02-02-18 Volume 4 Issue 18_Layout 1

Educators and those
working in education
may find it difficult to
define a “threat,” but
most are fairly posi-
tive they would know
one when they saw
it. However, living in such a litigious society, prob-
lems occur when school personnel try to take legal
action against students whom they perceive as
making threats to harm others.

A student who uses what appears to be threaten-
ing language simply may be exercising a First
Amendment right to express an opinion, a right
protected from governmental interference or sup-
pression, even in school. What some in education
might classify as a threat may or not be a “true
threat” under the law.

Let’s go back to August 1966 when 18-year old
Robert Watts was upset with his 1-A draft classifi-
cation for the Vietnam War. “If they ever make me
carry a rifle, the first man I want to get in my sights
is LBJ,” said Watts. He was of course referring to
President Lyndon B. Johnson.

Watts was arrested, charged and convicted of a
felony under a federal statute that makes it a crime
to “willfully and knowingly” threaten the President
of the United States. The U.S. Supreme Court re-
versed his conviction three years later in what be-
came ground-breaking court decision
distinguishing between threats and “true threats.”

The court found that speech that may be “vehe-
ment, caustic, and unpleasantly sharp,” may just
be “political hyperbole” and that is what the court
ruled for Watts. So, they found his speech not a
true threat. However, the Supreme Court declined
to help educators by explaining what would make
ordinary threatening sounding words into a true
threat.

Fast-Forward to February 1993

Care for the Whole You

Rekha Menon, MD Medical Director January 2018

Dr. Rekha Menon, MD, Medical Director January 2018

The Flu is a Serious Contagious Disease!

CDC Recommends: 3 Steps to Fight the Flu

Everyday Precautions Vaccination Correct Use of Medications

If You Have Flu x Come to the health center to get tested. 732-571-6680 option 2
Symptoms x Tamiflu is available at the center if you test positive. It should

be taken within 48 hours.

x Some people are at greater risk and require medical treatment.
Therefore, it is important to seek medical advice.

Flu Symptoms x Body Aches
Prevention x Extreme Fatigue
x Chills/Fever
x Runny/Stuffy Nose
x Cough
x Sore Throat
x Sometimes Vomiting and Diarrhea

x Get vaccinated- ,W·VQRWWRRODWH!! The CDC continues to
recommend that everyone get vaccinated. Vaccination can
diminish the severity of symptoms.

x We have flu shots at the health center.
x Wash your hands often with soap and water.
x Avoid close contact with sick people.
x If you have symptoms, come to the Center for testing and

appropriate treatment.
x Cover your nose/mouth with a tissue or your arm.
x Avoid touching your eyes, nose and mouth.
x Clean and disinfect surfaces/objects that may be contaminated.

This information is taken from CDC publication, Take 3 Actions to Fight the Flu and your PHCLB Team
https://www.cdc.gov/flu/pdf/freeresources/general/take3-brochure-press.pdf

3+&/%
M-F 7:00 AM- 6:00 PM, S-S 8:00 AM- 1:PM
732-571-6680 option2/internal extension 57000

Sarah Lovell, 15-year old Califor- ous expression of intent to harm. ment would upset Suokko. The
nia high school student who had True threats, the Ninth Circuit Ninth Circuit's definition of true
been trying all day to get her emphasized, are not among the threat says nothing about how
class schedule changed. She categories of expression pro- reasonable the listener must be.
was shuffled back and forth be- tected by the First Amendment. Suokko could have completely
tween administrators, guidance Sarah's principal, therefore, was overreacted to Sarah's words; in
counselors, and principles. When justified in suspending Sarah and fact, she may even have mis-
she finally thinks her schedule filing the student referral form. In heard the student. Practically
was corrected and settled. addition to the “objective speaking, the Ninth Circuit re-
speaker” test, the Ninth Circuit quires speakers to know in ad-
Linda Suokko, her guidance
counselor, enters the changes also requires that statements ap- vance their listeners'
for Sarah into the master sched- pearing to be threats “should be reactions. Moreover, using the
ule, and notices that the assis- considered in light of their entire Ninth Circuit's reasonable
tant principal had approved factual context.” If the words ut- speaker standard, one wonders
Sarah for courses that were al- tered and the surrounding cir- whether a frustrated teenager in
ready overloaded. Suokko tells cumstances are so “unequivocal, Sarah's circumstances could
Sarah that she may not be able unconditional, immediate, and ever be considered reasonable.
to make changes. Sarah loses specific” that they convey a seri-
her patience and according to ousness of purpose and the If Sarah Lovell had expressed
Suokko says, “If you don’t give prospect of being carried out in her frustration in another state—
me this schedule change, I’m the near future, then the state- for example, in Virginia or Mary-
going to shoot you.” ment is a true threat. land, both of which are bound by
the standards adopted by the
Sarah immediately apologizes Courts in the Ninth Circuit, then, Fourth Circuit Court of Appeals—
and insists that she did not say like Sarah Lovell's court, will rule the standard that the court ap-
those exact words, her principal that a putative threatening state- plied would have been different.
suspends her and files a strongly ment is a true threat if the Courts in the Fourth Circuit judge
worded student referral form as speaker, as a reasonable per- whether a communication is a
part of her permanent record. son, should have foreseen that true threat solely by considering
the listener would interpret the the communication's effect on
When Sarah's parents brought statement uttered as a threat of the recipient. Whether or not the
suit to have the referral form re- bodily harm or assault. The bur- speaker had any idea, or even
moved from her file, the Court of den is on the speaker to reason- considered, how the listener
Appeals for the Ninth Circuit up- ably foresee an unpleasant would react to her allegedly
held the principal's actions, ruling reaction to what was said, con- threatening communication is
that Sarah's communication to sidering all the circumstances. unimportant in complaints liti-
Suokko was a “true threat.” Al- Sarah, as a reasonable person, gated in Virginia or Maryland.
leged threats, according to the should have known her state-
Ninth Circuit, are judged by an
objective standard that focuses
on the speaker. The test is
whether a reasonable person ut-
tering a communication would
foresee that the listener would in-
terpret the statement as a seri-

This point may not have made a threat analyses. Poetry may do and murder her. An alarmed citi-
difference in Sarah's case, be- the same. zen who encountered Baker's
cause Suokko, the listener, also posting notified University of
perceived Sarah's words as a E-Mail Threats Michigan authorities. When
threat. Nevertheless, the judicial questioned by university person-
standards in many states are dif- Internet communication is even nel, the young woman appeared
ferent and have different implica- more problematic. In the Sixth so emotionally traumatized that
tions. Focusing solely on the District in Michigan, for example, the university recommended
listener's reaction may negate to- true threat analysis requires that psychological counseling. (All of-
tally consideration of the the speaker have the intent to in- ficial records refer to her simply
speaker's intent in the communi- timidate the recipient of the com- as “Jane Doe.”) The Federal Bu-
cation. Focusing solely on what munication and that the alleged reau of Investigation (FBI) subse-
a speaker should have known in threat be communicated directly quently filed a complaint against
advance about the listener's re- to the intended victim in some Baker, whose real name was ac-
action presumes that the way. The Sixth Circuit applied tually Abraham Jacob Alkabaz,
speaker was capable of rational this analysis to a series of Inter- and a grand jury indicted him for
thought when she may have net communications sent by a violation of 18 U.S.C. § 875, a
been completely consumed by University of Michigan student to federal statute criminalizing inter-
anger or frustration. Deciding a chat room friend in Canada. In state communications containing
whether a communication is a his messages, the student, who threats to kidnap or injure an-
true threat that is actionable used the name “Jake Baker,” ex- other person.
under the law, therefore, de- pressed his intent to rape and
pends on the analysis adopted sodomize young girls and The district court in Michigan dis-
by the relevant jurisdiction. women. Baker attracted the missed the indictment, holding
Canadian's attention through a that the communications were
Threats Delivered in series of sexually violent stories not true threats. The prosecution
Different Forms he had posted to an interactive appealed to the Sixth Circuit
Usenet bulletin board, in which Court of Appeals. A panel of
In addition to speaker and lis- he described the rape, mutilation, three judges heard the appeal,
tener tests, other jurisdictions and murder of women and young and agreed with the district court,
have adopted hybrid tests or bur- girls. ruling two-to-one that Baker's
dened traditional tests with spe- communications were not true
cific requirements (e.g., that the From November 1994 until Jan- threats. In the published deci-
threat be directly communicated uary 1995, Baker and his new sion, Boyce F. Martin, Jr., chief
to the intended victim). Technol- online friend, known only as judge, engaged in an extended
ogy that facilitates communica- Arthur Gonda, exchanged e-mail discussion of the nature of
tion at a distance complicates the messages discussing sexual vio- threats, stating, “At their core,
analysis. For example, either lence that they hoped to inflict on threats are tools that are em-
party to a telephone conversa- women. On January 9, 1995, ployed when one wishes to have
tion may misperceive communi- Baker publicly disseminated via some effect, or achieve some
cations, because the speaker the bulletin board a story in which goal, through intimidation.”
and listener can only hear each he specifically identified by name Baker's communications, Martin
other but not distinguish visual a female fellow undergraduate at wrote, were not intended to intim-
cues. Similarly, nonverbal modes the University of Michigan, and idate; they were never even com-
of communication, like works of described in horrific graphic de- municated directly to his
art, confound traditional true tail how he would torture, rape, classmate.

Therefore, they were not true year, a Florida teenager was The principal subsequently sus-
threats. Baker and his Canadian sentenced to prison after he had pended the would-be rapper for
friend, Martin continued, were sent an e-mail message to a the remainder of his 8th grade
simply attempting “to foster a Columbine High School sopho- year. The student's mother
friendship based on shared sex- more, threatening to “finish brought a lawsuit against the
ual fantasies.” Martin's colleague Columbine.” school district, suing for his rein-
on the bench, Judge Robert Kru- statement. The Arkansas court,
pansky, vigorously dissented, Threatening Songs acknowledging that courts in the
defining a threat in a more famil- Eighth Circuit where the state is
iar way, as a “simple, credible As the Florida case demon- located use a reasonable listener
declaration of an intent to cause strates, technology-assisted standard to analyze true threats,
injury to some person.” However, communication can certainly declined to use the traditional
“Jake Baker” went free. The count as a true threat. But can test. Instead, the court decided to
court decision remains as only “entertainment” be a threat? Can apply the reasonable speaker
one of many adding to the confu- a student-created rap song be a test used in Sarah Lovell's case.
sion as to what constitutes a true true threat? Does the song have In reality, however, they applied
threat under the law. to be recognizable as a song? a combination of speaker and lis-
tener standards to decide that
Would K–12 students ever en- An Arkansas junior high school the feeble rap song was a true
gage in the kind of online com- student intended to write a vio- threat. The court also explicitly
munications published by Jake lent rap song in the style of Em- noted that in the wake of Jones-
Baker? Public school districts inem and other controversial boro and Columbine, any rea-
that provide e-mail privileges to rappers after his girlfriend broke sonable school official would
students and school personnel up with him. The student, how- have taken action based on the
undoubtedly employ acceptable- ever, seemed to lack musical tal- content of the young man's pa-
use policies to put them on notice ent, and his song had no pers.
of what constitutes appropriate e- discernible beat or rhythm. What
mail communication. When stu- his writings did contain, however,
dents and staff are aware of their were violent rantings about how
diminished expectations of pri- he wanted to molest, rape, and
vacy in e-mail communications, murder his former girlfriend. He
most self-monitor their online never delivered the supposed
speech. However, many stu- lyrics but instead left them on his
dents erroneously believe that bedroom dresser. A classmate
the anonymity of the Internet pro- discovered them weeks later and
tects them. In 2000, the Boston read them. Some time after this,
public school system ended free the girlfriend found out about the
Hotmail and Yahoo e-mail ac- “song.” She arranged with the
counts for students after two friend who had read the papers
boys at the Boston Arts Academy to steal them for her, and she
had sent threatening e-mails to a read them in gym class. A stu-
female classmate who refused to dent who observed her reading
date them. The district subse- them noticed her very apparent
quently installed e-mail accounts distress and reported the threat-
that can be immediately traced ening letter to the school security
back to the sender. That same officer.

This rap song case is especially Two other cases from California 422, requires that the prosecu-
interesting because the Court of illustrate the difficulty educators tion establish that the accused
Appeals, in a first sitting, decided may have in recognizing a true willfully threatened to commit a
that the song was protected threat when the alleged threat is crime that would result in death
speech. Courts of Appeals usu- not delivered in a spoken, face- or great bodily injury to another
ally sit as a body of three judges to-face context. Both cases were person. Under the statute, the
to hear a case. After the decision brought to court as violations of prosecution does not have to
of the three-judge panel in this the same California statute crim- show that the accused threat-
case, the entire case was re- inalizing true threats, a statute maker actually had the intent to
heard en banc (i.e., by all the containing very specific and un- carry out the threat but simply
judges of the court sitting to- ambiguous language. In one, a that the threat was made with the
gether). The full court came to its male high school student nick- specific intent it be taken as a
final decision, that the 8th named Julius, new to the school, threat. In addition, the California
grader's rap song was a true gave a handwritten note contain- statute tracks the language of
threat, by a narrow margin, and ing “dark poetry,” which warned several Supreme Court deci-
the decision contains four that he could be “the next kid to sions and requires that the
sharply divided dissenting opin- bring guns to kill students at threat, either standing alone or
ions. school,” to at least two different considering the surrounding cir-
female classmates from his hon- cumstances, be so “unequivocal,
Another Arkansas court dealing ors English class. In the other unconditional, immediate, and
with an allegedly threatening rap case, another male high school specific” that it conveys to the
song also ruled that the song in student, Ryan D., turned in for threatened person a gravity of
question was a true threat. In this credit for his art class a realistic purpose and immediate prospect
case, the rapper was a 15-year- painting depicting the execution of its being carried out. Finally,
old student who had become by gunshot of a police officer who the threat must have reasonably
angry when his female class- had recently “busted” him for caused the threatened person to
mate and former friend snubbed marijuana possession. be in sustained fear of harm.
him. He wrote, “I'll murder you
before you can think twice, cut The California statute criminaliz- Could Julius simply have been a
you up and use you for decora- ing true threats, Penal Code § lonely student, reaching out to
tion to look nice.” The writer had his classmates for acceptance by
a record of juvenile arrests, and offering them his poems? One of
the fellow student whom the rap- his poems had written at the top
per threatened knew of this of the page, “These poems de-
record and believed that he scribe me and my feelings. Tell
would carry out the threats. Al- me if they describe you and your
though the rapper argued to the feelings.”The dissenting judge, at
court that he was exercising his least, thought so and noted that
First Amendment right to free Julius's poem said he could be
speech when he wrote the song, the next to bring guns to school,
the court ruled that, as a true not that he would. The majority
threat, the words fell outside the found the distinction not signifi-
protection of the First Amend- cant, focusing instead on the
ment. sustained fear that Julius's
poems inspired in his female
Poetry and Art as Threats classmates.

In Ryan D.'s case, the court also In Ryan D.'s case, the court of delinquency and skipping
examined the circumstances sur- made much of the fact that Ryan school. The record showed that
rounding his painting. The officer had turned in his graphic painting he was “a troubled young man.”
was readily identifiable as Ryan's as a class assignment for an art Yet the court decided that Dou-
arresting officer in his marijuana grade. Does the fact that a stu- glas was not making a true threat
conviction—her badge number dent's allegedly threatening com- against Mrs. C. The school, the
was clearly depicted. Although munication comes in the context court said, still had the right to
Ryan admitted that he was angry of an actual school assignment discipline Douglas for violation of
at the police officer for arresting mitigate the force of a threat? An the student rules of conduct, but
him and had painted the graphic 8th grade student in a creative the First Amendment protected
shooting scene to show his writing class was found delin- Douglas's right to speak freely
anger, knowing the officer would quent after he wrote a composi- and graphically in his composi-
see the painting, the court found tion about concealing a machete tion.
it relevant that Ryan had handed and chopping off his English
in the painting for a class grade. teacher's head. Although the stu- Bomb threats, even if groundless
Despite the testimony of the ar- dent, Douglas D., specifically or pranks, seriously disrupt the
resting officer that she consid- named the teacher in his writing ongoing operations of schools.
ered the painting to be a threat, and wrote the assignment after Besides instilling fear and forcing
the court decided that Ryan's being disciplined and sent out of cancellation of classes and build-
submission of the painting for the classroom to a seat in the ing closures, such threats also
class credit resolved the “am- hallway, the Supreme Court of cost school districts considerable
biguous” intent of the expression; Wisconsin reversed his delin- funds to install telephone sys-
the painting was not a true threat. quency adjudication, ruling that tems to trace calls and video
his composition did not constitute cameras to monitor nonclass-
How would another set of judges a true threat. The court recog- room areas of buildings, to inves-
rule on the same facts? Did nized a need for “more creative tigate and prosecute
Julius “look like” a terrorist, and license” in a creative writing class perpetrators, and to hire extra
did Ryan look like a clean-cut than in, say, a math class. For in- personnel to observe student ac-
kid? Are words more forceful stance, Douglas wrote his story tivities effectively. Many school
than painted images? These two in the third person; it also at- districts specifically mention
judicial rulings, from the same tempted at jest, the court said, making terroristic threats as an
California jurisdiction and based when Douglas penned that the actionable offense in their stu-
on the same California statute, teacher's name, Mrs. C., stood dent codes of conduct
centered on similar imagery of for Mrs. Crab. Besides, the court
bodily harm and death, arrive at said, a story about killing with a
opposite conclusions. They now machete was unrealistic and not
serve as either controlling or per- to be taken seriously.
suasive authority for the next
cases involving threatening ex- Was Douglas really threatening
pression, and lawyers for either Mrs. C.? Mrs. C. was a first-year
side can argue opposite out- teacher. She testified that she felt
comes justified by precedent. panicked by Douglas's composi-
tion. She had had discipline
No Threat if Classroom problems with Douglas before
Assignment this incident. Douglas was not a
model student; he had a pattern

All states have adopted laws However, the school contacted Schools are supposed to be
making it a crime to communi- law enforcement authorities, who places where children and
cate a bomb threat to a school, brought charges against Jason. teenagers can learn without fear-
even if the perpetrator knows the Communicating a false bomb ing for their safety. When stu-
threat is untrue, and school dis- threat in Maryland is a felony. dents make threatening
tricts have begun to cooperate Even if Jason had been con- statements directed at members
vigorously with law enforcement victed of “disturbing . . . the or- of the school community, school
authorities in prosecuting guilty derly conduct of schools,” a officials are usually quick to
students. However, schools need misdemeanor, he could have re- react. But what about a student's
to exercise care in alerting au- ceived a six-month jail sentence threat to harm himself? Does the
thorities and charging students and a $3,500 fine. As it was, the school have a duty to protect stu-
with making terroristic threats. court adjudicated him as a delin- dents from themselves? Do guid-
Bomb threats are serious busi- quent. ance counselors, teachers, or
ness and carry serious conse- other school personnel have a
quences under the law; these Jason's parents appealed. The legal duty to warn parents that
consequences need to be ap- Court of Special Appeals found they suspect a student intends
plied only to prosecute students that Jason's wall writing had not self-harm or suicide?
who truly deserve prosecution. disturbed the normal operations
of the school. The court said that More than 25 years ago, the Cal-
For example, Jason W. did not the lower court's reading of the ifornia Supreme Court imposed a
need to be prosecuted. Jason statute raised the “specter of a much-debated “duty to warn” on
was a middle school student at young child being hauled into ju- therapists who learn that their
Clear Spring Middle School in venile court and found delinquent patients intend harm to another.
Washington County, Maryland, for throwing a temper tantrum in The litigation arose after a Uni-
on December 13, 2001. At 9:15 school . . . . Disruptions of one versity of California at Berkeley
a.m., a teacher found him scrib- kind or another no doubt occur student, Prosenjit Poddar, told
bling with a pencil on the wall every day in the schools,” the his university hospital psy-
near a school stairway. It ap- court continued, and “there is a chotherapist that he intended to
peared he had written “There is level of disturbance that is simply kill his former girlfriend, Tatiana
a bomb,” but when the teacher part of the school activity.” Jason Tarasoff. Poddar actually carried
spied him, he began erasing the was off the hook, and the school out his threat. Tarasoff's parents
word “bomb.” The teacher took district was publicly admonished. sued the regents of the Univer-
Jason to the school principal. sity of California, the hospital's
Threats to Harm Self psychotherapists, and the univer-
The principal obviously did not sity police for failing to protect
take Jason's threat seriously. He their daughter.The court ruled
did not evacuate the school that once a therapist determines
building; he did not notify the fire that a serious threat of violence
marshal or call in bomb detection to another exists, he or she has
or disposal agencies. The normal a duty to “exercise reasonable
operations of the school were not care to protect the foreseeable
disrupted. In fact, no one even victim.”This duty to warn foresee-
took a photograph of Jason's able victims of harm, now called
writing, which, after his furious the “Tarasoff duty.”
erasing, ended in an illegible
smudge.

Should the law recognize a Tara- Idaho, Wyoming, and New Mex- suicides annually (Poland &
soff-kind of duty for educators ico, in that order (Snyder & Lieberman, 2003).
who receive student confidences Swahn, 2004).
threatening suicide? Where a In December 2001, Mark Ander-
duty exists, the potential for lia- Even more alarming than the son and his colleagues from the
bility also exists. Should educa- overall numbers of student sui- Division of Violence Prevention
tors and their school districts be cides is the increase in the sui- of the Centers for Disease Con-
held liable for failing to prevent cide rate among middle school trol reported the results of a five-
student suicides whose warning students, a rate that has in- year study of violent deaths that
signs were, or should have been, creased more than 100 percent had occurred either on the cam-
apparent? Many surviving par- over the last decade. Among 13- pus of a public school, on the
ents, believing they should, have and 14-year-olds, as many way to or from regular school
pursued remedies through the youngsters committed suicide as sessions, or during official
courts. were murdered. While suicides school-sponsored events. They
among white males still predom- found that 220 confirmed school-
Suicide in Schools inate, rates for minority students associated incidents involving vi-
are increasing. Suicide rates for olent death had occurred
More people die from suicide black male adolescents as a between July 1, 1994, and June
than from homicides, according group increased 240 percent be- 30, 1999, with a total of 253 vic-
to the Centers for Disease Con- tween 1981 and 1998 (Snyder & tims who died in those incidents.
trol (2000). Many of these suicide Swahn, 2004). Black males ages While 18 of the 220 total inci-
victims are young people. Be- 15–24 showed the greatest in- dents were the widely reported
school shootings that involved
multiple victims, 202 of the inci-
dents resulted in single deaths.

tween 1981 and 1998, the Office crease in suicide completion Analyzing the details of the 220
of Juvenile Justice and Delin- rates in the 1990s compared with total incidents, 172 were homi-
quency Prevention reports, other minority groups. In addi- cides, 30 were suicides, and 11
20,775 juveniles ages 7–17 com- tion, gay and lesbian adoles- were homicide-suicides. The re-
mitted suicide in the United cents were 200–300 percent maining seven death-related in-
States. Of these juvenile sui- more likely to attempt suicide cidents were the result of legal
cides, 62 percent were commit- than other young people, and interventions into school situa-
ted with a firearm. The states they may have accounted for up tions or accidental firearms dis-
with the highest juvenile suicide to 30 percent of completed youth charges. Over half of all these
rates were Alaska, Montana, incidents were preceded by
warning signals such as notes,
journal entries, or threats; in the
cases of suicides, significantly
more than half were signaled in
advance. Homicide perpetrators
were also likely to have ex-
pressed suicidal behaviors,
thoughts, or actual suicide at-
tempts before the incidents (An-
derson, et al., 2001).

Legal Implications for care of students, nor are they in ments. Neither counselor notified
Educators total control of students' actions school authorities or the girl's
or well-being. parents. After Nicole committed
Imposing liability on schools and suicide, her father brought a law-
school personnel for failing to State legislatures could, of suit against the counselors and
warn of a student's threats to course, make reporting of sus- the school district, alleging negli-
commit suicide would require a pected student suicides by gence as a cause of his daugh-
showing of negligence on the school personnel mandatory, as ter's death. Eisel argued that, if
part of school personnel. Negli- they have done for reporting sus- school authorities had not neg-
gence is a tort that requires proof pected child abuse. However, to lected their duty to warn him of
of four elements that the plaintiff date few states have adopted Nicole's intentions, he could
must show: (1) that the defen- specific statutory language deal- have prevented her suicide. The
dant had a duty of care, (2) that ing with school employees' obli- court granted summary judgment
the defendant breached that gations with respect to to the school district, stating that
duty, (3) that the breach of duty suspected student suicides or “public policy” prohibited recog-
caused the damage alleged, and confidential communications nizing that either the counselors
(4) that quantifiable damage ac- from students. That said, the or school district had a duty to in-
tually occurred. The sticking American Counseling Associa- tervene.
point in the law is establishing tion does acknowledge that
that school personnel had a duty school counselors have an ethi- When Nicole's father appealed
of care to prevent harm to the cal obligation to report to par- the decision, the Maryland Court
student. ents, school administrators, or of Appeals focused not on duty
other appropriate authorities their but on the foreseeability of the
Although no educator would suspicions that a student intends student's committing suicide. The
deny a moral responsibility to to harm herself or someone else. court quoted from the Maryland
care for and protect students in However, an association study in State Department of Education's
the school setting, a legal duty of 1999 revealed that only 38 per- 1987 Youth Suicide Prevention
care is different from a moral or cent of school counselors be- School initiative for Maryland
professional duty. Courts have lieved that they could identify a public schools, in place at
held that the requisite duty of student at-risk for suicide (Mil- Nicole's school at the time of her
care necessary in a suit for neg- son, 2002). death, but declined to find that
ligence against state actors oc- the law creating the program im-
curs in only two different The situation is even more com- posed liability on school coun-
situations: (1) where individuals plicated when a student con- selors for failing to intervene in
are under the control, or in the fronted with warning signs of her student suicides.
custody, of the state, as in an or- imminent suicide denies her in-
phanage or in a jail; or (2) where tentions. Nicole Eisel, a 13-year-
the state itself created the dan- old Sligo Middle School student
ger. Courts have been reluctant from Montgomery County, Mary-
to decide that either situation ap- land, confided to several friends
plies in the public school setting. her intent to commit suicide in a
Although school attendance is Satanic murder-suicide pact.
compulsory under state laws, When friends alerted school
schools are not jails or orphan- counselors, two counselors
ages, and school employees are questioned Nicole, who vigor-
not wholly responsible for the ously denied making the com-

Instead, the court pointed to the the suicide he had twice before at school, and the school knows
law as evidence of “a community attempted in school. Shawn's of the attempt, the school can be
sense that there should be inter- mother sued the Polk County found negligent in failing to notify
vention” when a student's emo- School Board and school officials a parent or guardian. However,
tional states indicates suicidal at McLaughlin Junior High compulsory school attendance
ideation. Even if the possibility of School where Shawn had been a laws do not give rise to a school
Nicole's committing suicide was student, alleging both negligence district's constitutional duty to af-
remote, the court said, the possi- and violation of Section 1983. firmatively protect students. In
ble harm was so “total and irre- Mrs. Wyke argued that school other words, under a Section
versible” that school counselors personnel were made aware of 1983 federal claim analysis,
had a duty to “use reasonable Shawn's first suicide attempt school districts are not liable for
means to attempt to prevent a after he tried to hang himself in student suicides.
suicide” when they had notice of the school bathroom, but district
a student's suicidal intent. officials had not notified her or What about a student who can-
Shawn's grandmother, had not not deny his suicidal thoughts
The Court of Appeals sent the obtained counseling for Shawn, because he wrote them down?
case back to the lower court to and had not taken him into pro- And what about school liability if
determine if the counselors had tective custody. In 1995, in an the student's thoughts were sub-
sufficient notice of intent in order unreported decision, a U.S. Dis- mitted to a teacher in English
to hold them liable for failing to trict Court jury dismissed Wyke's class as an ongoing journaling
notify Nicole's parents. In an un- Section 1983 claim, stating that assignment? Parents who seek
reported decision, the jury hear- the district had no constitutional to hold school districts liable for
ing the evidence decided they duty to protect Shawn Wyke from their children's suicides have a
did not. (For a discussion of un- himself, but awarded her heavy burden of proof. In the
reported decisions, please see $165,000 damages on her state case of Jeff Brooks, a high
the end of Chapter 1.) The court law claim that the school board school student who chronicled
then relieved the counselors and negligently failed to supervise his suicidal ideation for the four
the school district of liability for her son (Bjorklun, 1996). Wyke months of a daily journal-writing
Nicole's suicide. However, the then appealed the court's dis- assignment in English class, the
Eisel decision has been inter- missal of her Section 1983 fed- Idaho Supreme Court ruled that
preted in many jurisdictions as eral claim. a jury could consider whether the
imposing on school counselors district had violated a state law,
the duty to use reasonable In 1997, the U.S. Court of Ap- as in Wyke's case, and been
means to prevent student sui- peals for the Eleventh Circuit negligent in not notifying Jeff's
cides, including warning parents. ruled that Mrs. Wyke's Section parents of his troubled writings.
1983 claim failed. Failure to train However, the dissenting judge
Parents of suicide victims have school personnel in reporting strongly stated that expecting
also attempted to sue school dis- and handling recurring situations teachers untrained in medicine to
tricts based on liability under where students are endangered recognize and diagnosis a poten-
Section 1983 of the federal Civil was not enough to sustain a fed- tially suicidal student would “re-
Rights Act of 1871, alleging that eral claim of violation of her son's quire a duty beyond reason.”
school officials acting under color constitutional rights, the court
of state law violated their chil- stated. The school, standing in Liability for Threats Re-
dren's civil rights. Shawn Wyke the place of a student's parents, sulting in Violence
was a 13-year-old in 1989 when has a duty to supervise students.
he finally accomplished at home When a student attempts suicide

When students carry out their “Hobbies” “Preparing for the big The parents of Richard Castaldo,
threats in schools, and other stu- April 20! You'll be sorry that day.” a student injured in the
dents get hurt, are school dis- Columbine shootings, presented
tricts or school personnel liable The assistant principal in charge this evidence of the pre-April 20
for the injuries to other students? of discipline allegedly knew that warnings in a lawsuit alleging
Suppose the school district had Klebold and Harris had talked that both law enforcement and
warning signs of the dangers, about blowing up the school. He school officials had breached a
teachers heard the threats or had suspended them for hacking duty of care to their son and vio-
saw students acting out in unmis- into school computers and steal- lated his constitutional rights to
takably threatening ways? ing locker combinations. Kle- be free from bodily harm by not
bold's creative writing teacher taking steps to prevent the
Following the Columbine High had alerted his guidance coun- Columbine tragedy. The federal
School tragedy on April 20, 1999, district court in Colorado dis-
many parents of injured and slain selor to a particularly vicious missed their claims, stating that
students sought to hold the Jef- story he wrote in her class. In his even if they were negligent, both
ferson County School District, video production class, Harris law enforcement and school offi-
school officials, and law enforce- turned in a videotape filmed in- cials had such high social utility
ment officials who had re- side the school depicting him and that to impose a duty on them to
sponded to the tragedy liable for Klebold enacting revenge shoot- act affirmatively to prevent vio-
injuries to their children. In the ings of other Columbine stu- lent acts would undermine their
media aftermath of the dents. Other videos showed the usefulness to society as a whole.
Columbine shootings, the par- two shooters carrying guns in the Affirming the general rule that
ents had discovered many rea- school hallways and recorded compulsory attendance laws do
sons to think that school and law their conversations about owning not impose on schools an affir-
enforcement officials should guns and making bombs. Their mative constitutional duty to pro-
have anticipated trouble at the psychology teacher had heard tect students from harms
hands of Dylan Klebold and Eric them speak of their hatred, imposed by others at school, the
Harris. In January 1998, Klebold anger, and intent to kill other court rejected Castaldo's Section
and Harris were apprehended by Columbine students in many 1983 claim.
sheriff's deputies for stealing classes.
tools from a van, adjudicated Months after the shootings, addi-
delinquent, and placed in a tional evidence came to light in
county juvenile offender diver- the form of a journal written by
sion program. Harris again came Eric Harris and reports by the
to the attention of law enforce- Brown family, and several other
ment officials for repeatedly parents of injured students sued
threatening the life of Brooks as the Castaldos had; all suits
Brown, a fellow Columbine stu- were dismissed from court. The
dent. Harris maintained a Web Castaldos moved for reconsider-
site in which he spoke of issuing ation, but the court denied their
death threats, using pipe bombs request. One injured student at-
to kill numerous people, and tempted to sue the gun shop
making other bombs. Sometime dealer who had sold guns to Kle-
before the actual shootings, Har- bold and Harris; his suit, too, was
ris added an “information panel” dismissed for the same reasons
to his Web site listing as his already stated.



Although the Colorado courts' ing tragedies. Several states, in- The legal standards for deciding
assessment of the social utility of cluding Idaho, where Jeffrey what constitutes a true threat are
law enforcement and school offi- Brooks committed suicide, ex- confusing and contradictory. Until
cials is reassuring, the parents of plicitly provide governmental en- the Supreme Court steps in and
slain and injured students in the tities immunity from lawsuits defines a common standard test
Columbine community deserve alleging liability for failure to for all courts in the land to follow,
some explanation of how and adopt discretionary policies like the confusion and contradictory
why professionals trained to deal suicide prevention programs. lower court opinions will persist.
with public school students ig- However, even Idaho has a Unfortunately, the Supreme
nored the collective signs of im- statute requiring school boards to Court seems reluctant to under-
pending violence. As recently as protect the health of its students. take the needed clarification, and
October 2003, more information Florida, as the Wyke case it has ignored several opportuni-
about forewarnings of the demonstrates, has a law requir- ties to deal with the issue.
Columbine events was released ing school districts to immedi-
by the current Jefferson County ately notify parents of any What can and should educators
sheriff, Ted Mink, indicating that emergency involving students do in the meantime? School per-
a caller had tipped authorities off that occurs during the school sonnel must take all threats or
to a threatening Web site created day. The Eisel decision noted the suspected threats seriously. In-
by Eric Harris as early as 1997 Maryland statute mandating vestigators have documented
(Slevin, 2003). Threats and school districts' adoption of sui- that many of the widely publi-
warning signs of violence have cide prevention programs. Ohio cized recent episodes of school
been present in other school has a similar suicide prevention violence, such as those at Jones-
shootings besides those at initiative. One difficulty in assess- boro and Columbine, were pre-
Columbine. ing the prospects of school dis- ceded by warnings or threats by
trict liability for harms to students the student perpetrators. Warn-
Courts may deny a school dis- is the wide range of language ing signs of student suicide may
trict's legal responsibility to act used in state statutes dealing be subtle, but they are docu-
on threats and warnings of vio- with student safety. Every statute mented. All school personnel
lence, even where the warning seems to use different vocabu- should be trained to recognize
signs seem unmistakably clear in lary terms, and courts hearing them. Warning signs include
hindsight. However, school offi- the lawsuits brought by the fami- making verbal statements of a
cials and school districts function lies of students injured or killed in wish to die or an intent to commit
at public expense. If courts were schools are faced with interpret- suicide, cutting oneself or other
to impose liability on schools ing the different terms on their intentional superficial self-
when students injure other stu- own. Seemingly conflicting rul- wounding, experiencing pro-
dents or teachers, even if warn- ings may be the result. In addi- longed depression, withdrawing,
ing signs were present and tion, the law is distinctly different talking of death, putting affairs in
neglected, monetary damage from morality and moral respon- order or giving away favorite pos-
awards might seriously deplete sibility. The courts may legally set sessions, or having a sudden
the public treasury, with benefits aside school districts' responsi- change of mood to a kind of eu-
distributed to a relatively few in- bility, but educators' moral re- phoria or extreme calm after a
dividuals at the expense of the sponsibility is not so easily set period of prolonged depression
greater community. The same aside. or anxiety.
public policy argument applies in
lawsuits against state-supported What Does This Mean
first responders in school shoot-

For threats against the school Any and all threatening commu- tance of school safety officers or
community, the 1999 report of nications or materials should be the police if necessary, without
the Federal Bureau of Investiga- reported to a school official with any hesitation over possible legal
tion's Critical Incident Response authority to investigate. The action that may follow.
Group, The School Shooter: A school official who receives such
Threat Assessment Perspective, notification must research the re- If the situation is deemed seri-
recommends that schools adopt ported incident and take appro- ous, district legal counsel should
three-tiered threat response poli- priate action. be involved as soon as possible.
cies based on the perceived level Courts will ultimately decide
of the threats: low level, carrying Of course, in an actual or per- whether school personnel acted
a minimal risk to the victim; ceived situation of a threatening in accordance with the law, but
medium level, threats that could nature, having policies in place to an adverse decision years down
possibly be effected but are not deal with the issue is always de- the line is better than risking
realistic; and high level, which sirable, but the policies must be harm because of inaction when
pose a serious and imminent flexible enough to cover varied faced with the possibility of bodily
danger to others. The Final Re- and possibly unanticipated cir- harm to a member of the school
port and Findings of the Safe cumstances. A useful exercise is community.
Schools Initiative: Implications to examine the scenarios de-
for the Prevention of Attacks in scribed in this chapter and to de- A majority of the information supplied in
the United States (Vossekuil et termine whether the district has this issue was from the ASCD, which is
al., 2002), issued by the U.S. De- in place a student code of con- dedicated to excellence in learning,
partment of Education and the duct or a district policy to deal teaching, and leading so that every
U.S. Secret Service, contains in- with similar threatening situa- child is healthy, safe, engaged, sup-
formation about profiling stu- tions. (All district policies should ported, and challenged.
dents who make threats and be incorporated in the student
sorting them into six categories. code of conduct by reference, February 2018
Another publication of the De- and vice versa.) If not, codes and Emergency Drill
partment of Education and Se- policies need to be put in place Active Shooter
cret Service, Threat Assessment as soon as possible.
in Schools: A Guide to Managing For the
Threatening Situations and to With appropriate documentation
Creating Safe School Climates in place, the first step when a Long Branch
(Fein et al., 2002), contains sim- threat is made or suspected is to Public Schools
ilar information. Both reports consult the district's student code
stress that “school shootings are of conduct to see whether the
rarely impulsive acts.” The shoot- code itself or a district policy has
ers told others, not the victims, been violated. If a part of the
but the other students did not tell code or a policy has been vio-
adults. lated, the designated conse-
quence should be applied if the
The guiding principle in dealing consequence is sufficient to deal
with student threats should be with the severity of the issue. Any
that the first and foremost goal student who presents an imme-
and duty of all school personnel diate danger to school personnel
is to safeguard the physical wel- or students should be removed
fare of students and colleagues. from the school, with the assis-

Italy school shooting: He added that counselors will be under lockdown during the inves-
Town talks of trouble in provided on campus to speak tigation. High school students
with students. were taken to Stafford Elemen-
suspect's past tary School before being reunited
Other students told WFAA about with their parents.
WFAA 8 ABC Texas events that apparently happened
January 22, 2018 in months and years past involv- School will be in session on
ing the 16-year-old student. Tuesday as normal, the superin-
ELLIS COUNTY -- The Ellis tendent said.
County Sheriff's Office has a 16- "They shouldn't have let him
year-old student in custody after come to the school anymore According to the Texas Tribune,
a school shooting Monday morn- after some of the stuff he's Italy High School has students in
ing that left a 15-year-old injured. done," said Alyssa Crawford who 6th through 12th grades. Last
claims to be a former friend and school year there were 281 stu-
Just before 8 a.m., an active former student at Italy High dents enrolled.
shooter was reported at Italy School.
High School in Italy, Texas. taly, which calls itself "The
Students told WFAA that the boy Biggest Little Town in Texas," is
A 16-year-old male student was was apparently disciplined be- located off Interstate 35E, near
taken into custody without inci- cause of those events. The U.S. Highway 77 and State High-
dent after shooting a 15-year-old school district would not confirm way 34, about 15 miles south of
female student in the cafeteria any such incidents occurred. Waxahachie.
with a semi-automatic handgun,
Sheriff Charles Edge said. "Unfortunately a school district is
not allowed to release any disci-
Staff members confronted the plinary information about a stu-
suspect, who then fled before dent," said Superintendent Lee
being arrested outside the Joffre.
school.
Earlier in the morning, an Italy
The girl was taken via helicopter ISD parent showed WFAA a text
to Parkland Memorial Hospital in message alert Superintendent
Dallas. Her condition hasn't been Joffre sent Monday morning. The
released. message confirmed the shooting
at Italy High School, and stated
"This morning's tragedy hits the that one person was shot and
heart of this community," Super- taken to the hospital.
intendent Lee Joffre said. "Our
staff acted as trained and ad- Officials at Stafford Elementary
dressed the situation the best School confirmed to WFAA that it
way they could." and the high school were both

Kentucky school male. ning, pushing past each other,"
shooting: 2 students she said. "Everyone in cars
'Mom, there's been a shooting' started turning around and driv-
killed, 18 injured ing away. Kids were jumping the
Several parents said their chil- fence around the school and run-
CNN dren told them the shooting ning through the woods."
January 24, 2018 started in the commons area be-
fore classes started, CNN affili- Droke said she contacted her
(CNN)Another high school has ate WSMV reported. mother on Facetime. Then she
turned into a scene of carnage, and her friend gave a ride to
this time in western Kentucky. Missy Hufford said her son, some students and loaned them
Ethan, 15, ran into the gymna- phones to call their parents.
Sixteen people were wounded, sium and out of the building
two of them fatally, after a through a side door. Then he "Everyone just left their bags and
shooter opened fire Tuesday called and asked her to pick him ran, so people had no cell-
morning at Marshall County High up, she said. phones," Droke said.
School, authorities said. Four
others sustained various injuries. "I know when he called me, he Daniel Austin, a 17-year-old spe-
said, 'Mom, there's been a shoot- cial needs student, was hospital-
A 15-year-old male student was ing.' And I asked him if he was ized. His parents called his cell
arrested at the scene and will be OK, and he said, 'I'm running,'" phone incessantly until someone
charged with murder and at- WSMV reported. in the emergency room picked up
tempted murder, Gov. Matt Bevin and said Daniel had been shot.
said. Marshall County Attorney Parent Misty Green said her
Jeff Edwards said it's likely the daughter, Morgan, was in the
suspect will be charged as an commons area and "heard the
adult, but his name won't be re- 'pop, pop, pop' and initially got
leased unless he's indicted. down, and then just realized
Authorities identified the slain what was going on, so they took
victims as Bailey Holt and Pre- out running out of the building as
ston Cope, both 15 years old. fast as they could."
Bailey died at the high school
and Preston died at Vanderbilt "And teachers were grabbing
University Medical Center in kids up and helping them get into
Nashville, according to State Po- safe places. And helping them
lice Commissioner Richard W. get outside and get to a safe lo-
Sanders. cation," Green told WSMV.

Sanders said the suspect, armed Junior Taylor Droke told CNN af- Daniel Austin, right, was
with a handgun, walked into the filiate WZTV that she and a friend wounded during the mass shoot-
school at 8:57 a.m. ET and were running late and arrived as ing at Marshall County High
started shooting. The first 911 students poured out of the School.
call was received two minutes school. His mother Andrea rushed to the
later. hospital, bewildered as to why
The victims ranged from 14 to 18 "You could see students drop- this happened.
years old, state police said. Four- ping their bags and just start run-
teen were male and six were fe-

"Teachers love him. Students Sanders said. The trooper's
love him. I don't think anything daughter was dropped off at the
can say one bad thing about the school that morning, and she
him," Andrea Austin said. "And and the victim were wearing sim-
that's not because I'm his mom. ilar clothing, Sanders said.
Everybody loves him."
"He had to go over to convince
Austin said her son was shot in himself that that was not his
the right arm, which might need daughter," Sanders said.
to be amputated. She lauded the
heroics of a fellow student and a State police said six victims, in-
teacher, who quickly scooped up cluding Preston, were taken to
Daniel after the gunfire stopped, Vanderbilt University Medical
rushed him to a car and drove Center in Nashvillle, about 100
him to a hospital. miles away.

Trooper thought deceased victim Among the injuries, three stu-
was his daughter dents were shot in the head, Dr.
Oscar Guillamondegui, medical
Sanders, the state police com- director of the trauma intensive
missioner, said authorities are care unit, told reporters earlier.
praying for the victims. The car-
nage was especially hard on first Three victims remained critical
responders. condition at Vanderbilt late Tues-
day and one victim was in stable
One of the first state troopers to condition at the hospital, state
arrive at the high school thought police said.
Bailey, the student who died at
the school, was his daughter,