Supreme Court Justice Samuel Alito once remarked that “Experience shows that schools can be places of special danger.” School attendance, Justice Alito noted, “can expose students to threats to their physical safety that they would not otherwise face.” Every school board member in the country can vouch for the accuracy of those statements. Every parent putting a child on the school bus hopes that the child comes home having learned something. More fundamental than that, however, the parent hopes that the child comes home.

School board members and administrators are responsible for providing campuses where students and staff are safe. Of course, resources are limited, and the school safety concerns must be balanced with other priorities. Many schools have formed effective working relationships with local law enforcement, implemented methods of screening visitors, and reconfigured school buildings with safety in mind.

When considering these issues, trustees also need to think about the legal issues that are likely to arise when schools respond to threats to safety.

Hit List

A recent decision from the 9th Circuit Court of Appeals provides a good illustration of what can happen when school officials are told of a student’s threat. The story begins when the boy’s mother discovered something resembling a “hit list” while cleaning up the teenager’s room. The list was in his journal and read: “I am God, and All These People Must Die.” There were 2 students on the list and one former employee.

The student (soon to be known as “the Plaintiff”) created this list on May 25, 2014, and his mom discovered it more than three months later. The mom told her therapist about it. The therapist thought that she was required to inform the police, so she did. The cops told the school. State law required the school to notify the 23 people on the list that they had been named on a hit list.

The message went from the mother to the therapist to the cops to the school to the 23 people on the list. That’s when it hit the fan. The boy’s picture was promptly available on social media, even though the notices did not identify him. The media pounced on the story. Parents demanded to know more, and some pulled their kids out of the school.

Based on all of this, the school district expelled the boy for one year, offering online courses, tutoring, and courses at a community college.

The parents sued on behalf of their son, alleging that he had been deprived of due process and punished for the exercise of off-campus free speech. The suit also alleged that the school failed to implement education plans faithfully. The court ruled in favor of the school district on all claims.

Free Speech

The most interesting issue in the case was about free speech. Keep in mind that the student never communicated his threatening message to anyone. He claimed that he used his journal to vent. The police never charged him with a crime, even though they investigated thoroughly and seized weapons from the home.

Consider: What is the basis for the expulsion? The student did not commit an act of violence. Nor did he communicate a threat to do so. Words do not amount to a “threat” until they are communicated to someone. This student did not do that. He thought about it and wrote about it in his private journal that he shared with no one. Had his mom not inspected his journal, no one would have known. Nevertheless, the school charged him with making a “threat of violence” that caused a “significant disruption to the school environment.”

The 9th Circuit concluded that the school had not violated the First Amendment:

“We reaffirm our holding in Wynar [an earlier 9th Circuit decision] that regardless of the speaker’s intent or how speech comes to a school district’s attention, a school district may take disciplinary action in response to off-campus speech when it reasonably determines that it faces an identifiable and credible threat of school violence.”

Given all the circumstances in this case, the court held that the school was facing an “identifiable and credible threat.” Thus, the expulsion was upheld. Given the 9th Circuit’s reputation as our most liberal Circuit Court, this decision is a noteworthy indicator of the public mood when it comes to school safety. This case is McNeil v. Sherwood School District 88J, 918 F.3d 700 (9th Cir. 2019).

IDEA Concerns

What additional legal issues would have arisen if the student had been in the school’s special education program? IDEA (the Individuals with Disabilities Education Act) curtails the unilateral authority of school administrators when dealing with students with disabilities who are disruptive or potentially violent.

The law does permit swift action in three instances, but only if they occur at school or a school function. The three are: 1) possession or use of a weapon; 2) possession or use of drugs; or 3) the infliction of “serious bodily injury.” None of these “special circumstances” was present in the 9th Circuit case.

That being so, if the student had been identified with a disability, the school would have been required to conduct a meeting to make a “manifestation determination.” This is a formal process designed to make sure that students are not punished for behavior that is directly caused by a disability. The student’s parents would be required members of the team making that determination, and the parents would have the right to challenge the outcome of the meeting if they disagreed.

Finally, the school would have to offer a better set of services than this student apparently got. Even if the expulsion was properly done, the school still would have a duty to provide a set of services that would enable the student to “progress toward meeting the goals set out” in his IEP.

Because of issues like these, schools should include legal counsel in the discussions about safety measures. Our discussion above focuses on constitutional law, but there are also numerous issues that are addressed at the state level. State law may require regular safety audits. It may impose restrictions on audio and video surveillance. It may address the use of metal detectors.

State law will likely address who can possess a firearm at a public school, and under what circumstances. The school’s best resource on these issues would be the school’s attorney, preferably one who is a member of NSBA’s Council of School Attorneys with access to all of its resources.

Justice Alito’s observations about the public school as a place of special danger come under the category of “sad but true.” Trustees, working with administrators, teachers, parents, students, and legal counsel, can make a positive difference toward creating a climate safe for all.

Jim Walsh (jwalsh@wabsa.com) is a co-founder of Walsh, Anderson, Gallegos, Green and Trevino, P.C., in Austin, Texas.

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