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SAFETY IN SCHOOLS: ARE WE ON THE RIGHT TRACK?

Prepared by the Boulder County Chapter
of the American Civil Liberties Union of Colorado
for the Boulder Valley School District

June 2001

Summary

I. School Violence Today: No Big Upsurge

II. Fear of Liability

III. "Quick Fix" Security Precautions: Feeding a Climate of Fear

IV. Speech & Expression: Post Columbine Over-Reactions

V. Disciplinary Procedures

VI. Towards Safer Schools

VII. Conclusion

Summary

There's no question about it: schools need to be safe, and students need to feel safe. Both are important. But in the post-Columbine climate, "safe schools" are being created at the expense of students feeling safe and being treated fairly.

The St. Vrain Valley School District is currently considering submission of a bond ballot question to District voters on November 6, 2001. Among the capital needs proposed are a District-wide project for "school safety, security, and code related systems." This project includes installation of surveillance cameras at all District schools.

"Safety in Schools: Are We on the Right Track?"(1) offers information which will reduce both the fear and potential for violence, while protecting the rights of all members of the school community. This document provides

a. an overview of the nature and scope of school violence today, which in no way justifies the move toward prison-style security and architecture;

b. a legal analysis of the unwarranted fear by school officials of liability for school violence that has in part driven the unprecedented increase in school security measures, and the risks of adopting "zero tolerance" policies;

c. an analysis of many of the most common school violence prevention measures, focusing on surveillance cameras and unanswered legal questions; and

d. a summary of more beneficial approaches that respect student privacy and views young people not as potential problems, but as resources in the creation of safe schools.

Regarding surveillance cameras, the Boulder County ACLU urges the District to:

a. Delay submitting surveillance cameras to the voters in the proposed bond issue pending an in-depth review and analysis of the true costs and benefits of cameras;

b. declare a moratorium on all new video surveillance in schools; and

c. enact regulations to control the use of existing and future surveillance cameras and that punish those that abuse them or unreasonably violate privacy rights.

I. School Violence Today: No Big Upsurge

Although the public seems convinced that schools are considerably less safe than they used to be, this view is hardly accurate. On the contrary, schools are just about the safest place a child can be in a community. Consider these facts:

The US Department of Education's 1998 Annual Report on School Safety indicated that violent crime is but a small part of overall school crime. In 1996, over 60% of crimes against students at school were acts of theft. During 1996-1997, 10% of public schools around the country reported at least one act of violent crime, while 47% reported at least one act of "less serious" or nonviolent crime, and 43% did not report any crime at all. In its Report on State Implementation of the Gun-Free Schools Act (August 1999), the US Department of Education revealed a 31% drop in expulsions as a result of a student possessing a firearm.

It is worth noting that students are safer at school than they are in their own communities, in cars, and even in their own homes. For instance, teens in 1996 were three times more likely to be victims of non-fatal serious crimes away from school than within school. And of the 7,000 children murdered in the 1992-1993 academic year, fewer than 1% died in a school-related violent crime. (5)

But although school-associated deaths have been decreasing, the 1998 Annual School Safety Report indicates that the number of multiple-victim homicide events at schools has started to rise, from two in the 1992-1993 school year, to six in the 1997-1998. The total number of victims in these incidents increased as well, from four to sixteen. In summary, it appears that schools are at least as safe as they were twenty years ago. Most of the crime that occurs in schools is of a non-violent nature, such as theft and vandalism, is hardly a new development among school children, and certainly not one that justifies high-tech surveillance systems.

II. Fear of Liability

School officials may well be bringing in new school safety policies based on their perception that they will be held liable for actions they may take, or fail to take, concerning student discipline. Sensationalized lawsuits such as those filed in Littleton, Colorado and Paducah, Kentucky have, in all likelihood, added to the fears of school officials.

After Michael Carneal's shooting of three students in Paducah, Kentucky, plaintiffs filed suit against more than 30 school officials, as well as Carneal's parents.(6) Likewise, attorneys in Colorado filed a $2.5 million dollar wrongful death suit against the parents of Dylan Klebold and Eric Harris and the Jefferson County School District.

Yet in spite of these well publicized cases, neither federal nor state courts have shown any significant change in their rulings in recent years concerning legal liability against public school officials in cases where students have been injured by other students or third parties. Federal courts have yet to impose liability under federal civil rights laws against a school system based on a claim of failure to protect.

State courts have, for the most part, also continued to recognize sovereign immunity principles absent egregious circumstances. In other words, citizens generally cannot sue the government for damages unless the government enacts a statute or regulation allowing itself to be sued. See, e.g., Colorado's Governmental Immunity Act, CRS §24-10-101 et seq.

There is a liability risk to the District if cameras are installed: According to a 1999 report by U.S. Department of Justice on school security, lawsuits have been filed and consequently won because someone at a facility was attacked, but the victim did not try to defend himself or herself against the perpetrator; he or she was under the false impression that, because a video camera was aimed at him or her, help would surely arrive soon.

Federal Courts Have Not Generally Allowed for Damages in School Cases

Federal courts have consistently declined to find liability pursuant to 42 USC §1983 of the civil rights statutes against school systems and school officials when children are injured at the hands of third parties. Section 1983 was enacted to allow persons who suffer violations of their civil rights due to actions of the government to recover damages. In spite of compulsory attendance laws, federal courts have routinely held that schools do not have a "custodial" relationship over students that would give rise to Fourteenth Amendment Due Process rights arising from a "duty to protect." (7)

In order to establish such a right, either a "special relationship" must exist, or there must be "state created danger" sufficient to establish liability. (8) In a series of federal cases, many of which have involved fatal school shooting incidents, the federal courts have consistently rejected the claim that public schools have a "special relationship" sufficient to establish civil rights liability. (9)

As one court noted:

"[We] must reject the broad view of 'custody' based on state compulsory attendance law...[because] school officials would be subject to Section 1983 liability any time a child skinned his knee on the playground or was beat-up by the school bully, so long as the requisite 'state of mind' was shown. More seriously,...teachers would be constitutionally obligated to assumed roles as policemen or even prison guards in protecting students from other students." Dorothy J. v. Little Rock School District, 794 F. Supp. 1405 (E.D.Ark. 1992). (10)

State Courts Have Generally Not Imposed Liability

Students have also attempted to recover damages for injuries in state court cases, generally alleging negligence on the basis of failure to protect or failure to provide adequate supervision by school officials. (11) While some courts have recognized that this theory of liability exists, most have been reticent to impose liability.

The doctrine of sovereign immunity protects many state officials from liability absent circumstances that would have put a reasonable person on notice to protect against the injury- causing act. (12) Courts have typically rejected a finding of liability in cases where injuries were unforeseeable, such as impulsive or unanticipated acts, (13) or where the school employee's conduct was not the proximate cause of the injury to the student. (14)

Sovereign immunity has also consistently been applied in cases where school officials were exercising discretionary functions, including disciplinary actions and supervision of students. (15) Yet in other states, the doctrine of sovereign immunity has been applied unless a finding is made that the school personnel acted with malicious, willful or wanton conduct. (16)

Students Are Posing Legal Challenges To School Disciplinary Actions

Federal courts have generally dismissed claims by students alleging due process violations as a result of disciplinary actions by schools. (17) However, some state courts have recognized procedural irregularities that warrant setting aside a school's decision regarding suspension or expulsion. (18)

An appellate court in Pennsylvania recently held that a school's policy of "zero tolerance" exceeded the authority of the school board in that it denied the superintendent, the school board and the students the exercise of discretion specifically provided by the school code, as well as by legislative intent. (19)

In that case, a seventh grade "A" student and choir member was expelled after he found a miniature Swiss army knife in the school hallway, and was asked to turn it over when a teacher observed him filing his fingernail with it. He turned the pen knife over as asked, explained that he discovered it in the hallway, and that he was going to turn it in. Nonetheless, he was expelled with no consideration of his record or background. The Pennsylvania Court made clear that this "zero tolerance" policy, even though not in writing, was nonetheless a school board policy that frustrated the legislative intent that the state's expulsion statute not be "blindly applied." Similar highly-publicized cases have occurred in Colorado schools.

Adopting a zero tolerance policy may actually be contrary to law when a state statutory scheme allows for discretion to be used in disciplinary matters. A school board's reluctance to use good judgment and sound reasoning in decisions concerning discipline may not only jeopardize an individual child's opportunity for education, but may also run afoul of a district's stated educational philosophy, as well as the state's legislative purposes behind the education of children.

III. "Quick Fix" Security Precautions: Feeding a Climate of Fear

Metal detectors, surveillance cameras, transparent lockers, see-through book bags -- the market for security devices such as these, and for the services of school safety consultants, has never been hotter. Across the country, prison architecture is being adapted in the design of new schools to limit public access. Security fences and electronic gates are being installed around the perimeter of schools, and uniformed security guards placed in the halls. In the rush to implement these sorts of security precautions, little attention has been paid to the fact that the presence of an armed guard and video cameras at Columbine High School failed to deter the shootings.

What do we know about the most common security devices? And what are the legal issues involved in their use?

a. Metal Detectors:

While metal detectors may make students feel safer, they prevent, at best, only certain types of violence, and at worst, delay acts of violence until after school or consign it to school parking lots and athletic fields.

Administrators should be aware that schools that use metal detectors or other forms of mass and random searches of students run the risk of violating the Fourth Amendment rights of students. When searches are conducted without individual suspicion, or student bags or belongings are searched prior to the detection of metal or suspicious objects, the Fourth Amendment may be implicated.

Results of using metal detectors differ from school to school. While it is likely that they do reduce the number of weapons and contraband within a school, and may provide reassurance to students who do not feel safe in the building, the presence of devices like metal detectors undoubtedly contribute to the climate of fear which leads students to feel unsafe in the first place.

Making schools more like prisons, and giving students the sense that they are being regarded as potential troublemakers, could have very different consequences than those intended by school officials. Such emotional and psychological responses from students should be taken into account before these sorts of devices are put into place.

b. Surveillance Cameras

Although cameras are now being increasingly used in schools, it is important to note that the shootings over the past few years would not have been prevented if surveillance cameras were in place. The videotapes of the Columbine cafeteria only serve as a permanent and painful reminder of the tragedies that took place under their gaze.

It is the ACLU's position that when a school uses video surveillance, it is unconstitutionally intruding on the legitimate expectation of privacy of students, faculty, staff and visitors, and is engaging in an unreasonable search without a warrant and without probable cause or reasonable suspicion. Questions that touch upon the privacy rights of students and faculty include:

Sound policy dictates that all the above issues be addressed and answered before additional surveillance cameras are purchased and put into use. No court has ever heard a case dealing with surveillance cameras in schools, so their installation, use and operation should not be lightly undertaken.

No St. Vrain Valley District policies directly address the use of surveillance cameras. As the Boulder Daily Camera said in an editorial last February 2nd regarding the proposed Boulder Valley School District expansion of surveillance cameras, "The school district should not install a single new camera until it can develop credible, reassuring answers [to privacy concerns]. The first step in that direction must be a clear, detailed policy to govern the use of cameras and punish anyone who misuses them."

Established constitutional law provides that a public school student's person may be only be searched if a school authority has reasonable suspicion that the search will turn up evidence that the student has violated or is violating either the law or rules of the school. If a search is conducted, the scope and measures conducted must be reasonably related to the objectives of the search and not be excessively intrusive in light of the age and sex of the student and the nature of the infraction.

While generalized suspicionless surveillance of students, staff and employees is problematic, the enhanced ability of high tech cameras to zoom, pan, and magnify raise special privacy concerns. For example, zooming in to see what books a student is carrying or similar use of cameras should be considered contrary to fourth Amendment prohibition against excessively intrusive searches without a warrant or reasonable suspicion.

Student privacy rights may be violated if a janitor or other non-administrative or faculty personnel monitors cameras or views images of students. And "profiling" students for surveillance based upon appearance, race, sex, etc. without individualized suspicion offends basic civil rights and violates the spirit of District non-discrimination policies.

Cameras can not and should not be everywhere. Certainly, cameras should not be placed in areas where there is clearly an expectation of privacy, such as bathrooms and locker rooms. As noted above, failure to respond promptly when a student is assaulted in camera range can result in a liability claim by an injured victim.

The District must also take into account the high financial burden and technical expertise that the use of cameras creates, including initial purchase, placement, maintenance, installation and the staff time needed to monitor their output. Future costs to adopt evolving technology, repairs, vandalism, and legal challenges should also be considered.

Significantly, students do not feel safer, and instead are likely to feel an increased sense of mistrust and lack of freedom when cameras are installed. For example, in April 2001, the Boulder Valley School District Security Task Force surveyed 406 students at Boulder High School, where a 13-camera system was installed as a pilot project in September 2000. When asked, "Do you feel like the Boulder High School campus is a safer place because of the camera system?" 66.5% answered "no." Only 10.8% answered "yes.'

Surveillance cameras are promoted as a "risk management" tool and as a way to reduce the incidence of minor crimes, like graffiti and vandalism. However, the results at Boulder High show no decrease in these incidents after cameras were installed. In the areas covered by cameras, 1998-99: 10 incidents; 1999-2000: 13 incidents, and for the six months in 2000-2001 when cameras were in place, six incidents, which projects to about 10 annual incidents-no statistical difference. These results also do not account for the "displacement effect" where criminal activity simply moves out of camera range.

Interior cameras, where students are already under observation at most times, are of limited value. The Boulder Valley School District recently decided to abandon the surveillance camera installed inside Boulder High School as both students and administrators said the camera was not effective in preventing vandalism and did not make them feel more secure.

Therefore, if the District's goal in installing surveillance cameras is to make students feel safe, deter violence, reduce vandalism and graffiti, or protect the District from liability, there is no evidence that they are a solution. Impulsive or alienated children often act without considering future consequences or the presence of cameras, and violators often simply move out of camera range.

Even if real-time pervasive Big Brother-style surveillance is employed in all schools, it will still not deter a student bent on carrying out a violent suicide mission, as was the case at Columbine High School. Surveillance cameras are an easy answer, but not a good solution to school safety concerns.

c. Security Personnel

More schools are now resorting to having more security officers positioned in the hallways and entrances of buildings. But many educators believe that a police presence on school grounds has a negative impact on learning, and that it is actually another indication of administrative failure.

Even if such personnel are trained not just in crime prevention, but also in how to work with children and adolescents in the often noisy, confusing and crowded environment of a school, legal problems surface when the matter of using force is addressed. The question of when and under what circumstances security personnel can use force implicates not only the rights of students, but also the fiscal responsibility and legal liability of school districts, administrators and supervisors. There are very strict regulations regarding how much force a police officer can use, and legal questions about whether such officers can be armed with handguns, pepper spray or electric shockers.

The US Supreme Court has ruled that school officials need only "reasonable grounds for suspicion" when they search a particular individual or individuals, but the courts have not been so clear about the rules governing student searches by security personnel. The scope given security personnel to search students, like the use of metal detectors, should be carefully formulated in cooperation with counsel, and integrated into a comprehensive policy regarding student privacy.

IV. Speech & Expression: Post Columbine Over-Reactions

Many of the measures that school districts have been implementing since the Colorado shootings severely restrict the free speech rights of students. Symptoms of "Columbine hysteria" have been found across the nation. In a Louisiana middle school, for instance, a 12 year old spent more than two weeks in a juvenile detention center for uttering, "if you take all the potatoes, I'm gonna get you" on his school's lunch line.

In Massachusetts, a student was suspended for work he had written in a play writing class prior to the shooting about students planning to blow up the school. Another student was questioned by the police and indefinitely suspended when he said that a certain boy was "on his list." He had not meant "hit list," but didn't want to say "shit list" with a teacher within earshot. The same teacher started disciplinary action when he was later overheard saying "maybe everyone should wear a trench coat."

New restrictions on dress, hair, speech and expression in print and on the Internet are presented as if these will somehow damp down students' violent impulses. But viewing restrictions on appearance and speech as the moral equivalent of restrictions on weapons may actually contribute to a repressive environment that turns schools into pressure cookers.

We should not allow the nation's young to grow up in a society that is intolerant to dissenting points of view. To teach democracy, we must have the courage to practice it.

Colorado schools should heed the words which Justice Abe Fortas wrote in his 1969 opinion in Tinker v. Des Moines Independent School District: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. In our system, state-operated schools may not be enclaves of totalitarianism."

V. Disciplinary Procedures

a. Suspensions and Expulsions

"Zero tolerance" rules may seem at first glance to be a reasonable response to the threats to school safety, but they have proved problematic for several reasons. They often fail to allow administrators sufficient flexibility in dealing with specific cases, especially where first-time offenders and very youthful students are concerned. And all too often, what appears to be a "weapon" or a "drug" to a school principal, is seen in a very different light by the student who possessed it -- assuming that the student was even aware it was among his or her belongings in the first place.

This "one strike and you are out" approach to education is as likely to create the bitterness and antagonism that feed violence in society as it is to make schools safer places. Students should be taught the value of an education, and not consigned to do without one as soon as they make a single mistake.

For these reasons, we urge that expulsion only be used as a punishment of absolute last resort. Every effort should be made to consider the full impact of an expulsion on the student, his or her family, and the school community.

b. Disciplining students for off-campus activity

Schools should not become an extension of the criminal justice system. They should refrain from disciplining students for non school-related off campus activity.

VI. Towards Safer Schools

Around the country young people are being blamed for social ills not of their own making. They are increasingly seen as society's problem. Presumed guilty until proven innocent, they are being subjected to evening curfews, daytime curfews, and anti-loitering ordinances. And as crime rates fell during the 1990s, the US continued to be engaged in an unprecedented social experiment: that of locking up its citizens at a rate up to ten times higher than that in other industrial countries.

Before school authorities implement measures which make schools more closely resemble the prisons that now await all too many of our young people, it is important to ask certain questions: what are the root causes behind the violence we are trying to keep out of schools? Are they being adequately addressed? How do young people assess the various "violence prevention" methods being implemented in schools? What are the band-aid solutions? The long-range remedies?

Across the nation, the ACLU has engaged young people and educators in a far-ranging dialogue about these issues through our workshops and student conferences. What we have learned from listening to youth can be summarized as follows:

Many school authorities have turned to zero tolerance policies and ready-made violence prevention programs rather than make the long-haul effort of listening to students on a day-to-day basis, and embarking with them on an exploration of the root causes of the violence engulfing many young people. Students should be encouraged to express their opinions about what they see to be problems, and to help formulate solutions.

Personal conflicts and incidents of bullying, harassment and racism must be addressed through mediation and conflict resolution programs, and in forums and workshops that involve the entire school. And the curricula can be made more relevant to students' lives, by building in a discussion of issues that can help them make sense of the world around them.

VII. Conclusion

"The first solution to a problem is often one that creates more problems." This typical comment by a high school student neatly summarizes much that is wrong with the array of security precautions and restrictions that many schools are turning to in the wake of the Columbine tragedy.

Schools are a microcosm of the wider society, and should reflect the best values of our constitutional democracy. What students experience in schools may have more of an overall educational impact on them than the academic subjects they are taught. The more restrictions that schools impose on students, the more alienated students are likely to feel, and the less involved in the learning process.

Whether or not you believe that metal detectors, surveillance cameras, security guards or fences are necessary to protect your school in the short term, the ACLU urges you to also consider proposals that deal with root causes of student disaffection. Trying to understand the cause for youth unrest may be a much better move than simply tracking their every move.

More school counselors, new textbooks and learning aids, smaller class sizes, increased after-school and extra-curricular programs, better training of teachers and administrators, expanded educational on civic duty and constitutional rights and responsibilities, dispute resolutions programs that encourage non-violence-all are time-tested ways to make students have a sense of belonging and less likely to cause problems.

It is important not to lose sight of the fact that schools today are still one of the safest places for children and teenagers in our society. The St. Vrain Valley School District should resist the pressure to include measures in the capital needs of the proposed bond issue that will make schools more like prisons, and less like communities of learning where young people feel valued and respected.

Respectfully submitted,

Boulder County Chapter
ACLU of Colorado

For further information contact:
Judd Golden, Chapter Vice Chair
Box 344
Boulder, CO
303-442-6355

 
Endnotes

(1) Significant portions of this report were adapted from the ACLU of Ohio and the ACLU of Massachusetts' reports, "Safe and Just Schools for Ohio's Children" and "Safe Schools: Are We on the Right Track?," and from the report, "School House Hype: Two Years Later," ©1999, 2000, Center for Juvenile and Criminal Justice, 1622 Folsom Street, 2nd Floor, San Francisco, CA 94103.

(2) 1998 Annual Report on School Safety, US. Dept. of Education, Oct. 1998. Section 1.

(3) Ibid.

(4) Report on School Associated Violent Deaths, National School Safety Center (1999).

(5) Report on State Implementation of the Gun-Free Schools Act, US Department of Education, August 1999.

(6) This action was filed in the McCracken Circuit Court on December 2, 1998 in Paducah, Kentucky as Civil Action 98-CI-01154. The school defendants have all been dismissed from the suit on the basis of sovereign immunity. This decision that was upheld by the Kentucky Supreme Court in James v. Wilson, Case No. 99-0381.

(7) See DeShaney v. Winnebago County Dep't. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed. 2d . 249 (1989); Graham v. Independent School District, 22 F.3d 991 (10th Cir. 1994); Johnson v. Dallas Independent School District, 38 F.3d 198 (5th Cir. 1994); Armyo v. Wagon Mound Public School, 159 F.3d 1253 (10th Cir. 1998); Page v. School District of Philadelphia, 45 F. Supp. 2d 457 (U.S.D.C., E. D. Pa. 1999).

(8)See DeShaney, id. at 489 U.S. 200.

(9) Pointer v. Western Heights Independent School District, (10th Cir 1994); Johnson v. Dallas Independent School District, 38 F.3d 198 (5th Cir. 1994); Graham v. Independent School District No. 1-89, 22 F.3d 991 (10th Cir. 1994); and Arroyo v. Pla, 748 F.Supp. 56 (U.S.D.C. Puerto Rico 1990).

(10) Dorothy J. v. Little Rock School District, 794, F. Supp. 1405 (E.D. Ark. 1992).

(11) Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 (N.Y. App. Div. 1998).

(12)See, for example, Kennedy v. Seaford Union Free School, 250 A.D.2d 574, 672 N.Y.S. 407, 126 Ed. Law Rep. 355 (1998); W.L.O. v. Smith, 585 So.2d 22 (Ala. 1991), and Rawls v. Bulloch County School District, 477 S.E. 2d 383 (Ga. App. 1996).

(13) Id.

(14) Carroll v. Hammett, 744 So.2d 906 (Ala. 1999), Downing v. Brown, 935 S.W. 2d 112 (Texas 1996), Payne v. Twiggs County School District, 501 S.E. 2d 550 (Ga. Ct. App. 1998); Cook v. Hubbard Exempted Village Board of Education, 688 N.E.2d 1058 (Ohio Ct. App. 1996); and Foley v. Taylor, et al., 695 So.2d 1196 (Ala. App. 1997).

(15) D.M. v. National School Bus Service, 713 N.E. 2d 196 (Ill. App. 1999); Byrd v. Sullivan, 657 So.2d 830 (Ala. App. 1995); and Marcum v. Talawanda City Schools, 670 N.E. 2d 1067 (Ohio App. 1996).

(16) Peterson v. Independent School District No. 811, 999 F.Supp. 665 (U.S.D.C. Minn. 1998); Lovell v. Poway Unified School District, 900 F.3d 367 (9th Cir. 1996); and Fuller v. Decatur Public School Board of Education School District 61, 78 F.Supp. 2d 812 (U.S.D.C. Ill. 2000).

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