LEGAL ONE Monthly September 2024
David Nash, Esq., Director of Legal Education and National Outreach
As we settle into a new school year, and observe September as Suicide Prevention Awareness Month, our nation faces yet another mass school shooting, this one at Apalachee High School in Winder, Georgia, in which a 14 year old student shot and killed two students and two teachers, and injured many others, before surrendering. We know numerous factors contribute to school shootings, and a great deal of time and effort has been put into honing security drill protocols and hardening strategies for schools. In addition, a national debate has raged for decades over measures related to gun safety and control that is, of course, beyond the scope of what school officials can directly control. But we also know, based on the lessons learned from our nation’s painful history of school shootings, that proactively addressing the issue of mental health, including suicidal ideation, should be at the forefront of how we address this issue.
While there is no crystal ball that can precisely tell us who will engage in school shootings, two recent reports from the U.S. Secret Service provide important insights. These reports, the 2019 report on school attacks that occurred from 2008 to 2017 and the 2021 report on averted school attacks, indicate the important role of mental health in the majority of planned and averted attacks. The reports show that a majority of the attackers had a history of mental health problems and had experienced bullying and/or suicidal ideation. In addition, the studies found that most of those who experienced mental health issues had not received any treatment.
Another disturbing finding from the 2019 report was that “in two-thirds of the attacks, there was at least one communication by the attacker about his or her intent to attack, or another observed threatening behavior, to which there was not a response. In many of those cases, the attacker told another student, in some cases a parent or other family member, and in some cases school officials or other adults. Major barriers to information sharing included a lack of trust that school officials and others would actually respond in a thoughtful and supportive manner to try and help the student who was contemplating a school attack, as well as fear of retaliation.
More recently, the horrific school shootings that occurred at Oxford High School on November 30, 2021 and at Apalachee High School on September 4, 2024 offer powerful lessons of the need to act proactively and ensure effective information sharing when addressing students who are exhibiting concerning behaviors. The March 2023 Michigan Court of Appeals decision that allowed criminal prosecutions to move forward involving the parents of the school shooter at Oxford High School outlines the significant level of information available to the parents of the Oxford High School shooter prior to shooting. Based on this available information, the Court held that a potential school shooting was reasonably foreseeable and that parents should be tried for involuntary manslaughter. Note that both parents have since been found guilty of involuntary manslaughter. Similarly, prosecutors in the Georgia case have now brought manslaughter charges against the father of the shooter.
While some of the details of the Michigan and Georgia cases are messy and remain in dispute, both cases should serve as a clarion call for schools across the nation to identify and remedy the failures that are evident in these cases related to:
- identifying students in need of mental health supports and following up as needed to ensure those supports are provided,
- ensuring proper sharing of information and coordination of services even as a student moves from one community to another,
- always seeking positive collaboration with parents while recognizing the difference between requesting and ensuring that parents take action or that others do so when necessary in order to support a student with mental health care needs, and
- requiring that threat assessment protocols allow for proper triage of incidents and recognize the urgency of those situations that require immediate response.
While districts work to promote a safe environment for all students, it is important that school leaders recognize certain core legal principles as outlined below.
- FERPA should not be viewed as an impediment to information sharing when it is necessary to share information in order to protect health and safety.
While FERPA places a great emphasis on protecting student confidentiality, it also includes common sense provisions allowing for information sharing as needed during emergency situations. See FERPA and the Disclosure of Student Information Related to Emergencies and Disasters | Protecting Student Privacy. In addition, the general test for information sharing under FERPA is whether or not a school employee (or contractor serving in a role that would otherwise be performed by a school employee) has a “legitimate educational interest” in receiving information. The “legitimate educational interest” test is not an “all or nothing” test and there are times where a counselor, teacher, nurse, coach or bus driver may benefit from having a piece of information that was learned about a student in order to better support that student moving forward. Another example where information sharing often breaks down is when a student transfers from one school district to another. Even in a situation where a student had been referred to law enforcement and law enforcement concluded that the student did not pose a credible threat, it is likely that there is a great deal of other information leading up to that referral that is educationally relevant and that school officials in the receiving district would have a legitimate educational interest in seeing. That could, for example, include information on a student’s sudden withdrawal from participation in extracurricular activities without explanation. - Employing threat assessment protocols is not a shortcut to justify calling law enforcement or removing students from the school environment.
Before there was a law requiring Threat Assessment Teams in each school, school districts have always understood that they have a responsibility to respond to concerning language and behavior used by students, and assess whether or not students have engaged in a credible threat of harm. While the dangers of under-reacting to potential threats is obvious, there is also a grave danger in over-reacting. Unfortunately, we know that many students will sometimes use concerning language, such as I am going to “get you” or “kill you” without any intent of inflicting harm. Understanding the context in which certain language was used, the developmental levels of the students involved, and any prior history of conflict all help inform whether the threat is in fact credible. We also know that the school-to-prison pipeline is real and disproportionately affects marginalized student groups. New Jersey’s Attorney General has stressed that school officials must carefully monitor law enforcement referrals to ensure that they are not being improperly influenced by implicit bias. Finally, assessing credibility of potential threats and not referring all threats to law enforcement has been clearly spelled out in New Jersey code for many years. As N.J.A.C. 6A:16-6.3(c) makes clear, school officials are responsible for assessing whether the student “genuinely intends at some time in the future to commit the violent act or carry out the threat.” - Threat assessment protocols only work when the right people are in the room.
While it is necessary to have a stable, standard Threat Assessment Team in each school to ensure both continuity and competence, it is equally critical to recognize the value of bringing additional staff members into the process as needed in particular circumstances. For example, a case manager or other staff member knowledgeable about a student’s disability is critical. In some cases, a particular coach or club advisor may have a stronger connection and understanding of a student than any other staff member. In some cases, an aide or support staff member may have a deeper understanding that would be helpful to the threat assessment process. Always assessing who the right persons are for that particular student is critical. - Removal of students from the school environment does not ensure that a potential threat has been eliminated.
We have seen examples of students who were suspended long term or expelled from a school, only to return to that school and engage in a school shooting. We have also seen situations where students have been in educational limbo for extended periods of time while a battle of wills plays out between the parents and school district. Many school districts have embraced restorative practices that provide for meaningful consequences for students while maintaining the student’s connection to the school environment to the greatest extent possible, rather than immediately moving to out-of-school suspension. - Additional due process rights apply for students who have an IEP or 504 plan and failure to honor those rights creates increased risk of harm and legal liability.
In those instances when a student with a disability (either with an IEP or 504 plan) is being screened by a Threat Assessment team, additional due process protections must always be followed. As noted earlier, that includes consulting with a case manager or other staff member knowledgeable about the student and involving key staff in the threat assessment process as needed to effectively engage with that student. In addition, if the threat assessment process leads to the conclusion that a student with an IEP or 504 plan poses an imminent risk of threat to self or others, and the district is going to require that the student receive medical clearance prior to returning to school, specific due process steps must be followed. If a parent is in agreement with school officials that the child may pose an imminent risk and medical clearance is necessary, it is essential to memorialize that agreement with the parent in writing so there is no legal question as to whether the parent is contesting the district’s conclusion. If such a written agreement is not reached, it is imperative that school officials, working through the superintendent, involve your school board attorney. That process requires the district to file for emergent relief with the NJDOE and an expedited hearing before an Administrative Law Judge in order to justify the need for excluding the student from school due to imminent risk. That filing preserves a parent’s right to contest the district’s decision at an informal Emergent Relief Hearing before the NJDOE within a matter of days, and subsequently at a more formal hearing before an ALJ within a short period of time thereafter. In addition, the NJDOE has made clear that if a school board is requiring medical clearance for a student with a disability to return to school, the district is required to pay for the expense of that medical clearance.Other circumstances may justify immediate removal from the school environment while this process plays out. For example, if the student has been found with drugs or dangerous weapons in school, or has caused significant bodily injury (which requires a very high threshold showing), the student may be excluded from school for up to 45 calendar days while the district assesses what changes may be necessary to the student’s program and/or placement.
Proactive, Focused Collaboration Key
Ensuring a safe learning environment has always been the number one priority for school leaders. Almost inevitably, addressing situations that potentially compromise school safety will involve some assessment of student mental health needs. Taking the time to truly understand what is happening in that student’s life, both in school and at home, and doing everything possible to work in partnership with the student’s family and relevant outside agencies is essential to success. As New Jersey continues to roll out NJ4S school officials should engage in dialogue with their regional 4S hub about supports that can be provided before emergent situations arise. In addition, New Jersey’s less well known Pediatric Psychiatry Collaborative provides additional resources to help connect students, families, and schools with pediatric psychiatrists who are often difficult to find when families are working on their own.
Addressing student mental health needs can create difficult situations, and potential resistance from families is understandable. But having the strength of your conviction, and not passively accepting the status quo of inaction, is essential to ensuring that student needs are met. In too many cases where tragic school shootings have occurred, students have been left in limbo and have been failed by the adults responsible for supporting them. That failure can have tragic consequences for that student and others. In these times, there is no room to allow those failures to occur. By following the path of caring, collaboration, persistence and urgency, it is possible to greatly improve the safety of the school environment and reduce the potential for another tragic incident to occur in our public schools.