The Law Says . . .

• By Michael S. Dorn
• 08/01/03

Have you ever been in one of those situations where you found an excellent solution to a problem only to be told“the law says you cannot do that?” Education is one of the most highly regulated activities known to mankind. Educators are literally hamstrung by a plethora of statutes, code sections and case law. When it comes to situations involving law enforcement, even more legal conditions begin to apply. Of course, concerns for civil liability are often a compelling factor in decisions regarding how students will be protected. An incredibly litigious society has resulted in many schools being dominated by inaction because they are mired down in regulations, rules and laws relating to safety and discipline.

Question the Law

There are countless myths regarding“the law” as perceived in our schools. In one community, officials wanted to revise school bomb threat response. The old practice of automatically evacuating for every bomb threat would make it very easy for a knowledgeable bomber to target evacuees and cause a mass casualty incident by patterning responses. For many years, commanders from the local fire department insisted that a county ordinance required schools to evacuate for every bomb threat. When asked for a copy of the ordinance, however, they could not produce it and, when researched further, no such statute existed.

We Need More Tigers

Unfortunately, years of litigation involving schools has created an exaggerated sense of fear among many officials. While the threat of litigation is very real, it is easy to focus on the wrong issues. We often have the fierceness of lambs while the plaintiff’s legal counsel exhibits the traits of a tiger. Frequently, this fear of assertive action results in increased vulnerability for students and increased civil liability for school officials. As one example, most courts have upheld searches of students based on reasonable suspicion by police officers acting under the authority of school officials. One school district that has been sued over various school safety issues (including two violent student death cases) decided not to allow school police to search under these conditions for fear of litigation. School police are required to wait outside the principal’s office while administrators search for drugs, guns, knives and other contraband. While this is a dangerous practice at best, it has also created greater exposure to civil liability than the practice was designed to avoid. After more than a year of following this practice, school police (who receive intensive training in school search and seizure through the state’s 88-hour School Resource Officer Course) became aware that one administrator was instructing students to strip down to their underwear when he was searching them for contraband. The strip search of students under these conditions creates a slam dunk case for any attorney.

Learn the Law

School systems that seek expert legal advice from specialists can avoid much needless litigation while better protecting their students. The district where I served as police chief has one of the most aggressive search strategies in the nation. The district police have used detection dogs, random locker inspections, random metal detection and many other types of searches on and off campus to reduce weapons violations. School police conduct the vast majority of searches and have been challenged by competent legal counsel and by a powerful national civil rights group. The department has relied on the advice of Dr. Gary Avery, who is one of the nation’s top school search and seizure experts for many years. Courts have not found one search practice unlawful during the 13 years these practices have been in use. By getting training and advice, the district has not had a single civil action relating to the school police or alleged inaction by the district in this same time span.

Frontal Attack

One military concept holds that under certain conditions, an aggressive frontal assault will result in fewer casualties than the traditionally safer use of flanking maneuvers to engage the enemy from the side or rear. There are times when directly addressing safety problems with approaches that might appear to increase the risk of civil action can similarly reduce actual risk. If a school district of 50,000 students recovers 500 weapons in the course of a year based on traditional means such as tips from students, the risk of a student weapons assault is significant. While the district could face legal challenge if a random weapons screening program is implemented, a properly developed and implemented program should withstand court scrutiny. Conversely, the weapons problem indicates that students will almost assuredly be assaulted with knives or other weapons because even with relatively ineffective methods, large numbers of weapons are being recovered. When these assaults occur, the likelihood of litigation and the chances that it will be successful are high.

By knowing the law and focusing on doing what is right to protect staff and students, schools can reduce risk of injury, death and disruption while also decreasing civil liability.

MICHAEL S. DORN has been a full-time campus safety practitioner for 23 years. He can be reached at .