By David Nash, Esq, Director of Legal Education and National Outreach
While significant work continues on numerous fronts for school districts, summer is a time for school leaders to reflect, take a deep breath, attend family gatherings, perhaps find time for a vacation, and get reenergized for the school year ahead. While all of that should be embraced, it is important to remember that summer is not a time to let our guard down when it comes to the essential policies, protocols and practices that districts need to keep in mind year round. In this article we review some of the common ways that school districts may potentially open themselves up for potential legal liability over the summer, and practical strategies for reducing potential legal exposure.
School Security
Remember that schools must continue to conduct at least one fire drill and one security during the summer if the school is “open for instructional programs,” pursuant to N.J.S.A. 18A:41-1. Those drills need to comply with recent revisions to the drill law that include a requirement for drills to be age-appropriate and designed to prevent unnecessary traumatization of schoolchildren, and a mandate for drills to appropriately include students with disabilities and address the unique needs of such students.
For more information on school safety and security drill requirements, see the NJDOE’s Office of School Preparedness & Emergency Planning (OSPEP) (nj.gov).
In addition to appropriately addressing drill requirements, districts need to ensure that school security protocols remain in place. For example, doors should not be propped open at various entrances to a school during the summer, even though it may make it easier for maintenance and custodial staff to enter and exit the building. Schools should also continue to limit the number of access points and maintain some level of security at those entrances, especially when students are potentially in the building. If a school security situation were to arise, and the school had no way of knowing who was in the building, that would create a significant security challenge for families, school officials and law enforcement.
Taking the time to document that staff members who are working in schools over the summer have been reminded of school security protocols demonstrates that school leaders are taking reasonable steps to ensure a safe and secure environment, and reducing potential legal exposure.
Student Conduct Over the Summer
It is not uncommon for school officials to learn about incidents that occur over the summer between students, including potential bullying. It is important to remember that such incidents may still constitute harassment, intimidation or bullying and/or other code of conduct violations that still need to be addressed by school officials. For example, if you learn that one student made hurtful comments on social media back in July about another student and outed the student as being gay, there is real potential that the incident could result in substantial disruption in school in September and could have caused lasting emotional harm for the student who was outed. Or you learn that one student may have assaulted another student over the summer, and the alleged student victim didn’t show up for school on the first day out of fear, you have a possible code of conduct issue that is likely causing substantial disruption.
As a technical matter, HIB or other student conduct that occurs over the summer is not counted in a school district’s statistical data that must be reported to the NJDOE through the Student Safety Data System (See NJDOE’s SSDS Guidance). However, such behavior still has to be investigated and addressed if it meets the standards laid out in N.J.A.C. 6A:16-7.5, which governs when schools need to respond to conduct away from school grounds,, which provides that school officials need to act when the conduct in question “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school” and action by school officials is “reasonably necessary for the student’s physical or emotional safety, security and well-being or for reasons relating to the safety, security and well-being of other students, staff or school grounds.”
In order to ensure that parents and students are aware that school officials may need to respond to behavior off school grounds, and/or behavior that occurs over the summer, school districts should include notice to that effect in parent and student handbooks, and should have school policy in place that addresses this issue.
Summer Buildings and Grounds Projects
Many school districts use the summer to address much needed repairs and improvements to school facilities and school grounds. Such work can lead to potential hazards for those who attempt to access those facilities while such work is in progress. School districts should always take reasonable steps to provide clear notice of potential hazards and reduce the chance that accidental injuries may occur. These students should include advance notice to the school community, including notice to staff, parents and students, as well as the larger community, about planned projects and any areas that should be avoided while that work is ongoing. In addition, appropriate signage and/or fencing may be necessary to reduce potential dangers.
Of course, despite all of those reasonable steps, curious students or others may still seek to access areas that are off limits. If school officials become aware of such unauthorized access, other reasonable steps, such as contacting local law enforcement and/or imposing student discipline if school officials learn of specific students engaged in dangerous activities at school work sites, may be necessary to demonstrate that the district has engaged in appropriate due diligence.
Summer School
Many school districts now offer a wide array of summer school programs for students. It is always important to remind school administrators overseeing such programs, and all school staff, that the many rules and regulations that apply from September through June continue to apply to summer school programs. Examples of requirements that need to be fully implemented during the summer include:
- Fully implementing IEPs and 504 plans for students,
- Ensuring that a school nurse is available each day that school is in session and that appropriate protocols are followed for administration of medication,
- Enforcing the code of student conduct,
- Proper certification for all instructional staff, and
- Meeting all reporting and response requirements, including for HIB, students suspected of being under the influence, suspected child abuse, etc.
Summer Athletics
Student athletics is a crucial part of the school community and students, parents, coaches, and the larger school community are excited when, for example, football practices begin over the summer. That excitement should be welcomed, but school officials also need to ensure that all safety precautions are followed for summer practices. That means ensuring that all staff, students, and parents understand and comply with the New Jersey State Interscholastic Athletic Association’s (NJSIAA) Heat Participation Policy and Heat Acclimation Policy.
In the summer of 2024, school officials also need to be prepared to implement the new requirements related to determining sports participation eligibility. A link to information regarding the new sports physical forms was included in a May 22, 2024 broadcast email from the NJDOE.
As the memo notes, “The History Form and the Physical Examination Form within the packet do not need to be submitted to the student’s school. The History Form and the Physical Examination Form should be kept by the healthcare provider who completes the PPE. Only the completed Medical Eligibility Form should be submitted to the school.” The memo further notes that each school district is required to “provide to the parent written notification signed by the school physician stating approval of the student’s participation in athletics based upon the medical report or the reasons for the school physician’s disapproval of the student’s participation.”
Given this new form and protocol, school officials will not automatically receive medical history information and the full details from the physical examination form, but rather just the completed Medical Eligibility Form. It therefore becomes more important than ever for schools to communicate with parents how critical it is for schools to receive ALL relevant information about a student that could impact their health and safety. Parents still have the right to voluntarily choose to share more extensive health information, and doing so will make it easier for school officials to ensure the health and safety of their child and schools should encourage such voluntary sharing..
Summary
By taking the time to review and reinforce the key legal requirements and common sense steps outlined above, school officials can help ensure that they are prepared to properly address many of the foreseeable issues that may occur over the summer and demonstrate their strong commitment to promoting the health and safety of students and staff… And perhaps have some peace of mind as you plan for that summer vacation!