PARENT WANTS TO SEE THE VIDEO….

MAY 2, 2024 JIM WALSH

Let’s say there is a video that depicts the behavior of Student A.   Student A’s parents want to see it. What do you do?

The easy answer is “it depends” and “call your lawyer.” Those are good answers. But I want to add a few thoughts, inspired by an early ruling in a case brewing in North Carolina.

The suit alleges that the school ignored severe and pervasive bullying of a student by other students.  Parents who sue the school over student-to-student bullying face a high burden of proof.  It’s not enough for them to prove that the bullying occurred. They also have to convince the court that school officials knew about it, could have done something about it, but effectively shrugged their shoulders. The legal term for that is “deliberate indifference.”

As is common in cases like this, the district filed a Motion to Dismiss, arguing that there was no way the parent could show “deliberate indifference.” But the court denied the Motion, thus allowing the case to proceed. The court noted that “the bar for deliberate indifference is high” but held that the facts alleged by the parent, if proven true, could clear the bar.

What were those facts?  The suit alleged that 1) bullies prevented the student from using the bathroom to the point that she regularly soiled her clothes; 2) the mother met frequently with the principal to complain; 3) one of the alleged bullies was the daughter of the principal; 4)the principal refused to allow the parent to see video footage of one of the incidents; and 5) also refused to let her talk to the gym teacher.  

As the case proceeds the district will have the opportunity to refute these allegations or explain them.  I’m particularly curious about the principal allegedly barring the parent from seeing the video or talking to the teacher.  Those decisions do require some explanation, dontchathink?

What pops into your head when you hear that the school has a video that it won’t let the parent see?  I wonder if they are hiding something important.  I wonder what the reason is. Is there something on the video that reflects poorly on the school?  You don’t have to be a conspiracy theorist to wonder about that.

So call the lawyer and discuss. There may be a good reason to withhold access to a video.  But my inclination is to try to find a way to show the video without violating anyone else’s privacy rights.  Not doing so will inevitably lead to accusations of a coverup, particularly in a state where the law guarantees parents “full information regarding the school activities of a parent’s child.” T.E.C. 26.008(a).

It’s Jordan v. Chatham County BOE, decided by the federal court for the Middle District of North Carolina and cited at 123 LRP 30861.

DAWG BONE: MAYBE SHOWING THE VIDEO SHOULD BE THE RULE, RATHER THAN THE EXCEPTION.

TOOLBOX TUESDAY!!  HOW A SAFETY PLAN FITS IN…

APRIL 16, 2024 JIM WALSH

What would you think of a safety plan for a student that requires a daily search of his backpack?  That’s what happened at the John F. Kennedy High School in Colorado.  The student, J.G., “committed several firearm-related offenses” at the age of 14.  The school conducted a threat assessment and developed a safety plan. The plan required a daily search of the boy’s possessions upon his arrival at school each morning. 

This was in effect for the last few months of J.G.’s freshman year of high school.  Over the summer, his mom tried to get him enrolled in another school but the student was waitlisted.  So back to JFK he came.  For the first two days of the school year no one searched J.G.  On the third day, they did. Bingo. A loaded handgun in the backpack.  After criminal charges were filed J.G.’s lawyer tried to suppress evidence of the handgun, arguing that the safety plan was no longer in effect and the search was illegal.

Searches of students in public schools are subject to the ambiguous “reasonable” test.  Was the search, given all of the circumstances, reasonable?  The Supreme Court has clarified that test with two key questions: was it “justified at the inception”? And was it “reasonable in scope”? 

There was no question in this case about the scope of the search. All they did was look in the backpack. That’s not very intrusive, and it was the logical place to look if you are looking for a weapon.

But they had no particular reason to suspect that this student on this day was in possession of a weapon.  The “justified at the inception” standard is applied to the specific situation. Was there a justification to suspect that this particular student on this particular day might have a weapon in his backpack? There wasn’t.  The court noted that “J.G. did not do anything on that particular day that gave rise to suspicion justifying a search.”

Nevertheless, the court ruled that the search was legal.  Why? Because of the safety plan.  The student’s lawyer argued that the safety plan had expired, but the court disagreed. There was no expiration date on the plan. There was a method for modifying the plan, but no such modifications were made. So the court held that the plan was still in effect, and on that basis, there was a justification at the inception for the search:

A search carried out in accordance with a previously established safety plan is reasonable at its inception because the plan diminishes the student’s expectation of privacy.  Additional individualized suspicion stemming from the student’s behavior is not required.

Toolbox Tuesday usually focuses on discipline of students in your special education program. But the standards for student searches apply across the board to all students. So there are some things to learn from this case.  To wit:

1. A safety plan, based on a threat assessment, might include a “daily search” requirement.

2. Such a plan should be enforced consistently. It was a goof by the administrators at JFK High when they failed to search the student on his first two days of the new school year. Since the kid showed up with a gun the next day, it seems pretty clear that he thought that the safety plan had expired.

3. If you want the safety plan to continue from year to year, you should probably say so in the document.

It’s People in the Interest of J.G., decided by the Colorado Supreme Court on March 25, 2024.  It’s cited at 2024 WL 1244472.

DAWG BONE: THREAT ASSESSMENTS AND SAFETY PLANS ARE USEFUL TOOLS.