Financial and Education Law Training Program Study Guide Education Law Student Issues: School Safety and

d Health

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55. STUDENT ISSUES: SCHOOL SAFETY AND HEALTH

Student Violence and School Safety Parents have an expectation that their children will be safe in school, but recent headlines involving school shootings and the level of violence in schools has created a climate of heightened concern and fear. Statistically, public schools are exceedingly safe places for schoolchildren, but statistics dont always shape public perceptions. As a result of these heightened concerns and fears, most state legislatures have responded with school safety legislation, placing duties on local boards of education to do more to address student violence and school safety concerns. Module 49, Student Issues: Conduct Regulations describes how the Alabama Legislature has responded to student violence and school safety concerns. Four separate statutes place a duty on boards of education to formulate conduct code policies. (See Module 49 for citations.) Besides these four provisions requiring the adoption of conduct codes, two statutory provisions place additional requirements on state and local education entities. Section 16-1-24.2 Code of Alabama (2001 Replacement) requires the State Department of Education to develop a statewide violence prevention program. Section 16-1-24.3 Code of Alabama (2001 Replacement) requires local boards of education to implement policies requiring expulsion for students who possess firearms in school settings. School superintendents and local boards are given discretion to provide an alternative consequence as the situation requires on a case-by-case basis. The State Board of Education has also addressed safety concerns by adding regulatory language to the Public School Governance section of state-level regulations. Ala. Admin. Code ch. 290-3-1. School safety legislation also includes legislative attempts to require a closer information flow between schools and the law enforcement community. Section 16-124 Code of Alabama (2001 Replacement) requires reporting violent incidents through the superintendent and board to the sheriff. Section 16-28-12(c) Code of Alabama (2001 Replacement) requires reporting to the district attorney, when parents do not cooperate in compelling their children to conform to attendance law and the conduct code. Additional school safety provisions passed by the Alabama Legislature include a requirement for eye protective devices in certain laboratories and vocational education classrooms (Section 16-1-7 Code of Alabama (2001 Replacement)) and a prohibition against electronic pagers and communication devices in schools (Section 16-1-27 Code of Alabama (2001 Replacement)). Another provision prohibits hazing (Section 16-1-23 Code of Alabama (2001 Replacement)). Finally, the Child Protection Act of 1999 (Act 99-361, p. 566, sec. 1) was amended in the 2002 legislative session (Act 2002-457) to require criminal background checks for all employees who have

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unsupervised access to schoolchildren.

Emergencies An emergency is by definition an unplanned event. It does not follow, however, that school officials have no responsibility for planning for emergencies. The numerous statutory references related to conduct codes, school safety, and student violence demonstrate a heightened awareness of the need to plan for emergencies, so that school personnel can implement the plan immediately. Failure to do what reasonable persons would do creates the risk of negligence claims and resultant legal liability. School officials have a duty to examine the potential risks and have plans in place to prepare for such situations as fires, earthquakes, tornadoes, snow and ice storms, weapons or drugs in schools, civil disruptions, criminal assaults and batteries, bomb threats, trespassers on campus, serious illnesses and injuries. Those plans should address, minimally: alarm systems; building evacuation or shelter plans; communications plans, both internal to the school system and external to police and fire departments, parents, and the community at large; and follow-up services such as student counseling. After creation of a plan, the plan should be practiced so that each member of the school staff knows exactly what is to be done. If a real emergency occurs, the plan itself must be rigorously examined for effectiveness and changed to prepare for the next emergency.

Alcohol, Drugs, and Tobacco Use The use of alcohol, drugs, and tobacco represent significant health risks to students, as well as disruption to the schools learning environment. Perhaps every school district in every state has prohibited the possession or use of alcohol or drugs in school settings; depending upon state law, most schools also prohibit the possession or use of tobacco. Nationally, the courts at both the state and federal level are very supportive of school officials who punish students under these policies. In jurisdictions where adults are permitted to have substances such as tobacco in the school setting, but students are prohibited from having tobacco in the school setting, the courts are unlikely to accept an Equal Protection argument, based on dissimilar treatment between adults and juveniles. The Alabama school code has three sections addressing the responsibility of school officials related to the use by students of alcohol, drugs, and tobacco. Section 16-1-10 Code of Alabama (2001 Replacement) criminalizes the selling, giving, or dispensing alcoholic beverages to students under the age of 18, as well as keeping or having in possession alcoholic beverages in the school setting. The preceding actions

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constitute a felony, punishable by imprisonment in the state penitentiary for one to three years. Section 16-1-24.1 Code of Alabama (2001 Replacement) requires boards of education to pass a discipline plan that includes provisions for uniform drug-free school policies, with uniform penalties. Section 16-28A-4 Code of Alabama (2001 Replacement) provides immunity for school personnel who report suspected drug abuse.

Asthma Self-Medication In the 2003 legislative session, the Legislature required each local board of education and the governing body of each nonpublic school to permit the selfadministration of asthma medication for students. (Alabama Act 2003-271.) To be able to self-administer such medications at any time while on school property or while attending school-sponsored activities, the students parent or guardian must provide: 1. A written and signed authorization to the chief executive officer of the school; 2. A written waiver of liability statement; and 3. A written medical authorization. Section 16-1-39 Code of Alabama (2001 Replacement.) Permission to self-administer asthma medications is effective for only one school year at a time. All statutory requirements must be followed again each subsequent year.

School Health Services IDEA has provided an impetus for the provision of health services in schools nationally. Immunizations and vaccinations are general requirements for attendance in many states. Students come to school with medical and health needs, some of which are simple and some are chronic. Zero tolerance policies on drugs conflict with the valid medical needs of students to take medication during the school days. All of these issues implicate the provision of school health services in the public schools. When provision for school health services is challenged by taxpayers, courts generally approve of the creation of school health services as an expression of the powers and duties of local boards of education. Measures to control the access of children to prescription drugs brought to school by students are uniformly examined under the rational basis test. Hot button issues, such as condom distribution or access to birth control information, are generally political questions rather than legal issues in nature. A few courts have permitted curriculum control, represented by the Hazelwood case (see, Module 59, p. 6), to defeat challenges made by parents over the ability of their children to have access to birth control information, when the unusual situation arises that the school board adopts such a policy over objections in the community.

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Contagious Diseases In earlier years, schools were able to exercise much more discretion in excluding students due to contagious diseases. It was not uncommon to exclude students while they were contagious or even quarantine them at home with the assistance of public health authorities. It is less common for students to be excluded from school because of their health conditions. From less serious conditions like head lice and measles, to dangerous conditions like AIDS and Hepatitis B, school personnel are called upon to deal with all types of contagious diseases in the school setting. Since the 1980s conditions like HIV, AIDS, and Hepatitis B have become increasingly common in the school setting. In many school districts, the response was to attempt to exclude students with these conditions. Uniformly, the courts have accepted the application of Section 504 to these situations and found exclusionary policies to be discriminatory. Rather, the school would do well to make an individualized determination about programming needs for students with such conditions and exclude only when the students unique situation (e.g., propensity for behaviors that endanger others) requires more to be done to separate the student from others. Another consideration related to contagious diseases is the issue of privacy. If information concerning the students medical condition is introduced into the students educational records, then the medical condition becomes protected by the Family Educational Rights and Privacy Act (FERPA).

Medically Fragile Children Due to medical advances, children with life-threatening health care needs are making it to school when, in years past, they would not have survived long enough to make it to school. Students with a history of an accident, trauma, premature delivery, or profound disabilities make up the classification of medically fragile children. These students require much more medical support to keep them alive during the school day, they are much more dependent on technology, and they create special problems for school officials due to the life-threatening nature of their conditions. One issue that surrounds medically fragile children is whether or not the medically-related services that they need are related services covered under IDEA or are instead medical services for which the school district is not financially responsible. In general, if the care is something for which a school nurse or a lay person can be trained to accomplish, the care is a related service under IDEA. If the care is something requiring a medical degree or advanced nursing training, it is a medical service outside the responsibility of the school district.

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Another issue that surrounds medically fragile children is do not resuscitate (DNR) orders. Besides creating ethical problems for school personnel, DNR orders also implicate Section 504. The Office for Civil Rights has indicated the possibility of DNR orders being a form of discrimination based on disability. School officials are encouraged to confer with legal counsel in fashioning an appropriate policy related to DNR orders.