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LEGAL UPDATE FOR SCHOOL SAFETY 2019 SCOTT SUMMERS DIRECTOR OF SCHOOL LAWS SUMMERS@MOSBA. ORG www. mosba. org | 800. 221. 6722 | info@mosba. org | 2100 I-70 Drive Southwest, Columbia, MO 65203

NEW LEGISLATION

BOARD TRAINING • Increases the state mandated board training to 18. 5 hours (currently 16) • 2. 5 hours must be devoted to information on identifying signs of sexual abuse in children and potentially abusive relationships between adults and children • 1 hour “refresher” training for every additional year in office

ELEMENTARY PILOT PROGRAM • Requires DESE to establish a volunteer pilot program to provide for social and emotional health education in a minimum of 16 elementary schools

CHILD ABUSE • Expands the definition of a person “responsible for the care, custody, and control of a child” to include school personnel, contractors and volunteers IF the relationship with a child was established through the school or school related activities • Even if alleged abuse/neglect occurred outside of school hours or off school grounds

CRIMINAL BACKGROUND CHECKS • Volunteers who may periodically be left alone with a student or who have access to student records must receive a criminal background check just like employees must • Entities that provide care or educational services to children (bus contractors, daycare, churches) must participate in the federal and state rap-back programs – Automatically notifies the employer when a registered employee or volunteer is charged with a crime

BUS DRIVERS • Beginning January 1, 2020 all applicants for a commercial driver’s license must complete an entry-level driver training program approved under federal law

GENERAL SCHOOL SAFETY INFORMATION

MISSOURI SCHOOL SAFETY TASK FORCE • March, 2019 • Governor Parson directed Lieutenant Governor Mike Kehoe to lead the task force and work with the Department of Public Safety, Department of Mental Health, the Department of Elementary and Secondary Education, the Missouri School Boards’ Association, the Center for Education Safety, and a school resource officer to develop a strategic statewide plan for school safety • The task force will be meeting over the coming weeks and submit a report of its findings and recommendations by July 31, 2019. The task force will be studying the recently released Federal Commission on School Safety report from Missouri’s perspective to identify gaps, shortfalls, or suggested policy changes • Link to the Executive Order https: //www. sos. mo. gov/library/reference/orders/2019/eo 4

REPORT ON THE FEDERAL COMMISSION ON SCHOOL SAFETY • Commissioned by President Trump in the aftermath of the school shooting in Parkland, FL • Findings/Conclusions – What works in Wyoming might not work in New York – One size does not fit all – Engagement of communities – Coordination of multiple efforts by schools, school districts, communities, local, state, and federal policymakers

FINDINDS/CONCLUSIONS • Create a positive school climate • Combat bullying, cyberbullying • Rating systems for parents to assess appropriateness of their child’s “entertainment” • “No Notoriety” practices • Partnerships between teachers, administrators, counselors, health care professionals to identify discipline issues and mental health needs and develop a course of action • Understand how shooters get their hands on firearms – Individuals deemed to pose a threat to themselves or others can be denied the ability to possess or purchase firearms through extreme risk protection orders

FINDINDS/CONCLUSIONS • Training school personnel – Teachers, school staff, SRO’s, state and local law enforcement • Possibly increasing the number of these individuals from military or retired law enforcement • All schools will benefit from higher levels of engagement with the communities in which they are located GREATER SHARING OF INFORMATION AND REPORTING OF SUSPICIOUS BEHAVIOR IS ESSENTIAL!!

FINDINGS/CONCLUSIONS • Approaches to improve emergency response must be specific to each school • BECAUSE “ACTIVE SHOOTER INCIDENTS” ARE OFTEN OVER BEFORE LAW ENFORCEMENT ARRIVES ON THE SCENE, ONSITE PERSONNEL MUST BE PREPARED TO DEAL WITH THE ACTIVE SHOOTER SITUATION IN THE ABSENCE OF

• THREAT ASSESSMENT MODEL July 2018 – U. S. Secret Service issues an “Operational Guide” for Preventing Targeted School Violence” • Objective is to help create safe school climates to increase the likelihood that students will speak up in order to prevent an attack • https: //www. dhs. gov/sites/default/files/publicatio ns/18_0711_USSS_NTAC-Enhancing-School. Safety-Guide. pdf

THREAT ASSESSMENT MODEL • The goal is to help identify students of concern, assess their risk for engaging in violence or other harmful activities and identify intervention strategies to manage that risk

THREAT ASSESSMENT MODEL GUIDELINES… • Establish multidisciplinary threat assessment teams – Variety of disciplines including teachers, counselors, coaches, SRO’s, MH professionals, administrators – Establish protocols and procedures – Meet on a regular basis to role play, discuss strategies and keep up to date

THREAT ASSESSMENT MODEL GUIDELINES • Define prohibited/concerning behaviors • Create a central reporting mechanism – Online forms, dedicated email/phone number, apps, ? ? ? – Train on what to recognize and HOW to report – Monitor the reports! • Determine threshold for law enforcement involvement

THREAT ASSESSMENT MODEL GUIDELINES • Establish assessment procedures – Monitor social media, interviews, review class assignments etc. • Develop risk management options (the DO something…)

THREAT ASSESSMENT MODEL GUIDELINES • CREATE AND PROMOTE SAFE SCHOOL CLIMATES – Build a culture of safety, trust, respect and social/emotional support – Create space where kids feel ok sharing their concerns with adults – Teachers and staff build positive relationships with students!!! – Help students feel “connected” to the school community

THREAT ASSESSMENT MODEL GUIDELINES • Conduct training for all stakeholders – Faculty, staff, administrators, students, parents, law enforcement and SRO’s • National Threat Assessment Center – https: //www. secretservice. gov/protection/ntac/

CASES, ETC. www. mosba. org | 800. 221. 6722 | info@mosba. org | 2100 I-70 Drive Southwest, Columbia, MO 65203

PARKLAND

PARKLAND • The families of some of the victims of the mass shooting last year in Parkland, Fla. , filed 22 lawsuits accusing the local school district and sheriff’s office of negligence and seeking potentially millions of dollars in damages as compensation

PARKLAND • The lawsuits claim that the Broward County Public Schools failed to keep students and staff at Marjory Stoneman Douglas High School safe in spite of warning signs that the shooting suspect, Nikolas Cruz, a former student, had threatened violence against the school community

PARKLAND • Most school personnel were inadequately trained in how to operate the MSDHS camera system • The school district does not allow Broward County law enforcement live, real time access to its school camera systems • There were no PA system speakers in the school building hallways and exterior areas

PARKLAND • The classrooms lacked effective two-way communication systems (very few school personnel had school issued radios) • On February 14, 2018, Broward County Public Schools and Marjory Stoneman Douglas High School did not have an established active assailant response policy. There were no written and trained on policies regarding Code Red and lockdown procedures • The “Emergency Preparedness Manual” is a 51 page document available on the district’s website • BCPS now trains on active assailant response and conducts regular drills but the District still does not have a formal, written and disseminated Code Red policy

PARKLAND • • • All teachers in building 12 who sheltered in place did so because the first thing they heard was gunfire, not because they were notified of an active shooter on campus, this is especially true on the second floor As recently as late fall of 2018, during interviews of current MSDHS teachers and other staff, they are still unclear as to who can call a Code Red and under what circumstances After a student told a coach that the shooter was in the 1200 building with a rifle, the coach proceeded to the 1200 building, the coach, who had a school radio, did not call a Code Red A school monitor notified another monitor via school radio that the shooter was entering the 1200 Building That monitor saw the shooter enter the building but he did not call a Code Red. The monitor was inexperienced with guns but recognized the shooter when he entered the 1200 building as someone they had previously discussed as being a potential school shooter

PARKLAND • School security is the function of all school personnel, and all staff should have clearly established roles and responsibilities that are outlined in a written policy and procedure manual provided to all personnel • Every district and school should have a written, unambiguous Code Red or similar active assailant response policy that is well known to all school personnel • The policy must make it unequivocally clear that all personnel are empowered to activate emergency active assailant response procedures and that those procedures are to be immediately implemented upon notification

D. Z. v. STATE (Indiana, 2018) Graffiti in high school boys bathroom. Assistant Principal investigates. Requests help from SRO in investigation. Look at surveillance video and narrow search down to D. Z. Assistant Principal calls D. Z. to office for a “discussion. ” Questions D. Z. in office, with doors closed. No opportunity for D. Z. to speak with parent or guardian, no contact with parent/guardian prior to his removal from class. Not advised he had a right no not incriminate himself. A. P. says he knows D. Z. is the one responsible for the graffiti. D. Z. admits to doing it and is suspended for 5 days.

D. Z. v. STATE (Indiana, 2018) After talking with D. Z. AP leaves office and informs officer that D. Z. had admitted to writing the graffiti on the wall. AP contacts father. Meanwhile, SRO in full uniform enters office and speaks to D. Z. No Miranda, no contact with parent/guardian, no recording the interview. At end of this interview, D. Z. charged with a crime. At trial, statements to officer were suppressed but not statements to AP. D. Z. found guilty. He appeals claiming the statement to AP were obtained in violation of 5 th Amendment because it was a custodial interrogation and no Miranda rights were given.

D. Z. v. STATE (Indiana, 2018) • Issue: – Was he in custody and if so, was the questioning by the AP an interrogation? – Was the AP merely conducting a disciplinary inquiry or was he acting as an “agent” of law enforcement

D. Z. v. STATE (Indiana, 2018) • Custodial Interrogation – The interrogation must commence after the person’s freedom of action has been deprived in a significant way – Would a reasonable person in similar circumstances believe they are not free to leave

D. Z. v. STATE (Indiana, 2018) • Court finds that D. Z. was subjected to custodial interrogation – Should have been Mirandized – AP questioned D. Z in office with door closed – “No reasonable student would believe they were at liberty to leave the office” – Juveniles are susceptible to influence of authority figure – In controlled setting at school where disobedience can be the cause for disciplinary action

D. Z. v. STATE (Indiana, 2018) • Although it appeared to be “disciplinary” the discussion between the AP and D. Z. amounted in essence to an interrogation, geared toward a criminal proceeding • The school and law enforcement investigations were inextricably intertwined • Officer interrogated the student with no Miranda – Looks like they were trying to get around the law by having AP interview…

D. Z. v. STATE (PART II) • Supreme Court of Indiana – Reversed lower court – Miranda warnings not required where police were absent – A. P not an agent of the police – Wouldn’t have mattered b/c there was no evidence the juvenile knew the A. P. had spoken with police

WHO SAID THAT? 12 y. o. middle school student (male) was in the lunchroom with classmates. Discussion turned to “who they would shoot if there were to do a school shooting? ” Another student (not part of the conversation) overhears the 12 y. o. saying how he would shoot one of his teachers. Student tells administration. Guidance counselor talks with 12 y. o. and he admits saying it “because she makes him do work. ” He would carry out the act using a pistol. Returns to class and finishes the day with no complications. However, he continues conversation throughout the day with other students. Parents contacted, disciplinary report written. “Charged” student with making a terroristic threat. Suspended. Ultimately expelled.

WHO SAID THAT? At expulsion hearing principal states he “ didn’t believe he posted an immediate threat. ” Also student hunts with dad, has access to guns, but not to a pistol. Teacher testifies she was upset and sad that someone would want to kill her. Student suspended for one year. Student sues (through parents) alleging a violation of his First Amendment right to free speech… Did the school do the right thing? Does the student have a legitimate claim?

WHO SAID THAT? J. R. v Penns Manor Area Sch. Dist. (2019 WL 96041) • Pennsylvania U. S. District Court held the school DID act appropriately and NO First Amendment violation occurred – Extensive First Amendment analysis using various tests (substantial disruption, lewd/vulgar speech, pedagogical concerns, promotes illegal drug use) – Court holds that language “reasonably perceived as threatening school violence is not constitutionally protected – whether oral or written, at school or elsewhere…” – Doesn’t have to actually cause disruption – reasonably foreseeable

J. R. v. Penns • Speech advocating harm that is demonstrably grave and that derives that gravity from the “special danger” to the physical safety of the students arising from the school environment is not protected • Age can play a factor • Determination of what manner of speech is inappropriate properly rests with the school official

J. R. v. Penns • Student attempted to argue the comments weren’t serious, were “hypothetical” • Court states that in all other cases the same arguments are made – it’s a joke, creative fiction, taken out of context. • Cites numerous cases where “that has never been convincing…”

J. R. v. Penns • “Student was a 12 year old junior high student who made his threatening comments publicly, on school grounds, during the school day, and in front of his peers. Under these circumstances school officials should be afforded deference in their determination that the student’s manner of speech was extremely inappropriate and thus subject to severe discipline

MATTHEWS v. MARYLAND (2018) Teacher at high school noticed Matthews and a former student meet in hallway. Showed each other large quantities of cash, ignored teacher’s instruction to get to class, walked out of teacher’s view into stairwell. Teacher calls SRO looks at security footage but couldn’t see anything wrong. SRO takes “security guard” with her and gets Matthews out of class to speak with him. 3 rd security guard joins them. Go to security office and close door behind them.

MATTHEWS v. MARYLAND (2018) SRO asks Matthews about speaking to the former student. Notices he smells like MJ. Large, unidentifiable “bulge” in his pants. Asks him if he has anything on him. SRO had found MJ on him previously but he was apologetic and not aggressive. This time, Matthews laughs at SRO, pulls out $300 in cash and personal items. Bulge still there however. SRO orders him to remove everything from his pockets. He becomes agitated and yells at her. She steps towards him and he shoves her trying to get past her. She says he’s under arrest for assault and handcuffs him.

MATTHEWS v. MARYLAND (2018) SRO tries to search his pants and he struggles. $1500 in cash falls from his pants. Matthews punched and kicks at SRO – forcibly subdues him. Finally the end of the “bulge” slips out – grip of a handgun. Matthews tries to suppress handgun and money as evidence b/c of unconstitutional search.

MATTHEWS v. MARYLAND (2018) • Was there reasonable suspicion to remove from classroom? • Did bringing him into the office constitute a “de facto” arrest? • Was there a search incident to a lawful arrest?

MATTHEWS v. MARYLAND (2018) • Court finds that there was “reasonable, articulable suspicion” that justified initial “stop” in the classroom • Had probable cause to arrest and search – Known previous criminal behavior - MJ – Displayed large quantity of money – Was with a former student – suspicious illegal transaction

MATTHEWS v. MARYLAND (2018) • Search of pockets? – This is a 4 th Amendment search – But there is an exception – search incident to a lawful arrest – Must be supported by probable cause – Odor of MJ can provide probable cause if it is localized to the suspect – SRO had probable cause to arrest Matthews on suspicion of possession of MJ search OK

E. (minor child) Student (E. ) and his mother attend parent teacher conference. E. became angry because his mom humiliated him at the conference. He allegedly goes home and writes a threatening email that is delivered to the school around 10: 30 p. m. School principal checks email at 6 am and sees the email. Principal forwards the email to the director of security and an assistant superintendent. Security and assistant sup agree the email expressed a legitimate threat. They call local police and inform them of the email. At no time do they tell police who they suspect of sending the email. However, the administrators all “knew” it was E. from previous encounters with him. E was on the bus coming to school. Administrators tell police that E. is the suspect.

E. (minor child) Bus is diverted to a nearby lot. Police arrive and pull E. off the bus (guns drawn). E denies sending the email. They search him. Handcuff him and take him to school for questioning. Interrogate him for about an hour, then his parents arrive and he’s released. At no time after was he charged with sending the email nor was any further action taken

E. (minor child) • E. sues a variety of folks – Basic claims are that the school officials were “state actors” and worked alongside police in effectuating the arrest, etc. Therefore school officials are able to be sued under federal law (§ 1983) – Did the fact that the administrators called law enforcement and gave them details about E. give rise to the conclusion they acted as an agent of law enforcement?

E. (minor child) • Court says NO! – The actions of the school administrators either viewed separately or together justify a § 1983 action alleging private parties are state actors – Minimal acts on the part of private individuals do not amount to instigation or joint participation with the police arrest of E. – Administrators did no more than report the email to the police and provide additional factual information by answering police questions

E. (minor child) • “The anonymous “reckoning” email the administrator read at his office at 6 a. m. …clearly threatened deadly violence at the school. Given the tragic shootings at schools in recent years, the prompt action of the administration in notifying the police about the threat was an exercise in common sense. The police’s common sense response was to ask the administrators who they thought the author of the email/threat might be. … The author identified himself as a student. Common sense suggested to the police that the administrators might know who this might be. The administration told the police that E. was familiar with firearms, (had bragged about his gang affiliation), and would be on the bus and was the suspect in authoring the email. The police acted upon that information by removing E. from the bus and briefly detaining him and questioning him before releasing him without taking further action…”

JACKSON v. MCCURRY, ET. AL (2019) Jackson, a high school student, was accused of making fun of another student and bullying her (via texts) because she didn’t make the volleyball team. Assistant Principal investigated and brought Jackson in and asked her to hand over her phone and unlock it so he could view her texts. Jackson alleges she refused to give AP permission but he searched phone anyway. AP asked Jackson to identify some of her “contacts” and he examined quite an array of texts from her friends, family, exboyfriend. After viewing the texts he determined Jackson had done nothing wrong and returned the phone…

JACKSON v. MCCURRY, ET. AL (2019) Dad hears about it and he begins calling the superintendent and other administrators “threatening” a lawsuit. Asks to speak to the board at a meeting. Went to practice to speak to coaches and became “aggressive. ” AP, along with SRO, views videos of confrontations and based on all factors Dad was banned from school property and all extracurriculars except volleyball games. Administrators and SRO don’t know about the volleyball exception. Dad shows up to volleyball game and is asked to leave by SRO and administrators. Dad objects, etc. and eventually sues district.

JACKSON v. MCCURRY, ET. AL (2019) • Search of daughter’s phone • Prohibition from school premises • Prohibition from speaking at board meeting • Prohibition from volleyball game

JACKSON v. MCCURRY, ET. AL (2019) • Search of daughter’s phone – Nope…TLO. – Reasonable (even though it did go beyond scope) – A reasonable school official could conclude that expanding the search to encompass text messages would reasonably be related to the objectives of the search • Prohibition from school premises • Prohibition from speaking at board meeting • Prohibition from volleyball game

JACKSON v. MCCURRY, ET. AL (2019) • Prohibition from school premises – Nope – Reasonable. Only applied to “on campus” contact. – Dad could contact teachers, coaches, students outside of school premises. – Nothing in law that claiming a school official impermissibly restricted a parent’s rights under the First Amendment on school property – Many courts have held there is NO established right for parents to access school property to exercise their First Amendment rights – Also districts have a “duty” to prevent the kind of boisterous and threatening conduct that would interrupt the peace and quiet required for academic aspects of a school’s functions

JACKSON v. MCCURRY, ET. AL (2019) • Prohibition from speaking at board meeting – Nope – Board policy clearly establishes the board has discretion to grant or deny permission to address the meeting – Not viewpoint discrimination because Jackson’s views were not even considered – it was in relation to his actions!

JACKSON v. MCCURRY, ET. AL (2019) • Prohibition/Removal from volleyball game – Nope – Officials/SRO had reasonable grounds to suspect Jackson of criminal trespass – Even though there was a letter – a law enforcement officer who reasonably but mistakenly concludes that reasonable suspicion is present is still entitled to qualified immunity – Didn’t injure dad when he grabbed his arm…

QUESTIONS?

THANK YOU!!! SCOTT SUMMERS DIRECTOR OF SCHOOL LAWS MISSOURI SCHOOL BOARDS’ ASSOCIATION SUMMERS@MOSBA. ORG 1. 800. 221. 6722