Student Threat Considerations

School officials across the state are facing the unenviable task of determining when a student may constitute a threat to themselves or others and then taking the appropriate next steps. Contrary to popular belief, removing the student that potentially constitutes a threat from school is not always the answer, nor is it always legal. When facing a student threat, consider the following guidance.

Immediate Response

Depending on the threat, consider whether to contact law enforcement or the need for a lock-down or school closure. Student and staff safety should be the top priority. Once safety is secured, determine if communicating the disruption to parents is advisable.

May I search?

If you believe there may be a weapon in school, you first should consider whether it is safe to search. If it is safe, then determine if you have consent to search the item or area that you intend to search (e.g., backpack, jacket, or car). If you have consent, then you or another school official may conduct the search.

If you do not have consent, then you must have individualized suspicion that: (1) the student engaged in misconduct or that the student poses imminent risk of harm to the student or others and (2) the search will reveal relevant contraband or evidence of the misconduct or safety risk. As always, the search must be reasonable at inception and in scope.

Remember, school officials may always search lockers, even without individualized suspicion, if a locker search policy is included in the student handbook.

Is Discipline Appropriate?

Not all threats warrant student discipline or removal. Discipline may be appropriate when the student’s actions violate the student code of conduct, board policy, or law. Writings, drawings, and counseling disclosures may be cause for concern but may not be cause for discipline in every situation.

Consider whether the student’s actions constitute a “true threat.” In other words, was there a serious expression of intent to commit unlawful violence against a specific target? If so, then discipline is likely warranted, subject to procedural safeguards. School officials may also discipline students if their actions create a substantial disruption or school officials can reasonably forecast a substantial disruption. Remember speech (including social media posts) that does not constitute a true threat or create a substantial disruption is protected by the First Amendment and cannot result in discipline.

If discipline is warranted, ensure that adequate due process is provided, including complying with the IDEA and Section 504 for students with disabilities.

Non-Disciplinary Removals

If a student cannot be removed for disciplinary reasons, consider whether a non-disciplinary removal may be necessary and lawful. Unless discipline is appropriate or there is an imminent threat of harm to others, unilateral removals are typically not authorized. Instead, consider creating a safety plan or removing the student with parental agreement. Days of removal should not be counted as suspensions, but they will count toward days of removal for special education students.

Safety Plans

School officials can implement a safety plan for students who remain in school or return after a disciplinary removal. The school generally does not need parental consent to create and implement a safety plan. Although there is not a one-size-fits-all approach to safety plans, consider addressing the following:

  1. when and who will check-in with the student;
  2. backpack protocol (e.g., no backpacks, clear backpacks, or backpacks left in the office);
  3. student search (parent or student consent is required if you do not have individualized reasonable suspicion);
  4. dress code (e.g., no jackets or baggy sweatshirts);
  5. supervision for the student during unstructured times (e.g., bathroom breaks, passing times, or lunch); and
  6. other supportive measures.

Threat Assessments

Although schools across the state are using threat assessments to analyze whether a student is considered a threat, school officials should tread carefully before referring a student for a threat assessment.

Before a referral, school officials should consider who will conduct the threat assessment, whether that individual is appropriately trained, and whether the assessment is likely to yield accurate results. School officials also should consider whether parental consent is required before a threat assessment is conducted, as the assessment may implicate the Protection of Pupil Rights Amendment (PPRA). The PPRA requires parental notice and consent if the school is inquiring about, among other things, mental or psychological problems of a student or family; illegal, anti-social, or incriminating behaviors; critical appraisals of close family members; or religious practices or beliefs. Given that a threat assessment may delve into these issues, parental consent or notice and the right to opt out may be required to prevent an inadvertent PPRA violation.

To assist clients with assessing student threats, Thrun Law Firm is offering a student threat webinar on Wednesday, January 11, 2023, from 12:00-3:00 p.m. To register for the webinar, please complete and return the registration form attached to this newsletter. Each attendee will receive an email with a link to the event in advance of the webinar.