By Michael Tucker, Attorney at Law
Since the tragic shooting at Marjory Stoneman Douglas High School in Parkland, Florida, schools nationwide have seen a 300% increase in violent threats. (Educator’s School Safety Network). Local Educational Agencies (LEA) are now faced with very complicated decisions regarding students’ due process rights, public and campus safety, and a public who wants to know that students are being kept safe. Below are some options for LEAs to consider if facing a situation where a student has made a violent threat regarding a school campus.
- Contact Law Enforcement
In the event a violent threat is received, the LEA should immediately contact law enforcement. Not only is a violent threat likely a crime, but law enforcement has resources at their disposal to conduct an appropriate investigation. Additionally, law enforcement will likely have recommendations to help ensure the safety of everyone on campus.
- Follow Student Discipline Procedures
Under the California Education Code, a student can be expelled for causing or threatening to cause physical injury to another person or making terroristic threats against school officials and/or school property. Any expulsion recommendation must come from the superintendent or principal. School administrators should review their student discipline policies in the event a threat is received.
- Know Your Social Media Policy
Prior to searching social media for threats against your school, you should review whether your LEA has a policy regarding student social media searches. Specifically, prior to performing any such search, your LEA is required to notify parents of the program and provide an opportunity for public comment at your LEA’s governing board meeting. (Cal. Educ. Code § 49073.6.) If your LEA already has a policy in place, you may only use information gathered from a student’s social media account that “pertains directly” to school or pupil safety. Additionally, you are required to provide the student with access to any information gathered and give that student a chance to correct or delete the information. Moreover, you will be required to notify the student’s parent or guardian that the student’s information has been collected.
- Consider Special Education Implications
Even if a student’s behavior amounts to a violent threat, school officials must consider whether the student’s behavior implicates any of the laws governing students with disabilities. First, determine whether the student has a Section 504 plan or an Individualized Education Program (IEP). If so, school administration must conduct a manifestation determination review within the legal timelines in order to determine if the threat was related to the student’s disability. Secondly, if the student does not currently have a Section 504 plan or an IEP, the LEA should consider whether the student should be assessed as part of the LEA’s “child find” responsibilities. Considering the threat in context of the student’s other behavior may be an indication of a suspected disability and a need for special education and related services. Finally, even if a student is not currently eligible for special education, in certain circumstances, LEAs are still required to ensure a student receives disciplinary protections under IDEA if the LEA had a “basis of knowledge” that the student might be in need of special education and related services.
- Protect Student Privacy Rights
Student privacy is protected by both federal and state law. (See 20 U.S.C. § 1232(g) and Cal. Educ. Code § 49076 et. seq.) These regulations often prevent an LEA from revealing “personally identifiable information” regarding a student. These protections also generally apply to students who may face discipline or who are being disciplined for making a violent threat. Therefore, while communicating the nature of a threat to the public, care should be taken to protect the student’s right to privacy. An LEA can generally inform the public of a threat so long as it protects the identity of the student accused of making the threat.
Pre-hearing Settlement Offers Can Limit Liability for a Successful Party’s Attorney’s Fees, but Only if an Offer Includes Reasonably Calculated Attorney’s Fees.
Author: Eric Stevens
Pre-hearing settlement offers are one tool a local educational agency (“LEA”) can use to limit its potential liability for attorney’s fees should a parent, legal guardian, or student partially prevail in a due process hearing. Parents who obtain a favorable ruling after a due process hearing are entitled to reasonable attorney’s fees. If partially successful, they are still entitled to an award of some attorney’s fees. Most due process filings are settled as only a fraction progress through a full hearing to a decision, but of those that are fully adjudicated by the Office of Administrative Hearings (“OAH”), students are fully or partially successful about 63% of the time. However, a pre-hearing settlement offer can limit liability for attorney’s fees incurred after the offer is made if the offer is “more favorable” than the relief ultimately obtained by a parent.
The recent decision in S.H. v. Mount Diablo Unified School District, (N.D. Cal. 2018) 118 LRP 3307, demonstrates an exception to this “more favorable” settlement rule. The U.S. District Court for the Northern District of California found that an LEA’s pre-hearing settlement offer did not protect it from post-offer attorney’s fees in part because the offer did not include a reasonable amount of attorney’s fees. Therefore, parent “was substantially justified in rejecting the settlement offer” and the offer could not serve to cap parent’s award of attorney’s fees.
The LEA’s pre-hearing settlement offer included $10,000 for attorney’s fees. The Court concluded that this was an unreasonable offer for three reasons: (1) it was less than half the attorney’s fees parent had allegedly incurred at the time the offer was made ($22,000); (2) the LEA made no effort to learn the amount of fees incurred as of when the offer was made; and (3) there was no evidence to suggest that the LEA based the offer on its estimate of what parent would recover if parent was successful. As a result, the Court awarded $71,020 as reasonable attorney’s fees.
In the 2016/2017 school year, 4,467 requests for due process hearings were filed with OAH, but only 134 resulted in a final decision—less than 3% of filings. This is not surprising considering the uncertain outcomes in contested hearings and strong incentives in the IDEA to reach settlement. The S.H. v. Mount Diablo case demonstrates these incentives in action. By creating an opportunity to cap any subsequent award of attorney’s fees, the IDEA encourages LEAs to make settlement offers early in due process proceedings. But it also encourages LEAs to carefully calculate these offers or, as in S.H. v. Mount Diablo, a rejected offer may be of no help at all.