317 (1962 & Supp.1991). Nevertheless, the court concluded that the amended complaints failed to allege sufficient knowledge of the student misconduct on the part of the school defendants to charge them with the requisite reckless indifference to plaintiffs’ rights to support a § 1983 claim and, therefore, dismissed the complaints. III. DISCUSSION Plaintiffs’ amended complaints allege that the school defendants had knowledge of the physical, verbal and sexual abuse committed by the student defendants and maintained a policy of laxity toward such conduct. They assert that the district court impermissibly narrowed their allegations by focusing solely on the issue of the school defendants’ awareness of the sexual misconduct. Thus, as a consequence, they argue that the district court erred in granting the Rule 12(b)(6) motions, given the more expansive allegations and theories presented in their amended complaints. The school defendants respond that the district court’s dismissal can be affirmed by this court without reaching the issue of the sufficiency of the factual allegations as to their knowledge of the conduct of the student defendants. They assert that, contrary to the district court’s ruling, no special relationship of constitutional proportions existed between plaintiffs and the school defendants. Thus, they say that this § 1983 action is not maintainable. We turn to that important and complex issue in this most wrenching factual setting. A. Standard of Review This court’s scope of review of the district court’s dismissal for failure to state a claim is plenary. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990). We are required to “accept as true the facts alleged in the amended complaints and all reasonable inferences that can be drawn therefrom.” Id. Construing the pleadings in favor of plaintiffs then, we must “determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.” Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). B. Legal Sufficiency of the Complaints under § 1983 Generally, the first issue in a § 1983 case is whether a plaintiff sufficiently alleges a deprivation of any right secured by the constitution. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). When a defendant asserts the affirmative defense of qualified immunity, however, the court must deter — 1368 — mine as a threshold matter whether the defendant is entitled to that defense. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Thus, we must begin by addressing the immunity defense7 asserted by defendants Goode, Peters and Bazzel.8 Officials exercising discretionary powers are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. The Supreme Court in Siegert v. Gilley, — U.S. -, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), recently clarified the analytical framework to be used to evaluate whether a plaintiff’s allegations overcome the defense of qualified immunity. The Court there said that, “[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.” Id. at -, 111 S.Ct. at 1793 (emphasis added). Thus, the predicate question for Goode, Peters and Bazzel is the same as that posed with respect to the other school defendants, namely, whether plaintiffs allege the “deprivation of any right secured by the constitution.” Baker, 443 U.S. at 140, 99 S.Ct. at 2692. We will, therefore, consider plaintiffs’ allegations of constitutional error as they relate to all of the school defendants.9 Plaintiffs state that they have a liberty interest in their personal bodily integrity protected by the Fourteenth Amendment as recognized in Ingraham v. Wright, 430 U.S. 651, 673-74, 97 S.Ct. 1401, 1413-14, 51 L.Ed.2d 711 (1977), and Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 2457, 73 L.Ed.2d 28 (1982). Defendants do not argue otherwise. In order to demonstrate a violation of their constitutional rights plaintiffs’ amended complaints essentially assert four theories of liability. The first is based upon the finding of the existence of a special relationship between plaintiffs and the school defendants during the school day. Such relationship, they assert, gave rise to an affirmative constitutional duty on the part of state officials to protect students such as these plaintiffs from serious harm. Second, plaintiffs contend that the school defendants are liable for creating a danger that resulted in a violation of plaintiffs’ constitutional rights under the Fourteenth Amendment. Third, they assert that the school defendants are responsible for the existence of a policy, custom or practice that permitted injuries to the plaintiffs in violation of their constitutional rights. Fourth, plaintiffs assert that defendants conspired to deprive them of certain constitutional rights. We will deal with each theory in turn. IV. CONSTITUTIONAL CLAIMS A. Special Relationship Custody We commence our analysis by reiterating the well-established principle that — 1369 — the Due Process Clause does not impose an affirmative duty upon the state to protect its citizens. Rather, it serves as a limitation on the state’s power to act. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 195, 109 S.Ct. 998, 1002, 103 L.Ed.2d 249 (1989); Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 465 (3d Cir.1990). However, when the state enters into a special relationship with a particular citizen, it may be held liable for failing to protect him or her from the private actions of third parties. Cornelius v. Town of Highland Lake, Ala., 880 F.2d 348, 352 (11th Cir.1989). This liability attaches under § 1983 when the state fails, under sufficiently culpable circumstances, to protect the health and safety of the citizen to whom it owes an affirmative duty. See Cornelius, 880 F.2d at 353. We must decide at the outset whether the school defendants had such a special relationship with the plaintiffs during school hours that they owed plaintiffs a constitutional duty to protect them from the misconduct of the student defendants. Plaintiffs argue that one way the state can enter into a duty-producing relationship under this theory is by restraining a citizen’s freedom to act on his or her own behalf. In addressing this argument, we turn to one of the seminal Supreme Court cases shedding light on § 1983 liability in this area. In DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the Court declined to impose a constitutional duty upon a state to protect the life, liberty or property of a citizen from deprivations by private actors absent the existence of a special relationship. DeShaney involved the state’s repeated receipt of reports of abuse of a minor by his father. Notwithstanding the notice provided by the reports to the state agency, it did not remove the child from his father’s custody.10 The father subsequently beat the child resulting in permanent brain damage. The child and his mother filed a § 1983. action against state officials claiming- that they deprived the minor of his liberty in violation of the Fourteenth Amendment “by failing to protect him against a risk of violence at his father’s hands of which they knew or should have known.” DeShaney, 489 U.S. at 193, 109 S.Ct. at 1002. After stating the general rule that “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause,” id. at 197, 109 S.Ct. at 1004, the Court went on to acknowledge that “in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.” DeShaney at 198, 109 S.Ct. at 1004-05. The Court noted that it first recognized such an exception in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Court in Estelle held that the state had an affirmative duty to provide adequate medical care for prisoners since incarceration prevents an inmate from caring for himself. Id. at 103-04, 97 S.Ct. at 290-91. . The Court extended the Estelle exception from the Eighth Amendment context to a Fourteenth Amendment substantive due process claim in Youngberg v. Romeo, 457 U.S., 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). According to the DeShaney court, it there held that the Constitution imposed a duty upon the state to provide involuntarily committed mental patients “such services as are necessary to ensure their ‘reasonable safety’ from themselves and others.” DeShaney, 489 U.S. at 199, 109 S.Ct. at 1005. The Court also pointed out in DeShaney, without editorial comment, that several appellate courts had analogized foster children to individuals who fall within the Estelle and Youngberg exceptions. Id. at 201 n. 9, 109 S.Ct. at 1006 n. 9. These courts imposed liability on the state for failing to protect children that the state — 1370 — placed in the care of foster parents when such placement resulted in abuse. In commenting on each situation constituting a departure from the general rule, the Court noted: [I]t is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf— through incarceration, institutionalization, or other similar restraint of personal liberty— which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means. DeShaney, 489 U.S. at 200, 109 S.Ct. at 1006 (emphasis added). Focusing primarily on physical restraint, the Court concluded that the Estelle-Youngberg exception was inapplicable to Joshua DeShaney’s case since the conduct did not occur while the child was in the state’s custody. Although the Court decided that Joshua’s situation did not amount to state custody, it left open the possibility that the duty owed by a state to prisoners and the institutionalized might also be owed to other categories of persons in custody by means of “similar restraints of personal liberty.” Id. at 200, 109 S.Ct. at 1006. Plaintiffs seek to bring themselves within the quoted language. Plaintiffs assert that Pennsylvania’s scheme of compulsory attendance and the school defendants’ exercise of in loco par-entis authority over their pupils so restrain school children’s liberty that plaintiffs can be considered to have been in state “custody” during school hours for Fourteenth Amendment purposes. We consider this to be an open question in this circuit. See Stoneking v. Bradford Area School District, 882 F.2d 720, 724 (3d Cir.1989). Pennsylvania law mandates that every child of “compulsory school age” attend a day school. Pa.Stat.Ann. tit. 24 § 13-1327. Both children and their parents may be penalized for the child’s truancy. Pa.Stat. Ann. tit. 24 §§ 13-1333 and 13-1343. However, a child is only of compulsory school age “until the age of seventeen (17) years.” Pa.Stat.Ann. tit. 24 § 13-1326 (emphasis added). At the time of the incidents alleged, D.R. was sixteen and L.H. was seventeen years old. Appendix at 336. Thus, Pennsylvania law only mandated D.R.’s attendance. To the extent that plaintiffs’ argument is dependant upon the compulsion provided by section 13-1327, it is, therefore, only applicable to D.R. In order to decide whether a special relationship of constitutional proportions exists between the school defendants and D.R. by virtue of the Pennsylvania statutes, we must consider the DeShaney Court’s rationale for the Estelle-Youngberg exception. The Court explained its reasoning as follows: [W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g. food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. DeShaney, 489 U.S. at 200, 109 S.Ct. at 1005-06. Thus, the question presented to us is whether compulsory attendance paired with the in loco parentis authority of the school defendants resulted in such an affirmative.restraint of D.R.’s liberty by the state that she was left without reasonable means of self-protection and, indeed, whether the focus should be confined to the school day. Our court has read DeShaney primarily as setting out a test of physical custody. Philadelphia Police & Fire Ass’n for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156, 167 (3d Cir.1989) (“the state continues to owe an affirmative duty td protect those physically in its custody”). See also, Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459 (3d Cir.1990) (deciding no Young-berg duty of care exists for mentally retarded adult voluntarily placed at institution because state has not substantially curtailed his freedom). The issue in Philadelphia Police was whether the state could be held liable for withdrawing vocational — 1371 — and support services provided in a daily program for mentally handicapped children. While admitting that cessation of services would be detrimental to the children, this court refused to expand the Estelle-Youngberg custody exception to these children since it was “impossible to find an affirmative duty to protect the mentally retarded living at home.” Id. at 168. In essence, the court did not “believe that such intermittent custody gives rise to an affirmative duty on the state’s part.” Id. at 168 n. 9. D.R. argues that, unlike the plaintiffs in Philadelphia Police who chose to receive state services, or plaintiffs decedent in Fialkowski who was voluntarily placed at the state institution, she was legally compelled to attend school and was placed under the control of state actors who were given parental authority over her as a matter of law. She therefore contends that she was in the state’s custody during school hours within the rationale of the Estelle-Youngberg exception. She relies on the Supreme Court’s explanation that Estelle and Youngberg together stand “for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney, 489 U.S. at 199-200, 109 S.Ct. at 1005. The Estelle-Youngberg type custody referred to by the Court in DeShaney, however, is to be sharply contrasted with D.R.’s situation. The state’s duty to prisoners and involuntarily committed patients exists because of the full time severe and continuous state restriction of liberty in both environments. Institutionalized persons are wholly dependant upon the state for food, shelter, clothing and safety. It is not within their power to provide for themselves, nor are they given the opportunity to seek outside help to meet their basic needs. Obviously, they are not free to leave. Here it is the parents who decide whether that education will take place in the home, in public or private schools or, as here, in a vocational-technical school. Id. For some, the options may be limited for financial reasons. However, even when enrolled in public school parents retain the discretion to remove the child from classes as they see fit, see Pa.Stat.Ann. tit. 24 § 15-1546 (1962 & Supp.1991) (religious instruction); 22 Pa.Code § 11.26 (1992) (non-school sponsored educational trips and tours); Pa.Stat.Ann. tit. 24 § 13-1329 (1962) (healthcare), subject only to truancy penalties for continued periods of unexcused absence. Pa.Stat.Ann. tit. 24 §§ 13-1333 and 13-1343. In the case of special education students, the parents have even greater involvement since they must approve the precise educational program developed for their child. 20 U.S.C. § 1415 (1988); 22 Pa.Code §§ 14.32, 14.61-68 (1992). Moreover, as the Pennsylvania Supreme Court has recognized, even without reference to the Pennsylvania School Code or related statutes, “it [cannot] be denied that a parent is justified in withdrawing his child from a school where the health and welfare of the child is threatened.” Zebra v. School District of City of Pittsburgh, 449 Pa. 432, 296 A.2d 748 (1972). Our view that parents remain the primary caretakers, despite their presence in school, is not affected by section 13-1317 which grants Pennsylvania teachers and principals in loco parentis status. Section 13-1317 operates in conjunction with section 5-510. Together they permit school boards to set reasonable regulations to govern students’ conduct. Pa.Stat.Ann. tit. 24 § 5-510 (1962 & Supp.1991). However, section 13-1317 invests in school officials “only such control as is reasonably necessary to prevent infractions of discipline and interference with the educational process.” Axtell v. Lapenna, 323 F.Supp. 1077 (W.D.Pa.1971). As the Commonwealth court concluded, section 13-1317 “invests authority in public school teachers; it does not impose a duty upon them.” Pennsylvania State Education Association v. Department of Public Welfare, 68 Pa.Comm. 279, 449 A.2d 89, 92 (1982) (emphasis in original) (holding that teachers are not among those persons “responsible” for a child’s welfare under § 2203 of the Child — 1372 — Protective Services Law, Pa.Stat.Ann. tit. 11 §§ 2201-2224 (1962), now codified at 23 P.C.S.A. § 6311 (1991)). By requiring D.R. to attend assigned classes at Middle Bucks as part of her high school educational program, and authorizing officials to engage in disciplinary control over the students, the school defendants did not restrict D.R.’s freedom to the extent that she was prevented from meeting her basic needs. See Fialkowski, 921 F.2d at 465-66 (mentally retarded adult’s liberty not restrained by state where “the Fialkowskis were free to remove their son from [the state institution] if they wished [and] Walter Fialkowski himself enjoyed considerable freedom of movement.”) Thus, the school defendants’ authority over D.R. during the school day cannot be said to create the type of physical custody necessary to bring it within the special relationship noted in DeShaney, particularly when their channels for outside communication were not totally closed. The analogy between school children and prisoners or the involuntarily committed is weakened further by the fact that school children remain resident in their homes. Thus, they may turn to persons unrelated to the state for help on a daily basis. D.R.’s complaint alleges an ongoing series of assaults and abuse over a period of months. Although these acts allegedly took place during the school day, D.R. could, and did, leave the school building every day. The state did nothing to restrict her liberty after school hours and thus did not deny her meaningful access to sources of help. As noted previously, some courts have imposed a constitutional duty to protect foster children by analogy to involuntarily institutionalized individuals. See, Doe v. New York City Dept. of Social Services, 649 F.2d 134 (1981), after remand, 709 F.2d 782 (2d Cir.), cert. denied sub nom., Catholic Home Bureau v. Doe, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Taylor By and Through Walker v. Ledbetter, 818 F.2d 791 (11th Cir.1987), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989). We, of course, are not called upon to decide the foster care issue. Nevertheless, we do note that although the situation of a public school student is perhaps closer to that of a foster child than to an institutionalized person, the foster care analogy is not decisive. A relationship between the state and foster children arises out of the state’s affirmative act in finding the children and placing them with state-approved families. Taylor, 818 F.2d at 794-97. By so doing, the state assumes an important continuing, if not immediate, responsibility for the child’s well-being. In addition, the child’s placement renders him or her dependent upon the state, through the foster family, to meet the child’s basic needs. Id. Students, on the other hand, do not depend upon the schools to provide for their basic human needs. Public school students are required to spend only 180 six-hour days in the classroom per year. Pa.Stat.Ann., tit. 24 §§ 13-1327(b), 15-1501, 15-1504(a) (1962 & Supp.1991). Even during the school day, however, parents or others remain a child’s primary caretakers and decisionmakers. See e.g., Pa.Stat.Ann., tit. 24 § 14-1406 (1962) (parents responsible for necessary medical treatment). Pennsylvania’s compulsory attendance law demands only that parents ensure that their child receive an appropriate education. Pa.Stat.Ann. tit. 24 § 13-1327. Thus, the relationship between foster children and public school students is not controlling here. Our view of the public school function with respect to its students seems to be in harmony with the Supreme Court’s description of that institution in the context of denying school children Eighth Amendment protection from corporal punishment. There the Court said: The school child has little need for the protection of the Eighth Amendment. Though attendance may not always be voluntary, the public school remains an open institution. Except perhaps when very young, the child is not physically restrained from leaving school during school hours; and at the end of the school day, the child is invariably free to' return home. Even while at school, the — 1373 — child brings with him the support of family and friends and is rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment. Ingraham, 430 U.S. at 670, 97 S.Ct. at 1412. Our position that no special relationship based upon a restraint of liberty exists here is in accord with the only other appellate case to directly confront this issue to date. In J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267 (7th Cir.1990), the Court of Appeals for the Seventh Circuit found that compulsory attendance laws did not liken school children to prisoners and the involuntarily committed, both of whom are unable to provide for their own basic human needs. Instead, the Seventh Circuit determined that parents have primary responsibility to provide for the basic needs of their children and that both school children and parents “retain substantial freedom to act.” Id. at 272. B. State Created Danger We come to plaintiffs’ second basis for their constitutional claim, viz., that the school defendants created the danger that eventuated in a violation of plaintiffs’ constitutional rights. Plaintiffs’ counsel asserts that this claim exists apart from the claim based on the compulsory attendance law and applies to both plaintiffs. We now address that claim. We understand plaintiffs’ amended complaints, their briefs and the oral assertions of their counsel to advance a claim that the school defendants imperiled plaintiffs, or increased their risks of harm, by: (1) failing to report to the parents or other authorities the misconduct resulting in abuse to plaintiffs; (2) placing the class under the control of an inadequately trained and supervised student teacher; (3) failing to demand proper conduct of the student defendants; and (4) failing to investigate and put a stop to the physical and sexual misconduct. Plaintiffs say that these acts or omissions “created a climate which facilitated sexual and physical abuse of students.” L.H.’s Amended Complaint, App. at 58. Thus, they assert that having placed plaintiffs in the situation alleged, the school defendants were obligated to protect them from violations of their personal bodily integrity by other students who were also under such defendants’ control. The state-created danger theory, utilized to find a constitutional tort duty under § 1983 outside of a strictly custodial context, has been recognized by several courts of appeals.11 Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir.1989); Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990); Jackson v. City of Joliet, 715 F.2d 1200, 1204 (7th Cir.1983). After determining in DeShaney that there was no Estelle-Youngberg type custody there giving rise to an affirmative duty of protection, the Court commented that “[wjhile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him more vulnerable to them.” DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006 (emphasis added). Post-DeShaney courts have tracked the quoted Supreme Court’s language by asking whether the state actors involved affirmatively acted to create plaintiff’s danger, or to render him or her more vulnerable to it. See e.g., Bryson v. City of Edmond, 905 F.2d 1386, 1392 (10th Cir.1990) (declining to impose liability upon state for deaths of post office employees shot by fellow worker where responding police did not create the dangerous situation nor act to worsen decedents’ plights). We turn to Third Circuit case law in this area. In Brown v. Grabowski, 922 F.2d 1097 (3d Cir.1990), this court considered the state-created danger theory as enunciated — 1374 — in Wood and Cornelius. There, the plaintiffs decedent reported to the police that her former boyfriend had held her hostage, threatened her, and sexually assaulted her for three days. The police did not place her abductor under arrest, and failed to inform her of her right to request a temporary restraining order under New Jersey’s Prevention of Domestic Violence Act. N.J.Stat.Ann. § 2C:25-7 (1982). She was subsequently found dead in the trunk of her abductor’s car. This court distinguished the state officials’ actions in Brown from those in Wood and Cornelius where the courts found affirmative constitutional duties of protection. Brown, 922 F.2d at 1114-17. Ultimately, the court concluded that, “[i]n contrast to the plaintiff in Wood, [plaintiff] has supplied no evidence that [the state actors] acted to create or to exacerbate the danger that [the abductor] posed to [her], thereby triggering a possible constitutional duty to assist her in gaining access to the civil courts.” Id. at 1116. Plaintiffs here also rely upon Wood and Cornelius to demonstrate the use of the state-created danger theory to impose liability under § 1983. In addition, they cite Swader v. Virginia, 743 F.Supp. 434 (E.D.Va.1990), Horton v. Flenory, 889 F.2d 454 (3d Cir.1989), and Germany v. Vance, 868 F.2d 9 (1st Cir.1989). As in Brown, however, the facts alleged in plaintiffs’ amended complaints differ in important respects from those in the state-created danger line of cases. Liability under the state-created danger theory is predicated upon the states’ affirmative acts which work to plaintiffs’ detriments in terms of exposure to danger. As the Court of Appeals for the First Circuit commented: We do not want to pretend that the line between action and inaction, between inflicting and failing to prevent the infliction of harm, is clearer than it is. If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit. Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). Although we find this to be an extremely close case, and certainly a tragedy, we are convinced that the school defendants did not create plaintiffs’ peril, increase their risks of harm, or act to render them more vulnerable to the student defendants’ assaults. In Wood, the police officer arrested an intoxicated driver and impounded the vehicle leaving the driver’s female passenger in a neighborhood known for criminal activity at night without any means to travel to a place of safety. The woman was raped by a stranger who offered to take her home. In Cornelius, the state prison officials and local officers instituted a prisoner work program which permitted inmates to work in public areas with access to dangerous weapons under the general supervision of an untrained city employee. Although the authorities represented to the public that only property offenders would be assigned to the work crews, the state permitted a prisoner with a violent criminal history to work in the town hall where plaintiff was employed. This prisoner abducted plaintiff at knife-point and held her hostage for three days, subjecting her to repeated threats of physical and sexual abuse. Finally, in Swader, officials permitted a prisoner serving a life sentence for rape to work unsupervised outside the prison gates, but still on prison property. This prisoner raped and killed the daughter of a prison employee who was required by her employment to reside on the complex grounds. In each of these cited cases, the state can fairly be said to have affirmatively acted to create the danger to the victims. The school defendants’ “acts” in assigning student teacher Peters to the graphic acts class and failing to supervise her more closely, as well as their failure to put a stop to the non-sexual pandemonium may have created a recognizable risk that plaintiffs would receive little education in that class, and perhaps, physical injury due to the roughhousing. Plaintiffs did not suffer harm, however, from that kind of foreseeable risk. See Williamson v. City of Virginia Beach, Va., 786 F.Supp. 1238, 1253 — 1375 — (E.D.Va.1992) (no § 1983 liability for minor informant’s suicide due to stress of receiving threats where recognized risk is retaliation against the informant or his family). Plaintiffs’ harm came about solely through the acts of private persons without the level of intermingling of state conduct with private violence that supported liability in Wood, Swader and Cornelius. We now turn to the final two cases cited by plaintiffs to support their theory of state-created danger. In Horton, the owner of a private club, a retired police officer known for his violence, believed an employee to be responsible for the burglarization of the club. He interrogated the employee and summoned the police. Sergeant Dlu-bak, who responded to the call, also questioned the employee, but refused to remove him from the owner’s premises notwithstanding signs of physical mistreatment. This court imposed liability upon the state holding that “[cjlearly, Sgt. Dlubak was a participant in the custody which led to the victim’s death.” Id. at 458. In Germany, plaintiff, a minor, was committed to the custody of the state based upon a charge of assault and battery upon her father. The court held the state liable under § 1983 for its failure to reveal an admission obtained after the delinquency proceedings that plaintiff’s parents had fabricated the assault charge to obtain state services for their daughter. The state’s failure to disclose the information resulted in continued state “custody” via foster homes and other placements, after the grounds for the delinquency charges had dissipated. We believe that plaintiffs’ reliance on Horton and Germany to support their theory of state-created danger is misplaced since we read both cases to turn upon a finding of “functional” custody. Moreover, the school defendants here, unlike the state officials in Horton and Germany, are not alleged to have encouraged or implicitly authorized the violations by bestowing on the student defendants any authority under color of law. In both cited cases, the states’ acts in withholding vital information served to increase the risks of harm by permitting continued custody with the states’ imprimatur. Plaintiffs also allege that the “acts of the School Defendants ... in setting up the graphic arts classroom, and the unisex bathroom, demonstrates a custom, policy or practice of ... indifference to and the failure to protect [plaintiffs’] rights.” L.H.’s Amended Complaint, App. at 263 (emphasis added). The allegation seems to be made to support a contention that the state created or increased plaintiffs’ danger. We do not believe, however, that the state can be said to have created or increased plaintiffs’ risk of danger by constructing and maintaining the graphic arts classroom with its particular physical layout. Bathrooms generally are equipped with inside locks for privacy purposes and obviously, the room was not intended to be used by both sexes at the same time. The same conduct could have occurred had the school built separate bathrooms for its male and female students. As for the darkroom, it must by definition be closed off from the main classroom in order to serve its function. The existence of the darkroom and of a single restroom, both contained within the high school classroom, did not subject plaintiffs to an inherently dangerous environment. Compare White v. Rockford, 592 F.2d 381, 384-85 (7th Cir.1979) (children left in car on side of busy highway after state officer arrested the driver). Plaintiffs also argue that school defendants increased their risks of harm by failing to report the abuse to plaintiffs’ parents or other authorities. This argument stems in part from their assertion that defendants are under a state imposed duty to report abuse pursuant to 23 P.C.S.A. §§ 6311 and 6312 (1991). It is clear, however, that a violation of a state law duty, by itself, is insufficient to state a § 1983 claim. Brown, 922 F.2d at 1113 (citing Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980)). Section 1983 liability arises only from a violation of federal statutory or constitutional rights under color of state law. Id.; see also, Youngberg, 457 U.S. at 330, 102 S.Ct. at — 1376 — 2465 (Burger, J., concurring). Thus, “ ‘[illegality under the state statute can neither add to nor subtract from [the] constitutional validity [of a state’s actions].’ ” Archie v. City of Racine, 847 F.2d 1211, 1216 (7th Cir.1988) (quoting Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944)).12 We readily acknowledge the apparent indefensible passivity of at least some school defendants under the circumstances. Accepting the allegations as true, viz., that one school defendant was advised of the misconduct and apparently did not investigate, they show nonfeasance but they do not rise to the level of a constitutional violation. As in DeShaney, “[t]he most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them.” DeShaney, 489 U.S. at 203, 109 S.Ct. at 1007; see also, Brown, 922 F.2d at 1116 (Defendant “could and should have instructed [plaintiff] as to her rights under the [Prevention of Domestic Violence] Act. He was not, however, constitutionally compelled to do so.”) In sum, plaintiffs’ allegations are insufficient to show, as required under DeSha-ney, that the school defendants either im-permissibly limited the freedom of the plaintiffs to act on their own behalf, or barred their access to outside support. Nor do they demonstrate that defendants violated a constitutional duty by creating or exacerbating the danger posed by the student defendants. See Brown, 922 F.2d at 1116. It is not our province to say what the state responsibility is or should be in situations like the present. We do say that the Fourteenth Amendment does not automatically embrace such conduct. C. State Established Policy, Custom or Practice We read plaintiffs’ amended complaints to assert a third theory of constitutional liability that is viable even in the absence of a special relationship duty. Stoneking v. Bradford Area School District, 882 F.2d 720, 725 (3d Cir.1989), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990) if Stoneking II”). In Stoneking II, this court recognized that state defendants may be held liable for deliberately and recklessly establishing and maintaining a custom, practice or policy which caused harm to a student when a teacher sexually molested a student. We stated there that nothing in DeShaney “suggests that state officials may escape liability arising from their policies maintained in deliberate indifference to actions taken by their subordinates.” Id. at 725. We emphasized that DeShaney was distinguishable because the abuse there “resulted at the hands of a private actor.” Id. at 724. We agree with the district court that this case lacks the linchpin of Stoneking II, namely, a violation by state actors. Sexual molestation committed by an agent of the state is readily distinguishable from the situation present here since the Due Process Clause itself imposes limitations on the state’s conduct. Thus, § 1983 liability may not be predicated upon a Stoneking II type theory because private actors committed the underlying violative acts. Since we have concluded that plaintiffs failed to assert a constitutional claim under § 1983, the district court correctly determined that defendants Goode, Peters and Bazzel were entitled to a dismissal based on qualified immunity. See, Siegert v. Gilley, — U.S. -, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). It also properly dismissed the § 1983 claims against the other school defendants for failure to assert a federal claim. D. Conspiracy to Deprive Plaintiffs of Constitutional Rights Plaintiffs also charge that defendants engaged in a conspiracy to interfere — 1377 — with their civil rights in violation of 42 U.S.C. § 1985(3). In order to prevail, plaintiffs must show a conspiracy on the part of the school defendants to deprive them of equal protection or equal privileges and immunities motivated by “class-based, invidiously discriminatory customs and practices of failing to protect female students from sexual, physical and verbal abuse.” Specifically, the amended complaints assert that the school defendants’ acts in setting up the graphics arts classroom to include a darkroom and unisex bathroom constituted a deliberate and reckless indifference to female students’ rights. We agree with the district court that plaintiffs failed to assert any facts from which any type of conspiratorial agreement between the school defendants and the student defendants can be inferred. Neither do the pleadings establish that the alleged discriminatory policies or practices were due to plaintiffs’ membership in the class of female students. “[M]ere conclusory allegations of deprivations of constitutional rights,” Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 492 (1972), are insufficient to state a § 1985(3) claim. Id. VI. CONCLUSION No one could help but be shocked by the factual allegation's in this case. But in DeShaney the Supreme Court rejected the “shock the conscience” test of Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), as a standard for imposing § 1983 liability. To do otherwise would readily convert much tortious conduct into constitutional violations at the expense of a decent regard for federalism. While the line is certainly blurred, we are not prepared to say that the conduct charged to the school defendants here crossed the line.13 In view of our affirmance of the district court’s dismissal of the constitutional claims, we will also affirm the dismissal of the pendent state law claims. The order of. the district court will be affirmed. Footnotes [1] Because of our disposition of this appeal, we need not decide whether L.R., the parent of plaintiff D.R., has a legally cognizable constitutional claim in her individual right. [2] These individuals are William Goode and James Bazzell, both building administrators, the classroom student teacher, Susan Peters, and guidance counselors Martha Richino and Christina Tuttle. [3] There is no record evidence to demonstrate that students Fambro, Freeman, Miller, Sperling and Sutphin were served with process or entered an appearance. Persons who are not served and do not appear are not parties to an action and thus do not prevent the judgment from becoming final. DeTore v. Local Number 245, 615 F.2d 980, 982, n. 2 (3d Cir.1980). [4] Plaintiffs also asserted §§ 1986 and 1988 claims, but they are not pressed on appeal. [6] School defendants Middle Bucks, Penn Ridge, Goode, Bazzel, Peters, Richino, along with student defendants Gallagher and Ratcliffe filed Rule 12(b)(6) motions to dismiss the amended complaints which were granted by the district court’s order. The parties stipulated that school defendants Unit No. 22 and Tuttle would be deemed to have filed timely 12(b)(6) motions as well. The court then dismissed Unit No. 22 and Tuttle on that basis. [7] This court stated in Black v. Bayer, 672 F.2d 309 (3d Cir.1982), that the affirmative defense of qualified immunity could not be successfully asserted through a 12(b)(6) motion since it must be developed by affidavits at the summary judgment stage or at trial. Id. at 316. We think that subsequent Supreme Court rulings have so undermined the rule enunciated in that case, that it is no longer viable. See, Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); see e.g., Hidahl v. Gilpin County DSS, 938 F.2d 1150, 1155 (10th Cir.1991). [8] It is unclear on this record whether defendants Richino and Tuttle are also entitled to the benefit of the qualified immunity defense but it is moot in view of our decision. [9] The district court did not specify which 12(b)(6) motions of the defendants it granted. Thus, it appears that its order applied to all motions to dismiss for failure to state a claim, including those of student defendants Gallagher and Ratcliffe. It is clear that § 1983 actions may only be maintained against persons acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). There is no such allegation as to students Gallagher and Ratcliffe. Thus, it is clear that the complaints failed to state a federal claim against them. [10] At one point, a court order placed Joshua in the temporary custody of the hospital where he was receiving treatment. A team of specialists determined, however, that there was insufficient evidence of child abuse for the state to retain custody over Joshua. [11] Justice Brennan, dissenting in DeShaney, noted that, "[c]ases from the lower courts also recognize that a State’s actions can be decisive in assessing the constitutional significance of subsequent inaction. For these purposes, moreover, actual physical restraint is not the only state action that has been considered relevant.” DeShaney, 489 U.S. at 205, 109 S.Ct. at 1008 (Brennan, J., dissenting) (citing White v. Rochford, 592 F.2d 381 (7th Cir.1979)). [12] The same is true of plaintiffs' reliance upon alleged violations of other state law duties under the Pennsylvania School Code and the common law. Stoneking v. Bradford Area School District, 882 F.2d 720, 723 (3d Cir.1989), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990) (After DeShaney, "we can no longer rely on the statutory and common law duties imposed in Pennsylvania on school officials as the basis of a duty to protect students from harm occurring as the result of a third person.") [13] In view of our affirmance of the order of the district court dismissing the complaints, we need not decide whether different standards of culpability might apply among the school defendants.