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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 recentheadlines involving school shootings and the level of violence in schools has created aclimate of heightened concern and fear. Statistically, public schools are exceedinglysafe places for schoolchildren, but statistics dont always shape public perceptions. Asa result of these heightened concerns and fears, most state legislatures haveresponded with school safety legislation, placing duties on local boards of education todo more to address student violence and school safety concerns.

Module 49, Student Issues: Conduct Regulations describes how the AlabamaLegislature has responded to student violence and school safety concerns. Fourseparate statutes place a duty on boards of education to formulate conduct codepolicies. (See Module 49 for citations.) Besides these four provisions requiring theadoption of conduct codes, two statutory provisions place additional requirements onstate and local education entities. Section 16-1-24.2 Code of Alabama (2001Replacement) requires the State Department of Education to develop a statewideviolence prevention program. Section 16-1-24.3 Code of Alabama (2001Replacement) requires local boards of education to implement policies requiringexpulsion for students who possess firearms in school settings. School superintendentsand 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 alsoaddressed safety concerns by adding regulatory language to the Public SchoolGovernance section of state-level regulations. Ala. Admin. Code ch. 290-3-1.

School safety legislation also includes legislative attempts to require a closerinformation flow between schools and the law enforcement community. Section 16-1-24 Code of Alabama (2001 Replacement) requires reporting violent incidents throughthe 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 notcooperate in compelling their children to conform to attendance law and the conductcode.

Additional school safety provisions passed by the Alabama Legislature include arequirement for eye protective devices in certain laboratories and vocational educationclassrooms (Section 16-1-7 Code of Alabama (2001 Replacement)) and a prohibitionagainst electronic pagers and communication devices in schools (Section 16-1-27Code of Alabama (2001 Replacement)). Another provision prohibits hazing (Section 16-1-23 Code of Alabama (2001 Replacement)). Finally, the Child Protection Act of1999 (Act 99-361, p. 566, sec. 1) was amended in the 2002 legislative session (Act2002-457) 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 numerousstatutory references related to conduct codes, school safety, and student violencedemonstrate a heightened awareness of the need to plan for emergencies, so thatschool personnel can implement the plan immediately. Failure to do what reasonablepersons 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 inplace to prepare for such situations as fires, earthquakes, tornadoes, snow and icestorms, weapons or drugs in schools, civil disruptions, criminal assaults and batteries,bomb threats, trespassers on campus, serious illnesses and injuries. Those plansshould address, minimally: alarm systems; building evacuation or shelter plans;communications plans, both internal to the school system and external to police and firedepartments, parents, and the community at large; and follow-up services such asstudent counseling.

After creation of a plan, the plan should be practiced so that each member of theschool staff knows exactly what is to be done. If a real emergency occurs, the planitself 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 tostudents, as well as disruption to the schools learning environment. Perhaps everyschool district in every state has prohibited the possession or use of alcohol or drugs inschool settings; depending upon state law, most schools also prohibit the possession oruse of tobacco. Nationally, the courts at both the state and federal level are verysupportive 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 areunlikely to accept an Equal Protection argument, based on dissimilar treatment betweenadults and juveniles.

The Alabama school code has three sections addressing the responsibility ofschool 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, ordispensing alcoholic beverages to students under the age of 18, as well as keeping orhaving 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 threeyears. Section 16-1-24.1 Code of Alabama (2001 Replacement) requires boards ofeducation to pass a discipline plan that includes provisions for uniform drug-free schoolpolicies, with uniform penalties. Section 16-28A-4 Code of Alabama (2001Replacement) provides immunity for school personnel who report suspected drugabuse.

Asthma Self-Medication

In the 2003 legislative session, the Legislature required each local board ofeducation and the governing body of each nonpublic school to permit the self-administration of asthma medication for students. (Alabama Act 2003-271.) To be ableto self-administer such medications at any time while on school property or whileattending 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; and3. A written medical authorization. Section 16-1-39 Code of Alabama (2001Replacement.)

Permission to self-administer asthma medications is effective for only one school yearat 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 schoolsnationally. Immunizations and vaccinations are general requirements for attendance inmany states. Students come to school with medical and health needs, some of whichare simple and some are chronic. Zero tolerance policies on drugs conflict with thevalid medical needs of students to take medication during the school days. All of theseissues 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 thepowers and duties of local boards of education. Measures to control the access ofchildren to prescription drugs brought to school by students are uniformly examinedunder the rational basis test. Hot button issues, such as condom distribution oraccess to birth control information, are generally political questions rather than legalissues in nature. A few courts have permitted curriculum control, represented by theHazelwood case (see, Module 59, p. 6), to defeat challenges made by parents over theability of their children to have access to birth control information, when the unusualsituation arises that the school board adopts such a policy over objections in thecommunity.

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Contagious Diseases

In earlier years, schools were able to exercise much more discretion in excludingstudents due to contagious diseases. It was not uncommon to exclude students whilethey were contagious or even quarantine them at home with the assistance of publichealth authorities. It is less common for students to be excluded from school becauseof their health conditions. From less serious conditions like head lice and measles, todangerous conditions like AIDS and Hepatitis B, school personnel are called upon todeal with all types of contagious diseases in the school setting.

Since the 1980s conditions like HIV, AIDS, and Hepatitis B have becomeincreasingly common in the school setting. In many school districts, the response wasto attempt to exclude students with these conditions. Uniformly, the courts haveaccepted the application of Section 504 to these situations and found exclusionarypolicies to be discriminatory. Rather, the school would do well to make an individualizeddetermination about programming needs for students with such conditions and excludeonly when the students unique situation (e.g., propensity for behaviors that endangerothers) requires more to be done to separate the student from others.

Another consideration related to contagious diseases is the issue of privacy. Ifinformation concerning the students medical condition is introduced into the studentseducational 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 aremaking it to school when, in years past, they would not have survived long enough tomake it to school. Students with a history of an accident, trauma, premature delivery, orprofound disabilities make up the classification of medically fragile children. Thesestudents 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 themedically-related services that they need are related services covered under IDEA orare 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 betrained to accomplish, the care is a related service under IDEA. If the care is somethingrequiring a medical degree or advanced nursing training, it is a medical service outsidethe 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 alsoimplicate Section 504. The Office for Civil Rights has indicated the possibility of DNRorders being a form of discrimination based on disability. School officials areencouraged to confer with legal counsel in fashioning an appropriate policy related toDNR orders.