While school safety experts say there is no accurate or useful “profile” of students who engage in targeted school violence, the U.S. Secret Service and Federal Bureau of Investigation have reported these statistics:

• 95 percent of school shooters are enrolled students.
• 93 percent engaged in some kind of behavior prior to the attack that caused others to be concerned.
• 80 percent gave some advance warning to at least one person.

School administrators who become aware of troubling behavior have the unenviable responsibility of protecting the safety of all in the school community while giving appropriate weight to the privacy rights of students. Failure to disclose information to those who may have a right to know (e.g., a potential victim) could lead to a legal liability. At the same time, a student could claim that disclosing information about him or her was a violation of his or her constitutional rights or a form of defamation.

However, courts generally defer to the judgment of school officials in their responses to actual threats.

Flexibility under FERPA

Under FERPA (the U.S. Family Educational Rights and Privacy Act of 1974), school officials must keep student records, including personally identifiable information, confidential unless a parent or the student (if 18 or older) has given consent. A “health and safety” exception in the law can give school officials more leeway, however. 

Federal regulations (34 CFR sections 99.31(a)(10);99.36) allow the release of information from a student’s education record when there is an “articulable and significant threat” to the health and safety of the student who has made the threat or others.

In a 2010 guidance (goo.gl/Fimu3f), the U.S. Department of Education indicated that it has a “flexible standard” and that the law protects school administrators who have a “rational basis” for their actions. It interprets FERPA as granting school administrators the responsibility of determining whether the situation poses a threat and whether that threat requires the release of information.

FERPA’s health and safety exception allows for a temporarily limited release of information to appropriate third parties acting in response to the emergency during the emergency. These third parties would typically be law enforcement officials, public health officials, and/or trained medical personnel. The district must keep a record of the parties to whom the information was disclosed and specify the “articulable and significant threat” that necessitated the disclosure.

In addition to the health and safety exception, school officials should be aware that FERPA does not restrict the disclosure of information that is not contained in a student’s education record. FERPA does not prevent a school official from disclosing personal observations, interactions with a student and other forms of information that are not part of the student’s education record.

Was it a threat? Courts defer to school officials

The Federal Bureau of Investigation has identified four kinds of threats:

• A direct threat identifies a specific act against a specific target and is delivered in a straightforward, clear, and explicit manner: “I am going to place a bomb in the school’s gym.”
• An indirect threat tends to be vague, unclear, and ambiguous. The plan, the intended victim, the motivation, and other aspects of the threat are masked or equivocal: “If I wanted to, I could kill everyone at this school!” While violence is implied, the threat is phrased tentatively – “If I wanted to.” This suggests that a violent act could occur, not that it will occur.
• A veiled threat is one that strongly implies but does not explicitly threaten violence. “We would be better off without you around anymore” clearly hints at a possible violent act, but leaves it to the potential victim to interpret the message and give a definite meaning to the threat.
• A conditional threat is the type of threat often seen n extortion cases. It warns that a violent act will happen unless certain demands or terms are met: “If you don’t pay me one million dollars, I will place a bomb in the school.”

 What if a 10-year-old middle school student with no disciplinary record reads aloud to other students a fictional story that he wrote in which a bullied student dons a costume similar to the villain in the movie Halloween and goes on a killing spree, with victims having the same names as students in the school? Is that a threat?

A federal district court considered those exact facts in a 2005 case, D.F. ex. rel. v. Board of Educ. of Syosset Central School District. The school principal informed the parents of two students that the boy had engaged in “threatening behavior” toward their children. The student’s family claimed that constituted an unlawfully false and defamatory statement.

The court dismissed the defamation claim, stating that the principal had a “duty” to speak to the parents of the children named in the story given the “harassing” and “threatening” nature of the story. Under the circumstances, the principal “is protected by qualified privilege,” the court said.

When schools are faced with a claim of First Amendment free speech or constitutional violations, courts generally defer to the actions of school officials. The U.S. Court of Appeals for the Second Circuit, which has jurisdiction over all of New York State, has ruled that, absent extenuating circumstances, “school administrators are in the best position to assess the potential for harm, and act accordingly.” In its decision in Cuff ex. rel. v. Valley Central School. District (2012), the court said, “In the context of student speech favoring violent conduct, it is not for the courts to determine how school officials should respond.”

School district liability for student violence

In other litigation, the Second Circuit has ruled that school officials will not be found negligent for the sudden, spontaneous acts by students (Mirand v. City of New York, 1994). But if school officials had knowledge of conduct that would put a reasonable person on notice of a potential injury-causing act, that can lead to liability. If school officials do not take appropriate action when they know of prior bad acts, and an incident occurs, the district is exposed to claims of negligence or violations of due process violations. Courts will evaluate whether the wrongful conduct was reasonably foreseeable and whether school officials were deliberately indifferent or negligent.

A lawsuit alleging negligence was filed after the 2007 shooting at Virginia Tech by Seung-Hui Cho. The family of two of the victims sued the university, claiming it was responsible for “negligence, gross negligence, and deliberate indifference” of university counseling staff. The plaintiffs pointed to “their failure to render Seung-Hui Cho mental health services of any kind or form, despite being literally begged to do so by concerned faculty members.”

The suit was dismissed. The Supreme Court of Virginia found that Virginia Tech and the Commonwealth of Virginia were not liable because the gunman’s actions were not reasonably foreseeable (Commonwealth of Virginia v. Grafton William Peterson, Administrator of the Estate of Erin Nicole Peterson, Deceased, et al., 2013). The court found that school officials and police reasonably believed that after an initial shooting in a dorm room, the shooter had left the area.

When confronted with an action that a reasonable person would interpret as a threat, school administrators should use their best judgment regarding sharing information about the potential threat. Historically, courts have deferred to the judgment of school officials in such cases. However, if time permits, it is always best to check with your school attorney.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was contributed by Harris Beach PLLC.