Taking civil rights law to what may be an extreme, an Asian-American woman is alleging a Philadelphia high school's tolerance of racism rendered her “helpless prey” to African-American students who attacked her when she picked her child up from the school.

South Philadelphia High School has been a hotbed of student-on-student violence. In December 2009, it made national headlines after more than two dozen Asian students were attacked by groups of mostly African-American classmates during a daylong series of assaults.

In a $100,000 civil rights lawsuit filed last month, South Philly parent They Tieu alleges she was a victim of racially-motivated student-on-nonstudent violence in January 2009 — and the school district is to blame.

Section 1983 of the Civil Rights Act of 1871 provides a remedy for those injured by a private actor who was facilitated by the government to such a degree that the injury can be said to result from state action. Tieu's case may be the first to claim section 1983 liability against school officials for a third-party attack on a nonstudent.

The School District of Philadelphia, she says, facilitated the attack on her by taking no action to protect Asian students from being “terrorized” by African-American students. This “fostered a culture where Asian-Americans were subjected to repeated, systematic terrorization at the hands of other students” and, ultimately,

created an atmosphere of hostility in which Asian-American citizens were rendered helpless prey to their attackers.

According to the school district, there were 92 student-on-student assaults at South Philly High during the 2008-09 school year. Philadelphia Weekly has reported that outnumbered Asians were attacked by packs of teens at least six times that year, including an incident at a subway station in October 2008.

Enrolment at the school in 2009-10 was 68.8 percent African American and 19.1 percent Asian. "They don’t even know you,” one Asian student said. “They just hit because you’re Asian.”


Tieu, a Vietnam native, alleges she was attacked Jan. 29, 2009 by a group of students who surrounded her, punched her in the head and knocked her to the ground, leaving her with “injuries to the right eye, contusions, lacerations and recurrent headaches.”

The school district “intentionally, recklessly and maliciously subject[ed] Plaintiff to unreasonable physical harm without due process of law,” the suit says.

Section 1983 suits based on a state-created danger theory must meet a four-part test under a 3rd U.S. Circuit Court of Appeals decision in a Pennsylvania case:

(1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur. Mark v. Borough of Hatboro, 51 F.3d 1137 (1995).

But as a general rule, “the state is not obligated to protect its citizens from the random, violent acts of private persons.” Morse v. Lower Merion Sch. Dist, 132 F.3d 902 (1997). The attack on Tieu simply does not appear any more foreseeable than random criminal conduct and her complaint does not point to any “deliberate, callous” act or omission by school officials that, in the words of Morse, “directly placed [her] in harm's way.”

Tieu does say “there was a recurrent problem of Asian-American students being terrorized by African-American students” at South Philly for a long period of time before Jan. 29, 2009. But that is far short of alleging, for example, that officials knew the school environment was dangerous for Asian nonstudents on the day she was attacked.

A case of being in the wrong place at the wrong time should not, in effect, make school districts as much a guarantor of the safety of nonstudents as they are of the safety of students.

By Matthew Heller
8/4/10