Legal and Liability Issues

Legal Considerations

These are based on U S information; please consult your school's legal counsel for specific info.

The liability, rights and responsibilities of school personnel in maintaining a safe school environment are affected by a variety of local, state, and federal statutes, regulations, constitutional requirements, and judicial decisions. School policies also may play a key role in establishing liability and affecting the responsibilities of school personnel. Schools seeking to avoid liability for acts related to school violence, including the steps taken to prevent it, should become familiar with the legal requirements. The following pages offer a foundation to begin a legal audit of schools' current policies and practices for reducing school violence.

The following list of legal considerations is not comprehensive. Before acting on any of these issues, consult with legal counsel.

A. Liability of Schools When Students Are Harmed

1. Failure to Adhere to Law or Policy

In some instances, liability may be premised on failure to adhere to current local, state, and federal school safety laws and regulations or school district safety policy. School officials should:

a. Ensure compliance with all current applicable local, state, and/or federal statutes addressing safety and harassment issues.

b. Ensure school districts' safety and harassment policies are fully implemented.

c. Develop and ensure compliance with their own respective school's safety and harassment policy.

d. Evaluate any existing school campus access policy to determine its adequacy and ensure it is being followed.

e. Provide adequate training on the issues listed above to school personnel.

2. Failure to Use Reasonable Care in Selecting Personnel

In some instances, liability may be premised on failing to use reasonable care in screening, hiring, training, supervising, and retaining personnel who are regularly on-site and who commit acts of violence. School officials should:

a. Implement appropriate screening and hiring standards to minimize likelihood of hiring personnel with propensities toward violence, consistent with applicable law.

b. Ensure proper training of teachers and school staff in the recognition of warning signs for violent behavior, on steps to take to minimize violence, and on appropriate responses if violence occurs.

3. Negligent Responses to Threats and Acts of Violence

In some instances, liability may be premised on negligent responses to threats and acts of violence falling within the school's jurisdiction and sphere of duty. School officials should:

a. Provide reasonable supervision for students, especially in specific areas where prior threats or instances of violence have occurred.

b. Take swift and consistent action when addressing personnel or students who threaten or engage in violent actions.

c. Exercise due caution when placing potentially or known violent individuals in school populations, consistent with applicable law.

d. Determine when they have a duty to warn students, faculty, or other personnel about a potential danger, including providing any (and only) legally authorized and appropriate information about the violent propensities of individuals to the appropriate personnel.

e. Determine the applicable mandatory reporting requirements concerning a threat or legal action.

B. Liability of Schools for Wrongful Accusations and Discharge

School personnel must respond to threats of violence in a way that protects suspected individuals from defamation of character and other tortuous liability if suspicions about them are mistaken. Liability can be minimized by conducting prompt investigations of all allegations and by notifying only those individuals with a need to know about them. Such actions, however, must be balanced by the need to protect students and staff whenever there are threats of serious violence. School officials should:

a. Conduct thorough investigations of complaints prior to removing suspected individuals from the school, if there is sufficient time. Removal of employees or students must be consistent with applicable laws. It may be appropriate to remove individuals from school without expulsion or termination pending their investigations. If students or employees are wrongfully terminated or expelled, school officials may be subjected to wrongful termination or expulsion suits.

b. Respect the privacy rights and confidentiality rights of all individuals during investigations.

C. Liability of Schools For Violating Students' Rights

1. Reasonable Searches and Seizures

Develop and apply policies for conducting searches and seizures of student property consistent with the Fourth Amendment to the Constitution, as well as all applicable state and local statutes.

a. Seek the advice of an attorney before implementing any policy on search and/or seizure of students' property.

b. While a warrant may not be required, school officials must justify any search and/or seizure based on the following:

Reasonable suspicion that the law or a school rule has been violated.
Information, facts, or circumstances that would lead a reasonable person to conclude that evidence of a crime or rule violation would be found in the search.
The relationship between the extensiveness of the search and the evidence being sought.
The relationship between the severity of the threat and the degree of intrusiveness in conducting the search.
The presence of any special legal considerations, such as whether the student did not have a reasonable expectation of privacy; the object(s) seized fell within the plain view of an official who had a right to be at that location; the person who seized the object was not affiliated with, or directed to do so by, the government; or the student voluntarily consented to the search.

c. Take into consideration the legal liability related to any type of non-consensual search of students or students' property, including but not limited to:

Locker searches.
Vehicle searches.
Use of metal detectors.
Use of drug- or weapon-sniffing dogs.
Drug testing.
Body searches.
Use of cameras.
Police-assisted searches.
Searches of abandoned articles.
Book bag, purse, and backpack searches.
Searches of outer clothing.
Strip searches.

2. Student Suspension and Expulsion for Violent Actions and Threats

Students are entitled to due process before being suspended or expelled. Usually, more due process rights are required for expulsion than suspension.

a. Ensure the process established by schools and the standards utilized for suspending or expelling students are consistent with applicable local, state, and federal laws, and applied consistently.

b. Ensure the nature and adequacy of public education alternatives for those either suspended or expelled from their usual public school programs are consistent with applicable laws.

c. Before suspending or expelling a student, school officials should provide the student due process rights as required by state and federal law. These rights may include, but are not limited to, the following:

Provision of a written and specific statement of the charges that justify suspension or expulsion.
Opportunity for a full hearing after adequate notification.
Use of impartial adjudicators.
Opportunity for students and parents/guardians to examine evidence against the student.
Opportunity for students and parents/guardians to present evidence favorable to the student.
Opportunity to be represented by counsel.
Opportunity to confront and examine adverse witnesses.

d. Ensure expulsion hearings are fully and formally recorded.

e. Ensure adjudicators' decisions in hearings are based on a full and fair review of the evidence.

3. Use of Dress Codes and Uniforms

As required by law, accommodate students whose religious beliefs would be compromised by their compliance with school dress code provisions.

4. Rights to Privacy in Matters of Record Keeping and Information Sharing between Agencies

The Family Educational Rights and Privacy Act protects the confidentiality of all student records information. Ensure compliance also with applicable laws pertaining to divulging information about peer court or formal juvenile court proceedings with the school and community or service providers. Issues may include the following:

Whether or not peer or juvenile court hearings should be open to the public.
Release or publication of juveniles' names.
Release or publication of juveniles' pictures.
Confidentiality of peer or juvenile court records.
Admissibility of student records.
Prohibition of sealing or expunging records.
Parental access to children's records.
Parental consent for release of information in children's records.

D. Liability of Parents/Guardians

Parents/Guardians may also be held criminally or civilly liable for foreseeable youth violence they should have acted to prevent.

In some instances, parents/guardians may be held criminally or civilly liable for negligent storage of a firearm or for negligently providing their children with a firearm. Currently, sixteen states have Child Access Prevention (CAP) laws requiring gun owners keep their guns locked out of reach of children.
In some instances, parents/guardians may be held criminally or civilly liable for failure to do the following:
- Adequately supervise their children.
- Take corrective action with problematic behavior displayed by their children.
- Notify others about a foreseeable threat to the safety of others that their own children pose.

The list of legal considerations addressed in this section is not comprehensive. Before acting on any of these issues, consult with legal counsel.