ERIC ED462483: School Safety & Youth Violence: A Legal Primer.

37 Pages·2001·0.61 MB·English

by  ERIC

DOCUMENT RESUME
UD 034 761
ED 462 483
AUTHOR
Bailey, Kirk A.; Ross, Catherine J.
School Safety & Youth Violence: A Legal Primer.
TITLE
George Washington Univ., Washington, DC. Hamilton Fish Inst.
INSTITUTION
Department of Justice, Washington, DC. Office of Juvenile
SPONS AGENCY
Justice and Delinquency Prevention.
PUB DATE
2001-00-00
NOTE
34p.
CONTRACT
97-MU-FX-K012
Hamilton Fish Institute, 2121 K Street, N.W., Suite 200,
AVAILABLE FROM
Washington, DC 20037-1830. Tel: [phone]. For full text:
http://www.hamfish.org.
PUB TYPE Non-Classroom (055)
Guides
MF01/PCO2 Plus Postage.
EDRS PRICE
Constitutional Law; Due Process; Elementary Secondary
DESCRIPTORS
Education; Expulsion; *Legal Responsibility; School
Responsibility; *School Safety; Search and Seizure; Student
Records; Student Rights; Suspension; *Violence; Zero
Tolerance Policy
Family Educational Rights and Privacy Act 1974
IDENTIFIERS
ABSTRACT
This legal primer on violence in schools addresses the
responsibility of school officials to respond to undisciplined youths whose
behavior threatens the welfare and safety of other children in attendance. It
is broken down into sections that provide a brief overview of the key rules
and guidelines for school officials and teachers in each topic area. It
focuses on school liability (civil liability, constitutional claims, workers'
compensation, and defenses to claims against schools); search and
seizure--threats of violence (search and seizure, student tips, risk factors,
locker searches, metal detectors, strip searches, threats of violence, and
cameras); zero tolerance--suspension and expulsion (zero tolerance, state
interest in safe schools, suspension for off-campus activity, and due process
in suspensions and expulsions); and use of student records (Family
Educational Rights and Privacy Act, sharing disciplinary records, state law,
Each section concludes with a
and response to release of student records) .
checklist. Legal resources are appended. (Contains 102 endnotes and 12
resources.)
(SM)
Reproductions supplied by EDRS are the best that can be made
from the original document.
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Hamilton Fish Institute
School Safety
& Youth Violence
A Legal Primer
Kirk A. Bailey, J.D.
Catherine J. Ross, Ph.D, J.D.
BEST COPY AVAILABLEj
21
r
School Safety
& Youth Violence
A Legal Primer
by Kirk A. Bailey, J.D.
Catherine J. Ross, Ph.D., J.D.
Institute
Hamilton Fish
"Mostly we see .22 pistols, little .25 automatics or .38 revolvers,
but we did have one kid bring a fully loaded .357 Magnum to school."
Les Burton, Assistant Superintendent of Security Houston Public School System,
on establishing metal-detector searches at classroom doors.
New York Times, May 25, 1986
"The main goal of the future is to stop violence.
The world is addicted to it."
Bill Cosby
Comedian, actor, author
"What's done to children, they will do to society."
Orlando A. Battista
are a rarity and only scratch the sur-
School violence, teen shootings,
face of the chronic violence in
and similar tragedies are
a
that
communities
and
schools
problem
affecting
chronic
affects America's youth. The Office
America's youth, parents, teachers,
of the Surgeon General has identi-
Mg-
and communities. As this publica-
fied youth violence as an epidemic,
tion was being prepared, two new
which has diminished in
recent
school shootings occurred in Santee
years but remains a critical issue for
and El Cajone, California, suburbs
public health.
of San Diego, killing two and injur-
While the overall youth crime rate, and the homicide rate in
ing dozens more. Just a year ago, young Kayla Rollind was shot
particular, has been dropping since 1994 (homicides down 34%
to death by a 7-year-old classmate at her elementary school in
since 1993), the level of violence remains unacceptably high.
Mount Morris, Michigan. Few can forget the highly publicized
For example, the percentage of students in grades 9 through 12
shootings in Littleton, Colorado; Springfield, Oregon; West
who were threatened or injured with a weapon on school prop-
Paducah, Kentucky; Jonesboro, Arkansas; or Pearl, Mississippi,
erty has remained constant in recent years. A downward trend
to name only a few. In the last several years, these high profile
in juvenile crime cannot detract from that fact that violence
tragedies have resulted in more than 33 deaths and numerous
casts a pervasive shadow over America's schools and youth.
wounded. Yet, for all the attention these horrors receive, they
4
Hamilton Fish Institute: Legal Primer for Schools
ii
Indeed the reports of attacks, harassment, weapons, and so on
rights, and damage claims as they relate to the school setting.
have become so frequent and familiar as to seem commonplace
Teachers, students, and parents are provided little guidance
and a part of the rhythm of daily life.
The frequency and
regarding the legal issues created by violence in schools.
In
the Hamilton Fish
Institute on School and
increasing severity of these events give pause to many parents,
response,
educators, community leaders, and politicians and motivate
Community Violence, in the George Washington University
them to take action to curb the tide of violence that affects our
School of Education and Human Development and the George
schools and communities.
Washington University School of Law conceived this guide-
Clearly, states have a vested interest in providing a strong and
book
a legal primer on violence in schools. The Hamilton
secure education system, an interest that society has long recog-
Fish Institute researches and develops strategies for reducing
nized as one of its most compelling.
In Brown v. Board of
violence and promoting civility in schools and their surround-
Education (1954),-the Supreme Court observed:
ing communities.
Violence in schools raises a variety of legal issues regarding pre-
Education is perhaps the most important function
vention, intervention, and response to crisis. This guidebook
of state and local governments.... It is a principal
seeks to outline the major legal issues faced by schools, including:
instrument in awakening the child to cultural val-
ues, in preparing him for later professional training,
School liability for violence
and in helping him to adjust normally to his envi-
Search and seizure, threats of violence
ronment.... It is doubtful that any child may reason-
Zero tolerance policies
ably be expected to succeed in life if he is denied the
Use of student records
opportunity of an education.'
The following pages are broken down into sections that pro-
For this reason, school officials have a strong obligation, both
vide a brief overview of the key rules and guidelines for school
moral and legal, to respond to undisciplined youths whose
officials and teachers in each topic area. Endnotes for each sec-
behavior potentially threatens the welfare and safety of the
tion are located at the end of the publication as a guide for any
other children in attendance. This is particularly true in light
additional research that may be necessary.
of the fact that students do not have a fundamental right to a
We hope that this information will prove a valuable resource
public education under the Constitution." As a general notion,
to teachers and administrators who face these issues on a daily
the exercise of the privilege to a free and public education car-
While the research into these areas was comprehensive
basis.
ries the corollary responsibility of the student to comply with
and exhaustive, we have endeavored to present guidelines in the
reasonable rules, regulations, and requirements duly authorized
most concise manner possible. As the title suggests, this publi-
by school authorities. Violation of those rules and regulations
cation is a starting point and general overview, which we hope
may be addressed by a variety of disciplinary methods.
will be useful to all teachers, school administrators, parents, and
Educators nationwide have implemented zero tolerance poli-
students.
cies, expanded search procedures to intercept weapons (guns,
Please note that the guidelines and information presented in
knives, bombs, etc.) or drugs, designed comprehensive school
this document focus on the legal issues implicated by violence
safety plans, and responded to numerous legal claims.
This
(shootings, assault, battery, and sexual assault, etc.) or the
massive effort to reduce violence and improve safety in schools
imminent threat of violence (verbal threats, possession of a
imposes an immense burden on educators and citizens alike to
weapon, etc.). Due to space considerations and the breadth of
master the legal complexities of due process, constitutional
legal issues involved, this primer does not address other school
5
Introduction
iii
safety issues such as gang activity and corollary student free
The authors wish to thank the many members of the staff of
the Hamilton Fish Institute, including Dr. Paul Kingery, Dr.
speech rights, drug use and possession (except as specifically
noted), theft, robbery, or other activities that do not involve
James Derzon, Nancy Budd, Aaron Alford, Allison Seale, and
Anthony McBurrough for their contributions to and sugges-
actual physical harm or the threat of harm to students, teachers,
Of course, we recognize these issues are
or administrators.
tions for this article. In addition, the authors wish to thank the
interrelated, and any separation of these concerns is artificial.
following individuals for their review of the work in this docu-
ment: Kamala Shugar, Esq. (Assistant District Attorney, Lane
Accordingly, we have endeavored to identify where connections
County, Oregon), Mustafa T. Kasubhai, Esq., Jennifer Kulle
with these issues exist and refer the reader to other publications
for guidance.
(Glencoe High School, Hillsboro, Oregon), Ellen Boylan, Esq.
We emphasize that this primer is not intended to substitute
(Education Law Center), Robert Schwartz, Esq. (Juvenile Law
for legal advice regarding any particular situation. The infor-
Center) and Julie Thomerson, Esq. (National Conference of
mation presented is accurate but should serve as a general
State Legislatures). The strength of this article is the result of
guideline only and not be taken as legal advice. Please consult
their clarifying arguments, concise editorial comments, and sig-
with a competent, local attorney regarding specific questions,
nificant intellectual curiosity; while any deficiencies remain
concerns, or situations.
those of the authors.
The Hamilton Fish Institute is administered by The George
Washington University, Institute for Education Policy Studies,
About the Authors:
Graduate School of Education and Human Development. This
publication was prepared under a grant from the Office of
Kirk A. Bailey, J.D.; Special Counsel, Hamilton Fish
Juvenile Justice and Delinquency Prevention, Office of Justice
Institute.
Programs, U.S. Department of Justice (97-MU-FX-K012), and
points of view or opinions in this document are those of the
Catherine J. Ross, Ph.D., J.D.; Associate Professor of Law,
Institute and do not necessarily represent the official position or
George Washington University Law School.
policies of the U.S. Department of Justice. The Institute wish-
es to thank OJJDP for its continued support of the research
conducted by the Institute and for their suggestions and feed-
back on the issues presented here.
Questions regarding these
materials may be directed to the Institute at 202.496.2200 or
readers may access our Web site at www.hamfish.org.
Hamilton Fish Institute: Legal Primer for Schools
iv
Contents
Use of Student Records
Index of Terms
19
i e.
End Notes
School Liability
23
1
Appendix
Search and Seizure Threats of Violence
28
7
Zero Tolerance: Suspension and Expulsion
13
Index of Terms
12, 19, 20
Alternative education School disciplinary record/s
14
Anti-social behavior (See also "Student Records")
20
1, 2, 3, 11, 25, 27
Cameras School safety plans
10
Chavez v. Tolleson Elementary
Searches
3, 7, 9, 10, 11, 24
School District (Arizona, 1973)
2, 23
Lockers
Civil liability
1, 3, 4
Strip
7, 9, 11
1, 21
Civil rights
Drugs
7, 9, 11
Colvin v. Lowndes County (Mississippi) (See also "Metal detectors")
15, 26
3, 7
Constitutional claims
Security officers
1, 3, 11, 23
Constitutional rights 1, 3, 4, 10, 14
Sexual assault
4
State law
14, 17, 21
Department of Justice
21
11, 19, 20, 21, 27
Disruptive behavior
Student records
9,20
1, 3, 13, 14, 15, 17, 18, 23
1, 2, 3, 5
Due process
Supervision
Surveillance
Exclusionary rule
7
10
Expectation of privacy
(See also "Cameras")
8,10
10, 13, 14, 15, 16, 17, 25 9, 13, 14, 15, 16, 17, 18, 25
Expulsion
Suspension
Family Educational and Privacy Act (FERPA) 7, 10, 14, 24, 25, 26, 28
Threats of violence
19, 27, 28
14, 25, 26
Federal Bureau of Investigations Tinker v. Des Moines School District
21
Turner v. South-Western City School District
Fourteenth Amendment
10, 25
1, 23
U.S. Department of Education
George Washington University
21
U.S. Supreme Court
14, 26
Goss v. Lopez
13
Violence:
Gun-Free School Zones Act of 1990
1
13, 25, 27
Gun-Free Schools Act of 1994 Spontaneous acts of violence
1
Planned Acts of violence
Hamilton Fish Institute
23
1
1, 3, 4, 20, 21
Legal liability
Violent acts
1
Metal detectors
Weapons
7, 8, 9, 11
7,13
Off-campus activity 2, 14
Guns
7,14
Office of Juvenile Justice and Delinquency Prevention ..17, 20
Knives
Profiles/Profiling Workers' compensation
4,24
8, 20, 21
Zero tolerance policies
13, 14, 15, 17, 25
Racial bias
13
Risk factors 1, 4, 5, 7, 8, 19, 20, 21
School Liability
employ under the circumstances.'
The
Generally, schools cannot guarantee
absence of supervision must have caused the
safety for all students or teachers
violence or crime for the school to be liable.'
while at school. Yet, schools do have
School boards may be liable for failure to
a duty to provide reasonable supervision of
students and maintain the safety of the
establish adequate supervisory procedures,
even if their employees are not liable.' This
school grounds, especially since students are
general duty of care and supervision extends
required to be at school under compulsory
to preventing a foreseeable suicide.
School
attendance rules. Acts of violence involving
officials with knowledge or notice of suicidal
schools may place the school, its administra-
intent on the part of the student must exer-
tors, or governing body at risk of legal liabil-
cise care to prevent the student from carry-
ity. This liability may arise from a variety of
ing out his or her intent.'
circumstances and may depend on actions
taken (or not taken) by the school itself.
However, even where a school may have a
duty to supervise, the school will not be
Schools may be liable not only for civil claims
liable for sudden, spontaneous violence.
such as negligence, but claims asserting viola-
"Spontaneous or planned acts of violence by
tion of a student's constitutional rights under
\ 1
J
students on school grounds do not create
the Fourteenth Amendment (guaranteeing
liability on behalf of the school board if the school ground is
due process and equal protection) and a variety of civil rights
Courts support this rule for a vari-
otherwise well supervised."
claims.' This section outlines the school's potential for liability
ety of reasons usually observing that spontaneous violence is not
under civil or constitutional claims when violence occurs.
foreseeable, that additional security measures are unlikely to
prevent such violence in any case, or that the violent act is an
Civil Liability
intervening cause of the injury to the victims.
School districts face potential liability for the violent acts of
students or nonstudents where they fail to:
Previous incidents in same location
Supervise a specific area at school where prior instances
1)
A school may have a duty to supervise a particular area of
of violence occurred,
school grounds, depending on whether similar acts have
Warn faculty, potential targets, or appropriate school
2)
occurred in that area previously. The recency, frequency, loca-
personnel about a pre-existing danger, including the
tion, and nature of the prior crimes will be factors in determin-
violent propensities of a student,
ing whether the crimes establish a duty to supervise.' Common
Establish and adhere to a school safety plan.'
3)
sense dictates that a school will be liable if a person is injured in
an area where attacks of the same type occur often. Please note,
Generally, schools are required to show the same degree of
however, that courts in some states have concluded that only
care and supervision that a reasonably prudent parent would
Hamilton Fish Institute: Legal Primer for Schools
2
0
similar crimes in a given location create a duty to supervise,
Case at a Glance: Chavez v. Tolleson
while in other states they indicate a school may be liable where
Elementary School District (Arizona, 1973)
there is a generally high level of violence at a school or the
On the morning of September 17, 1973, a puppy walked
school is in a high crime area.
through the open door of a fifth grade classroom at Tolleson
Elementary School, Unit Two, causing a disturbance among the
Time and Location of Incident
students. The teacher inquired if the dog belonged to anyone in the
Liability may depend on the time and location of the inci-
class, and Regina asked if she could take the puppy home. The
dent. For example, a school may be liable for violence suffered
teacher sent Regina to the to the Principal's office with the dog to
by students while in the school parking lot or while on their
get permission. The school office is located inside the school
way to and from the school grounds.
Normally, however, a
grounds some 30 feet away from the classroom. On arrival at the
school will not be liable where an incident occurs off-campus,
office with the dog, Regina was instructed by the school secretary
during non-school hours, and is not related to school-sponsored
to place the dog outside the office along the breezeway and to
activities.' For example, a school incurred no liability for the
return to her classroom. Regina did not argue with the secretary
assault of a young female student after an evening of drinking
and left the office with the puppy. A custodian, a fellow student, and
at a local bar and the activity had no relation to school-spon-
a passerby observed Regina leaving the office. Regina's fate after
sored events or where an elementary school student wandered
leaving the office was detailed in the tape-recorded statement of
from school grounds and was subsequently kidnapped and
her abductor, John Cuffle, who was later convicted and sentenced
murdered.'' (See Case at a Glance: Chavez v.
Tolleson
for her murder. Cuffle stated he abducted Regina outside the
Elementary School District [Arizona, 19731).
school grounds and took her to a field six miles from the school
where he killed her. Her body was found some three months later
Attacker's Dangerous Propensities
in a field a few miles from the school. Regina's parents sued the
A school will be liable where it fails to safeguard other stu-
school district for wrongful death.
dents or teachers from someone with a known propensity to
The trial resulted in a jury verdict for Regina's parents, which
violence. School officials must warn intended and identifiable
was overturned by the trial judge, because the plaintiffs failed to
victims where serious danger from a known suspect exists, and
establish that the school could have reasonably foreseen that
the warning must be specific and complete."
Regina would be kidnapped and killed as she traveled between her
class and the office.
School Safety Plans
The Arizona Court of Appeals upheld this decision on the grounds
Comprehensive school safety plans are an integral part of
that there were insufficient facts to indicate that school personnel
school management, yet the decision to adopt and implement a
should have been aware of the potential of criminal conduct in the area
plan may not protect a school from potential liability. A school
of the school. The court stated "the heinous criminal conduct involved
may be held to a greater standard to ensure supervision and safe-
here, while shocking, is clearly in the category of the unforeseeable. If
ty when it adopts a school safety plan. Courts have held schools
it were otherwise, prevision would become paranoia and the routines
liable in such circumstances under the belief that when a school
of daily life would be burdened by intolerable fear and inaction."
increases efforts to curb violence, it assumes a greater duty to
Consequently, where the school could not reasonably foresee that
supervise students and persons on school grounds in part because
Regina would leave the school grounds without permission and there-
people rely on the provisions of the plan to protect them.'2
after be abducted and slain, they were not liable for her death.
Please note that the opposite is true as well. In light of cur-
rent youth violence levels, liability will be asserted where a
School Liability
3
vidual, such as in the case of prisoners or mental patients.'.
school fails to provide a school safety plan. Ultimately, liability
In addition, school attendance, while compulsory, does not
rests on whether the act of violence was foreseeable and on an
create a special relationship that requires a school to shoulder
assessment of the school's duty to maintain a safe environment
under the circumstances. Consequently, the existence or
responsibility for the entire personal lives of students or for any
harm that might befall them.
Ultimately, parents retain cus-
absence of a school safety plan will not be the only determining
tody, and the primary responsibility for children and their well-
factor regarding a school's liability.
Accordingly, schools are
In short, compulsory attendance laws do not create a
urged to develop realistic plans as part of an effort to protect
being.
custodial relationship between a school and a student that
students and teachers alike from violent acts."
imposes a duty upon the school to protect the student from
harm."
Specific Measures
No specific measures are required of schools to enhance safe-
ty on school grounds. Courts are reluctant to impose such
State Created Danger
2.
A school may be liable under the Constitution for harm to a
requirements and consequently have not required schools to
student by a private actor or employee, if the school's actions
provide security officers, conduct routine searches, or adopt
also not
Constant supervision
"created" the danger of possible harm. Generally, liability will
supervisory programs."
is
required."
depend on several factors:
The environment created by the school must be
1)
Constitutional Claims
dangerous;
The school officials must know it is dangerous; and
American courts are reluctant to extend constitutional pro-
2)
tection to situations covered by state civil
School officials must have used their authority to create
liability
rules.
3)
an opportunity that otherwise did not exist for the
Readers are urged to contact their local school counsel for spe-
crime to occur."
cific advice regarding constitutional liability and substantive
due process concerns raised by violence in schools.
Mere inaction is not sufficient. A claim of constitutional lia-
bility will fail absent some proof that actions by the school
Generally, constitutional claims rest on three theories of
caused the danger and the possibility of harm.
Accordingly,
school liability, very similar to those outlined above:
schools have not been held liable constitutionally in a variety of
Whether there is a "special relationship" creating a duty
1)
circumstances:
to protect students from harm;
Where school officials received complaints that a teacher
Whether schools "created the danger" of harm; and
2)
Whether school
was sexually involved with students and did not discipline
"deliberate
reflected
policies
3)
a
the teacher,
indifference" to the constitutional rights of students.'6
Where students were killed by random shooting at a
school dance,
Special Relationship
1.
Where a student was killed by a nonstudent trespasser,
When a private person, an uninvited guest at the school, or
Where the school knew of the violent propensities of a
another student causes the harm to a student, the school is not
student who later killed a fellow classmate.20
liable for failing to protect students from each other or from the
private actions of another person.'7 The Constitution does not
Please note that while these examples may be disturbing,
require the state (a school) to protect citizens from each other
they focus on constitutional liability; the schools involved may
(students), except where the state has taken custody of the indi-
10