A School Law Primer School Safety: Legal Pointers for Public Schools June 2011

Updated by Amanda Bartusek, NSBA Legal Intern, National School Boards Association, Alexandria, Virginia

Reviewed by Patrice McCarthy, Connecticut Association of Boards of Education, Wethersfield, Connecticut

Contents

Page OVERVIEW 1 CONSTITUTIONAL AND STATUTORY PROVISIONS 2 LANDMARK CASES MAJOR PRINCIPLES 2 I. PREVENTIVE POLICIES AND PROCEDURES 2 A. Threat Assessment and Appropriate Interventions/Referrals 3 B. Law Enforcement in Public Schools 5 C. Communication Links to Gather Information 6 II. STUDENT DISCIPLINARY POLICIES 8 A. Due Process in General 8 B. Zero Tolerance Policies 8 C. Dress Codes and School Uniforms 10 D. School Searches 11 E. Alternative Educational Assignments or Disciplinary Transfers 12 F. Expulsions 12 III. LIABILITY CONCERNS 13 IV. CONCLUSION 14 CASE SUMMARIES 15 ______

OVERVIEW

The continuing interest in school safety is fueled not only by several tragic events around the county, but also by the more common but less extreme violence that occurs far too frequently. As a result of acts of violence there is a fear among students, a feeling of loss of control by school staff, and calls for action from the community. What can schools do to reduce the risks of violence?

Districts must face the reality that tragic violence cannot be completely eliminated by the actions of schools. Such violence is often the culmination of many factors over which schools have no control.

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The general consensus, however, is that schools must treat threats of violence and the actual occurrence of violence very seriously. Understanding the legal issues in adopting preventive policies and practices and in responding to incidents of violence can help accomplish this task.

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. CONST. amend. I U.S. CONST. amend. IV U.S. CONST. amend. XIV Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g Gun-Free Schools Act, 20 U.S.C. § 7152

LANDMARK CASES

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) Goss v. Lopez, 419 U.S. 565 (1975) Wood v. Strickland, 420 U.S. 308 (1975) Ingraham v. Wright, 430 U.S. 651 (1977) Board of Education of Rogers, Arkansas v. McCluskey, 458 U.S. 966 (1982) New Jersey v. T.L.O., 469 U.S. 325 (1985) Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) Honig v. Doe, 484 U.S. 305 (1988) Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) Earls v. Board of Education of Independent School District No. 92 of Pottawatomie County, 536 U.S. 822 (2002) Morse v. Frederick, 551 U.S. 393 (2007) Safford Unified School District #1 v. Redding, 129 S. Ct. 2633 (2009)

MAJOR PRINCIPLES

I. PREVENTIVE POLICIES AND PROCEDURES

A climate of trust, respect, and open communications is the cornerstone of school safety. Student discipline codes can assist in developing that climate.

Clear disciplinary policies and codes of conduct that are widely known, fairly and consistently enforced, and respected by the school community are a part of that climate. But only one part. Schools must use a variety of strategies to promote school safety. Preventive measures must vary according to school and community culture, needs, and resources.

Some of the more common school safety measures are listed below:  98% of public schools require visitor sign-in  90% have a closed-campus policy  55% use video surveillance  43% have an electronic notification system for school wide emergency  23% have police or security personnel present daily

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 22% conduct drug sweeps  5% use metal detectors randomly  1% use metal detectors routinely on a daily basis NATIONAL CENTER FOR EDUCATION STATISTICS, INDICATORS OF SCHOOL CRIME AND SAFETY: TABLE 20.1 (2010), http://nces.ed.gov/programs/crimeindicators/crimeindicators2010/tables/table_20_1.asp.

Of course, there is neither a perfect plan or program that fits every school or community nor is there a guaranteed fix that will prevent violence. The most important strategy is to work together as a community to keep students safe.

A. Threat Assessments and Appropriate Interventions/Referrals

Violence can rarely be predicted because of the numerous human variables involved. But potential risk can be analyzed. This is sometimes referred to as threat assessment. The appropriate focus for threat assessment is to identify and understand risk factors, often seen in the form of recurring behaviors, and not to match an individual to a predetermined “profile.”

Children who commit violence in schools are really a small subset of vulnerable/troubled children. Schools should watch for these children and refer them for screening, support, or external mental health assistance when appropriate. General warning signs or personal background indicators include:  History of violence or recent acts of violence  Close family member who has committed violent acts  History of alcohol or drug abuse  Precipitating event, such as a failed romance or other perceived failure  Obsession with violence and weapons  Lack of coping skills or strategies to handle personal crises or anger  Lack of emotional support systems  Chronically low self esteem

Whatever warning signs are used to assess the probability of violence by a particular individual, the purpose of the evaluation should be to provide appropriate assistance to the individual student, such as referrals for screening, support, counseling, or other mental health treatment.

If a school district chooses to adopt a safety policy that includes threat assessment, it must carefully consider the legal implications of that policy and should ensure that at a minimum, it considers and/or addresses the following issues:

Reporting – Staff and students should be encouraged to report any behaviors/incidents/statements they regard as troublesome. They must know to whom they should report and when they should report. There should be a school employee designated as the "repository" for these reports. It may make sense to have the staff or administrative person who functions as the collection point to be the same person who

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acts as the assessor of potential for violence and/or need for referral/intervention. Obviously, this person must be thoroughly trained to assume these responsibilities. Staff and students should be assured that all reports will be addressed promptly and taken seriously.

Administrators and staff can encourage students to report potentially troublesome behaviors by creating a school environment in which students feel connected to teachers and staff. The creation of mutual trust and respect among students and staff will increase the likelihood that students will report dangerous behavior. Staff also must make students aware that disclosing information will not subject the student to negative consequences or liability.

Records/Privacy – Reports received likely will become part of the child's "educational record," in which case the district is obligated to comply with the rights and restrictions under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g. FERPA prevents the nonconsensual disclosure of personally identifiable information contained in education records to third parties. However, FERPA’s health and safety emergency exception allows disclosures to be made absent consent “if knowledge of the information is necessary to protect the health or safety of the student or other individuals.” 34 C.F.R. § 99.36(a). School districts must take into account the “totality of the circumstances” to determine whether there is an “articulable and significant threat to the health or safety of a student or other individuals” in which case the district may disclose information from education records “to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals.” 34 C.F.R. § 99.36(c). In some circumstances, law enforcement may participate in a school district’s threat assessment team and review student records without consent.

Parental Involvement – Clear guidelines about when and how to involve parents in the "threat assessment" should be established. What do they have a right to know? Which referrals/interventions require parental consent under federal/state law? What should be done when parents are hostile/non-receptive to the suggested referral?

Community Awareness/Potential Victim Notification – When, if ever, is it appropriate to alert others in the school community to potential violence? How should schools deal with threats against individual students about which the potential victim may be unaware? Do named potential victims have a right to know about threats made against them? Regarding information about a threat contained in education records, FERPA’s health and safety emergency exception generally allows disclosure to the potential victim and others in the school community “whose knowledge of the information is necessary to protect the health or safety of the student or other individuals.” 34 C.F.R. § 99.36(c).

Completion/Participation in the Suggested Treatment/Program – If the screening, counseling, treatment, etc. is delivered by someone outside the school district, will the district pay for the treatment? Monitor participation? Require proof of completion? If the referral/intervention is rejected by the parents and/or student, how will the school respond?

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Racial/Gender Stereotyping/Profiling – School districts must establish measures to assure that threat assessment does not degenerate into racial/gender/socioeconomic status stereotyping and that suggested referrals/interventions are not discriminatory.

B. Law Enforcement in Public Schools

The presence of a law enforcement officer will not guarantee safety in a school building, but officers can help to prevent tragedy and react immediately if a crisis occurs. According to some studies, a visible police presence may be helpful in reducing many forms of violence and increasing students’ perceptions of safety within the school. See Barbara Raymond, Assigning Police Officers to School, PROBLEM ORIENTED GUIDES FOR POLICE RESPONSE GUIDES SERIES 10 (2010), http://www.popcenter.org/responses/PDFs/school_police.pdf. This also gives students an opportunity to develop trust and talk to law enforcement officers in a neutral, non- threatening atmosphere.

The most common method is partnering with local law enforcement. This provides an opportunity for the school to work with other community officials. It may also build a positive relationship invaluable in crises situations.

When considering the visible presence of law enforcement, schools must consider the effects on school climate and any possible community concern. Other issues to consider include:

School Security Officer or Police Officer – Employment and liability issues may determine whether a school district hires its own security personnel or uses a sworn officer from the local law enforcement agency. But other factors also enter into the decision of which would be more appropriate or effective. These include size of school or district, past history of violence in the district, purpose(s) for the officer's presence, functions that the officer will be expected to assume, and availability of expertise and experience outside the local law enforcement agency.

Selection of the Officer – If the district opts to use a law enforcement officer, it should ensure that it has input into the selection of the officer. It should also reserve the right to reject, at any time, an officer who it feels is inappropriate for the school environment. Having the right officer is crucial to the success of the program. School districts may also perform their own background check on the officer.

Training of the Officer – Training of the school officer is equally important. The school district should ensure that it has input into the types of training beyond law enforcement techniques and principles the officer receives before being placed in the schools.

Purpose and Role of the Officer – The functions and responsibilities of the officer should be clearly established. This is of paramount importance since the applicable legal

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rules and standards that apply to police officers conducting criminal investigations differ from those applicable to school personnel carrying out similar functions.

Reporting/Supervisory Structure – To whom the officer should report and from whom he or she should take direction must be clearly established. This is crucial in establishing to whom the officer should provide information about student activities that he or she gains through his or her role as a school officer and who should determine how to proceed in light of the information received.

Sharing of Information – Where the school district contracts with a public or private agency for security services, sharing of information may be restricted under FERPA unless the district designates in writing that the officers provided by the agency are considered the district’s law enforcement unit and are “school officials” for purposes of records disclosure under FERPA.

Armed? – Aside from the affect on the quality of the learning environment, whether the officer should be armed will depend upon a number of factors, including potential liability in the event of a shooting by the officer, history of violence in the school, and purpose of placing the officer in the school.

C. Communication Links to Gather Information

Encouraging students to communicate with school personnel about potential warning signs of violence will help schools to respond before problems escalate and may engender a feeling among students that the adults at school care about their safety and well being. In many of the past school shootings, the shooters had told other students about their intentions. Students often choose not to convey this information to school officials or law enforcement for fear of being branded a “snitch” or “rat,” or because they did not take the statements seriously.

1. Mandatory Reporting

A school’s goal must be to create a culture of mandatory reporting by all members of the school community, including students and parents. This is not a new task for educators. Violence, and threats of violence, have been confronted in the classroom and reported to the principal’s office throughout the history of education.

The culture of reporting warning signs that constitute a threat of school violence must be supported by clear, definitive policies and adequate training for all involved as to what to report and to whom it should be reported. Individuals reporting information must know that the information they provide will be reviewed, investigated, and acted upon promptly and effectively.

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2. Anonymous Tip Lines

There are a number of anonymous reporting programs currently in use. Crimestoppers® is the most widely implemented tip program in the United States. Some private companies will establish anonymous tip lines for school districts. An anonymous tip line or similar program might increase the flow of information from students to law enforcement and school officials, but can create other issues that schools must resolve before adopting such a program. Many of these issues are discussed above in section A on threat assessment. Other issues include:

Appropriate Investigation – If the school district has its own tip line, it must have procedures in place and personnel designated to determine whether a particular piece of information warrants further investigation and how that investigation will be conducted. Because the information is anonymous, follow up investigation may be more difficult, but it is imperative that school officials independently corroborate the tip information if disciplinary measures are contemplated or if searches will be conducted. If no corroboration can be obtained, school administrators must be provided with guidance on what steps should be taken next.

Working with Law Enforcement – If the tip line is operated by the police, a good working relationship must exist between school authorities and law enforcement to ensure that the information is reviewed and exchanged in a timely fashion by both parties. A protocol should be established on what information will be shared and when, whether joint investigations will be conducted, when police investigations may take place on school grounds, police access to students during school hours, and disposition of evidence obtained. Schools should not defer to police investigations in all instances but should establish guidelines for conducting their own investigations so that they may take appropriate actions even if the criminal process is delayed or ultimately not pursued.

Records Procedures – As noted above, storage and documentation of reports of potential violence or suspicious behavior must be carried out according to established guidelines. These procedures are particularly important with anonymous information. When, if ever, will it become part of a student's education record? Only after it is verified? If it cannot be verified, will the information be kept in some other location? Where will information be kept that the tip was in fact investigated and the results of that investigation? Clear documentation of investigation results may become important should claims surface later that the school should have known about a particular student's potential or intent to commit violence but failed to intervene in a reasonable manner.

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II. STUDENT DISCIPLINARY POLICIES

A. Due Process in General

School districts have the right to adopt reasonable rules and regulations to control student conduct. Such rules are necessary to ensure order and safety and to set the parameters of appropriate behavior. The rights of school officials to adopt and enforce reasonable rules of student conduct are not unlimited, and students enjoy certain constitutional, statutory and regulatory protections from arbitrary and unreasonable discipline.

Usually the state’s interest in disciplinary situations is to maintain order in the school or to protect students. Thus, a school must show that its rules are reasonably related to these purposes. Substantive due process can be violated when the school’s actions lack reasonable grounds or are unreasonably severe.

The Supreme Court in Goss v. Lopez, 419 U.S. 565 (1975), applied the concepts of procedural due process to disciplinary measures. This means that before taking away a student’s liberty or property interest (e.g., through suspension, expulsion, corporal punishment), a school must use fair procedures.

The extent of the procedures due depends on the nature of the interest being taken away, i.e., the more that could potentially be taken away, the more procedural protections must be provided. If the maximum penalty that could be imposed is relatively small, only a small amount of procedural due process is required.

More information on this topic is provided in the chapter, Student Discipline, in A SCHOOL LAW PRIMER.

B. Zero Tolerance Policies

A zero tolerance policy is generally defined as a school or district policy that mandates pre-determined consequences or punishment for specific offenses, regardless of the circumstances or past disciplinary history of the student involved.

As of 2001, most public schools reported having zero tolerance policies that apply to serious student offenses. NATIONAL CENTER FOR EDUCATION STATISTICS, SCHOOL PRACTICES AND POLICIES RELATED TO SAFETY AND DISCIPLINE (2001), available at http://nces.ed.gov/pubs2002/crime2001/pdf/AppA.pdf. Almost all schools reported zero tolerance policies for firearms (94%) and weapons other than firearms (91%). Eighty- seven percent of schools had policies of zero tolerance for alcohol and 88% had zero tolerance policies for drugs (controlled substances). Most schools also had zero tolerance policies for violence (79%) and tobacco possession violations (79%).

The Gun Free Schools Act, 20 U.S.C. § 7151, requires schools to have a zero tolerance policy for guns as a condition of receiving Elementary and Secondary Education Act funds. Schools must adopt a policy mandating a one-year expulsion for students who bring firearms to school. Exceptions are allowed on a case-by-case basis.

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Schools may also wish to consider zero tolerance policies for students who make threats of violence. Such a policy might include expulsion or suspension of students who threaten to kill or who seriously assault others and, when appropriate, provide for timely psychological evaluation or intervention for these students. A clear and consistent message that threats of violence will not be tolerated may help to reduce actual occurrence.

Before adopting zero tolerance policies, schools should consider at least the following issues:

Adequate Due Process Is Provided – Any zero tolerance policy must provide for adequate procedural due process in accordance with the severity of the designated consequence or discipline for the particular offense. See, e.g., Hinterlong v. Arlington Indep. Sch. Dist., No. 2-09-050, 2010 WL 522641 (Tex. Ct. App. Feb. 11, 2010). In regard to zero tolerance weapons policies, at least one court has held that due process requires the board to make a finding that the student knowingly or consciously possessed a weapon before it may impose the mandatory punishment. Seal v. Morgan, 229 F.3d 567 (6th Cir. 2000). Schools also should ensure that the designated consequences are consistent with substantive due process considerations. See, e.g., Vann v. Stewart, 445 F. Supp. 2d 882 (E.D. Tenn. 2006); Fuller v. Decatur Public Schools, Board of Education School District No. 61, 251 F.3d 662 (7th Cir. 2001). Additionally, when disciplining students with disabilities, school districts must adhere to any applicable procedures required under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.

No Infringement of Constitutional Rights – Especially where the misconduct involves some form of speech, the policy should have clear definitions that do not encompass expression protected by the First Amendment. Boards must be careful to apply disciplinary policies in a constitutional manner. See Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243 (3d Cir. 2002) (school district overstepped constitutional limits by banning a t-shirt with the word “redneck” under its policy prohibiting hate speech). Vague and overly broad policies are more vulnerable to court challenge. See Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) (school district’s anti-harassment policy was overly broad).

Loss of Discretion – Before adopting zero tolerance policies, school districts should be certain that they are willing to deliver the same punishment for "minor infractions" of the policy, foregoing any consideration of external circumstances or mitigating factors. See Simonian v. Fowler Unified School District, 473 F. Supp. 2d 1065 (E.D. Cal. 2007) (school district forced to expel an involved honors student after finding a pinhead sized amount of marijuana in his car parked on school property). Zero tolerance policies relinquish the authority of boards and administrators to exercise sound discretion and judgment and so should be reserved for offenses where such an approach is absolutely critical to promoting student health and safety.

Clear Definitions – Because punishments are "automatic" under zero tolerance policies, it is imperative that clear definitions be included to ensure students are clearly notified of

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prohibited conduct and that policies do not unintentionally sweep in behavior that the school board does not wish to regulate.

Consistent Enforcement – The purpose of zero tolerance policies is to provide a uniform punishment for specified disciplinary actions. From this perspective zero tolerance policies are consistent by definition. However, as with any rule, there is the possibility of inconsistent enforcement. If discrepancies in enforcement emerge, the "get tough" message is nullified and may lead to charges of discrimination.

C. Dress Codes and School Uniforms

Advocates of school uniforms assert that the policies reduce school violence and improve school climate. Principals in schools with uniform policies reported strong benefits to student safety (75%) according to a survey by the National Association of Elementary School Principals. See Press Release, NAESP, Survey of School Principals Reports Positive Effects of School Uniforms (July 2000).

Before adopting a strict dress code or school uniform policy, schools should consider the following legal issues:

1. First Amendment – Freedom of Expression

Some circuits have indicated that dress is an expressive activity. See, e.g., Massie v. Henry, 455 F.2d 779 (4th Cir. 1972); Breen v. Kahl, 419 F. 2d 1034 (7th Cir. 1969); Bishop v. Colair, 450 F.2d 1069 (8th Cir. 1971); A.A. Betenbaugh v. Needville Independent School District, 701 F. Supp. 2d 863 (5th Cir. 2009).

If dress is protected speech, then attire and hair can only be restricted if it is: (1) materially and substantially disruptive; (2) pervasively vulgar; (3) harmful to self or others; or (4) drug promoting. These standards have been used to uphold dress codes that prohibit attire that is immodest, disruptive, harmful, or unsanitary. See Boroff v. Van Wert City Board of Education, 220 F.3d 465 (6th Cir. 2000).

If dress is not expressive, it can be restricted for any legitimate reason. However, school officials should be cautious. Policies should be written to ensure they reasonably relate to their asserted purpose and are not vague. For example, some school districts have adopted dress restriction policies to address the problem of gang activity in schools. However, courts have overturned policies that are too vague and do not accurately describe the restricted gang attire. Stephenson v. Davenport Community School District, 110 F.3d 1303 (8th Cir. 1997); Chalifoux v. New Caney Independent School District, 976 F. Supp. 659 (S.D. Tex. 1997); Scott v. Napa Valley Unified School District, No. 26-37082 (Cal. Super. Ct. July 2, 2007).

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2. First Amendment – Free Exercise of Religion

Courts generally uphold school uniform policies over religious objections by parents and students as long as the policies are neutral and of general applicability. See, e.g., Littlefield v. Forney Independent School District, 268 F. 3d 275 (5th Cir. 2001); Jacobs v. Clark County School District, 526 F.3d 419 (9th Cir. 2008) (school uniform policy and regulation were “’valid and neutral law[s] of general applicability’ and, as such, did not implicate the Free Exercise Clause at all”). Some states have adopted statutes specifically allowing school boards to require uniforms. See, e.g., CONN. GEN. STAT. § 10-221f. To sidestep the legal issues involved, some districts have made wearing uniforms voluntary.

D. School Searches

The Fourth Amendment protects individual privacy by providing protection against unwarranted governmental intrusion.

School officials may conduct a search of a student or a student's belongings if they have a reasonable suspicion that the student is violating the law or school rules. The search must be reasonable both at its inception and in its scope. New Jersey v. T.L.O., 469 U.S. 325 (1985).

● Reasonableness of a search depends on the degree of certainty that a student has violated a school rule or the law and the extent to which the student’s expectation of privacy will be infringed by the search. The lower the expectation of privacy, the less certainty required to make a search reasonable.

● Reasonableness also depends on the purpose of the search. Imminent danger may justify an intrusive search based only on reasonable suspicion. See Thomas v. Roberts, 261 F.3d 1160 (11th Cir. 2001).

Different standards may apply to searches conducted by school liaison officers or local police officers at school. See, e.g., People v. Dilworth, 661 N.E.2d 310, 317 (Ill.), cert. denied, 517 U.S. 1197 (1996), and cases cited therein.

Strip searches require a high degree of certainty or indication of danger to be justified, plus evidence that contraband is likely to be located in the search. Safford United School District v. Redding, 129 S. Ct. 2633 (2009) (search of a middle school girl was unconstitutional where it involved looking in her underwear for prescription drugs when school officials had no evidence that drugs were hidden there).

The U.S. Supreme Court has ruled that random drug testing of student athletes and students participating in extracurricular activities does not violate the Fourth Amendment prohibition on unreasonable search and seizure. Vernonia School District 47J v. Acton, 515 U.S. 646 (1995); Earls v. Board of Education of Independent School District No. 92 of Pottawatomie County, 536 U.S. 822 (2002).

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Random searches of students not participating in sports or extracurricular activities may violate the Fourth Amendment. See Doe v. Little Rock School District, 380 F.3d 349 (8th Cir. 2004) (a school district’s practice of full-scale, suspicionless searches was an unconstitutional intrusion of students’ rights to privacy).

More information is provided on this topic in the chapter on Student Rights in A SCHOOL LAW PRIMER.

E. Alternative Educational Assignments or Disciplinary Transfers

Recognizing the importance of education, and perhaps the futility of out-of-school suspensions and expulsions, many districts also use disciplinary transfers. Some schools have developed alternative educational programs to deal with students who are disruptive in the regular school but have the capacity and need to succeed. It remains an open question as to what degree of due process is required to sustain a disciplinary transfer. Districts should provide a conference with parents and students as a precursor to reassignment.

F. Expulsions

Expulsion requires that school personnel provide greater procedural due process than used for short-term suspensions since the property interest being jeopardized is greater. The procedures are, therefore, more complex.

Once expelled, the school is not required to provide educational services to the regular education student. But see CONN. GEN. STAT. §10-233d(d) (school districts required to provide an alternative educational opportunity to expelled students). When possible under state law, some districts choose to continue services for expelled students. Expelled students can be barred from participation in extracurricular activities and excluded from school buildings.

Students continue to be subject to compulsory school attendance laws even though they have been expelled. Parents are still required to meet the requirements of the compulsory attendance mandates of the state. In some states, expulsion from one public school is equivalent to expulsion from all public schools in the state (e.g., Wisconsin). When this happens, parents must then turn to private education, out of state placement, or home schooling.

Expulsion procedures are commonly specified in state statutes. In many states, students are entitled to full hearings before the school board with representation, presentation of witnesses, and subpoena power. At a minimum, the following must be afforded:  written notice of the charges with sufficient specificity so the student can mount a defense;  sufficient time between the notice and the hearing to allow the student to prepare a defense;

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 at the hearing: the right to present evidence, cross-examine the witnesses, and the right to use counsel to the same extent the school does;  a decision made on the merits by an impartial party or panel.

Rules and procedures regarding expulsion of special education students are much more complicated. For a more detailed account, see the chapter on Special Education in A SCHOOL LAW PRIMER. Simply put, even if expelled through the regular disciplinary procedure, a district must also change a special education student’s placement through the formal individual education program and must continue to provide the student a free appropriate education.

III. LIABILITY CONCERNS

Preventing injury is not only an ethical responsibility, it is also a legal obligation. Schools have the responsibility of providing a safe environment for students while they are under their care. The negligent failure to do so will create legal liability for the school.

Regarding students, usually a duty exists while they are in the custody or control of the school.

Schools may have a duty to supervise students away from school grounds when they are responsible for them being there, such as while on field trips or extracurricular events.

Schools may have a duty to supervise students on school grounds before and after school when they are responsible for them being there, such as when the bus drops them off. Schools may acquire a duty to supervise when they have, by their previous actions, assumed the duty to supervise, such as when some staff have supervised intermittently or consistently before official time to arrive.

Schools also have a duty to warn of known dangers even when they do not have a duty to supervise.

When a student is a victim of violence at school, the general question will be whether the school had acted reasonably in protecting students against violence and whether the school knew, or should have known, that the offender was violent. If the school district failed to act reasonably, they may be liable for the damages of the violence.

Under the No Child Left Behind Act, states are required to implement a statewide policy that gives a student who attends a “persistently dangerous” school or who is the victim of a violent criminal offense on school grounds the option to transfer to a “safe” school within the same school district. “Persistently dangerous” schools will be determined by the state in consultation with local school districts. 20 U.S.C. § 7912. What effect the designation as “persistently dangerous” would have in terms of liability should a claim arise at such a school is unclear.

For more discussion of school liability see the chapter on Negligence in A SCHOOL LAW PRIMER.

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IV. CONCLUSION

In spite of all this, children are still safer in school than in many other places in society.

In 2008,  Students (12-18) were victims of 113,300 violent crimes at school.  Students (12-18) were victims of 204,500 violent crimes away from school. NATIONAL CENTER FOR EDUCATION STATISTICS, INDICATORS OF SCHOOL CRIME AND SAFETY: TABLE 2.1 (2010), http://nces.ed.gov/programs/crimeindicators/crimeindicators2010/tables/table_02_1.asp.

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CASE SUMMARIES

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

Issue: Whether school district policy banning students from wearing black armbands on school premises to protest United States military action in Vietnam violated students’ First Amendment free speech rights because the school district failed to establish that the policy was necessary to avoid material and substantial interference with school activities or discipline?

Facts: Students, who were members of an antiwar group, decided to wear black armbands to school in order to publicize their objections to the United States’ military action in Vietnam. When the principals in the school district became aware of the plan, they adopted a policy requiring students wearing the armbands to remove them or be suspended until they returned without the armbands. The students were aware of the policy at the time they wore the armbands to school and were suspended. They filed suit, seeking injunctive relief on the ground the policy violated their First Amendment free speech rights. The district court dismissed the complaint, ruling that the school district’s policy was a reasonable means to prevent disruption of orderly school environment. The Eighth Circuit sitting en banc was equally divided, resulting in the district being affirmed.

Holding/Rationale: The U.S. Supreme Court reversed and remanded, holding the school district’s policy banning the wearing of the armbands violated the students’ free speech rights because there were no facts which might reasonably have led the school district to forecast substantial disruption or material interference with school activities, and in fact no disturbance or disorder occurred on school premises. The Court pointed out that school officials do not possess absolute authority over students, and that students do not check their fundamental rights at the schoolhouse door. It concluded that the policy abridged the right of free speech no less so than if the school district had adopted a policy prohibiting all discussion of the Vietnam conflict anywhere on school premises in the absence of a material and substantial disruption of school activities and discipline.

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Goss v. Lopez, 419 U.S. 565 (1975)

Issue: Whether students’ due process rights were violated when they were suspended without a hearing prior to or within a reasonable time after the suspensions?

Facts: Nine students were suspended for up to ten days under a state statute authorizing principals to suspend for up to ten days for misconduct. The statute provided that parents must be notified within 24 hours, and that the principal state the reason for his action. The school district’s rules merely restated the statutory language. In only one case was a student given an informal hearing, consisting of the student telling the principal his version of the incident. The students filed suit, alleging violation of their due process rights under 42 U.S.C. § 1983. A three- judge district court held that the students’ due process rights had been violated because they were not given a hearing prior to or within a reasonable time after being suspended.

Holding/Rationale: The Supreme Court affirmed, holding that due process requires that students subject to suspensions of ten days or less be given: (1) oral or written notice of the charges; (2) an explanation of the evidence the authorities have; and (3) an opportunity to present their side of the story. The Court concluded that due process applies to school discipline because education is a property right under state law. It also indicated that students’ liberty interests are at stake. It stated that a ten-day suspension is not a de minimis deprivation, but rather the length of a suspension is relevant only in regard to the kind of hearing required. The Court also held that there was no need for time delay between the notice and hearing. However, it observed that as general rule the notice and hearing should occur prior to the suspension, unless the student poses a continuing threat to persons or property, or a disruption to the academic process.

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Wood v. Strickland, 420 U.S. 308 (1975)

Issue: Whether 42 U.S.C. § 1983 extends the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations?

Facts: Three high school students were expelled for “spiking” punch with alcohol served at an extracurricular meeting at school. The school board found that the students had violated school regulations prohibiting the possession or use of intoxicating beverages on school grounds or at school activities. The students filed suit under 42 U.S.C. § 1983, alleging that school officials had violated their due process rights by expelling them. They sought damages and injunctive and declaratory relief. The district court granted school officials a directed verdict on the ground that they were immune from damages suits absent proof of malice in the form of ill will toward the respondents. The Eighth Circuit reversed and remanded, finding that the facts showed a violation of the students’ substantive due process rights because the board made its decision to expel with no evidence that the school regulation had been violated.

Holding/Rationale: The U.S. Supreme Court vacated the Eighth Circuit’s judgment and remanded the case. It held that § 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. The Court found the Eighth Circuit’s substituting its judgment for that of the school board improvident because in the Supreme Court’s opinion there was evidence supporting the charge against the students. It stated that it is not the role of federal courts to overturn the decisions of school officials simply because the court believes a decision lacks wisdom or compassion.

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Ingraham v. Wright, 430 U.S. 651 (1977)

Issues: (1) Whether the Cruel and Unusual Punishment Clause of the Eighth Amendment applies to disciplinary corporal punishment in public schools? (2) Whether due process requires notice and hearing prior to imposition of corporal punishment in public schools that is authorized and limited by common law?

Facts: Two junior high school students were paddled on the buttocks for a disciplinary code infraction. The corporal punishment was imposed in accordance with a school board regulation and state law permitting the use of corporal punishment. The students filed suit pursuant to 42 U.S.C. § 1983, alleging violations of their due process rights and the Cruel and Unusual Punishment Clause of the Eighth Amendment. The district court granted the school officials’ motion for dismissal, and the Fifth Circuit affirmed.

Holding/Rationale: The U.S. Supreme Court affirmed, holding that: (1) the Cruel and Unusual Punishment Clause does not apply to disciplinary corporal punishment in public schools; and (2) due process does not require notice and hearing prior to imposition of corporal punishment in public schools as that practice is authorized and limited by common law. Regarding the Cruel and Unusual Punishment Clause issue, the Court found that the history of the Eighth Amendment made it clear that the prohibition against cruel and unusual punishment was designed to protect those convicted of crime. As a result, it refused to take the Eighth Amendment from its historical context and extend it to school disciplinary practices. Turning to the due process issue, the Court agreed that students facing corporal punishment have a liberty interest to be free from bodily restraint and punishment that implicates due process. However, it found that the liberty interest is adequately protected without resort to due process because of the limits imposed on the use of corporal punishment by common law and the safeguards provided by the state to protect against unjustified corporal punishment of school children.

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Board of Education of Rogers, Arkansas v. McCluskey, 458 U.S. 966 (1982)

Issue: Whether school board’s construction of its policy requiring mandatory suspension of students for being under the influence, use, sale, or possession of drugs or controlled substances on school grounds as including alcoholic beverages violated substantive due process rights of student who was suspended for violating policy when he entered school after having consumed alcoholic beverages?

Facts: Student, along with four classmates, left school without permission and consumed alcoholic beverages. After returning to school, they were suspended pending a disciplinary hearing. During the hearing, none of the five denied having consumed alcoholic beverages. The school board voted to expel all five for the semester based on the board’s policy requiring mandatory suspension for being under the influence, use, sale, or possession of drugs or controlled substances while on school grounds. The student filed suit under 42 U.S.C. § 1983, alleging violation of his substantive due process rights. The district court found that the school board had violated the student’s substantive due process rights. The Eighth Circuit affirmed, ruling that Wood v. Strickland was distinguishable because the school board in that case had construed its regulation reasonably, while the board in the present case had construed its regulation unreasonably.

Holding/Rationale: The U.S. Supreme Court reversed, holding that the school board’s construction of its policy to include alcoholic beverages did not violate the student’s substantive due process rights. The Court found that the Eighth Circuit had erred when it held that Wood v. Strickland was distinguishable from the present case because the school board in the present case had construed its policy unreasonably. On the contrary, it found that Wood v. Strickland required that the Eighth Circuit be reversed. The Court stated that nothing about the school board’s construction was unreasonable as the student himself had conceded that alcohol is a drug.

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New Jersey v. T.L.O., 469 U.S. 325 (1985)

Issue: Whether school official’s search of student’s purse after she had been observed by a teacher violating the school’s no smoking rule constituted a reasonable search under the Fourth Amendment?

Facts: Female high school student was observed by a teacher smoking in the restroom in violation of a school rule. The teacher took her to the assistant vice principal. After she denied smoking, the assistant principal demanded to search her purse. His search turned up marijuana and other drug paraphernalia. The state then brought delinquency charges against the student, during which she moved to suppress the evidence found in her purse on the ground that the search violated her Fourth Amendment rights. The juvenile court denied her motion, holding that while the Fourth Amendment applied to searches conducted by school officials, this search was reasonable. The state intermediate appellate court affirmed on the issue of search. However, the state supreme court ordered suppression of the evidence found in the purse.

Holding/Rationale: The U.S. Supreme Court reversed. It held that under ordinary circumstances the search of a student by a school official is justified at its inception if there are reasonable grounds for suspecting that the search will turn up evidence that the student violated or is violating either the law or rules of the school, provided the scope of the search when initiated is reasonably related to the objectives of the search and not excessively intrusive in light of the student’s age and sex and the nature of the infraction. In the Court’s opinion, this standard, by easing the restrictions ordinarily imposed on public authorities conducting searches, struck the proper balance between students’ legitimate expectations of privacy and schools’ equally legitimate need to maintain an environment in which learning can take place. Applying the standard to the facts of this case, the Court ruled that the search was initially justified based on the report of smoking and that at each step of the search, the assistant principal discovered new evidence that justified a further search which ultimately ended with the discovery of drugs and drug-related materials.

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Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)

Issue: Whether school’s disruptive conduct policy prohibiting the use of obscene, profane language failed to give student adequate warning that delivery of speech, containing explicit and graphic sexual language, would subject him to disciplinary sanctions in violation of his due process rights?

Facts: High school student gave before a student assembly on behalf of fellow student running for school elective office a nominating speech that contained language of an explicit sexual and graphic nature. Prior to giving the speech, the student had discussed the content of it with two teachers who informed him that the speech was “inappropriate” and he should not deliver it. In addition, the teachers warned the student that delivery of the speech might have “severe consequences.” Following the speech, the student was suspended for three days and removed from the list of potential graduation speakers for violating the school’s disruptive conduct policy, which prohibits the use of obscene, profane language. The student filed suit under 42 U.S.C. § 1983, alleging violation of free speech and due process rights. The district court ruled in favor of the student, and the Ninth Circuit affirmed.

The U.S. Supreme Court reversed, holding on the due process issue that school disciplinary sanctions need not be as detailed as a criminal code which imposes criminal sanctions in order to satisfy due process. It found that the sanctions imposed by the school did rise to the level of criminal penalties calling for the “full panoply of procedural due process protections applicable to a criminal prosecution.” The Court concluded that the policy proscribing “obscene” language along with the teachers’ advice constituted adequate warning that delivery of the speech could result in disciplinary sanctions.

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Honig v. Doe, 484 U.S. 305 (1988)

Issue: Whether the EAHCA’s “stay-put” provision prohibits state or local school authorities from unilaterally excluding a disabled student from the classroom for dangerous or disruptive conduct related to his disability during pendency of disciplinary proceedings in the absence of a showing by school officials that maintaining the student’s current placement is substantially likely to result in injury to the student or to others?

Facts: Two emotionally disabled students were suspended indefinitely for violent and disruptive conduct related to their disabilities, pending the final outcome of expulsion proceedings. The students filed suit against the school district, alleging that the suspensions and proposed expulsions violated the EAHCA. The district court entered summary judgement for the students and issued a permanent injunction. The Ninth Circuit affirmed.

Holding/Rationale: The Supreme Court affirmed, holding that the “stay-put” provision of § 1415(e)(3) of the EAHCA unequivocally prohibits school authorities from unilaterally excluding disabled students from the classroom for dangerous or disruptive conduct related to their disabilities during pendency of disciplinary proceedings for more than ten days. Based on its reading of the “stay-put” provision, the Court concluded that § 1415(e)(3) of the EAHCA creates a rebuttable presumption in favor of continuing a disabled student’s current placement which can be overcome only if the school district establishes that maintaining the current placement is substantially likely to result in injury to the student or to others. The Court also pointed out that the EAHCA does not render school officials powerless to deal with violent or disruptive disabled students because the Act allows temporary suspensions of ten or less days.

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Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)

Issue: Whether school district’s mandatory drug testing policy for all students participating in interscholastic athletics constitutes a reasonable search under the Fourth Amendment?

Facts: School district, concerned with increased drug use by students in its schools, adopted a mandatory drug test policy for all students participating in interscholastic athletics. Student was denied participation on school football team when he refused to consent to testing. The student filed suit, alleging that the drug testing policy constituted an unreasonable search in violation of his Fourth Amendment rights. The district court dismissed the action. The Ninth Circuit reversed, holding that the policy constituted an unreasonable search.

Holding/Rationale: The U.S. Supreme Court vacated and remanded. It held that the school district’s mandatory drug test policy did constitute a reasonable search under the Fourth Amendment. It found that the policy was reasonable based on three factors: (1) the privacy interests of students are lower than among the general public and the privacy interests of student- athletes are lower still; (2) the intrusiveness of the testing is negligible since the condition of collection is nearly identical to those encountered in a public restroom; and (3) the importance of deterring drug use among students, especially student-athletes who run a greater risk of injury.

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Board of Education of Independent School District No. 92 of Pottawatomie County, Oklahoma v. Earls, 536 U.S. 822 (2002)

Issue: Whether school district policy requiring all students participating in extracurricular activities to consent to random, suspicionless drug testing violates students’ Fourth Amendment right to be free from unreasonable searches and seizures?

Facts: Tecumseh School District in Pottawatomie County, Oklahoma implemented a mandatory drug testing policy for all public high school students participating in extracurricular activities. The policy required those students to consent to random, suspicionless drug testing. Two students, Lindsay Earls and Daniel James, challenged the policy as a violation of their Fourth Amendment right to be free from unreasonable searches. The Tenth Circuit in Earls v. Board of Education of Tecumseh Public School District, 242 F.3d 1264 (10th Cir. 2001) ruled that the school district’s drug testing policy was unconstitutional. The court found that drug use by students involved in extracurricular activities other than athletics, such as band or choir, did not expose them to any greater safety risk than non-participants who use drugs. It also concluded that the record did not support the school district’s contention that it had an identifiable drug abuse problem among students involved in extracurricular activities. The court pointed out that without the limitation of having to demonstrate identifiable drug abuse among a group of students, schools could test students "simply as a condition of attending school."

Holding Rationale: The U.S. Supreme Court reversed the Tenth Circuit. Applying the principles enunciated in Vernonia, the majority concluded that Tecumseh’s drug testing policy passed constitutional muster. While conceding that students participating in non-athletic extracurricular activities are not subject to the same level of physical intimacy and communal undress as student athletes, the Court, nonetheless, found that students participating in “competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes.” As a result, it concluded that students subject to the policy have a limited expectation of privacy. Addressing the character of the intrusion imposed by the policy, the Supreme Court pointed out that the sample collection process was only mildly invasive and the test results are used only for counseling and rehabilitation without any criminal or disciplinary sanctions. The Court, therefore, concluded that the invasion on the students’ privacy is minimal. Considering the final Vernonia factor, the nature and immediacy of the government’s concerns and efficacy of the policy in addressing them, it concluded that testing students participating in extracurricular activities is a reasonably effective means of addressing the school district’s legitimate concerns in deterring student drug use.

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Morse v. Frederick, 551 U.S. 393 (2007) Issues: (1) Whether a principal violated a student’s First Amendment right to free speech when the student’s ability to display a banner containing a message about illegal drug use at a school sponsored event was restricted? (2) Whether a school official has qualified immunity under 42 U.S.C. § 1983 when she disciplines a student in accordance with school policy for displaying a banner containing a message about illegal drug use at a school sponsored event?

Facts: In 2002, the Olympic Torch passed through Juneau, Alaska on its way to the Olympic Games in Salt Lake City, Utah. Juneau-Douglas High School was along the route of the Torch Relay. The school principal, Deborah Morse, permitted staff and students to leave the school building as an approved school event to watch the Torch Relay from either side of the street. Joseph Frederick, a senior at the school, was watching the Relay with a group of friends across the street from the school. When the torchbearers passed by the school, Frederick and his friends unfurled a banner reading “BONG HiTS 4 JESUS.” Juneau School Board policy prohibits any public expression that encourages the use of illegal substances, and the conduct rules apply to students during school-sponsored events. Thinking the banner encouraged illegal drug use in violation of this school policy, Principal Morse demanded that the banner be taken down. All of the students complied except for Frederick. Principal Morse confiscated the banner and sent Frederick to her office. He was subsequently suspended for 10 days. After appealing his suspension administratively and having it upheld, Frederick filed suit alleging that the school board and Principal Morse had violated his First Amendment rights. The district court granted summary judgment to the school board and Principal Morse on the grounds of qualified immunity and because they had not infringed Frederick’s First Amendment rights. The Ninth Circuit reversed finding a violation of Frederick’s rights because the school punished him without showing that the banner display gave rise to a “risk of substantial disruption.” It further held that Principal Morse was not entitled to qualified immunity because Frederick’s right was so clearly established that a reasonable principal would have understood her actions were unconstitutional. Holding/Rationale: The Supreme Court reversed the Ninth Circuit’s decision. The Court held that school officials may restrict student speech at school-sponsored events when the speech is reasonably viewed as promoting illegal drug use. The Court concluded that schools have a particular interest in preventing illegal drug abuse among school children, and stated that the special characteristics of the school environment combined with this interest allows schools to restrict student speech that is reasonably regarded as promoting illegal drug use. The Court emphasized that school officials could restrict Frederick’s expression because it took place at a school-sponsored event and was reasonably viewed as promoting illegal drug use, and not simply because it might be seen as “offensive.” Since the Court found that Frederick’s First Amendment rights were not infringed, it did not reach the issue of qualified immunity.

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Safford Unified School District #1 v. Redding, 129 S. Ct. 2633 (2009)

Issues: (1) Whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected to possess prescription drugs in violation of school policy? (2) Whether the school officials who conducted a strip search of a student are entitled to qualified immunity under 42 U.S.C. § 1983?

Facts: Savanna Redding, a thirteen year old, was escorted from her middle school classroom by the Assistant Principal, Kerry Wilson. Wilson had received a tip from another student that Savanna had supplied students with prescription drugs. Based on this tip, Wilson showed Savanna a day planner containing knives and other contraband items as well as several prescription-strength pills and one over-the-counter pain reliever. Students were not allowed to have such pills without advance permission from the school. Savanna admitted to owning the day planner but said that she had lent it to a friend and denied having knowledge of the contraband items. She further denied having distributed prescription drugs to other students at the school and agreed to let Wilson search her belongings. Wilson and his administrative assistant searched Savanna’s backpack and found no prescription pills. Wilson then had her assistant take Savanna to the nurse’s office to have her clothes searched by the assistant and a nurse, both female. In the nurse’s office, Savanna was told to remove her outer clothing. No pills were found. The two women then had Savanna pull the elastic on her bra and underpants out, exposing her breasts and pelvic region to some extent. Again no pills were found. Savanna’s mother filed a suit against the school district alleging that the strip search violated her daughter’s Fourth Amendment rights. The school officials moved for summary judgment based on claims of qualified immunity. The district court granted the motion, finding no Fourth Amendment violation. The Ninth Circuit reversed en banc, holding that the strip search was unjustified under the test for Fourth Amendment searches of school children. On the question of qualified immunity, the Ninth Circuit reversed as to Wilson but affirmed as to the two who were not independent decision makers.

Holding/Rationale: The U.S. Supreme Court affirmed in part, reversed in part, and remanded. The Court affirmed the holding that the strip search was unreasonable and a violation of the student’s Fourth Amendment rights. It found that Wilson’s suspicion was enough to justify a search of the student’s backpack and outer clothing. The strip search, however, was distinct and required greater justification. Relying on the “rule of reasonableness” stated in New Jersey v. T.L.O., the Court reiterated that the search conducted must be “reasonably related in scope to the circumstances that justified the interference in the first place.” 469 U.S. 325, 341 (1985). In the case, the Court concluded that the limited threat of the painkillers combined with Wilson’s lack of justification for suspecting that Savanna was hiding pills in her underwear meant that the level of intrusion was unreasonable. The Court reversed in part on the question of qualified immunity. The Court concluded that qualified immunity was warranted for all the school officials involved in the case. The case was remanded to the lower court for consideration of the liability of Safford Unified School District #1 under Monell v. New York Department of Social Services, 436 U.S. 658 (1978).

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