A recent video-gone-viral of a school resource officer’s interaction with a student in a Columbia, South Carolina classroom highlights the potential issues that may arise when student discipline and the criminal justice system collide in the educational environment. The presence of officers in schools may go a long way in creating a safe environment in which teachers can teach and students can learn, but it may also create legal complications if proper training is not provided and/or their roles are not clearly delineated. The U.S. Department of Justice (“DOJ”) is recommending significant limitations on SROs.
Understanding the Difference in Roles
A school resource officer (“SRO”) is a commissioned municipal police officer employed by the local police department, but assigned to a school through a cooperative agreement between the school and police department. SROs may be armed and have the power to arrest students. SROs have the same power as local police. Because an SRO is not a school employee, schools have fairly limited control over his or her actions.
In contrast to the limited control schools have over SROs, schools have significant authority over school security officers, who are employees of a school responsible for routine safety and security. School security officers are typically considered school employees for purposes of searches and seizures and need only reasonable suspicion, not probable cause, to search students’ personal property. School security officers have no arrest powers.
Finally, there are school police officers, commissioned officers employed by a school district who have been granted specific powers under the Public School Code. School police officers are considered “employees of the school entity”, but the school has less control over the actions of a school police officer than it has over a school security officer. Schools must apply to the local court of common pleas for the appointment of a school police officer and only if so authorized by the court, may school police issue summary citations, detain individuals until local law enforcement is notified, and carry firearms.
Department of Justice Weighs In
Recently, the United States Department of Justice (“DOJ”), in recognizing the “powerful role school resourse officers have in schools”, filed a Statement of Interest in a matter currently pending in the United States District Court for the Eastern District of Kentucky, Northern Division at Covington, S.R. and L.G. v. Kenton County, 2:15-CV-143. In S.R., two special education students, eight and nine years of age, were allegedly handcuffed by an SRO, behind their backs, above their elbows, at the biceps after, allegedly, exhibiting behaviors arising out of their disabilities.
The DOJ defines the role that SROs have in schools; “[a]n SRO’s role ‘should be focused on school safety, with the responsibility for addressing and preventing serious, real, and immediate threats to the physical safety of the school and its community’”. It goes on to state that “SROs should use law enforcement actions, such as arresting students, only as a last resort and only for serious criminal conduct or when necessary to protect students and staff from a threat of immediate harm.”
The DOJ further seeks to distinguish the roles of educators from that of law enforcement and states that “[i]n the absense of sufficient training and clear policies that limit SROs’ duties and to ensure that educators, rather than SROs, are responsible for student behavior and discipline, officials are more likely to criminalize minor school infractions and to push students unnecessarily into the school-to-prison pipeline.” Further, it advocates that “SROs should use their law enforcement powers judiciously, to focus on safety, to avoid disability-based discrimination, and to avoid unnecessary criminalization of childhood behavior and perpetuation of the school-to-prison pipeline.”
Although the DOJ is addressing the role of SROs exclusively in its statement, much of the sentiment, and warnings, extend to all security and law enforcement officers in schools. Further, while DOJ’s guidance does not hold any legal authority, this statement provides some much needed guidance for schools.
Nowhere is the need to follow the DOJ’s guidance more evident than in the context of special education. While there is nothing in the Individuals with Disabilities Act (“IDEA”) to prevent or delay a school from calling the police, based upon reasonable suspicion that a crime has been committed, schools must be careful not to use security and police as a substitute for implementing, a legally defensible behavior plan. Failure to implement behavior plans with fidelity may result in significant liability for schools where it amounts to a denial of a free appropriate public education (“FAPE”). A school’s child find obligations may also be triggered where there is a pattern of behavior involving security and/or police.
Furthermore, under certain circumstances, engaging police intervention for disability-related conduct may also be considered discrimination on the basis of a disability in violation of Section 504 of the Rehabilitation Act. This is particularly true if police intervention is used, or disportionately used, in situations involving students with disabilities, but not in situations involving nondisabled students. Under certain circumstances it would be beneficial to provide police and/or school security officers with training on a specific student’s behavior needs and behavior intervention plan. This is particularly true where the student acts out violently and/or behaviors escalate if approached by an adult in a certain manner (for example, where a touch by an unfamiliar adult is a trigger).
In all school settings, policies and procedures must be established to address how and when security and/or law enforcement should be called by school staff to intervene in disciplinary incidents. It must also be clear to security and law enforcement when they are to intervene. As stated by the DOJ, “an SRO should not be an enforcer of school codes of conduct or become a substitute for traditional in-school discipline,” this is a standard which extends to all security and law enforcement officers in schools.
Taking steps to provide proper training and to clarify the roles of security officers, school police, SROs, and/or creates a safer environment for everyone and may also prevent your school from being the next news headline. To ensure that your school’s policies and procedures as it relates to school security are legally defensible, contact your solicitor or an education attorney at KingSpry.
School Law Bullets are a publication of the school law attorneys of KingSpry’s Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.