State Legislatures Magazine: December 2000

Editor's Note: This article appeared in the December 2000 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

Who's Responsible for School Safety?

Who's Responsible?
Where's the Line?
What About the Constitution?
What Else Can State Legislatures Do?

The Federal Mandates of IDEA and FERPA

Zero Tolerance and School Profiling- How Far is Too Far?

State Actions to Provide Immunity for Teachers and Schools

Who's Responsible for School Safety?

When tragedy strikes, it's natural to look for someone to blame, but that's a difficult task when it happens in school. Intervention can interfere with student rights.

By Julie Thomerson

Sabrina Steger says the warning signs were there. Someone should have stopped 14-year-old Michael Carneal before he shot and killed her daughter and two others during a school prayer meeting in West Paducah, Ky., three years ago.

"I know that teachers sometimes worry about liability, but I would hate to think that my daughter is dead because someone was worried about their job," she says.

In schools nationwide, officials are grappling with questions that pit safety against student rights.

Were victims Kayce Steger, Jessica James and Nichole Hadley killed because school officials failed to act?

Would Carneal have been stopped if different policies or programs were in place?

Almost three years after the shooting, questions and legal battles continue. The victims' families have filed civil suits against 78 different parties, including makers of violent video games and movies, teachers, administrators, school board officials, parents, other students and the shooter himself. They reached a settlement in the suit against Carneal. Other claims are pending or on appeal.

In reality, statistics show that school shootings are rare. But there's a perception that schools are dangerous places and that more needs to be done to prevent violence within their walls. Resulting conflicts range from assigning blame to questioning the constitutionality of school safety policies. Some victims claim that school officials should have noticed the child's potential for violence or that school safety policies were insufficient. Yet the underlying questions remain: Who is ultimately responsible for school safety? And when do policies go too far?

WHO'S RESPONSIBLE?
When a child commits a violent act in school, the finger of blame can be pointed in many different directions. Victims have filed suit in an attempt to assign responsibility or seek compensation, claiming that school officials should have noticed the child's potential for violence or that school safety policies were insufficient. Most of these lawsuits have yet to be resolved.

Some of the families of shooting victims at Columbine High School in Littleton, Colo., allege that local school and law enforcement officials knew of the killers' violent tendencies and should have intervened. In Mississippi, the mother of one of two girls killed in a shooting spree at Pearl High School filed a lawsuit against the school district, claiming it could have taken steps to prevent the tragedy. And the list goes on.

In many of these cases, courts are trying to determine whether someone failed to meet an obligation and whether that failure resulted in violence. These are hard decisions to make, since a number of factors may indicate that a child has potential for disruptive or violent behavior. Regardless, suing parties often contend that some school employee had a critical opportunity to intervene, but did not.

Does the primary responsibility lie on the shoulders of teachers and school staff? Mike Breen, attorney for the Paducah families, says that teachers have an obligation to pay attention and step in when necessary. "When you realize that there are half a million incidents of student violence in the United States every month and 10 percent involve serious crimes, then as much as we dislike the idea of teachers being vigilant against student misconduct, the reality is that we have no choice. They are our first line of defense."

Others argue that without better tools, guidelines and protections, teachers are not equipped to handle every situation. Since identifying children as potentially violent can lead to liability and constitutional issues, they need training to recognize those who need help and to know how to respond. Often they believe they are restricted by federal requirements, such as the Individuals with Disabilities Education Act and the Family Educational Rights and Privacy Act-when, in fact, they are not.

WHERE'S THE LINE?
School officials perform a balancing act every day. Although intervention can prevent violence, some efforts can also infringe upon student rights and result in a lawsuit. At the very least, teachers run the risk of labeling problem children and stigmatizing them for the remainder of their educational careers. But avoiding involvement can also lead to violence and potential liability.

Many legislatures have tried to alleviate this problem with uniform policies and procedures. A few states, such as Arkansas, Kentucky and Tennessee, have enacted laws mandating statewide disciplinary codes. Others, such as Alabama, Colorado, Georgia, New York and Vermont, either require or allow school districts or state education boards to implement their own approaches. This creates more consistency in classroom management and takes away some of the guesswork involved in responding to difficult situations. California, Connecticut and Maine have also developed programs to train teachers in conflict management, effective classroom discipline or warning signs for violent behavior.

But uniform policies are not an automatic cure-all. They are often challenged in court as too broad and potentially unfair. In some cases, students and parents have argued that circumstances warranted a different approach or that punishments were too harsh, such as expulsions for nonviolent disciplinary problems. "The creation of any policy that affects a group of people always has the potential to affect someone adversely," says Representative Dorothy Gotlieb, one of the drafters of recent school safety legislation in Colorado. "These are often the situations where students file lawsuits to challenge broad-based policies."

Student rights advocates note that uniform disciplinary methods can lead to an unrealistic approach that deprives teachers of discretion to respond to specific classroom situations. They argue that safety-related policies should be designed at the local level and tailored to the specific district or school, providing more latitude to school officials under different circumstances. "Kids have the right to expect a safe environment, but school boards need to be allowed to create that environment through exercising discretion, " says Julie Underwood, general counsel for the National School Boards Association. "It's a balancing act."

The reality is that no single approach can prevent every dilemma, but state law can provide guidance and support for school officials where choices are unclear. Representative Harry Moberly Jr., one of the primary drafters of comprehensive school safety legislation in Kentucky, encourages a balance between standards and flexibility. "Whatever we do has to be partly prescriptive, but we also need to provide room for flexibility so that schools can recognize and respond to their own needs," he says. "We cannot be so prescriptive that we tell the schools that one size fits all."

Despite the controversy around blanket policies, most lawsuits filed against school officials allege that someone was negligent, school staff condoned or tolerated someone's misconduct, or a public school employee violated a student's constitutional rights. Although school employees are generally immune from liability as long as they provide reasonable supervision and adhere to school policies, they can still experience repercussions under certain circumstances.

A few states, such as Alaska, Colorado and Florida, passed laws specifically exempting school staff from liability when acting within the scope of their employment. They protect teachers and other school officials from legal challenges to their behavior, short of extreme departures from school policy.

Otherwise, the basic tort law rules apply, and school officials may be responsible for harm caused when they do something, or fail to do something, connected to a violent act. In one case, the security head at a school in Cincinnati, Ohio, sued the school district after being assaulted by a female student, claiming that the administration knew she previously brought a gun to school and should have prevented her from coming back. In other cases, students have sued educators for failing to protect them from hazing, hate crimes, bullying or other violent or damaging behavior.

WHAT ABOUT THE CONSTITUTION?
Violations of student constitutional rights are mainly relevant to actions of public school officials, but private schools that get government funding have been implicated in some cases. A private high school student in New York sued the school and two administrators in 1999 for violating his right to free speech when he was expelled due to the content of his personal Web site, even though he created it at home. The student's attorney argued that the school was acting on behalf of the government because it was receiving some state and federal funding. The case is still pending.

Constitutional issues arise whenever disciplinary actions infringe on student rights, including suspension and expulsion policies, student dress codes, religious expression in schools, the content of written assignments, and searching students or their lockers for drugs or weapons. Although experts caution that students do not leave their civil rights behind when they come to school, courts often uphold controversial disciplinary policies when they are necessary to maintain a safe environment.

Using zero tolerance as a violence prevention tool remains one of the most contentious of these issues. Federal law requires states to have "zero tolerance" policies in place to expel students who take guns to school. Some states also require suspension or expulsion for making threats, possessing drugs, having any type of weapon or other disruptions. Due to these and other disciplinary policies, 5,724 students were expelled during the 1996-97 school year, followed by 3,930 the next year.

Zero tolerance policies can help school officials maintain a safe environment by removing disruptive or potentially violent students. They can lead troubled children to needed services, such as counseling or anger management training. But they can also be troublesome when other options are not available, pushing alternative education to the political forefront.

The Supreme Court has said that students can't be denied access to public education unless they are given notice and have an opportunity for a hearing (Goss vs. Lopez, 419 U.S. 565 (1975)). Some state courts have taken it a step further, calling education a "fundamental right" that the government can't take away without a compelling reason and have made it unconstitutional to remove a student from school for extended periods without access to alternative programs.

One recent, high profile case took place in Decatur, Ill. Seven minority students got into a fight at a high school football game and were expelled for two years without access to alternative education.

After intense political and legal debate, including accusations that the students received disparate treatment due to their race, the expulsions were reduced to one year, and the students were allowed to attend an alternative school.

Representative Julie Curry of Decatur noted that Illinois school districts are authorized to enact their own disciplinary policies, and many have been in place a long time, despite the addition of zero tolerance language. Regardless, "Decatur has made the school districts in Illinois and across the nation more aware of the impact of their decisions around disciplining kids. Although the right procedures are usually followed, there may be instances in which problems could be handled differently," she said.

Other cases capturing public attention involve students who were suspended or expelled for possessing things such as key chains, pocket knives or nonprescription drugs, or for making statements previously deemed normal slang, such as "he's a dead man." Student rights advocates often cite such cases to illustrate that zero tolerance policies are generally unfair or unnecessary. Yet most of these situations result from educators applying zero tolerance policies too broadly, such as expelling a child for possessing aspirin when the policy requires expulsion for possessing "drugs."

Another consequence of broadening zero tolerance policies is that young people can be left without daytime supervision or access to public education. Research shows that juvenile crime peaks during after-school hours, when children often remain unsupervised. Those who are suspended are also more likely to drop out of school, fail academically or end up in the juvenile justice system.

WHAT ELSE CAN STATE LEGISLATURES DO?
Considering these challenges, what else can lawmakers do?

First, they can ensure that even troubled children stay in school. Legislatures in Rhode Island and Missouri developed alternative education resources for disruptive students, while at least 37 other states have either authorized or required school districts to create their own programs.

Second, lawmakers can learn from experience. The day before the Springfield, Ore., school shooting, 15-year-old Kip Kinkel was caught with a firearm in school. When law enforcement officials lacked any basis to keep him in custody, he was released. The next morning, he went to school and shot 27 other students with a semi-automatic rifle. Oregon policymakers responded to the tragedy by enacting legislation requiring law enforcement to hold students possessing firearms for up to 72 hours, pending a psychological evaluation. And when a child in Colorado was expelled for possessing a paring knife in her lunchbox, the legislature created an exception to its expulsion policy for students who inform and turn weapons over to a school official.

Finally, legislators can learn valuable lessons from tragedy, but purely reactive policies can go too far. Most legal conflicts develop when school officials apply state law too broadly, disciplinary policies disregard circumstances, or students are kept out of school. "Schools are a people place, which prevents us from ever being able to create a completely safe environment," says Larry Bentz, former principal of Thurston High School in Springfield, Ore. "We can try through prevention and security measures, but there will never be any guarantee."

Julie Thomerson specializes in school violence issues at NCSL.

The Federal Mandates of IDEA and FERPA

The Individuals with Disabilities Education Act (IDEA) and the Family Educational Rights and Privacy Act (FERPA) protect student rights under certain circumstances.

IDEA grants special protections for children with physical, mental or emotional disabilities. It limits suspensions to 10 days, requires continued educational services during suspensions and sets specific due process procedures.

FERPA protects student confidentiality by restricting school officials from releasing personally identifiable information from a minor's school records without parental consent, an emergency, court order and a few other exceptions.

By restricting disciplinary measures or preventing schools and agencies from sharing information, these well-intentioned laws can present difficulties for school officials trying to maintain a safe environment. For fear of inadvertently violating their rights, educators may be reluctant to discipline disabled children or share information with other professionals, such as mental health workers or probation officers, when students become violent or disruptive.

To increase and clarify opportunities for record sharing, the 1994 Improving America's Schools Act (IASA) created an exception to FERPA, allowing states to pass laws permitting schools to disclose records to juvenile justice agencies under certain circumstances.

Under this exception, disclosures can be made if authorized by state law, the information directly relates to student needs and school officials certify in writing that they will not reveal the information to any third party.

Since the enactment of IASA, a number of states have passed laws to increase the flow of information. Florida, Maine, Missouri and Minnesota enacted legislation during their 2000 sessions to allow certain juvenile justice agencies access to school records. Illinois allows agencies similar access to identify serious, habitual juvenile offenders and match them with community resources. Several other states, such as Alaska and Virginia, also require juvenile justice agencies to share information with schools about juvenile cases.

Zero Tolerance and School Profiling- How Far is Too Far?

Despite ongoing controversy, both "zero tolerance" and "student profiling" policies continue to be widely used to prevent school disruption and violence. Zero tolerance policies mandate specific penalties for certain offenses, and student profiling refers to identifying potentially violent students by recognizing warning signs or risk factors.

They both attempt to identify and respond to potentially violent children before incidents occur, yet their broad application can sometimes infringe on student rights. And so far, there is little research to show they are effective.

The Gun Free Schools Act of 1994 requires any state receiving federal education funds to expel for one year any student found in possession of a firearm. Today, 38 states have enacted zero tolerance laws for weapons or firearms. Many state legislatures and local school boards have also expanded policies to require suspension or expulsion for other reasons, leading to controversy where the disciplinary measures appear too extreme.

For example, a sixth grader was expelled in Seattle, Wash., for having a squirt gun in his backpack. A sophomore girl in Pensacola, Fla., was suspended and threatened with expulsion for lending nail clippers to a friend. These cases, while uncommon, illustrate the tension between maintaining a safe environment and respecting student rights. Another concern is that zero tolerance policies lead to disparate treatment for African American children, due to research showing that they are suspended and expelled more often than other students.

Student profiling refers to methods used by school officials to identify potentially violent students. A few states, such as Maine and New Mexico, have taken steps to make sure that educators are trained to identify potential problems and intervene when needed.

To aid the process, various organizations have developed lists of characteristics, such as depression, social isolation or rejection, past history of violence or discipline problems, substance abuse and bullying, among others. Software programs have also been developed to identify potentially violent students by tracking discipline problems or conducting surveys. Since no objective assessment can successfully predict violent behavior, these are not fool-proof prevention methods. They can also lead to labeling or singling children out for different treatment, which may be unfair, illegal or even damaging to the youth's emotional development. As a result, legislators and educators are encouraged to use such policies as tools and guidelines, rather than methods for identifying violent children.

State Actions to Provide Immunity for Teachers and Schools

In Alaska, school employees are exempt from civil liability for any action taken during the course of employment.
In Colorado, any person carrying out a teacher's authority to suspend or expel a student, in good faith, has civil and criminal immunity.
In Florida, school personnel are required to follow standardized procedures for reporting delinquent acts and crimes to law enforcement.
In New Hampshire, school employees are required to report any information about bullying behavior to the school principal. Any school employee who makes such a report is immune from liability if a failure to remedy the reported incident leads to a cause of action.
In New York, there is civil immunity for school employees who had reasonable cause to suspect and report violent acts.
In South Carolina, school administrators and school districts that fail to report school-related crimes are liable for attorney's fees, as well as any costs from legal actions requiring the school to make such reports.
In Washington, school boards and private schools are allowed to share juvenile records of students, and school employees who release such information are immune from liability.
In Wisconsin, law enforcement, child welfare agencies and public school districts can exchange confidential information about children in their care without parental consent.

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