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Risk Management and Assessment
Ethical Duty to Protect Students from Violence in School
Legal Duty to Protect Students from Violence in School
School officials, including school counselors, have been held liable for failing to protect students from foreseeable harm (e.g., Eisel v. Bd. of Educ., 1991; Maynard v. Bd. of Educ., 1997). Courts have consistently found that school personnel have a duty to exercise reasonable care to protect students from foreseeable harm (Hermann & Remley, 2000). Courts have explained that students' violent acts were foreseeable if students threatened to do harm, especially if students have engaged in violent activities in the past (Hermann & Remley). Current case law also indicates that any indicator of potential violence needs to be taken seriously. Accordingly, courts are supporting the temporary removal from the school setting of students who exhibit indicators of potentially violent behavior.
In Brian A. v. Stroudsburg Area School District (2001), a federal district court considered the case of a 15-year-old student who was expelled because he wrote a note stating, "There's a Bomb in this School bang bang!!" (p. 505). The incident took place only a few weeks after the Columbine school shooting. The student claimed that he wrote the note as a joke and forgot to throw it away. In making their decision to expel the student, school officials considered the fact that the student was on probation because of an incident that involved blowing up a shed on the property of another school. The court held that school officials' act of expelling the student was a reasonable response to a bomb threat, especially considering the student's previous delinquent acts.
In addition to evidence of the student's intent to do harm and the student's prior violent history, courts have taken into consideration recent school violence when determining if school officials have acted reasonably when faced with a student's threats of violence. In Lovell v. Poway Unified School District (1996), a federal appeals court considered the appropriateness of a 15-year-old student's suspension after she allegedly threatened to shoot her school counselor because she was dissatisfied with her schedule. The student defended her actions by stating that she "merely uttered a 'figure of speech'" (pp. 368-369) and immediately apologized for her inappropriate behavior. The student did not act in a physically threatening manner toward the counselor, and yet the counselor reported that she felt threatened by the student because the counselor had witnessed the student's volatile nature and lack of impulse control on other occasions. The court commented, "in light of the violence prevalent in schools today, school officials are justified in taking very seriously student threats against faculty or other students" (p. 372). The court upheld the student's suspension.
Other courts have considered students' constitutional rights and focused on whether threats of violence made in school settings were believable (Hermann & Remley, 2000). Though threats that present a "clear and present danger" have never been afforded first amendment protections, some courts are still finding that for a threat to be punishable, the threat must meet the objective "true threat" test (e.g., Lovell v. Poway Unified Sch. Dist., 1996). According to these courts, a "true threat" is a threat that a reasonable person in the same circumstances would find to be a serious and unambiguous expression of intent to do harm based on the language and context of the threat.
The application of the "true threat" doctrine is illustrated in D. G. vs. Independent School District No. 11, Tulsa County Oklahoma (2000). In this case, the court considered the suspension of an 11th grade student for writing a poem about killing a specific teacher. The student explained that she was upset with the teacher at the time and she wrote the poem to express her frustration. The student did not intend for the teacher to see the poem. Neither the teacher nor the school administrator considered the threat to be a "true threat" because the student had never been engaged in or threatened to engage in violent conduct at school. But, the school had a "zero tolerance" policy for student threats. The court held that the student's suspension was appropriate while the threat was being investigated; however, the court added that once a psychologist determined that the threat was not a "true threat," the school was violating the student's constitutional rights by not allowing the student to return to school.
Similarly, in Lavine v. Blaine School District (2001), a student sued school officials, including his school counselors, after being expelled because of a poem he wrote. The poem contained suicidal and homicidal imagery including a passage depicting a school shooting, 28 people dying, the shooter feeling no remorse, and the perpetrator shooting himself. The English teacher who read the poem was concerned and notified the school counselor. The school shooting in nearby Springfield, Oregon had just occurred. In a previous school year, the student admitted to the school counselor that he had thought about committing suicide. Suicidal ideation is highly correlated with violent behavior (Vossekuil et al., 2000). The school counselor was also aware of recent, serious problems the student was having at home and that the student was reportedly stalking the girl with whom he had just broken up. The student had a discipline record which included a fight and an incident of insubordination to a teacher. Based on these facts, the principal expelled the student.
After the student's removal from school, the student was evaluated by a psychiatrist who found that the student could safely return to school. Though the student returned to school, the student's father sued school officials claiming that his son's expulsion had violated his son's constitutional rights. Addressing this claim, the court stated that recent school shootings have "put our nation on edge and have focused attention on what school officials, law enforcement and others can do or could have done to prevent these kinds of tragedies" (Lavine v. Blaine Sch. Dist., 2001, p. 987). The court continued by stating that "the school had a duty to prevent any potential violence on campus" (p. 989). Considering the facts of the case and the recent school shootings, the court held that school personnel acted reasonably by removing the student from the school environment until a psychiatrist evaluated the student and determined that the student was not a danger to himself or others.
It is important to note that judges do not expect school counselors be perfect in their prediction of school violence. Assessment of risk is not an exact science (Dwyer, Osher, & Warger, 1998). School officials are also not expected to anticipate random acts of violence (Remley & Hermann, 2000). Consequently, school counselors are only expected to act reasonably to prevent foreseeable school violence (Lavine v. Blaine Sch. Dist., 2001). In determining what actions are considered reasonable, courts have found that school counselors are expected to exercise the degree of care that would be exercised by other school counselors with similar education and experience (Wyke v. Polk County Sch. Bd., 1997). School counselors are only exposed to legal liability if they fail to exercise reasonable care in preventing foreseeable school violence (Remley & Hermann, 2000).
Reflection Exercise #6
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