Legal Corner Dave Emmert General Counsel, Indiana School Boards Association Feel painted into the corner by certain legal issues? The paint may be dryer than you think if the terrain of the law is known. This column is intended to discuss appropriate considerations to resolve a certain problem, and should not be viewed as legal advice. What should be considered in revising student discipline handbooks to more effectively address violent behavior? 1. Elementary school handbooks are in the greatest need of review and upgrade. They are often deficient because of the failure to list a sufficient number of grounds for suspension and expulsion. Failure to include the types of conduct that may lead to suspension or expulsion means that a student may not be legally disciplined. It is advisable to use the comprehensive language of high school handbooks when listing the grounds for discipline at the elementary level. 2. Immediately following the list of specific grounds for suspension and expulsion, be sure to state the ground that is addressed at IC 20-8.1-5.1-9: In addition to the grounds specified above, a student may be suspended or expelled for engaging in unlawful activity on or off school grounds if (1) the unlawful activity may reasonably be considered to be an interference with school purposes or an educational function, or (2) the student’s removal is necessary to restore order or protect persons on school property, including an unlawful activity during weekends, holidays, other school breaks, and the summer period when a student may not be attending classes or other school functions. This allows the disciplining of all unlawful activity, whether or not such activity has been specifically stated in the rules, as long as the conduct can reasonably be viewed as an interference with school purposes or an educational function. If this provision is not included, you may only discipline for those unlawful acts that are listed and which occur on school grounds or traveling to and from school grounds. Note: Due to the Littleton, Colorado massacre at Columbine High School in April, 1999, followed by “copy cat” types of threats to do the same at Indiana schools, a deficiency in IC 20-8.1-5.1-9 has become clear. The adjective “unlawful” modifying “conduct” is a hindrance to a principal’s ability to discipline in situations where the student, who is not on school property, expresses an intent to do violence at school, but it is not specific enough to be considered a violation of criminal law. For example, Student A makes a general statement by e-mail from a home computer to Student B’s home computer that s/he “intends to,” “would like to,” or “plans to blow up the school.” Student B informs the principal, but this statement is most likely not a violation of Indiana law, and therefore, does not constitute “unlawful conduct” off the school grounds, even though it can reasonably be considered an interference with school purposes. [A high school principal and school attorney informed me while writing this article that a similar event occurred, but law enforcement determined after investigation that no crime was committed. The Indiana General Assembly should amend IC 20-8.1-5.1-9 by deleting the term “unlawful” so that school officials may discipline for any conduct off the school grounds that interferes with school purposes.] 3. Expand the rule against violence, threat, intimidation, etc. by listing specific acts by way of example. The following is the rule recommended on page 85 of the “1998 Indiana Student Due Process and Discipline Manual” published by the Indiana School Boards Association, with expanded examples appearing in italics: Using violence, force, noise, coercion, threat, intimidation, fear, passive resistance, or other conduct constituting an interference with school purposes, or urging other students to engage in such conduct. The following enumeration is only illustrative and not limited to the type of conduct prohibited by this rule: a. Occupying any school building, school grounds, or part thereof with intent to deprive others of its use. b. Blocking the entrance or exits of any school building or corridor or room therein with intent to deprive others of lawful access to or from, or use of the building corridor, or room. c. Setting fire to or damaging any school building or property, or attempting to set fire or cause damage. This includes the use or attempted use of pipe bombs, “Molotov cocktails,” or other explosive or incendiary devices. d. Prevention of or attempting to prevent by physical act the convening or continued functioning of any school or educational function, or of any meeting or assembly on school property or at a school-related activity, including the making of a false report of a bomb, fire, or uncommon disease-producing organism, as well as triggering a false fire alarm and delivering or sending an actual or look-alike uncommon disease-producing substance to any school property, vehicle, or activity. e. Intentionally making noise or acting in any manner so as to interfere with the ability of any teacher or any other person to conduct or participate in an educational function. f. Through any means of communication, including gestures, symbols, or signals, placing any student, teacher, employee, or other person in fear of harm to one’s self, a family member, or personal property. This includes by way of example such conduct as threatening “to get” the person, creating a “hit list” of persons who are to be put in fear of harm, and warning the person that a family member could get hurt or one’s car could be damaged. 4. Include in the handbook a statement like the following informing parents of their liability of up to $5,000 for each instance of personal injury and property damage caused by their children: Pursuant to Indiana Code 34-31-4-1, a parent of a child (who lives with the parent and over whom the parent has custody) is liable for up to $5,000 in actual damages arising from each instance of harm to any person or damage to any property that is knowingly, intentionally, or recklessly caused by the child. 5. Inform parents and students that school officials will contact law enforcement authorities whenever in their discretion there is reason to believe that a student’s conduct is unlawful and has caused or may result in either serious bodily injury to another person or substantial damage to the property of another, including the school corporation. Legal Corner Dave Emmert General Counsel, Indiana School Boards Association Feel painted into the corner by certain legal issues? The paint may be dryer than you think if the terrain of the law is known. This column is intended to discuss appropriate considerations to resolve a certain problem, and should not be viewed as legal advice. May students be excluded from programs such as athletics, cheerleading, and honor society based solely on grounds of pregnancy? 1. Because only female students would be impacted by exclusion, this question raises legal issues under both Title IX and the Equal Protection Clause of the Fourteenth Amendment. 2. There could also be a Section 504 issue if the school would prevent participation in athletics or cheerleading on grounds of a temporary disability without attempting to make a reasonable accommodation. If the person’s performance is negatively affected by the pregnancy condition, reasonable adjustments can be made without implicating Section 504, just as they are for any injury, such as a sprained ankle or twisted knee. 3. The applicable portion of the Title IX regulation reads: “(b) Pregnancy and related conditions. (1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.” 34 C.F.R. Sec. 106.40(b) 4. A federal circuit court interpreted the Title IX regulation to mean that a school could legally exclude a female from National Honor Society (NHS) if the reason was not because she was pregnant, but because she participated in premarital sex. Pfieffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779 (3rdCir.1990). The court did note, however, that the school would have had to apply the same rule against premarital sex to male students. Interestingly, since there was evidence that the school may have allowed such a male to remain in the NHS, the court remanded the case to the trial court to consider this factor before making a final decision on whether the girl’s exclusion violated Title IX. 5. A federal trial court in Kentucky recently ruled that a school violated Title IX when it excluded a female student from NHS due to her pregnancy. Chipman v. Grant County Sch. Dist., 30 F.Supp.2d 975 (E.D.Ky. 1998). The school’s carefully drafted NHS policy stated that pregnancy was not a basis for automatic exclusion, but could be considered as a factor in assessing character. It also stated that pregnancy could be taken into account “only if evidence of paternity is similarly regarded.” 6.The court found that the policy had a substantially disparate impact on pregnant students, all of whom, of course, are female, and that the school could not justify such impact with its defense of character development because there are many alternate means of assessing a person’s character by use of non-discriminatory criteria. The court also found the existence of disparate treatment, although there was no evidence that a male who had fathered a child had been admitted to the NHS.