The Birmingham city school system, responding to a lawsuit challenging the use of pepper spray against students, argues that the system has no federal constitutional duty to protect students’ safety from the actions of third parties — in this case, police working as school resource officers.
At the federal appeals court level, school boards have frequently won lawsuits filed over student injuries on campus by using the argument about third parties, which also includes other students or someone else who is not a school employee.
An attorney defending the Birmingham school board in the lawsuit said Thursday that the argument does not mean the school system isn’t trying to protect students. “That does not mean that students are not protected by state law or school policies,” said Mark S. Boardman.
Birmingham schools’ mission statement says that the system is to “guide all students to achieve excellence in a safe, secure and nurturing environment.”
Other than their attorney’s comments, City school officials declined to comment Thursday on the filings, which ask the court to dismiss more than half of the 30 counts in the pepper spray lawsuit.
The Southern Poverty Law Center filed the federal lawsuit Dec. 1 against Birmingham city schools, Superintendent Craig Witherspoon, the assistant principal at one high school, Birmingham Police Chief A.C. Roper and several school resource officers in an attempt to stop the use of pepper spray to discipline children.
The Montgomery-based civil rights group filed the lawsuit on behalf of six students or former students of four Birmingham high schools — Woodlawn, Huffman, Carver and Jackson-Olin.
The lawsuit seeks a permanent injunction against the schools — and against police stationed there as school resource officers — from using pepper spray on students. It also seeks compensatory or punitive damages for the pain the students went through from the pepper spray that burned their eyes, skin and throats. The lawsuit alleges violations of the Fourth Amendment and the 14th Amendment because of the use of excessive force and failing to protect students.
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