Legal Considerations in School Safety and Security
Safety and security of students and staff at schools is a significant concern for law enforcement. Recent incidents of actual and threatened school violence across the country are causing school and law enforcement personnel to review best practices to respond to and prevent school violence. Any review of school safety and security procedures must consider the implications of Kentucky law and constitutional procedure within the school environment.
First, Kentucky law permits school districts to utilize sworn law enforcement personnel on school campuses. In KRS 158.440(1), the Kentucky General Assembly declared that every student who attends school within the Commonwealth “should have access to a safe, secure, and orderly school that is conducive to learning.” To fulfill this legislative mandate, local school districts are permitted to utilize school resource officers (SROs). KRS 158.441(2) defines the SRO as a “sworn law enforcement officer who has specialized training to work with youth at a school site” who is employed through a contract between a local law enforcement agency and a school district.
School resource officers are found in many schools throughout the state. KRS 158.441(3) also permits boards of education to employ special law enforcement officers as “school security officer[s].” The Fayette County Public Schools Division of Law Enforcement constitutes an example of a collection of dedicated “school security officer[s]” employed by a local school district to work with youth at school sites.
Second, bullying of a student by other students is sometimes the catalyst for violent incidents at school. While within the confines of school district property, law enforcement personnel must be able to determine what conduct constitutes bullying and harassment. KRS 158.148(1)(a) defines bullying as “any unwanted verbal, physical, or social behavior among students that involves a real or perceived power imbalance and is repeated or has the potential to be repeated” that occurs on school premises, on a school bus or at a school-sponsored event, or that constitutes the education process. Law enforcement personnel must know what bullying is, what it looks like, and what to do about it to prevent such conduct from escalating. While the definition contained in KRS 158.148(1)(a) provides guidance as to what bullying entails, law enforcement is also advised to review the school district’s student code of conduct, as enacted by the local board of education pursuant to KRS 160.290 and KRS 161.180. A school district’s student code of conduct may further define and provide specific examples of conduct considered to be bullying, such as bullying via social media.
Next, threats against a school district’s students, staff and property are quickly becoming an issue with respect to school safety and security. Recently, law enforcement agencies throughout this commonwealth have investigated threats made against schools via direct verbal or physical conduct and social media. Depending upon the nature of the threat, a degree of terroristic threatening under KRS Chapter 508 will likely be the first charge. KRS 508.075, first-degree terroristic threatening, makes it a class C felony to intentionally make a false statement about the placement of a weapon of mass destruction inside a building or vehicle owned or leased by an educational institution for a school-sanctioned function. KRS 508.078, second-degree terroristic threatening, makes it a class D felony to intentionally threaten to commit any act likely to result in death or serious physical injury to any student group, teacher, volunteer or employee of a school. However, some threats could evolve to stalking under KRS 508.140 and KRS 508.150, and if less threatening, harassment under KRS 525.070(1)(f). Certainly, if concrete, overt actions are taken to carry out the threat, even if the actual attack is thwarted, inchoate charges such as conspiracy and criminal attempt will also apply.
With respect to case law, cases involving juveniles are often not officially reported because of the cloak of Kentucky’s system of juvenile justice. The most significant reported case involving a school-related threat from a juvenile is S.D.O. v. Com., 255 S.W.3d 517 (Ky. App. 2008). In S.D.O., a middle school student wrote a note that included a “hit list” of students and places, including a local Walmart. The note was shared with a classmate and ultimately came into the possession of school administrators. S.D.O. was found guilty of second-degree terroristic threatening. On appeal, the Kentucky Court of Appeals rejected S.D.O.’s argument that the statute did not apply because the “hit list” did not relate to a “school function,” after finding that the regular school day constitutes a “school function” for purposes of KRS 508.078.
Finally, when investigating school-related threats, law enforcement personnel must be mindful of established Fourth Amendment law. In N.C. v. Com., 396 S.W.3d 852 (Ky. 2013), a juvenile was taken from his class to the assistant principal’s office by an SRO and questioned by the assistant principal in the SRO’s presence without being provided Miranda warnings with respect to the transfer of a controlled substance to another student. The Kentucky Supreme Court held that a juvenile subject to criminal charges or adult felony charges was entitled to Miranda warnings before being questioned by a school administrator in the presence of a law enforcement officer or a school resource officer. Additionally, Riley v. California, 134 S.Ct. 2473 (2014) held that law enforcement may not search digital information contained on an individual’s cell phone without a warrant or unless consent is granted. Riley may come into play during investigations into threats made against school property or personnel via social media.
The safety and security of students who attend school throughout the commonwealth is of paramount importance to our communities. As recent violent acts and threats have occurred throughout the country, including here in Kentucky, state and federal laws permit law enforcement to take an active role in ensuring school safety and security. Collaboration with local school districts in ensuring that SROs are visible in schools, awareness of the types of conduct constituting bullying, knowledge of Kentucky law and adherence to Fourth Amendment procedure are critical to ensuring school safety and security.