Colorado School Safety: A Legal Manual (updated 2022)

Colorado School Safety: A Legal Manual

ATTORNEY GENERAL

OF COLORADO

Philip J. Weiser

Colorado School Safety:

A Legal Manual

Revised Edition October 2022

Planning Team

Philip J. Weiser, Attorney General

Matt Baca, Director of Community Engagement

Colleen O’Laughlin, Assistant Attorney General, K-12 Education

Shalyn Kettering, Legal Counsel to the Attorney General

Writers, Editors, and Researchers

Michelle Berge, First Assistant Attorney General, K-12 Education

Colleen O’Laughlin, Assistant Attorney General, K-12 Education

Isabel Broer, Assistant Attorney General, K-12 Education

Jenna Zerylnick, Assistant Attorney General, K-12 Education

Angela Zippin, Assistant Attorney General

Danny Rheiner, Assistant Attorney General

John Ridge, Senior Assistant Attorney General

Eric Butler, Former Assistant Attorney General

Rebecca Walker, Legal Fellow

Nick Riley and Rachel Willihnganz, Legal Interns

Xavier Ada and Justin Fox, Pre-Law Interns

EXECUTIVE SUMMARY

The Attorney General created this legal manual as one tool of many in the State’s

ongoing commitment to mitigate and prevent school violence and ensure safe schools. The

manual provides a general overview of the many legal issues, tools, and resources available for

Colorado’s schools and staff. This document is intended to be a legal companion to other

important work by experts in the field, such as the 2019 Colorado School Safety Guide.

Additionally, the Colorado School Safety Resource Center has many other resources to assist

educators, emergency responders, community organizations, school mental health professionals,

and parents to create safe, positive, and successful school environments for Colorado’s students.

The manual does not constitute legal advice and it is not a substitute for sound legal

advice from your local counsel. In addition, laws change regularly, and best practices evolve

over time. Readers should consult their own counsel with all legal questions and issues that may

arise.

Highlights of this manual include:

I. Creating a Safe Schools Plan and a Safe School Climate

• Discussion of Colorado’s Safe Schools Act requirements

• Threat assessment protocols

• Climate and culture considerations

• The importance of ongoing data review

II. Student Discipline

• Ensuring proportionate, non-exclusionary and non-discriminatory discipline

• Trauma-informed, culturally responsive, and restorative protocols

• Disrupting the school-to-prison pipeline

• Discipline policy drafting and implementation, including due process

considerations and special requirements for at-risk students and students with

disabilities

III. Search, Seizure, and Restraint

• Legal limitations on searches and seizures of students and their property

• Policy essentials for searches, seizures, and restraints

• Practical and legal considerations for using physical interventions and

restraints

IV. Information Sharing

• Identifying what is and what is not protected student information

• When student information is permitted, and in some cases, required, to be

shared with other school staff or with other agencies

• The importance of cooperation among school employees and between schools

and criminal justice agencies

V. Employment Issues in School Violence

• Employee screening requirements

• Training in violence prevention and response

• Employee protection policies to deter violence against employees and to

shield employees from liability for engaging in appropriate discipline

procedures

VI. Criminal Offenses Specific to Schools

• Discussion of weapons and drug offenses

• Campus disruption offenses, including threats, hazing, and crimes against at-

risk juveniles

• Colorado’s teen sexting law

VII. Liability Considerations

• Discussion of the Claire Davis School Safety Act

• Mitigating liability through the appropriate creation and use of policies for

recognizing, reporting, investigating, and resolving violence and

discrimination complaints

In this manual, we recognize and value how hard this work is for our schools, our

educators, our school mental health professionals, and our students – for everyone that chooses

to educate and support our students in any capacity. As we emerge from the most challenging

years of the COVID-19 pandemic, our schools are deeply impacted by pre-existing and new

traumas. When we build policies, protocols, systems, and cultures, we must acknowledge and

respond to the impact of trauma and mental health on our schools. Whenever possible, this

manual works to connect the legal principles with practical policies and approaches to

accomplish that goal.

I. CREATING A SAFE SCHOOLS PLAN AND SAFE SCHOOL

CLIMATE

CHAPTER INTRODUCTION

Key to safe schools is the creation of strong policies and practices. This includes

implementing the Colorado Safe Schools Act’s policy requirements for school safety.

This

section overviews some of the Safe Schools Act’s major requirements for districts and schools:

safe school plans; internet safety plans; child sexual abuse and assault prevention plans; school

response frameworks; bullying prevention and education policies; gang-related activities; dress

code; and other requirements. Districts and schools should review the act in its entirety to ensure

compliance.

In addition to the implementation of the Safe Schools Act, schools and districts are

advised to implement research-based threat assessment protocols. An effective threat assessment

process allows schools to identify and respond to potential threats before they escalate into a

higher safety risk for the school community. This could be a threat to others, or it could be a

threat to self. Addressing suicide risk and prevention is a critical component of creating safe

schools.

Finally, violence prevention requires schools and districts to build an intentional safe

school climate and monitor data regarding climate, culture, and the implementation of their

systems.

This section does not attempt to identify all research-backed best practices. Districts

should seek out resources that match their unique community needs. This manual also recognizes

how mental health, trauma, and racial and other biases can undermine our implementation of

well-intentioned polices. For those reasons, it is critical for schools and districts to implement

ongoing cycles of review – plan, train, implement, collect data, review, adjust, and continuously

improve.

§ 22-32-109.1, C.R.S.

SAFE SCHOOLS PLAN

Colorado’s Safe Schools Act requires that school districts adopt a “safe school plan.”

The plan must include (1) a conduct and discipline code

; (2) a policy regarding the safe schools

reporting requirement

; and (3) an internet safety plan

The conduct and discipline code must address, at a minimum, the following:

1. Student conduct, safety, and welfare policies generally;

2. Policies for handling disruptive students, and policies for suspensions and

expulsions of habitually disruptive students;

3. Policies for the use of reasonable and appropriate physical intervention with

students;

4. Policies for determining when disciplinary actions, including suspension and

expulsion, may be imposed;

5. Policies on gang-related activities;

6. Prohibitions against the possession or use of dangerous weapons, drugs,

controlled substances, and tobacco products;

7. Policies on searches on school grounds;

8. A dress code policy that prohibits students from wearing disruptive apparel;

9. Policies on bullying prevention and education; and

10. Policies on the use of restraint and seclusion on students.

Discipline is discussed in Section II of this manual. Physical interventions, restraints, and

searches are discussed in Section III. The other key components are discussed below.

In addition to the creation of a Safe Schools Plan, the Act requires schools to: (1) create a

child sexual abuse and assault prevention plan

; (2) cooperate with law enforcement and, to the

extent possible, to develop written agreements with state agencies

; (4) build a school response

framework for school safety, readiness, and incident management plan;

(5) create a safety and

security policy regarding annual building inspections

; and (6) establish policies for information

§ 22-32-109.1(2), C.R.S.

§ 22-32-109.1(2)(a), C.R.S.

§ 22-32-109.1(2)(b), C.R.S.

§ 22-32-109.1(2)(c), C.R.S.

§ 22-32-109.1(2.5), C.R.S.

§ 22-32-109.1(3), C.R.S.

§ 22-32-109.1(4), C.R.S.

§ 22-32-109.1(5), C.R.S.

sharing.

Information sharing is discussed in Section IV of this manual, and other requirements

are discussed below.

A. Bullying Prevention and Education Policy

Bullying behavior can lead to school violence, and in some cases, may itself be

considered a form of school violence. The Safe Schools Act requires schools to adopt a bullying

and prevention policy.

Schools must provide reports of their bullying prevention and education

policies in their safe school plans.

State law also requires the Colorado Department of Education (CDE) to research policies

related to bullying prevention that have been enacted in other states and craft a model bullying

prevention and education policy.

The model differentiates between a conflict and bullying and

between harassment and bullying, and clarifies the role of cyberbullying during online

instruction, as law requires.

The Colorado School Safety Resource Center publishes a resource

guide on bullying prevention and education.

It also lists external resources.

B. Dress Code Expectations

The Safe Schools Act also requires schools’ conduct codes to have a dress code policy

that prohibits apparel likely to disrupt the school environment, order, or safety.

For example,

some school districts restrict displays of gang-related symbols or colors. This could be a

component of the school district’s required policy on gang-related activity.

The dress code provision must strike a balance between a school district’s interests in safe

and orderly classrooms and students’ interests in freedom of speech and expression. Although

schools are afforded greater authority to regulate speech in the school environment, students do

not “shed their constitutional rights of freedom of speech or expression at the schoolhouse

gate.”

When drafting and enforcing restrictions on the display of images or symbols, school

officials must remember the First Amendment’s protections. In particular, certain symbols or

items of apparel, if worn by students with the intent to convey a particular message that is likely

§ 22-32-109.1(6), C.R.S.

§ 22-32-109.1(2)(b)(VIII), C.R.S.

Id.

§ 22-2-144(2)(a), C.R.S.

Colorado Model Bullying Prevention and Education Policy, COLO. DEP’T OF EDUC.,

https://www.cde.state.co.us/mtss/model_bullying_prevention_policy (

last visited July 25, 2022).

Positive School Climate: Bullying and Harassment Prevention and Education, COLO. SCH. SAFETY RES. CTR.,

COLO. DEP’T OF PUB. SAFETY (June 2021),

https://cdpsdocs.state.co.us/safeschools/Resources/CSSRC_Resource_Guides/CSSRCBullyingSchoolResourceGuid

e2021.pdf.

Bullying and Harassment, COLO. SCH. SAFETY RES. CTR., DEP’T OF PUB. SAFETY,

https://cssrc.colorado.gov/bullying-harassment (

last visited Sept. 30, 2022).

§ 22-32-109.1(2)(a)(I)(J), C.R.S.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

to be understood as such by those who see it, may be protected under the First Amendment as

“symbolic speech.”

School officials cannot require the students to remove the symbol or item

of apparel merely because they disagree with the message the student intends to convey.

Students’ right to free speech is not absolute, however, and schools may prohibit some speech as

noted below, including words and images on clothing.

Because these inquiries are fact-specific,

school districts should consult their attorneys when drafting policies or addressing situations to

ensure compliance with current law.

C. Internet Safety Plans

The Safe Schools Act encourages districts to provide age-appropriate internet safety

curricula to students in grades kindergarten through twelve.

The curriculum may include topics

such as:

• Interacting with strangers online;

• Recognizing and avoiding online bullying;

• Computer virus issues and ways to avoid computer infection;

• Identifying online predators;

• Intellectual property, including information about plagiarism and the downloading

and use of copyrighted materials;

• Privacy and the internet;

• Online research literacy, including how to identify credible, factual, and trustworthy

websites; and

• Homeland security issues related to internet use.

School districts are also encouraged to work with law enforcement and collaborate with

parents, teachers, and organizations representing parents and teachers when developing an

internet safety plan.

Plans should be reviewed annually and updated when necessary.

Spence v. Washington, 418 U.S. 405, 410-11(1974); Texas v. Johnson, 491 U.S. 397, 405-06 (1989).

Tinker, 393 U.S. at 514.

Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 683-86 (1986)(pervasive sexual innuendo); Morse v. Frederick, 551

U.S. 393, 408-10 (2007)(drugs); Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 36-37 (10th Cir. 2013)(clear

association with past school violence or substantial disruption).

§ 22-32-109.1(2)(c), C.R.S.

See Internet Safety & Digital Responsibility, COLO. SCH. SAFETY RES. CTR., COLO. DEP’T OF PUB. SAFETY,

https://cssrc.colorado.gov/internet-safety-digital-responsibility (

last visited July 24, 2022).

D. Child Sexual Abuse and Assault Prevention Plans

The Safe Schools Act also recommends that every district implement age-appropriate

curricula on child sexual abuse and assault prevention as part of its safe school plan.

The

following topics should be considered:

• Skills for recognizing:

o Child sexual abuse and assault;

o Boundary violations and unwanted contact; and

o Techniques used by offenders to groom and desensitize victims; and

• Strategies that:

o Promote disclosure;

o Reduce self-blame by victims; and

o Mobilize bystanders.

School districts should also consider training for employees and parents about child

sexual abuse prevention and response. Valuable resources are available through the Colorado

School Safety Resource Center.

E. School Response Framework

Advance preparation is key to readiness and response. The Safe Schools Act requires that

each district institute a “school response framework” that satisfies the Act’s requirements.

1. School District Response Framework Requirements:

• Adopt the national response framework released by the federal Department of

;

• Institutionalize the incident command system that is taught by the Emergency

Management Institute of the Federal Emergency Management Agency

Homeland Security and the National Incident Management System (NIMS)

;

• Develop a school safety, readiness, and incident management plan, including:

§ 22-32-109.1(2.5)(a), C.R.S.

Adult Sexual Misconduct, COLO. SCH. SAFETY RES. CTR., COLO. DEP’T OF PUB. SAFETY .

https://cssrc.colorado.gov/adult-sexual-misconduct (last visited July 24, 2022);

Child Abuse Prevention, COLO. SCH.

SAFETY RES. CTR., COLO. DEP’T OF PUB. SAFETY, https://cssrc.colorado.gov/child-abuse-prevention (last visited

July 24, 2022); Human Trafficking, COLO. SCH. SAFETY RES. CTR., COLO. DEP’T OF PUB. SAFETY,

https://cssrc.colorado.gov/human-traff

icking (last visited July 24, 2022).

§ 22-32-109.1(4), C.R.S.

See Nat’l Incident Mgmt. Sys., FED. EMERGENCY MGMT. AGENCY, https://www.fema.gov/national-incident-

management-system (last visited July 24, 2022).

 Emergency communications;

 Coordination with state or local emergency operations plans;

 Safety teams and backups responsible for interacting with community partners

and assuming key incident command positions; and

 Identifying potential sites for various operational locations and support functions

or facilities;

• Enter into memoranda of understanding with community partners to specify incident

response responsibilities;

• Conduct school district employee safety and incident management training;

• Adopt written procedures for taking action and communicating with local law

enforcement, community emergency services, parents, students, and the media for

events identified by the school district;

• Work with community partners to update and revise all standard operating procedures

to ensure that all aspects of NIMS are incorporated, including policies, planning,

procedures, training, response, exercises, equipment, evaluation, and corrective

actions;

• Work with community partners to assess overall alignment and compliance with

NIMS, identify requirements already met, establish a baseline for NIMs compliance,

and determine action steps, including developing a plan and timeline to achieve and

maintain all NIMS goals; and

• Develop a timeline and strategy for compliance with the school response framework

requirements and strategically plan, schedule, and conduct all activities with

community partners.

2. Individual School Framework Requirements:

• Create an all-hazard exercise program based on NIMS and conduct other exercises in

collaboration with community partners from multiple disciplines;

• Practice and assess preparedness and communications with community partners;

• Complete a written evaluation after exercises and incidents to address lessons learned

and appropriate corrective actions;

• Inventory emergency equipment and test communications equipment and its

interoperability with relevant state and local agencies each academic term;

• Identify key emergency school personnel, including safety teams and backups, that

should complete courses from the Federal Emergency Management Agency’s

Emergency Management Institute, or by institutions of higher education; and

• Ensure that school resource officers are familiar with the school response framework,

the all-hazard exercise program, and the interoperable communications of the school

assigned to the school resource officers.

Schools and school districts should evaluate their school response framework on an

annual basis to ensure that it aligns with any changes to the law and is consistent with current

best practices.

F. Required Data Reporting

Given the importance of data analysis in preventing school violence, the Colorado Safe

Schools Act requires schools to collect and report certain data.

For each school, the required

annual report must include:

• Total enrollment;

• Average daily attendance rate;

• Dropout rates for grades seven through twelve, if such grades are taught at the school;

• Average class size; and

• Policy on bullying prevention.

The report must also include the number of conduct and discipline code violations that

occurred in the previous school year.

It must provide specific information identifying the

number of, and the action taken with respect to, each of the following types of violations:

• Possession of a dangerous weapon without authorization;

• Alcohol use or possession;

• Use, possession, or sale of a drug or controlled substance, other than marijuana;

• Unlawful use, possession, or sale of marijuana;

• Tobacco use or possession;

• Willful disobedience, open and persistent defiance, or repeated interference with the

school’s ability to provide educational opportunities and a safe environment to other

students;

The Division of Fire Prevention and Control provides information about courses and training on NIMS and

interoperable communications to school safety personnel. § 24-33.5-1213.4(3)(a), C.R.S.

§ 22-32-109.1(2)(b), C.R.S. Districts can collect and report on this data on behalf of schools.

Id.

§ 22-32-109.1 (2)(b)(IV), C.R.S.

• Commission of an act that, if committed by an adult, would constitute first degree

assault, second degree assault, or vehicular assault;

• Behavior that is detrimental to the welfare or safety of other students or school

personnel;

• Bullying;

• Willful destruction or defacement of school property;

• Commission of an act that, if committed by an adult, would constitute third degree

assault or disorderly conduct;

• Commission of an act that, if committed by an adult, would constitute robbery;

• Other violations of the code of conduct and discipline that were documented in a

student’s record.

Additionally, the report must include the number of acts of sexual violence on school

grounds, in a school vehicle, or at a school activity or sanctioned event that occurred in the

preceding school year.

This information must be reported as aggregate data and must not

include any personal identifying information.

The local school board must compile this information and submit it to the Colorado

Department of Education.

G. Other Safe Schools Act Requirements

The Safe Schools Act requires each district to adopt a policy requiring annual inspections

of all school buildings and the removal of hazards, vandalism, and other barriers to safety or

supervision.

Research strongly suggests that a school environment that promotes academic

achievement, looks cared for, and feels safe naturally shapes student behavior. In addition,

environmental design that maximizes open, observable space helps reduce the likelihood of

violence. Site-based analysis is discussed further in the Colorado Attorney General Office’s

Colorado School Safety Guide.

The Act also requires districts to adopt an open school policy.

The policy must allow

parents and members of district’s board of education reasonable access to observe classes,

Id.

§ 22-32-109.1(2)(b)(IX), C.R.S.

§ 22-32-109.1(2)(b), C.R.S.

§ 22-32-109.1(5), C.R.S.

Sarah Goodrum, et al., Colorado School Safety Guide, COLO. DEP’T OF LAW,

https://coag.gov/app/uploads/2019/10/coloradoag_schoolsafetyguide_final_electronic_v2.pdf

(April 2019).

§ 22-32-109.1(7), C.R.S.

activities, and functions. Access can be limited under that policy when there is a safety risk

posed by the parent, guardian, or member of the public.

THREAT ASSESSMENT PROTOCOLS

Threat assessment is a violence prevention strategy that involves determining whether a

student poses a threat of violence.

Districts may wish—but are not required to—outline threat

assessments systems in their safe school plans.

Threat assessment also helps identify the reasons behind a person’s threatening behavior.

These enable educators to address those underlying reasons. Strategies to address those reasons

may include the use of mental health resources, positive behavior intervention and support,

restorative justice, trauma training, and social-emotional education strategies. These alternative

disciplinary strategies are discussed in Section II of this manual.

A. Threat Assessment Strategy

Threat assessment strategy is comprised

of three focus areas: (1) policy implementation;

(2) an interdisciplinary team; and (3) formal

threat assessment response and protocol.

1. Policy Implementation

Districts should adopt a threat

assessment policy that defines a threat,

establishes a school’s authority to conduct a

threat assessment, identifies the members of the

threat assessment team, establishes interagency agreements to respond to public safety issues,

and provides awareness training.

The policy should also discuss the following:

• The circumstances under which the school has the authority to conduct a threat

assessment;

• If a school determines a threat assessment is warranted, parents of the suspected

student will be notified that a threat assessment will be occurring;

Threat Assessment at School, NAT’L ASS’N OF SCH. PSYCHOLOGISTS, https://www.nasponline.org/resources-and-

publications/resources-and-podcasts/school-safety-and-crisis/systems-level-prevention/threat-assessment-at-school

(last visited July 24, 2022).

Essentials of School Threat Assessment: Preventing Targeted School Violence, COLO. SCH. SAFETY RES. CTR.,

http://cdpsdocs.state.co.us/safeschools/Resources/CSSRCEssentialsofTA2018.pdf

(June 2018).

Practical Tip: Defining a “Threat”

A threat is an expression of intent to harm

someone that may be spoken, written,

gestured, or otherwise communicated,

including via photos, texts, emails, and

other digital means.

• If the threat assessment involves a student with disabilities, the student’s IEP team

will be convened to determine whether the student’s actions were the result of the

student’s disability. This information should be conveyed to and considered by the

threat assessment team;

• Parents of the suspected student will be invited to participate in the threat assessment

and will be advised that the assessment will take place, even if the parents decline to

participate;

• A threat assessment could result in referrals to discipline, other interventions, mental

health referrals, child find referrals, and/or law enforcement referrals; and

• Notice of the threat and the outcome of the threat assessment will be provided to any

employee who is the subject of a threat. Employment issues, including employee

protection, are discussed in Section V of the manual.

2. Interdisciplinary Team

An interdisciplinary team is critical to threat assessment because it increases the

information that may be gathered and guides implementation of the process. There should be at

least three members of the team. They may include:

• A senior, respected, and trained

member of the administration;

• School disciplinary or safety personnel

assigned to the school;

• A school or district mental health

professional with threat assessment

training;

• Local law enforcement, school

violence detectives, and/or probation

officers;

• Teachers or other school staff with

personal knowledge of the person who

made the threat;

• Nurses;

• Transportation personnel;

• Representative from IEP team, if

applicable;

• Social service workers;

• Others trusted adults or individuals

providing services to or have

Practical Tip: Threat

Assessment Interview Techniques

1. Begin with broad, open-ended

questions that allow the person to

tell their story, and gradually

funnel down with narrower follow-

up questions.

2. Ensure optimizing information

obtained by using W questions:

who, what, where, when, why, and

the question how.

3. Stick to the facts and avoid

personal opinions when recording

information. For example, instead

of saying: “I think she’s lying,” list

behaviors that cause suspicion she

is lying, such as evading eye

contact.

knowledge of the person who made the threat.

The team may consider involving other individuals who may have information relevant to

the particular threat assessment. The team focuses on actions, communications, and behaviors

that may indicate that a student presents a safety risk to themselves or others. The team should be

trained in appropriate threat assessment protocol and should have specific roles and

responsibilities defined. The team should also provide ongoing monitoring of the student, even if

the threat has been mitigated.

3. Threat Response Protocol

A threat response protocol is only as good as the information gathering utilized and the

guiding principles underlying this process. The U.S. Department of Education and U.S. Secret

Service have identified six guiding principles and eleven questions that comprise the “best

practices” approach to preventing or reducing violence in schools:

Principles

1. Targeted violence is the result of an oftentimes discernible, process of

thinking and behavior that can be identified.

2. Targeted violence stems from an interaction among the individual, the

situation, the setting, and the target.

3. An investigative, skeptical, and inquisitive mindset is critical to successful

threat assessment.

4. Effective threat assessment is based upon facts rather than characteristics

or traits.

5. An “integrated systems approach” should guide threat assessment

inquiries and investigations.

6. The central question in threat assessment is whether a student poses a

threat, not whether the student has made a threat.

Questions to Ask

The threat assessment team should consider, at a minimum, the following 11 questions:

1. What are the student’s motives and goals?

2. Have there been any communications suggesting ideas or intent to attack?

Id.

Robert Fein, et al., Threat Assessment in Schools, U.S. SECRET SERV. & U.S. DEP’T OF EDUC.,

https://cdpsdocs.state.co.us/safeschools/Resources/Secret%20Service/ssi_Threat%20Assessment%20schools%20gui

de,0.pdf (May 2022).

3. Has the student shown inappropriate interest in school attacks, attackers,

weapons, or incidents of mass violence?

4. Has the student engaged in attack-related behaviors, such as developing a

plan or making efforts to acquire or practice with weapons?

5. Does the student have the capacity to carry out an act of targeted violence?

6. Is the student experiencing hopelessness, desperation, and/or despair?

7. Does the student have a trusting relationship with at least one responsible

adult?

8. Does the student see violence as an acceptable, desirable, or only way to

solve problems?

9. Is the student’s conversation and explanation consistent with the student’s

actions?

10. Are other people concerned about the student’s potential for violence?

Have Safe2Tell reports been made about the student?

11. What circumstances might affect the likelihood of an attack?

If the threat assessment team determines that the student does not pose a threat, the threat

assessment inquiry may be closed with no further action, though follow-up monitoring of the

student may be advisable. If the threat assessment team determines that the student does pose a

threat of violence, the team should implement a safety plan to address the risk and consider

contacting law enforcement and referring the information for further investigation.

If the

identified risk is to the student themself, make a safety plan and activate mental health resources

and expert supports to ensure that the student cannot cause self-harm.

B. Threats of Self Harm: Suicide Prevention

The threat assessment process is one approach that can be used to assess for a student’s

risk of self-harm. In recent years, Colorado’s suicide rate among adolescents ages 15-19 has been

nearly double the national rate.

Based on the 2021 Healthy Kids Colorado Survey, 39.6% of

youth experienced feelings of depression in the past year (reported feeling so sad or hopeless for

two weeks or more in a row that they stopped doing some usual activities).

This was an eight

Id.

Teen Suicide, AMERICA’S HEALTH RANKINGS, UNITED HEALTH FOUND.,

https://www.americashealthrankings.org/explore/health-of-women-and-children/measure/teen_suicide/state/CO

(last

visited July 25, 2022).

Healthy Kids Colorado Survey, 2021 Results: Key Takeaways By Topics, COLO. DEP’T OF PUB. HEALTH & ENV’T

(2021), https://drive.google.com/file/d/1GPp_4xOOHKNNQmbUj3wbRfMBnAOTXd3w/view

percent increase over data from 2017.

In that same survey, 68.5% of youth experienced poor

mental health during the COVID-19 pandemic.

Based on this mental health data (and many

other resources that confirm these concerns), it is critical for schools and districts to invest in

mental health resources, training, and strong policies and procedures to identify and support

students struggling with mental health.

Colorado’s Safe2Tell is an important resource that can be used to anonymously report

potentially suicidal students. In addition, the Colorado School Safety Resource Center created a

suicide assessment and intervention toolkit. The toolkit includes a comprehensive suicide risk

screening form, monitoring tool, safety plan template, reentry plan template, a self-care plan, and

resources for parents and guardians.

It also includes a list of suicide prevention and

intervention resources.

Colorado’s Office of Suicide Prevention also created a suicide prevention plan. The

Office’s 2019–2020 youth initiatives include funding for youth-serving organizations interested

in prioritizing youth suicide prevention, funding for suicide prevention training, and working to

implement Sources of Strength, a universal suicide prevention program designed to build socio-

ecological protective influences among students, within Colorado schools.

The Colorado Legislature passed the Youth Mental Health Education and Suicide

Prevention bill, which allows minors 12 years of age or older to seek and obtain psychotherapy

services with or without the consent of a parent or guardian. The Act further requires that the

Colorado Department of Education create and maintain a mental health education literacy

resource bank.

The National Suicide Hotline Designation Act of 2020 imposes a fee to fund the efficient

and effective routing of calls made to the 9-8-8 national suicide prevention and mental health

crisis hotline to an appropriate crisis center and provide personnel.

Finally, school districts should consider whether to implement a system for monitoring

student email and internet use while on school devices and internet systems. Using keyword

searches, these systems can help identify risks of violence to self or others. For example, if a

student emails their friend on school internet or email about a plan to commit suicide, the district

Id.

CSSRC Tools and Toolkits: Suicide Prevent, COLO. SCH. SAFETY RES. CTR. COLO. DEP’T OF PUB. SAFETY,

https://cssrc.colorado.gov/resources/cssrc-tools-and-templates

(last visited Oct. 3, 2022).

Id.; SOURCES OF STRENGTH, https://sourcesofstrength.org/ (last visited July 25, 2022).

Mental Health Education Literacy Resource Bank, COLO. DEP’T OF EDUC.,

https://www.cde.state.co.us/healthandwellness/mhrb-about

(last visited July 25, 2022).

47 U.S.C.A. § 251a.

can alert safety staff or law enforcement to conduct an immediate welfare check. These systems

have been known to save lives.

ADDITIONAL TOOLS FOR CREATING SAFE SCHOOL CLIMATES

Many of the requirements of the Safe Schools Act are rooted in the creation of a safe

school climate or culture. However, school leaders will tell you that safe school climates require

more than policy. Creating cultures and climates of physical and psychological safety and respect

within schools is helped by trauma-informed strategies, addressing physical and emotional

school climate issues, and data collection and review.

A. Trauma-Informed Strategies

Developing an understanding of trauma and how it impacts students and staff is critical to

creating a climate of physical and psychological safety. Trauma results from an event or series of

events or set of circumstances that a person experiences as physically or emotionally harmful or

life-threatening. It has lasting effects on a person’s functioning, and mental, physical, social,

emotional, and spiritual well-being.

Children who are exposed to abuse, discrimination, violence, neglect, and other adverse

experiences face significantly increased risk of serious health, social, emotional, and learning

problems throughout their lives.

Traumatic experiences, also known as Adverse Childhood

Experiences, cause higher rates of suspension and unexcused absences and lower rates of high

school graduation.

Children who experience significant trauma can develop anger, emotion

dysregulation, poor coping skills, antisocial behavior, negative attitudes, and impulsivity, all of

which can be precursors to violence. These experiences are almost contagious—impacting other

children and adults who interact with a child who experienced trauma.

The ever-present threat of school shootings and the lockdowns drills that help students

prepare for and respond to safety threats can also be trauma-inducing. Lockdowns can be

When implementing these systems, consider this helpful guidance to ensure that they do not disproportionately

impact marginalized students or contribute to the school-to-prison pipeline. Hidden Harms: The Misleading Promise

of Monitoring Students Online, Ctr. for Democracy and Tech. (Aug. 2022),

https://cdt.org/insights/report-hidden-

harms-the-misleading-promise-of-monitoring-students-online/.

Trauma-Informed Approaches in Schools: Keys to Successful Implementation in Colorado, COLO. DEP’T OF

EDUC. (Feb. 2018), https://www.cde.state.co.us/pbis/traumainformedapproachesarticle.

Id.

See Adverse Childhood Experiences (ACEs), CTRS. FOR DISEASE CONTROL AND PREVENTION,

https://www.cdc.gov/violenceprevention/aces/index.html

(last visited July 25, 2022).

Creating, Supporting, and Sustaining Trauma-Informed Schools: A System Framework, THE NAT’L CHILD

TRAUMATIC STRESS NETWORK (2017),

https://www.nctsn.org/sites/default/files/resources//creating_supporting_sustaining_trauma_informed_schools_a_sy

stems_framework.pdf at 1.

triggered by police action in neighborhoods, online threats, or other perceived dangers. Recently,

schools have seen an increase in “swatting” – fake calls to trigger police response to an alleged

active shooter – which are both illegal and highly damaging to the sense of safety in school.

Lockdowns can produce anxiety, stress, and traumatic symptoms in students and staff, and cause

a loss of instructional time. This trauma can be mitigated with proper preparation before the

lockdown, clear communication and support during the lockdown, and open communication and

care provided after the lockdown.

The Colorado Department of Education recommends a multi-tiered approach to mitigate

trauma’s impact and includes a specific emphasis on appropriate trauma-specific services,

including comprehensive behavior plans and staff training to minimize traumatic triggers.

B. Creating a Safe School Climate

The U.S. Secret Service and Department of Education have identified eleven major

components and tasks for creating a safe school climate.

Major

components

and tasks for

creating a safe

school climate:

Assess the school’s emotional climate by surveying students,

faculty, and other stakeholders.

Emphasize the importance of listening in schools.

Take a strong, but caring stance against the code of silence.

Work actively to change the perception that talking to an adult about

a student contemplating violence is considered snitching.

Find ways to stop bullying.

Empower students by involving them in planning, creating, and

sustaining a school culture of safety and respect.

School Safety and Crisis: Mitigating Negative Psychological Effects of School Lockdowns: Brief Guidance for

Schools, N

AT’L ASS’N OF SCH. PSYCHOLOGISTS, https://www.nasponline.org/resources-and-publications/resources-

and-podcasts/school-safety-and-crisis/systems-level-prevention/mitigating-psychological-effects-of-lockdowns

(2018) at 1-3.

Trauma-Informed Approaches in Schools: Keys to Successful Implementation in Colorado, COLO. DEP’T OF

EDUC. (Feb. 2018), http://www.cde.state.co.us/pbis/traumainformedapproachesarticle.

Threat Assessments in Schools: A Guide to Managing Threatening Situations and to Creating Safe School

Climates, U.S.

SECRET SERV., U.S. DEP’T OF EDUC. (July 2004),

https://www2.ed.gov/admins/lead/safety/threatassessmentguide.pdf

Ensure that every student feels that he or she has a trusting

relationship with at least one adult at school.

Create mechanisms for developing and sustaining safe school

climates.

Be aware of physical environments and their effects on creating

comfort zones.

Bring all stakeholders to the table.

Consider local factors: school leadership, student group buy-in, and

connection to community and law enforcement.

C. Data Collection and Review

Data collection and analysis can help districts and schools determine whether they are

meeting these goals and helps identify areas of improvement.

The University of Colorado

Boulder’s Center for the Study and Prevention of Violence’s Safe Communities Safe Schools

(SCSS) Model encourages school districts and/or school leaders to collect data at the student,

staff, and community levels to identify gaps and needs related to safety and behavioral

concerns.

It specifically recommends measuring “school climate, systems that influence school

safety, and community readiness and motivation to take action towards change.”

This data can

be collected, analyzed, and used the schools develop, implement, and monitor school safety

plans.

SCSS offers school climate surveys for varied audiences, including elementary school

students, middle school students, high school students, and parents, at a moderate cost.

These

surveys help schools determine how they are doing on the major components of a safe school

climate. For example, the SCSS Middle School Climate Survey asks students whether they

See Colorado School Safety Guide, COLO. DEP’T OF LAW (2019),

https://coag.gov/app/uploads/2019/10/coloradoag_schoolsafetyguide_final_electronic_v2.pdf

Safe Communities Safe Schools, CTR. FOR THE STUDY AND PREVENTION OF VIOLENCE, UNIV. OF COLO. BOULDER,

https://cspv.colorado.edu/what-we-do/initiatives/safeschools/

(last visited Oct. 1, 2022).

Id.

School Climate Surveys, CTR. FOR THE STUDY AND PREVENTION OF VIOLENCE, UNIV. OF COLO. BOULDER,

https://cspv.colorado.edu/what-we-do/surveys/

(last visited Oct. 1, 2022).

would report another student’s unsafe or dangerous behavior.

Aggregating students’ answers to

this question allows schools to evaluate whether they have successfully pushed back against the

code of silence and the perception that talking to an adult is ‘snitching.’

Other organizations also offer school climate surveys. The National Center on Safe

Supportive Learning Environments maintains a compendium of assessments that schools can

use.

Other surveys and assessments, while not specifically addressing climate, can also provide

valuable information to schools. Schools may incur costs to administer these surveys. Options

include:

• The CDC’s Crime Prevention Through Environmental Design School Assessment,

which rates the physical parts of a school that may impact youth fear and aggressive

behavior;

and

• The Healthy Kids Colorado Survey, a comprehensive survey of middle and high

school students’ health and well-being.

Once schools have collected climate data, they should develop culture and climate action

plans to address gaps and needs identified by the data. For example, in developing these plans,

schools can use the Colorado School Safety Resource Center’s Positive School Climate Action

Plan Template.

After developing these plans, schools should continue to collect data to analyze

the plans’ effectiveness.

Middle School Climate Student Survey Sample, CTR. FOR THE STUDY AND PREVENTION OF VIOLENCE, UNIV. OF

COLO. BOULDER, https://cspv.colorado.edu/wp-content/uploads/2019/03/SCSS-Student-Survey-MS-CORE-web-

sample.pdf (last visited Oct. 1, 2022).

School Climate Survey Compendium, NAT’L CTR. ON SAFE SUPPORTIVE LEARNING ENVIRONMENTS, U.S. DEP’T OF

EDUC., https://safesupportivelearning.ed.gov/topic-research/school-climate-measurement/school-climate-survey-

compendium (last visited Oct. 1, 2022).

Using Environmental Design to Prevent School Violence, CTRS. FOR DISEASE CONTROL AND PREVENTION,

https://www.cdc.gov/violenceprevention/youthviolence/cpted.html

(last visited Oct. 1, 2022).

Healthy Kids Colorado Survey and Smart Source Information, COLO. DEP’T OF PUB. HEALTH AND ENV’T,

https://cdphe.colorado.gov/hkcs

(last visited Oct. 1, 2022).

Positive School Climate Action Plan Template, COLO. SCH. SAFETY RES. CTR., available at Tool Box, READINESS

AND

EMERGENCY MANAGEMENT FOR SCHS. TECHNICAL ASSISTANCE CTR., https://rems.ed.gov/ToolBox.aspx (last

visited Oct. 1, 2022).

II. STUDENT DISCIPLINE

CHAPTER INTRODUCTION

Even the most successful systems do not prevent all student disruption and misconduct.

When students engage in misconduct, Colorado law requires a guided framework for response,

particularly for the use of exclusionary discipline (suspension and expulsion). As discussed in

Section I, school districts and charter schools must have a written code of conduct, and they must

administer it “uniformly, fairly, and consistently for all students.”

The procedures governing

schools’ responses to student misconduct are set forth below.

When implementing the guidance of this chapter, it may be helpful to consider these

questions:

• Are staff trained in trauma-informed, culturally responsive, and restorative protocols

to respond to behavior with the understanding that behavior is communication?

• When is behavior a manifestation of trauma, mental health, or a disability that

triggers the district’s child find obligations?

• Does the district review whether its disciplinary practices are implemented without a

discriminatory impact on any group?

A. Proportionate, Non-Exclusionary, and Non-discriminatory Discipline

Policies and training are essential to ensure that discipline is proportionate and non-

discriminatory. Volumes of research demonstrate that school districts in Colorado and across the

country struggle to meet these two foundational requirements. Additionally, there has been a

shift to favor alternatives to exclusionary discipline.

1. Alternatives to Exclusionary Discipline

Colorado law requires schools to implement “plans for the appropriate use of prevention,

intervention, restorative justice, peer mediation, counseling, or other approaches to student

misconduct . . . to minimize student exposure to the criminal and juvenile justice system.”

Thus, while out-of-school suspensions and expulsions may be appropriate in some cases, state

law requires schools to consider alternative interventions first.

Restorative practices are one alternative in situations involving interpersonal conflict,

bullying, verbal and physical conflicts, damage to property, or class disruption. Restorative

§ 22-32-109.1(2)(a)(I), C.R.S.

Id. at (2)(a)(II)(B).

practices seek to repair the harm to the complainant (or victim) and the school community

caused by a respondent (or offender) student’s misconduct.

A complainant-initiated conference

between the complainant and the respondent student is one example of restorative practice in an

academic setting. Participants may include the complainant, their advocate, the respondent

student, school members, and supporters of the complainant and respondent students.

Such

conferences are intended to provide the respondent student with an opportunity to accept

responsibility and cooperate with the complainant student and school officials to determine what

consequences would repair the harm to the complainant and the community.

Restorative approaches are not appropriate in all situations. For example, a victim of

sexual misconduct, domestic violence, stalking, or violation of a protection order cannot be

required to participate in a restorative justice or peer mediation program.

The U.S. Department

of Education requires schools to be sensitive to victims of offenses prohibited by Title IX,

including sexual harassment and assault. Title IX complainants must be provided with supportive

measures, such as the option of an alternative class schedule and identifying options for

counseling, academic support, and victim advocacy.

In these situations, the protocols of the

district’s Title IX process must be implemented separately and before discipline is implemented.

Title IX considerations are discussed later in this Section.

The Colorado School Safety Resource Center offers a wealth of suggestions on

alternative discipline options.

The Alternative Discipline Workgroup identified the following

as the “three pillars of effective discipline”:

• Reflective: The student should be reflecting and gaining insight into their behavior.

• Restorative: The student should have the opportunity to repair the relationship or

items that were damaged.

• Instructional: The student should gain knowledge and practice skills that will help

them in the future.

For example, the student could be required to take a substance abuse training if the

misconduct involved the use of drugs or alcohol. For peer conflict, a student could write an

apology letter to the student who was harmed. With creative thinking, the options can be tailored

to the students and the community.

§ 22-32-144(3), C.R.S.

§ 22-32-109.9(2)(a)(II)(B), C.R.S.

Know Your Rights: Title IX Requires Your School To Address Sexual Violence, OFF. FOR CIV. RTS., U.S.

DEP’T OF EDUC. (2014), https://www2.ed.gov/about/offices/list/ocr/docs/know-rights-201404-title-ix.pdf.

Discipline in Schools, COLO. SCH. SAFETY RES. CTR., COLO. DEP’T OF PUB. SAFETY,

https://cssrc.colorado.gov/discipline-in-schools

(last visited Sept. 27, 2022).

Creative Discipline & Alternatives to Suspension, COLO. DEP’T OF EDUC.,

https://www.cde.state.co.us/mtss/creativedisciplinealternativestosuspensionhand-out

(last visited Oct. 1, 2022).

Exclusionary discipline, such as out-of-school suspension and expulsion, removes

students from their current learning environment. As school districts begin to see the impact of

the COVID pandemic on learning loss, it is especially critical that students have access to

instruction. Exclusionary discipline can set students back academically when students need to be

accelerating their learning. When in-school or out-of-school suspension is necessary, consider

recording the class, requiring virtual participation, or other creative solutions to continue access

to core instruction.

2. Non-discriminatory Implementation of Exclusionary Discipline

Discipline, and particularly exclusionary discipline, disproportionately affects students of

color, LGBTQ students, and students with disabilities.

Colorado law requires that policies

“apply equally to all students regardless of their economic status, race, gender, ethnicity,

religion, national origin, sexual orientation, or disability.”

To combat these identified

disparities, districts must provide oversight on the disciplinary discretion provided to school

leaders, invest in bias, trauma, and cultural competency training, and develop strong positive

behavior intervention systems and alternative practices for exclusionary discipline.

Discrimination in student discipline is an enforcement priority for the U.S. Department of

Education’s Office of Civil Rights and the U.S. Department of Justice. The OCR enforces

federal civil rights laws, including race, color, national origin, gender, disability, and age. The

OCR has recently solicited information related to civil rights issues in student discipline.

Based

on this request, OCR will likely issue new guidance related to discrimination in discipline.

B. Disrupting the School-to-Prison Pipeline

Current Colorado law and policy discourages school districts from involving law

enforcement in the school district’s internal disciplinary processes. The goal: disrupt the school-

to-prison pipeline by decreasing referrals to law enforcement for school-based misconduct when

that misconduct can be addressed through school disciplinary procedures. The “school-to-prison

pipeline” refers to the conditions and dynamics that result in students being subjected to law

enforcement penalties for in-school actions or subjected to consequences that increase the

likelihood of future criminal justice involvement.

See Engaging Our Community: School Justice Roundtable Report, COLO. DEP’T OF LAW (Feb. 2021):

https://coag.gov/app/uploads/2021/03/School-Justice-Report_Engaging-Our-Community_22021-2.pdf

; Civil Rights

Data Collection, Data Snapshot: School Discipline, U.S. DEP’T OF EDUC. (March 2014),

https://www2.ed.gov/about/offices/list/ocr/docs/crdc-discipline-snapshot.pdf.

§ 22-32-109.1, C.R.S..

U.S. Department of Education’s Office for Civil Rights Seeks Information on the Nondiscriminatory

Administration of School Disciple, U.S.

DEP’T OF EDUC. (June 4, 2021), https://www.ed.gov/news/press-releases/us-

department-educations-office-civil-rights-seeks-information-nondiscriminatory-administration-school-discipline.

See Engaging Our Community: School Justice Roundtable Report, COLO. DEP’T OF LAW (Feb. 2021):

https://coag.gov/app/uploads/2021/03/School-Justice-Report_Engaging-Our-Community_22021-2.pdf

Absent exigent circumstances, interventions that are reflective, restorative, and

instructional and offered by the school community may be more effective to change behavior and

restore harm than a referral to law enforcement. In the 2020-21 school year, there were 1,023

criminal tickets or arrests of students that occurred at school.

Half of these criminal tickets or

arrests were for elementary and middle school students – students who are still developing their

executive functioning, impulse control, and emotional regulation.

For all of the incidents, from

elementary through high school, the majority were for misconduct at school that could have been

handled through the school discipline process – e.g. fighting/disorderly conduct, tobacco,

alcohol, marijuana, property damage, trespassing, harassing communication, traffic offense, and

theft.

Hispanic and Black students were more likely to receive a summons/ticket compared to

White students.

For cases where the student was arrested, 67% were sentenced to

probation/deferred judgment/intensive supervision and 26% were sentenced to the Division of

Youth Services (DYS).

Black students were more likely to receive a sentence to DYS (29%)

compared to White (6%) or Hispanic (5%) youth.

These considerations do no inhibit or discourage timely contact with police to prevent

violence or respond to a threat. Law enforcement should be called immediately when there is a

current and ongoing threat to the school community that requires police support.

C. Discipline Policies

1. Suspension and Expulsion

Suspension and expulsion are considered “exclusionary” forms of discipline. While

Colorado encourages alternative forms of discipline where possible, it also recognizes that

exclusionary discipline may be necessary in some circumstances to optimize school safety and

prevent school violence. Colorado law outlines the circumstances in which students may be

As a result of HB15-1273, Colorado tracks law enforcement contacts with students. Districts can review their

individual data to determine what offenses are being referred to law enforcement and what schools are resulting in

those referrals. Summary of Law Enforcement and District Attorney Reports of Student Contacts, C

OLO. DEP’T OF

PUB. SAFETY (June 2022), https://cdpsdocs.state.co.us/ORS/Docs/Reports/2022-HB15-1273StudentContacts.pdf, at

13. The number of contacts for 2020-21 was one-fifth of the reported contacts with law enforcement for the 2019-20

school year. Thus, when schools were closed due to COVID, there was a significant decrease in students being

referred to law enforcement – evidence that the “school-to-prison pipeline” is a reality.

Id. at 13.

Id.

Colorado Division of Criminal Justice Releases Report on Student Contacts with Law Enforcement, Criminal

Justice System, D

IV. OF CRIM. JUST., COLO. DEP’T OF PUB. SAFETY (Sept. 19, 2022), https://dcj.colorado.gov/news-

article/colorado-division-of-criminal-justice-releases-report-on-student-contacts-with-law.

Id.

See Colorado Compilation of School Discipline Laws and Regulations, U.S. DEP’T OF EDUC. (March 31, 2021),

https://safesupportivelearning.ed.gov/sites/default/files/discipline-

compendium/Colorado%20School%20Discipline%20Laws%20and%20Regulations.pdf.

See §§ 22-33-105 and -106, C.R.S.

suspended or expelled, based upon the school’s discretion, and the conduct that requires

expulsion. Students are afforded due process rights in all forms of exclusionary discipline.

All districts are encouraged to “consider each of the following factors before suspending

or expelling a student” for a discretionary ground for suspension or expulsion:

(a) The age of the student;

(b) The disciplinary history of the student;

(d) The seriousness of the violation committed by the student;

(e) Whether the violation committed by the student threatened the safety of any student or

staff member; and

(f) Whether a lesser intervention would properly address the violation committed by the

student.

a. Suspension

Colorado statute sets a maximum number of days that a student can be suspended if the

school district delegates suspension authority to the school principal.

The statute sets different

limits depending on whether the school board retains the power to suspend or if it is delegated to

the superintendent or if the superintendent or board agree to extensions of the original

suspension.

However, in light of the considerations described above, school districts should

evaluate whether to permit the maximum number of days. School districts can indicate by policy

whether they permit in-school or out-of-school suspension for particular conduct. Some districts

will also include limitations on suspension and/or expulsion for their earliest grades (e.g. ECE-

3).

The maximum length of a potential suspension (if delegated to a school principal) is

follows

Behavior Warranting Possible Suspension or

Expulsion

Maximum Number of

Suspension Days

Continued willful disobedience

§ 22-33-106(1.2).

§ 22-33-105(2)(a).

§ 22-33-105(2)(b).

See, e.g., Denver Public Schools Discipline Matrix, DENVER PUB. SCHS.,

https://go.boarddocs.com/co/dpsk12/Board.nsf/files/C8DUB47B32D6/$file/Final%20Attachment%20B%20Discipli

ne%20Matrix%20October%202021%20-%20Matrix%20Oct%202021.pdf (last visited Oct. 3, 2022).

§ 22-33-105(2)(a), C.R.S.

“Days” refers to school days, not calendar days.

Open and persistent defiance of proper authority

Willful destruction or defacing of school property

Behavior on or off school property that is detrimental to the

welfare or safety of other students or school personnel,

including behavior that creates a threat of physical harm to

the student or other students

Possessing a dangerous weapon on school grounds, in

a school

vehicle, or at a school activity or event (without

authorization)

Drugs or controlled substances – use, possession, or sale on

school grounds, in a school vehicle, or at a school

activity/event

Robbery – committing an act on school grounds, in a school

vehicle, or at a school activity or event that would be

considered robbery if committed by an adult

Assault – committing an act on school grounds, in a school

vehicle, or at a school activity or event that would be

considered 2

degree or greater assault if committed by an

adult

Repeated interference with the school’s ability to provide

educational opportunities to other students

When decisions are delegated to the school principal, the school district’s “Executive

Officer,” usually the superintendent, may also extend a suspension beyond the limits listed for up

to an additional ten school days.

The Executive Officer may extend the suspension another ten

school days (for a total of twenty additional school days) to bring the matter before the next

school board meeting.

However, the total period for which a student may be suspended cannot

exceed twenty-five school days.

Additional suspension time is often used to determine whether

to proceed with expulsion proceedings based on the conduct. Suspension of students with

disabilities for more than ten days (consecutive or all together in a year) requires the

district to follow additional procedures described below.

§ 22-33-105(2)(b), C.R.S.

b. Expulsion

Under statute, discretionary expulsions are available for the same grounds listed for

suspensions. In addition, a school can expel a student if the school determines the student does

not qualify for admission or continued attendance at the school.

Expulsion of students with

disabilities requires different considerations and is discussed below.

Colorado law provides that expulsion should be used sparingly as a “last step taken after

several attempts to deal with a student who has discipline problems.”

Students should be

expelled only when their behavior would cause imminent harm to others or when the incident is

of a type that requires mandatory expulsion.

Expulsion is mandatory if a student was

determined to have brought a firearm to school or to have possessed a firearm at school.

In that

situation, the student shall be expelled for a period of not less than one year; except that the

superintendent may modify this requirement on a case-by-case basis if such modification is in

writing.

c. Due Process Requirements for Suspensions and Expulsions

Schools must afford students their constitutional due process rights before excluding

them from school. The level of rights afforded depends on the proposed discipline:

Suspension of ten days or less

• Notice of the allegations and related evidence

• Meeting in which student has the opportunity to explain their side of the story

• Meeting must be prior to removal unless emergency circumstances require immediate

removal

• Meeting can occur immediately after incident

• No right to counsel

• No right to confront and cross-examine witnesses

• No right to call witnesses

• Parent

100

notification is required and must include: that student is suspended; the

grounds for suspension; the period of suspension; and the meeting time and place for

parental meeting with principal

• School must provide alternative to suspension: allowing parent to attend classes with

§ 22-33-201.

Id.

§ 22-33-106(1.5).

Id.

100

“Parent” refers to parent or legal guardian throughout.

the student (with consent of teacher(s))

• Opportunity for makeup work for full or partial credit

Suspension greater than ten days (*see additional considerations for students with

disabilities)

• Same as above, plus

• Student must be afforded a review of the suspension before an appropriate school

district official

Expulsions (*see additional considerations for students with disabilities)

• More formal hearing before hearing officer must be conducted before expulsion, upon

student or parent request

• Hearing officer may be superintendent, school board members, or individual

appointed by board or superintendent

• Right to representation by counsel

• Right to present evidence, including character evidence supporting reduced sanctions

• Right to challenge evidence brought by school

• Student admissions or statements may not be used unless it was signed by the student,

and a parent was present when signed or a reasonable attempt was made to contact

the parent before signature

101

• Written decision within five days; hearing officers other than the superintendent must

prepare findings of fact and a recommendation regarding expulsion, and send it to the

executive officer (usually the superintendent) or their designee

• The executive officer makes the expulsion decision within the five days post hearing

• Upon expulsion, student has ten days to appeal to the school board. Late appeals may

be accepted at board’s discretion

Appeals

• The appeal with the local board of education shall consist of a review of the facts that

were presented and that were determined at the hearing conducted by the executive

officer or by a designee acting as a hearing officer, arguments relating to the decision,

and questions of clarification from the board of education

102

101

§ 22-33-106.3, C.R.S. Reasonable attempt means the school must call each phone number provided by the parent

and any additional numbers provided by the student.

102

§22-33-105(2)(c).

• If the child is denied admission or expelled, the child shall be entitled to a review of

the decision of the board of education in accordance with section 22-33-108, C.R.S.

• Under the procedures of section 22-33-108, the student or parent must provide written

notice of intent to appeal within five days of official notice of board’s decision

• Following student notice, the board must issue written reasons for the board’s actions

to the student or parent

• Ten days following receipt of the board’s written reasons, student or parent may file

district court action requesting the board decision be set aside

• The district court uses the abuse of discretion standard, examining the entire

procedure used in the expulsion

103

d. Services for Expelled Students

Upon expelling a student, the school district must provide information to the student’s

parent concerning the educational alternatives available to the student during the period of

expulsion.

104

If the parent chooses to provide a home-based educational program for the student,

the school district must assist the parent in obtaining appropriate curricula for the student (if the

parent requests it).

105

There are detailed requirements regarding the services for expelled

students. Review Section 22-33-203, C.R.S. closely and confer with your legal counsel.

e. Re-enrollment Following Expulsion for Sex Offenses and Crimes of

Violence

A student expelled for a sex offense or crime of violence may not enroll or re-enroll in

the same school where the victim or a member of the victim’s immediate family is enrolled or

employed.

If the school district has only one school in which the expelled student can enroll, the

school district may either prohibit the expelled student from enrolling, or, to the extent possible,

design a schedule for the expelled student that prevents contact between the expelled student and

the victim or victim’s family member.

106

These requirements apply only if the student was

convicted, adjudicated as a juvenile delinquent, received a deferred judgment, or was placed in a

diversion program because of the offense.

2. Disciplining Students with Disabilities – Manifestation Determinations

A detailed review of the laws governing discipline of students with disabilities is beyond

the scope of this manual. Generally, a student with a disability cannot be suspended for more

103

Colo. R. Civ. P. 106(a)(4); Colo. R. Juv. P. 3.8; Nichols v. DeStefano, 70 P.3d 505, 507 (Colo. App. 2002) (citing

Tepley v. Pub. Emps. Ret. Ass’n, 955 P.2d 573, 578 (Colo. App. 1997).

104

§ 22-33-203(1).

105

Id.

106

§ 22-33-106(4), C.R.S.

than ten days (or have a series of removals for more than ten school days in a year) or expelled

unless the school district reconvenes the IEP team and determines if the conduct was a

manifestation of the student’s disability.

107

If the suspension is ten days or less, it is considered

an appropriate interim alternative educational setting and does not require reconvening the IEP

team.

108

If the suspension or expulsion will last more than ten days, the school must determine

whether the student’s misconduct is a manifestation of their disability. For the manifestation

determination, the Local Education Agency (LEA), the parent, and relevant members of the

student’s IEP Team must review all relevant information in the student’s file, including the

student’s IEP, any teacher observations, and any relevant information provided by the

parent/guardian to determine: (1) if the conduct was caused, or a had a direct and substantial

relationship to, the student’s disability, or (2) if the conduct was a direct result of the LEA’s

failure to implement the IEP.

109

If either of those are determined to be true, the school cannot use

regular disciplinary procedures. Instead, the parent and the IEP Team must either: (1) conduct a

functional behavioral assessment (unless one has already been conducted) and implement a

behavior intervention plan for the student, or (2) if a behavioral intervention plan has already

been developed, review and modify the plan, if necessary, to address the behavior.

110

Regular disciplinary procedures can be used when the misconduct is not a manifestation

of the student’s disability. However, regular disciplinary processes cannot conflict with any

specific terms of the student’s IEP or the Individuals with Disabilities Education Act’s

protections for children with disabilities.

111

In addition, OCR recently issued new guidance related to discipline of students with

disabilities. This guidance recognizes the disproportionate use of discipline for students with

disabilities, particularly Black students. It also recommends the use of positive behavioral

interventions and supports.

112

3. Disruptive Students

Colorado law makes suspension and expulsion permissive rather than mandatory for

students deemed habitually disruptive. Schools are required to implement policies for allowing a

teacher to remove a disruptive student from the classroom. At a minimum, the teacher or

principal must contact the student’s parent as soon as possible after a removal to request that the

107

34 C.F.R. §§ 300.530, 300.536.

108

20 U.S.C. § 1415(k)(1)(B); 34 C.F.R. § 300.530(b).

109

34 C.F.R. § 300.530(e).

110

Id. at § 300.530(f).

111

New Guidance Helps Schools Support Students with Disabilities and Avoid Disparities in the Use of Discipline,

FF. OF SPECIAL EDUC. AND REHABILITATIVE SERVS., U.S. DEP’T OF EDUC. (July 19, 2022),

https://sites.ed.gov/idea/new-g

uidance-helps-schools-support-students-with-disabilities-and-avoid-discriminatory-

use-of-discipline/.

112

Id.

parent attend a student-teacher conference. The policy must include a provision that permits the

school’s principal or designee to develop and implement a behavior plan for any student

removed from a classroom based on behavioral issues. A behavior plan is not required after one

incident but becomes mandatory once a student is removed a second time. The law also allows a

teacher to remove a student permanently once the student has been removed from the same

classroom at least three times.

113

A student may be declared habitually disruptive if the student “causes a material and

substantial disruption on school grounds, in a school vehicle, or at a school activity or sanctioned

event three or more times during the school year.” Once a school determines that a student is

habitually disruptive, it must provide the student and parents with written notification. The

notification must advise the student and parents of the definition of habitually disruptive and

must specify the incidents that resulted in the habitually disruptive determination.

114

School districts should tread carefully when implementing these provisions due to the

potential impact on students of color and students with disabilities. While removals may be

justified, they are fact- and context-specific; for example, in some cases, multiple attempts to

remove a student may indicate that additional professional development is needed for the teacher

on the topics of classroom management or bias. Alternatively, the removals may indicate that the

student should be evaluated for a disability. For students with disabilities, the federal protections

of the IDEA will supersede state law requirements.

4. Discipline for Off-Campus Conduct

Schools may discipline students for off-campus conduct in certain circumstances,

depending on the nature of the conduct and its relationship to the school. When deciding whether

to suspend or expel for off-campus conduct, consider whether there is a nexus to the school or

district. As a reminder, the Colorado legislature indicated that students should only be expelled

when their behavior would cause “imminent harm to others in the school” or when the incident is

of a type that requires mandatory expulsion.

115

a. Unlawful Sexual Behavior or Crimes of Violence

Courts and prosecutors must notify schools when a student is charged with a crime that

would constitute unlawful sexual behavior or a crime of violence, if committed by an adult.

116

“Upon receipt of such information, the board of education of the school district or its designee

shall determine whether the student has exhibited behavior that is detrimental to the safety,

welfare, and morals of the other students or of school personnel in the school and whether

educating the student in the school may disrupt the learning environment in the school, provide a

113

§ 22-32-109.1, C.R.S.

114

§ 22-33-106, C.R.S.

115

§ 22-33-201.

116

§ 22-33-105(5)(a).

negative example for other students, or create a dangerous and unsafe environment for students,

teachers, and other school personnel.”

117

If the board or its designee makes such a finding, it can

proceed with suspension or expulsion.

Alternatively, the school district can wait until the conclusion of the juvenile proceedings.

In this situation, the school district has the discretion to remove the student from the school and

educate the student in an alternative education program, such an online program or a home-based

education program. If the school district elects to place the student in an alternative education

program, the district may proceed with expulsion after the student pleads guilty, is found guilty,

or is adjudicated a delinquent juvenile.

118

School districts should also consider whether they have Title IX obligations in these

situations. For example, if the off-campus criminal charge is sexual assault and the alleged

offender and victim both attend the school, consider implementing supportive measures for the

alleged victim (e.g. safety planning on contact with the alleged offender and access to safe adults

in the building).

b. Other Off-Campus Conduct

For other criminal or non-criminal conduct off campus, Colorado statute and caselaw sets

limits on the school district’s disciplinary authority.

119

To discipline conduct that is not at school

or at a school or district event, the conduct must be “detrimental to the welfare or safety of other

pupils or of school personnel,” such as “behavior that creates a threat of physical harm to the

child or other children.”

120

The conduct must also bear some reasonable relationship to the

educational environment, as discussed in Martinez v. School District No. 60, and must not

infringe upon rights to freedom of speech, as illustrated in Mahanoy Area School District v. B.L.

117

Id.

118

Id. at -105(5)(b).

119

§ 22-33-106(1)(c), C.R.S.; see, e.g., Martinez v. Sch. Dist. No. 60, 852 P.2d 1275, 1278 (Colo. App. 1992).

120

§ 22-33-106(1)(c).

Case Spotlight: Off-Campus Alcohol Use

Martinez v. School District No. 60

121

A district-wide policy provided for the automatic suspension of any student who sold,

used, consumed, is affected by, or possesses any type of alcohol during the regular school

day or at any district-sponsored activity. Two students drank beer at an off-campus private

party and then attended a high school dance. They argued that they did not violate the

policy because they did not consume the beer at the district-sponsored event and there was

no evidence that they were “affected by” the alcohol at the event. However, they were

suspended under the policy because their breath smelled like alcohol, and they admitted to

drinking one beer at the private party. The Colorado Court of Appeals observed that “a

school district cannot regulate purely private activity having no effect upon [the school]

environment.”

122

The court remanded for a determination of whether plaintiffs’ conduct

did in fact violate the policy requiring evidence that the students were “affected by” the

alcohol at the event. Note: to avoid the challenge of proving that someone is “affected by”

alcohol, most school district policies prohibit being under the influence of drugs or

alcohol at school, on buses, or at a school- or district-sponsored event.

In addition, punishing a student for speech, on or off-campus, could implicate the

student’s First Amendment right to free speech. In Tinker v. Des Moines Independent

Community School District, the U.S. Supreme Court noted that students’ on-campus speech is

ordinarily protected by the Constitution. However, the Court held that school officials may

nevertheless discipline students for on-campus speech if they are able to demonstrate the speech

would “materially and substantially interfer[e] with the requirements of appropriate discipline in

the operation of the school and collid[e] with the rights of others.”

123

This substantial disruption

standard has governed schools’ discipline decisions for over a half-century. The explosion of

social media has increased the potential for off-campus speech to substantially disrupt the school

environment.

The U.S. Supreme Court weighed in recently with Mahanoy Area School District v. B.L.

and held that, although the Tinker standard is not directly applicable to off-campus speech, there

continues to be a balance of school interests and student interests that must be carefully

considered. “[I]n considering student speech that occurs off campus and is unconnected to any

school activity, a school: (1) can ‘rarely stand in loco parentis’; (2) ‘will have a heavy burden to

121

852 P.2d 1275.

122

Id. at 1278.

123

393 U.S. 503, 513 (1969).

justify intervention’ when political or religious speech is involved; and (3) must especially

respect ‘an interest in protecting a student’s unpopular expression.’”

124

Case Spotlight: Off-Campus Social Media Posts

Mahanoy Area School District v. B.L.

125

A public high school student was suspended from the junior varsity cheerleading squad

because she used profanity in a social media post. The post, made off-campus on a Saturday

and sent to her private friends, expressed frustration with the school and the cheerleading

squad because the student was not chosen for the varsity squad. The U.S. Supreme Court held

that the suspension violated the student’s rights under the First Amendment. The school’s

argument that its interest in teaching good manners and thus, punishing vulgar speech aimed at

the school community, was weakened by the fact the student spoke outside the school on her

own time, did not threaten anyone, and was an expression of criticism, which is protected by

the First Amendment. The Court also noted that the school’s interest in preventing disruption

was not supported when the only discussion of the incident took 5-10 minutes of class time on

a couple of days. The Court noted that schools may have license to regulate off-campus

speech when it involves behavior like serious or severe bullying or harassment targeting

particular people, threats aimed at teachers or other students, failure to follow rules, and

breaches of school security devices, none of which were at play in this case.

Although the stakes may seem low in the context of profanity on social media, these

issues are particularly challenging when the off-campus speech is hate speech or uses racial

slurs. In a recent Tenth Circuit case, the court considered the suspension (and then expulsion) of

a Cherry Creek student who posted on social media: “Me and the boys bout to exterminate the

Jews,” along with a picture of his three classmates wearing hats, including one resembling a

foreign military hat from WWII.

126

The district court had dismissed plaintiff student’s claim

asserting that the discipline violated his First Amendment rights. Relying on the Mahanoy

considerations, the Tenth Circuit reversed and remanded to allow the case to proceed on the First

Amendment claim.

127

Because caselaw is evolving, consultation with legal counsel is critical

prior to pursuing a suspension or expulsion for off-campus speech.

124

C1.G on behalf of C.G. v. Siegfried, 38 F.4th 1270, 1276 (10th Cir. 2022) (summarizing and quoting Mahanoy

Area School District v. B.L., 141 U.S. 2038, 2046 (2021)).

125

141 U.S. 2038 (2021).

126

C1.G on behalf of C.G., 38 F.4th at 1274.

127

Id. at 1282.

5. Disciplining At-Risk Students

Colorado law requires schools to adopt policies that identify students who are at-risk of

suspension or expulsion.

At-risk students may include students who are truant, students who have

been or are likely to be declared habitually truant, and students who are likely to be declared a

“habitually disruptive student.” Once a school district identifies an at-risk student, the school

district must provide the student a plan for necessary support services to help avoid expulsion

and must work with the student’s parent in doing so.

These “Expelled and At-Risk Student

Services” (EARSS) may include tutoring services, alternative education services, vocational

education programs, counseling services, drug or alcohol addiction treatment programs, family

preservation services, and any other necessary services.

128

A school district may also provide the

required services through agreements with appropriate local government agencies, state agencies

(including the Department of Human Services and the Department of Public Health and

Environment), community-based non-profits, private schools, the Department of Military and

Veterans Affairs, and institutions of higher education (both public and private).

129

The State

Board of Education must approve any agreements to provide services by a nonpublic, non-

parochial school. Example EARSS funded programs can be found on the Colorado Department

of Education website.

130

D. Additional Legal Considerations in Student Discipline

1. Title IX

PLEASE NOTE: THE U.S. DEPARTMENT OF EDUCATION ISSUED NEW PROPOSED TITLE IX

REGULATIONS IN

JUNE 2022.

131

IF FINALIZED, THESE REGULATIONS WILL IMPACT THE

INFORMATION IN THIS SECTION

. PLEASE REFER TO THE OFFICE FOR CIVIL RIGHTS FOR THE

MOST UPDATED INFORMATION

132

There is significant overlap between school discipline infractions and conduct that could

violate Title IX. When student conduct implicates Title IX, appropriate Title IX procedures

should be followed. Issues to consider include reporting of sexual harassment, grievance

procedures, emergency removal and administrative leave, supportive measures and remedies,

informal resolution processes, and training requirements.

128

§ 22-33-202, C.R.S.

129

§ 22-33-204(1), C.R.S.

130

Expelled and At Risk Student Services (EARSS) Funded Programs, COLO. DEP’T OF EDUC.,

https://www.cde.state.co.us/dropoutprevention/earss_fundedprograms

(last visited September 29, 2022).

131

The U.S. Department of Education Releases Proposed Changes to Title IX Regulations, Invites Public Comment,

U.S.

DEP’T OF EDUC. (June 23, 2022), https://www.ed.gov/news/press-releases/us-department-education-releases-

proposed-changes-title-ix-regulations-invites-public-comment.

132

Sex Discrimination, OFF. OF CIV. RTS., U.S. DEP’T OF EDUC.,

https://www2.ed.gov/policy/rights/guid/ocr/sex.html

a. Reporting Sexual Harassment

Anyone should be able to report sex discrimination and sexual harassment to the school,

including complainants (i.e., those allegedly victimized by sexual harassment), witnesses, and

individuals who later become aware of the matter.

133

When any employee of a K-12 school

becomes aware of sexual harassment, the school district is responsible for responding. As part

of the response, the Title IX Coordinator must contact the complainant to discuss supportive

measures and to explain the process for filing a formal complaint of sexual harassment.

134

A formal complaint is a document filed by a complainant with the school, describing the

allegations of sexual harassment and requesting the school investigate said allegations.

135

When

a formal complaint is received, the school must follow its grievance procedures to investigate

and resolve the matter.

136

b. Grievance Procedures

Schools and districts must have grievance procedures to resolve formal complaints of

sexual harassment.

137

The procedures must treat complainants and respondents (alleged

perpetrators) equitably and provide for an objective review of the evidence before imposing any

disciplinary sanctions against a respondent. Grievance procedures must presume that the

respondent is not responsible for the alleged conduct and make no determination of

responsibility until the end of the grievance process.

The procedures must also state the standard used to determine responsibility, which can

be either the preponderance of the evidence or the clear and convincing standard.

138

The

preponderance of the evidence standard is generally described as proving something is more

likely true than not, while clear and convincing evidence is described as proving something is

“highly probable” and leaves no serious or substantial doubt.

139

Regardless of which standard is

used, the same standard must be used for formal complaints against student and employee

respondents.

Schools should include information about supportive measures, potential sanctions or

remedies, and how and why parties can appeal. Finally, schools must require that the Title IX

Coordinator and all other people involved in the grievance procedures are adequately trained on

the requirements and have no conflict of interest or bias.

140

133

34 C.F.R. § 106.8.

134

34 C.F.R. § 106.44.

135

A formal complaint can also be signed by the Title IX Coordinator. See 34 C.F.R. § 106.30.

136

4 C.F.R. § 106.44.

137

34 C.F.R. § 106.8.

138

34 C.F.R. § 106.45(b)(1).

139

Colo. Jury Instr., Civil 3:1-2.

140

34 C.F.R. § 106.45(b)(1).

Once a complaint is received, the school must send written notification to the parties. The

notification must include a description of the allegations, information about the school’s

grievance process, and the rights of the parties to have an advisor throughout the process and to

review any evidence obtained as part of an investigation into the allegations.

141

Upon receiving the formal complaint and sending the notice of the allegations to the

parties, the school’s investigation begins. An investigation into sexual harassment allegations

must give the parties an equal opportunity to gather and submit evidence and witnesses. Prior to

interviewing a party, the party must be sent written notice of the interview details, including the

purpose of the meeting. Parties must be able to have another person present during any meetings

or other proceedings, who may be an attorney. The school can implement parameters for this

person’s participation, applied equally to each party.

Before the investigation process is completed, the parties must have equal opportunity to

review any evidence that is “directly related” to the allegations, even if the school does not plan

to rely on that evidence in its decision-making process. The parties must have at least 10 days to

review this evidence and send a written response. The investigator(s) must consider these

responses in drafting the investigative report.

142

Once the investigation process is complete and

the parties have been given the opportunity to provide their written response to the directly

related evidence, the investigator(s) must write an investigative report that fairly summarizes all

relevant evidence.

Unlike colleges and universities, K-12 institutions are not required to have a hearing after

an investigation into sexual harassment allegations. If the school provides a hearing, it must

comply with Title IX.

143

Regardless of whether the school chooses to hold a hearing, the parties

must have at least 10 days to review the investigative report prior to any hearing/other decision-

making process.

144

The decision-maker(s) should facilitate a process by which parties can submit

relevant written questions to be asked of other parties or witnesses, provide the answers to all

parties, and allow for (limited) follow-up questions from each party.

Note that questions regarding the complainant’s sexual predisposition or prior sexual

behavior are generally deemed irrelevant, with two limited exceptions. First, this information can

be used to prove someone other than the respondent committed the alleged conduct. Second, the

information can be offered to prove the sexual conduct was consensual, but only if the

information relates to specific incidents of prior sexual behavior between the complainant and

respondent.

145

141

34 C.F.R. § 106.45(b)(2).

142

34 C.F.R. § 106.45(b)(5).

143

34 C.F.R. § 106.45(b)(6).

144

34 C.F.R. § 106.45(b)(5).

145

34 C.F.R. § 106.45(b)(6).

At the end of the decision-making process, the decision-maker(s) must provide their

written findings to the parties, including a rationale for the determinations as to each allegation.

The written decision must also describe any disciplinary action taken against the respondent,

remedies provided to the complainant, and procedures for appealing the determination.

146

The

school must give the parties an equal opportunity to appeal. If an appeal is filed, all parties must

be notified and given the opportunity to submit a written statement to the appeal decision-maker,

who must issue a written decision.

147

c. Supportive Measures and Remedies

Supportive measures and remedies are services offered by a school to restore or preserve

equal educational access. Supportive measures can be provided to any party and should be

provided where appropriate and available, regardless of whether a formal complaint has or will

be filed with the school. Such measures are non-disciplinary and must be provided at no cost.

Common supportive measures include counseling services, work or class schedule changes,

restrictions on contact between the parties, and extensions of class or work deadlines.148

Remedies apply after a respondent has been found responsible for sexual harassment. While

remedies may include the same types of services referred to as “supportive measures,” remedies

can also be disciplinary or punitive.

149

d. Emergency Removal and Administrative Leave

Schools can remove (i.e., suspend) a respondent on an emergency basis if the school

determines that there is an immediate threat to the physical health or safety of any student or

other person arising from the sexual harassment allegations. The determination must come after

an individualized assessment of the circumstances.

150

Immediately after removing the

respondent, the school must provide the respondent with notice and an opportunity to challenge

the removal decision. In addition to the emergency removal option, federal regulations provide

that respondents who are school employees may be placed on administrative leave during the

investigation and resolution of the allegations.

151

e. Informal Resolution Process

Schools may, but are not required to, use an informal resolution process (e.g., mediation

or restorative justice practices) in certain circumstances. Schools cannot use an informal

resolution process where the allegations involve sexual harassment by an employee against a

146

34 C.F.R. § 106.45(b)(7).

147

34 C.F.R. § 106.45(b)(8).

148

34 C.F.R. § 106.30.

149

34 C.F.R. § 106.45(b)(1).

150

Threat assessments are discussed in Section I of the manual.

151

34 C.F.R. § 106.44.

student. Schools also cannot require anyone to participate in an informal resolution process or

condition enrollment or employment upon participation in such a process.

Once a formal complaint is filed, the school may determine that an informal resolution

process is appropriate. If so, the school must obtain voluntary, informed, written consent from

the parties to use an informal resolution process. The participants must be given the option, at

any time prior to coming to a resolution, to withdraw from the process and resume the formal

grievance process.

152

If an informal resolution process is appropriate, the person(s) facilitating the process must

be trained in conducting a compliant informal resolution process.

153

f. Training Requirements

All individuals involved in the resolution of sexual harassment allegations should be

trained to serve impartially and competently, including Title IX Coordinators, investigators,

decision-makers, and those facilitating an informal resolution process. Training must include:

• The definition of sexual harassment in 34 C.F.R. § 106.30

• When Title IX applies to the school’s education program and activities

• How to serve impartially, including avoiding prejudgment of the facts, conflicts of

interest, and bias.

Individuals involved in the process also need to receive training regarding the specific

role they will serve. Investigators must be trained on conducting investigations, including issues

of relevance. Decision-makers also must be trained on issues of relevance, including when

questions and evidence about the complainant’s sexual predisposition or prior sexual behavior

are not relevant. If the school holds a live hearing, the hearing decision-maker must be trained on

conducting hearings, including on any technology that will be used during the hearing.

154

In addition to the required training for those involved in the Title IX process, all school

employees should receive training about the prevention of sexual harassment and their reporting

obligations.

2. Mandatory Reporting of Child Abuse Considerations

Student misconduct may sometimes implicate a mandatory reporting requirement under

Colorado law. Without training, many school personnel may not realize that some allegations of

behavior between students (e.g. student complainant/student respondent regarding unlawful

152

34 C.F.R. § 106.45(b)(9).

153

34 C.F.R. § 106.45(b)(1).

154

Id.

sexual contact or sexual assault) could be considered child abuse and a report to law enforcement

must be made. Child abuse reporting requirements are discussed in Section IV of the manual.

III. SEARCH, SEIZURE, AND RESTRAINT

CHAPTER INTRODUCTION

Colorado law recognizes that a safe learning environment is crucial to the mission of

public education. Some student conduct can pose a threat to the safety of students and staff. State

law empowers school districts to adopt and enforce policies and procedures to advance safe

learning environments. Both state and federal law place limitations on when, how, and why

school staff may intervene. This chapter gives school employees the tools to understand what the

law requires regarding the search and seizure of students and their property and the essential

components of school policy. It also offers practical and legal guidance on physical intervention

and restraints.

SEARCH AND SEIZURE

A. Core Concepts

1. What is a search?

Evaluating how to respond to suspicions that a student has contraband—such as drugs or

a weapon—can be a challenging legal issue for school officials. The discussion below outlines

the circumstances under which a school official may properly search a student or the student’s

personal property. This section also addresses common circumstances under which schools may

search students more broadly, such as through use of metal detectors or suspicionless drug

testing.

Key Chapter Topics

Seizure

Restraint

Law

Enforcement

Policy

Examples of

“searches”

under law:

Examining items or places that are not in the open and exposed to

public view.

Physically examining or patting down a student’s body or clothing,

including the student’s pockets.

Opening and inspecting personal possessions such as purses,

backpacks, bags, books, and closed containers.

Handling or feeling any closed, opaque item to determine its

contents when the contents cannot be inferred by the item’s shape or

other obvious physical properties.

Using any extraordinary means (for example, x-rays) to enlarge the

view into closed or locked areas, containers, or possessions, so as to

view items not in plain view and exposed to the public.

Drug testing.

2. Contours of Permissible Student Searches

The Fourth Amendment of the U.S. Constitution and article II, section 7 of the Colorado

Constitution protect people from unreasonable government searches and seizures of both their

bodies and belongings.

155

These constitutional protections are triggered whenever a government

action intrudes upon an activity or area in which a person holds a legitimate expectation of

privacy.

Practical Tip: When is there a legitimate expectation of privacy?

156

An expectation of privacy exists when

BOTH are true:

(1) the person expects the area or activity

to remain free from government intrusion,

AND

(2) society would recognize their

expectation as reasonable.

155

Article II, section 7 of the Colorado Constitution states in part: “[t]he People shall be secure in their persons,

papers, houses and effects, from unreasonable searches and seizures.”

156

People v. Oates, 698 P.2d 811, 814 (Colo. 1985).

“Government action” is not limited solely to law enforcement activities. Teachers and

school administrators engage in “government action” whenever they act as employees of a

public school or district. Although teachers may stand in a role like parents while supervising

minor students, this parent-like role does not shield them from constitutional requirements and

limitations. But because of this special responsibility that school employees have for the

wellbeing of students, school employees generally have broader discretion to conduct a search or

seizure than government actors in other contexts, such as searches by law enforcement. When the

legality of a search is challenged, courts balance students’ expectations of privacy against

schools’ equally legitimate interests in maintaining order.

157

As a result, students have a lesser expectation of privacy within the school environment

than they have elsewhere in society.

158

Case Spotlight: Reasonable Suspicion

New Jersey v. T.L.O. (1985)

159

A teacher found a student smoking in a school bathroom. When the student denied that she

was smoking, an assistant principal searched her purse and discovered cigarettes. As he

removed the cigarettes from the purse, the assistant principal noticed that the purse also

contained cigarette rolling papers. He knew that rolling papers were often associated with

marijuana use. Based on this discovery, he suspected the purse also contained marijuana. He

conducted a more thorough search of the purse and found marijuana and other evidence of

marijuana use and sale. The student and her family challenged the legality of the search. The

U.S. Supreme Court held that while students have some expectation of privacy under the

Fourth Amendment, school officials needed only reasonable suspicion of a policy violation

to conduct a search. In this case, the school’s search of the student’s purse for cigarettes was

reasonable because she was caught smoking in the bathroom. The discovery of rolling papers

typically associated with marijuana during that search of the purse provided the necessary

reasonable suspicion to search further for other evidence of drug-related activity.

How are searches unique in the school setting?

First, school officials do not need to obtain a warrant prior to conducting a search

or seizure of a student or their property.

160

157

See New Jersey v. T.L.O., 469 U.S. 325, 336-41 (1985) (plurality decision).

158

Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 829-30 (2002); Vernonia

Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995).

159

469 U.S. 325 (1985).

160

Id. at 340.

• The U.S. Supreme Court held that requiring school officials to obtain warrants would

unduly interfere with the swift and informal disciplinary procedures needed to

maintain an orderly learning environment.

161

Second, school officials are not required to satisfy the probable cause standard

prior to conducting a search or seizure.

• Ordinarily, a search—even one carried out without a warrant—must be based upon

“probable cause.” Probable cause is defined as a reasonable basis for believing that a

violation of the law has occurred or that evidence of a violation is present in the place

to be searched.

• However, this standard does not apply to searches conducted by school officials.

Rather, for a search on school property, in a school vehicle, or at a school event to be

proper, the search must merely be objectively reasonable under the circumstances.

162

Practical Tip: Is the search “Objectively Reasonable”?

Did the school official have a “reasonable

suspicion”?

Reasonable grounds for suspecting that the

search, if conducted, will turn up evidence that

the student has violated, or is about to violate,

the law or school rules.

Was the search reasonable

in scope?

• Measures adopted are reasonably related to

the objectives of the search, AND

• The search is not excessively intrusive

considering the age and sex of the student

and the nature of the infraction.

To determine whether a search conducted by school officials or employees is objectively

reasonable, courts apply a two-prong test: (1) courts look to determine whether school officials

had “reasonable suspicion” to justify the search; and (2) courts look to determine whether the

search was reasonable in scope.

163

Generally, a school official’s search is supported by “reasonable suspicion” where there

are reasonable grounds for suspecting that the search, if conducted, will turn up evidence that the

student has violated, or is about to violate, the law or school rules. If an official has a reasonable

suspicion, the search is “justified at its inception.” Additionally, a search is “permissible in its

scope when the measures adopted are reasonably related to the objectives of the search and [are]

not excessively intrusive in light of the age and sex of the student and the nature of the

161

Id.

162

Id. at 340-41.

163

Id. (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)).

infraction.”

164

For example, searching a teenage student’s underwear for evidence of a drug

violation is not reasonable.

165

Search Area

Expectation of

Privacy?

Required Justification for Search

Student’s Person or

Property

Yes

Reasonable suspicion and/or consent.

Car

Yes

Reasonable suspicion (if on school

property) and/or consent.

Lockers, Desks,

Other Storage Areas

in School

Yes or No

Depending on

School Policy

• Reasonable suspicion and/or consent.

• No individualized justification

required

for a random search pursuant to adequate

policy.

Abandoned Property,

Denial of Ownership, and

Property in Plain View

• Not a search.

• No justification required.

a. Student Consent

If a student validly consents to the search, it may be conducted without meeting any legal

requirements. School officials always have the option to request a student’s consent for a search

of the student or the student’s belongings.

To be valid, a student’s consent must be voluntary, meaning it cannot be obtained

through duress or coercion.

166

Whether consent to a search is voluntary is a question of fact that

considers the totality of the circumstances surrounding the consent. Such circumstances include:

• the student’s age,

• level of education,

• mental capacity, and

• whether the student knowingly and intelligently waived the right to refuse consent.

167

164

Id. at 341-42.

165

Safford Unified Sch. Dist. # 1 v. Redding, 557 U.S. 364, 374 (2009).

166

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

167

Id. at 226-27, 232-33.

While consent does not necessarily have to be knowingly and intelligently given, those

are important factors in evaluating the voluntariness of consent.

168

Practical Tip: Consent to Search

The most reliable way to establish that a student’s consent was voluntary is to demonstrate

that the searched student knew that they had a right to refuse the search.

Therefore, prior to conducting a consensual search, school officials should notify the student

that they have a right to refuse to be voluntarily searched, tell the student why the search is

being sought, and what the school officials believe will be found. School officials should

document the student’s consent in writing, preferably signed by the student.

After being advised of their right to refuse, a student’s consent to be searched can be

provided either orally or in writing. However, because a student’s consent must be clear and

unequivocal, a written waiver is preferred. If using a Consent to Search Form, officials should

obtain the student’s signature prior to the search.

When requesting consent to search, school officials should inform the student why

permission to search is being sought and what the school officials believe the search will reveal.

Providing such information helps ensure the student’s consent is knowing and intelligent. Under

no circumstances may school officials threaten a student with punishment for withholding

consent, because this will suggest the student’s consent was not voluntary.

169

The student may withdraw consent at any time, and the student’s request to terminate the

search must be honored.

170

However, school officials may seize any evidence they observed

before the student withdrew their consent.

171

If a school official develops a reasonable suspicion,

168

See id. at 241 (distinguishing the rights guaranteed by the Fourth Amendment from the right to a fair trial).

169

Id. at 247; but see DesRoches by DesRoches v. Caprio, 156 F.3d 571, 577-78 (4th Cir. 1998) (concluding that a

student was appropriately threatened with punishment when refusing consent to a search, because school officials

had already developed a reasonable individualized suspicion to justify the search).

170

See United States v. Jimenez-Valenia, 419 Fed. App’x 816, 820 (10th Cir. 2011) (noting that “[a] person who has

consented to a search may withdraw his consent as long as he communicates his withdrawal to the officer”); see

also United States v. McWeeney, 454 F.3d 1030, 1036 n.2 (9th Cir. 2006) (holding that “there is a constitutional

right to withdraw consent once it is given”). These cases, while applying this rule in the criminal context, are

sufficiently analogous to the rights applicable to students in schools because “school officials act as representatives

of the State” and are therefore limited by the principles of the Fourth Amendment. See New Jersey v. T.L.O., 469

U.S. 325, 336 (1985).

171

See United States v. Mains, 33 F.3d 1222, 1227 (10th Cir. 1994) (refusing to exclude from evidence contraband

discovered in a closet when consent to search the closet had been revoked only after the contraband was

discovered); see also United States v. Dyer, 784 F.2d 812, 816 (7th Cir. 1986) (holding that when consent is not

withdrawn until after contraband is discovered, “the consent remains valid” and the contraband is “admissible as

evidence”). Again, while these cases apply this concept in the criminal context, this protection is analogous under

the Fourth Amendment and should extend to students in the school context as well. See T.L.O., 469 U.S. at 336.

as explained below, the official may continue the search, even after consent has been withdrawn

and over the student’s objections.

b. Reasonable Suspicion

Reasonable suspicion is the first of two factors in determining whether a non-consensual

search of students or their belongings is reasonable. Reasonable suspicion is founded on common

sense—it exists where there are reasonable grounds for suspecting that the search, if conducted,

will produce evidence that the student violated or is violating the law or school rules.

172

A school

official will have a reasonable suspicion if the official is aware of objective facts and information

that, taken as a whole, would lead a reasonable person to suspect that a rule violation has

occurred and that evidence of the violation can be found in the place to be searched. The

suspicion must be more than a mere hunch, and it must be based upon articulable facts.

However, it does not need to rise to the level of absolute certainty or probable cause.

173

Possible bases for a “reasonable suspicion” may include:

• Observed criminal law or school rule violation in progress;

• Observed weapon or portion of a weapon;

• Observed illegal item;

• Observed item believed to be stolen;

• Student found with incriminating items;

• Smell of burning tobacco or marijuana;

• Student appears to be under the influence of alcohol or drugs;

• Student admits to criminal law or school rule violation;

• Student fits description of suspect of recently reported criminal law or school rule

violation;

• Student flees from vicinity of recent criminal law or school rule violation;

• Reliable information provided by others, including evidence incriminating one

student turned over by another student;

• Threatening words or behavior;

• Report of stolen item, including description and value of item and place where item

was stolen;

172

T.L.O., 469 U.S. at 341-42.

173

People in Interest of P.E.A., 754 P.2d 382, 388-89 (Colo. 1988).

• Student seen leaving area where criminal law or school rules violations are often

committed; and

• Emergency situations, where school official can provide immediate assistance to

avoid serious injury.

Case Spotlight

In re William G. (1985)

174

A high school assistant principal noticed a student carrying a small black bag with an “odd-

looking bulge,” which the student appeared to be trying to conceal by holding the bag to his

side and then behind his back. The assistant principal approached the student and demanded to

see the bag. When the student refused to hand it over, the assistant principal forcefully took

the bag from the student, opened it, and found marijuana inside. On review, the Court held

that the assistant principal’s search was not supported by a reasonable suspicion. The Court

noted that the school official acted with a complete lack of any knowledge or information that

would reasonably connect the student to the possession, use, or sale of illegal drugs or other

contraband. The student’s “furtive gestures” alone were not sufficient to justify the search.

Thus, while the threshold for reasonable suspicion is not a high one, school officials must

generally be able to articulate a specific basis for the suspicion.

Case Spotlight

People In Interest of C.C-S.

175

This recent case is helpful for assessing when an anonymous tip creates reasonable suspicion

for a search. The court found that an anonymous Safe2Tell tip that a defendant had been seen

firing a gun in a social media video was insufficient to justify the school safety officer’s

search of the defendant’s backpack even though the defendant had a history of bringing

prohibited items to school. The court’s nuanced analysis was based on the following: the

defendant’s prior misbehavior involved him bringing drugs to school, not firearms; the tip was

anonymous and unsubstantiated because the school safety officer could not view the video, as

it had been deleted; the video was a month old by the time the tip was reported; the tip

provided no information about video’s source; and the tip gave no indication that the

174

709 P.2d 1287, 1297-98 (Cal. 1985).

175

People In Interest of C.C-S., 503 P.3d 152 (Colo. App. 2021).

defendant would continue to carry a gun.

176

The court noted that a “tip is less supportive of

reasonable suspicion after it has gone stale.”

177

c. Scope of the Search

Once reasonable grounds to conduct a search exist, the next step is to establish the

reasonable scope of the search, which defines how extensive a search can be. Common sense

dictates the appropriate scope of a search. The scope of a search must be “reasonably related to

the objectives of the search and not excessively intrusive in light of the age and sex of the student

and the nature of the infraction.”

178

In other words, the scope of the search should be reasonably

related to the circumstances initially justifying the search.

179

The scope of the search may vary

depending on the nature and severity of a potential threat. For example, a search of a student for

a gun could be more intrusive than a search of a student for evidence that the student is in

violation of a campus chewing gum ban.

Similarly, there must be a logical connection between the thing or place to be searched

and the item school officials are seeking to find.

180

When a school official has reasonable

suspicion to conduct a search of a student’s locker for drugs, the school official may open and

inspect any closed containers or objects that are stored in the locker if the drugs could reasonably

be concealed within the containers. However, those same circumstances would not permit the

official to read the contents of a diary found in the locker. Likewise, while a teacher’s reasonable

suspicion that a student stole a textbook would justify a search of that student’s backpack or

locker, it would not justify a search of that student’s clothing or of any containers, such as a

small purse, that are too small to conceal the missing textbook.

If, during a reasonable search a school official discovers new evidence of illegal or rule-

breaking activity, that evidence may justify a continued or more thorough search of the student

or their property.

181

As noted in New Jersey v. T.L.O. (spotlighted above), a teacher was able to

176

503 P.3d at 157-59.

177

Id. at 159.

178

T.L.O., 469 U.S. at 342.

179

Id. at 341 (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)).

180

See id. at 496-98 (holding that the scope of a search on school grounds is reasonable when the manner in which

the search is conducted, including the location of the search, is “reasonably related to the objectives of the search

and not excessively intrusive”) (citations and internal quotation marks omitted); see also United States v. Kimoana,

383 F.3d 1215, 1223 (10th Cir. 2004) (noting that “[t]he scope of a search is generally defined by its expressed

object” and that “[c]onsent to search for specific items includes consent to search those areas or containers that

might reasonably contain those items”) (citations and quotation marks omitted).

181

See, e.g., Thompson v. Carthage Sch. Dist., 87 F.3d 979, 983 (8th Cir. 1996) (upholding the search of a student

after the principal suspected that weapons had been brought to school by an unknown student).

search further once he found rolling papers, because this was additional evidence of

contraband.

182

Similarly, in People in Interest of P.E.A., the Colorado Supreme Court upheld thorough

searches of a student’s person, locker, and car based upon information received from a local

police officer that the student possessed, and intended to sell, drugs at school.

183

The Court

recognized the school’s legitimate interest in preventing drug transactions from occurring on

campus, and it held that the searches were reasonable in light of the information known to school

personnel at the time that they conducted the search.

184

Practical Tip: Searching Cars

The “reasonable suspicion” standard applies equally to students’

cars. A car parked on school property receives no greater legal

protection than a student’s purse or backpack, and it may be

searched by school officials under appropriate circumstances.

185

Alternatively, school officials may have students sign waivers to

park cars on school property. By signing the waiver, students

consent in advance to a search of their vehicles anytime they are

parked on school property. Different standards may apply to

students’ cars parked off campus, based on the specific facts.

There may also be circumstances that justify broader searches during activities away

from school grounds. In Webb v. McCullough, a principal entered a hotel room of students to

search for alcohol during a field trip to Hawaii.

186

The court held that the search of the room was

reasonable, noting both that a greater range of activities occur during extracurricular activities

and that there are more ways for students to violate school rules or laws on a field trip than

during school.

187

182

Id.

183

People in Interest of P.E.A., 754 P.2d 382 (Colo. 1988).

184

Id. at 389-90.

185

754 P.2d at 384, 389.

186

828 F.2d 1151, 1153 (6th Cir. 1987).

187

Id. at 1157.

Practical Tip: What about disruptive items, like cell phones?

Courts generally respect school policies designed to prevent

disruptions, but those policies do not automatically allow a

search of students’ property causing such disruptions.

Policies banning the use or display of cell phones and other

personal electronic devices in the classroom are often deemed

a legitimate exercise of the school’s right to maintain a

disruption-free educational environment.

188

If a student

violates a “no cell phone” policy, school officials can

temporarily confiscate the device.

189

However, the right to

seize a phone does not convey a right to search its contents.

Searching the phone’s contents would be justified only if the

school official has reasonable grounds for believing that the

phone contains evidence of other violations of law or school

policy. For example, credible reports of “sexting,” exchange

of improper photos, or evidence that students are using their

phones to arrange drug sales could all provide a reasonable

suspicion that would justify searching their phones.

d. Strip Searches Receive Heightened Judicial Scrutiny

School officials should be especially cautious before requiring a student to remove items

of clothing for conducting a search. Courts will closely scrutinize the facts justifying a search

where the search is particularly intrusive, such as one that involves a strip search or physical

touching of a student’s person.

190

The term “strip search” includes nude searches, searches that reveal a student’s

undergarments, and searches that include the removal or re-arrangement of clothing for the

purpose of visual inspection of the student’s buttocks, genitals, or breasts.

191

The term does not

include removal of outer layers of clothing not in direct contact with the student’s skin, such as

jackets or sweaters.

192

Although strip searches may be appropriate in certain circumstances,

188

See, e.g., Requa v. Kent Sch. Dist. No. 415, 492 F. Supp. 2d 1272, 1276, 1280-81 (W.D.Wash. 2007).

189

Id. at 1283.

190

Safford Unified Sch. Dist. # 1 v. Redding, 557 U.S. 364, 374 (2009) (stating that strip searches are “categorically

distinct”); cf. Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 488 (5th Cir. 1982) (holding that the use of

drug dogs to sniff school children in close proximity was overly intrusive).

191

See id. at 368-69 (referring to a search that exposed a student’s “breasts and pelvic area to some degree” as a

“strip search”).

192

Id. at 374.

school districts should contact their school attorneys and local prosecutors for guidance and

training on the legal requirements for initiating and conducting such a search.

Case Spotlight: Reasonable Scope of a Search

Stafford Unified School District v. Redding (2009)

School administrators strip-searched a middle school girl to look for pills. The U.S. Supreme

Court held that although there was reasonable suspicion to search the girl’s outer clothes and

property, a search of her underwear violated the Fourth Amendment. The Court cited the girl’s

age (13) and described the search as “embarrassing, frightening, and humiliating.”

193

e. Limited Searches During Medical Emergencies

Generally, the medical emergency exception to the Fourth Amendment permits school

officials to search an unconscious or semi-unconscious student and/or their personal belongings

for the purposes of discovering the student’s identity or providing medical assistance.

194

For

example, if school officials were to find an incoherent student on school grounds, those officials

could search the student and their belongings to determine what type of substance(s) the student

may have ingested. This information could prove invaluable in obtaining emergency medical

assistance.

f. Searches Pursuant to a Safety Plan

There are times when a student may be subject to regular searches as part of a threat

assessment safety plan. For example, a school should conduct a threat assessment if there are

allegations of a student bringing weapons on campus. If the findings of the threat assessment

necessitate a safety plan that includes daily searches of the student’s backpack, the Colorado

Court of Appeals recently held that a school does not need reasonable suspicion every time a

search is conducted pursuant to that safety plan.

195

Consult your school attorney for information

on this developing area of the law.

B. Law Enforcement’s Role

While school officials may conduct a search when they have a reasonable suspicion that a

violation of a criminal law or a school rule has occurred, law enforcement officers generally

cannot conduct a search without probable cause or a warrant.

196

The probable cause standard

requires a reasonable belief that evidence of a crime or wrongdoing exists in the place to be

193

Id. at 368, 374-75 (2009).

194

People v. Wright, 804 P.2d 866, 869 (Colo. 1991) (citing Mincey v. Arizona, 437 U.S. 385,392-93 (1978)).

195

People In Interest of J.G., 2022 WL 2165523 (Colo. Ct. App. June 16, 2022) (not yet released for publication

because a petition for rehearing or a petition for certiorari may be pending as of Sept. 2022).

196

People v. Zuniga, 372 P.3d 1052, 1056 (Colo. 2016).

searched. It is a higher standard than the reasonable suspicion standard applicable to school

officials.

197

Neither the U.S. Supreme Court nor the Colorado Supreme Court have established which

standard will control when school officials conduct searches as agents of, or at the behest of, law

enforcement.

198

However, other courts have held that “where a search is initiated and conducted

by school officials alone, or where school officials initiate a search and police involvement is

minimal, the [reasonable suspicion] standard is applicable.”

199

Conversely, “where ‘outside’

police officers initiate, or are predominantly involved in, a school search of a student or student

property for police investigative purposes,” the ordinary probable cause and warrant

requirements will apply.

200

While it is likely that Colorado courts would rule the same way,

Colorado law is still uncertain. Therefore, until Colorado courts definitively settle the issue, the

timing and extent to which law enforcement becomes involved with searching students or their

property is a decision best left to law enforcement officials—not school officials.

C. Suspicionless Searches

1. Suspicionless “Blanket” Searches

School officials also have the authority to conduct suspicionless “blanket” searches of

all students.

Practical Tip: What is a blanket search?

Blanket searches empower school officials to screen all students

who are present on school property or are participating in school-

sanctioned activities without requiring officials to demonstrate an

individualized, articulable suspicion for each student.

Examples include the use of metal detectors, video surveillance,

random drug testing, dog sniffs, and campus-wide locker

searches. Generally, the purpose of these programs is to prevent

students from bringing or keeping dangerous weapons, drugs,

alcohol, and other prohibited items on school grounds. Thus,

197

New Jersey v. T.L.O., 469 U.S. 325, 340-41 (1985) (plurality decision).

198

Id. at 341 n.7; People in Interest of P.E.A., 754 P.2d 382, 385 n.3 (Colo. 1988). In People In Interest of P.E.A.,

the Colorado Supreme Court found that the school officials were not acting as agents of the police and, therefore,

declined to decide which standard would apply if they had acted as agents.

199

See, e.g., Myers v. State, 839 N.E.2d 1154, 1160 (Ind. 2005) (summarizing standards identified by various lower

courts in other jurisdictions).

200

Id.

schools will often adopt inspection programs to demonstrate that

certain types of behavior are not tolerated.

201

These kinds of suspicionless, general search techniques are permissible so long as

specific, articulable facts demonstrate an appropriate need for them.

202

School officials should

always consult with counsel before adopting inspection programs to ensure that the applicable

legal requirements are satisfied.

a. Metal Detectors

Random searches using metal detectors (both walk through and “wand” style) are

reasonable administrative searches.

203

However, schools should not use metal detectors as a

pretext to target individuals or groups. To ensure the propriety of their use, school districts

should implement the following best practices before installing or providing school employees

with metal detectors:

• Make appropriate findings. The local board of education, school district

superintendent, and/or school principal should adopt and memorialize specific

findings that detail the problem sought to be addressed using metal detectors. The

findings should explain why it is necessary and appropriate to use metal detectors in

the school. Balance the documented need against the impact of metal detectors on

school culture, the logistics of students getting to classes on time, and the investment

of resources in the program.

• Provide advance notice. All students, parents, and guardians should be provided

with written notice of the metal detector program. Students should also be orally

advised of the program in their homeroom classes and/or in a school-wide assembly.

• Ensure Neutrality. Prior to implementing the inspection program, high-ranking

school officials, such as the superintendent or school principal, should develop a

neutral plan for using the metal detectors. School officials should adopt a plan that

requires all students to be screened; however, if that is not feasible, school officials

should adopt a random selection method. Regardless of the plan adopted by school

officials, individual school employees who are responsible for operating the metal

201

See Jason P. Nance, Random, Suspicionless Searches of Students’ Belongings: A Legal, Empirical, and

Normative Analysis, 84 U.

COLO. L. REV. 367, 369-75 (2013), available at

https://scholarship.law.ufl.edu/facultypub/285/

(last visited August 2, 2022).

202

Id. at 394.

203

In re Latasha W., 60 Cal. App. 4th 1524, 1526-27 (1998) (holding that schools’ random wand detector searches

of students does not violate the Fourth Amendment); People v. Pruitt, 278 Ill. App. 3d 194, 204-05, 662 N.E.2d

540, 547 (1996) (holding that schools’ random walk-through metal detector searches of students does not violate

the Fourth Amendment).

detectors should be trained in genuinely random search protocols and they should not

have discretion to select which students are screened.

• Administer the plan carefully. Prior to screening a student, school employees

should ask the student to empty their pockets and belongings of all metal objects. If

the student activates the metal detector, school employees should remind the student

to remove all metal objects from their pockets and ask the student to complete a

second screening. If the metal detector is activated a second time, school officials

should use a hand-held magnetometer, if available, to focus on and discover the exact

location of the metal source. If the activation is still not eliminated or explained, then

school officials may expand the scope and method of the search, which may include a

limited pat-down of the student’s body because the ongoing activation of the detector

itself gives rise to a reasonable suspicion.

• A pat-down search is permissible only under the following conditions:

(1) there must be no less intrusive alternative available,

(2) the search must be limited to what is necessary to detect weapons, and

(3) the search must be conducted in a private area away from other students and

(whenever possible) by school officials of the same gender as the student.

204

may also be advisable to have two employees present when feasible to avoid

any claims of impropriety against the employee. Always use this two-person

approach if there is no option to have the search conducted by a school official

of the same gender as the student.

b. Video Surveillance

Video surveillance on school campuses is a critical and encouraged component of

campus security. When selecting the locations for security cameras on school campuses, school

officials should be cognizant and respectful of student’s privacy rights. Students do not have a

reasonable expectation of privacy about the actions they take in public spaces, but they do

maintain an expectation of privacy in areas like bathrooms and locker rooms.

205

204

See also Herrera v. Santa Fe Pub. Sch., 956 F. Supp. 2d 1191, 1255-56 (D.N.M. 2013) (holding that pat-down

searches without individualized, reasonable suspicion violated the Fourth Amendment).

205

Brannum v. Overton Cty. Sch. Bd., 516 F.3d 489, 498 (6th Cir. 2008) (suggesting that video surveillance of

public areas in schools is appropriate).

Case Spotlight: Surveillance Cameras in Locker Rooms

Brannum v. Overton County School Board (2008)

206

Middle school students challenged the legality of surveillance cameras in the school locker

rooms. A federal court concluded that video surveillance in a middle school locker room was

an unreasonable search that violated students’ Fourth Amendment privacy rights. The court

reasoned that placement of the video cameras in the locker room setting was unnecessary and

disproportionate to the school’s goal to increase security. The court emphasized that “a person

of ordinary common sense, to say nothing of professional school administrators, would know

without need for specific instruction from a federal court, that teenagers have an inherent

personal dignity, a sense of decency and self-respect, and a sensitivity about their bodily

privacy that are at the core of their personal liberty and that are grossly offended by their being

surreptitiously videotaped while changing their clothes in a school locker room.”

207

Therefore, while security cameras may be used to monitor public spaces like hallways,

parking lots, and common areas, school officials should not place cameras in school bathrooms

or locker rooms. When extraordinary circumstances might apply, officials should consult with

legal counsel prior to placing cameras in those locations.

c. Random Locker Searches

As discussed previously, school officials may search an individual student’s locker when

they reasonably suspect the locker contains evidence of a legal or school rule violation. School

officials may also conduct random, suspicionless searches of students’ lockers where the

authority for such searches is included in the school district’s locker search policy.

208

The

policy should make clear that all lockers are the property of the school district and are subject to

search by school officials at any time.

Case Spotlight: Searching Lockers

Zamora v. Pomeroy (1981)

209

A school policy specifically stated that all “lockers remain[ed] under the jurisdiction of the

school, notwithstanding the fact that they were assigned to individual students,” and “the

school reserved the right to inspect all lockers at any time.” The U.S. Tenth Circuit upheld the

school’s use of drug-sniffing dogs to search students’ lockers on the basis that the district’s

policy made it clear to students that they did not have exclusive control over their lockers and

206

Id.

207

Id. at 499.

208

See § 22-32-109.1(2)(a)(I)(I), C.R.S. (requiring all school districts to adopt locker search policies).

209

639 F.2d 662, 665 (10th Cir. 1981).

could expect such searches to occur. Therefore, neither the initial use of dogs to determine

which lockers to search, nor the subsequent warrantless searches of the lockers violated the

Fourth Amendment because students had no reasonable expectation of privacy in their lockers.

d. Suspicionless Drug Testing

Random, suspicionless drug testing of students is a controversial and complicated issue

that includes more nuances and caveats than can be addressed in these few paragraphs. Before

implementing any random drug testing programs, schools and school districts should closely

consult with legal counsel to ensure that their programs and policies are compliant with state and

federal constitutional law.

Case Spotlight: Drug Testing Student Athletes

Vernonia School District 47J v. Acton (1995)

210

Facing an unyielding drug abuse problem, the Vernonia School District implemented a

Student Athlete Drug Policy after receiving unanimous support from parents at an “input

night.” The policy required all prospective student athletes and their parents to sign a form

consenting to random, limited drug tests. The U.S. Supreme Court held that school districts

may lawfully adopt policies that enable them to randomly test their student athletes for illegal

substances, concluding that the policy at issue was reasonable due to student athletes’ lesser

expectation of privacy and drug use’s increased risks of physical injury. The Court noted that

the school used a limited test, which would identify prohibited drugs and would not reveal

other medical information. The Court also recognized the school district’s strong interest in

curbing student drug abuse, particularly among student-athletes who were well-known in the

community and appeared to be role models for others.

Subsequent to Vernonia, the U.S. Supreme Court has held that under certain, narrow

circumstances, school districts may require students who participate in non-athletic

extracurricular activities to submit to suspicionless drug testing as well.

211

Whether or not a

school district’s suspicionless drug testing policy falls within this authority depends on a careful,

fact-specific analysis of the issues the school district is attempting to mitigate.

Drug testing policies that are overly broad are subject to challenge. In Trinidad School

District v. Lopez, the Colorado Supreme Court struck down a suspicionless drug testing policy

that applied to all students involved in any extracurricular activity because the necessity of such

a broad policy was not factually supported. The Court held that non-athletes have a higher

expectation of privacy than athletes and that it is not enough for a school district to merely

210

515 U.S. 646, 666 (1995).

211

See, e.g., Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 837-38 (2002).

demonstrate that a growing drug abuse problem exists across a student body. The Court

distinguished Vernonia by noting that many of the students from Lopez did not face the same

risks of physical injury as athletes and they were enrolled in for-credit classes as part of their

extracurricular activities.

212

A school district must identify compelling case-specific facts that support adopting a

suspicionless drug testing policy intended to cover students other than athletes.

213

This is a

difficult standard to satisfy, and Colorado courts generally disfavor broad suspicionless drug

testing policies.

214

D. Seizures Of Students or Student Property

The Fourth Amendment to the U.S. Constitution also protects all persons from

unreasonable government seizures. Generally, a “seizure” describes two distinct types of

government actions: (1) when a government representative intentionally interferes with an

individual’s freedom of movement (“seizure of a person”); or (2) when a government

representative interferes with an individual’s possession of property (“seizure of an object”).

215

However, in the context of actions taken by school officials, the concept of a “seizure,” either of

a person or of an object, is more narrowly defined.

Similar to searches, courts balance students’ constitutionally protected interests with “the

interests in providing a safe environment conducive to education in the public schools when

deciding whether a seizure is constitutionally permissible.”

216

A school official seizes a student

when “the limitation on the student’s freedom of movement . . . significantly exceed[s] that

[which is] inherent in every-day, compulsory attendance.”

217

A seizure of property in the

school context “occurs when there is some meaningful interference with [a student’s]

possessory interests in that property.”

218

This definition accounts for the “lesser expectation of

privacy” that students enjoy as compared to members of the general population.

219

1. Seizure of a Student

In a case alleging seizure of a student by school officials, the plaintiff must satisfy a

preliminary hurdle: to show that the school’s restrictions rose to the level of seizure under the

212

Trinidad Sch. Dist. No. 1 v. Lopez by and through Lopez, 963 P.2d 1095, 1096-97, 1109-10 (Colo. 1998).

213

Id. (noting lack of such evidence).

214

See e.g., Univ. of Colo. v. Derdeyn, 863 P.2d 929, 944-45 (Colo. 1993) (reviewing cases discussing various

government interests in suspicionless drug tests).

215

See, e.g., Brower v. Cty. of Inyo, 489 U.S. 593, 595-98 (1989); see also Soldal v. Cook Cty., 506 U.S. 56, 61

(1992).

216

Edwards ex rel. Edwards v. Rees, 883 F.2d 882, 883-84 (10th Cir. 1989) (citing New Jersey v. T.L.O., 469 U.S.

325, 332 n.2 (1985) (plurality decision).

217

Couture v. Bd. of Educ. of Albuquerque Public Schools, 535 F.3d 1243, 1251 (10th Cir. 2008).

218

Burlison v. Springfield Pub. Schs., 708 F.3d 1034, 1039 (8th Cir. 2013) (citations and internal quotations

omitted).

219

Id. (citing Vernonia School District 47J v. Acton, 515 U.S. 646, 656-57 (1995)).

Fourth Amendment.

220

In Ebonie S., a school district used a desk with a student with severe

disabilities that wrapped around the student on the front and sides and had a bar that ran behind

the student to prevent her from leaving the desk. The school officials used the desk to keep the

student on task and from disrupting the classroom.

221

The Tenth Circuit found that the actions

did not constitute a seizure under the Fourth Amendment (even though they were prohibited by

the Colorado Protection of Persons from Restraint Act) because: (1) the student was sitting in a

chair facing forward, which is standard posture for students; (2) she could get out of the desk by

crawling over or sliding under the front portion; and (3) the mechanism was not attached to the

student’s body.

222

In the court’s opinion, the limitation on the student’s freedom of movement

did not significantly exceed that which is inherent in every-day, compulsory school attendance

and was not a seizure.

If the action rose to the level of a seizure under the Fourth Amendment, the

propriety of a seizure is governed by the same standard that governs searches:

reasonableness under the circumstances.

223

• A seizure of a student’s person is justified at its inception when a school official

reasonably suspects that questioning a student might yield evidence that they

violated the law or an applicable school rule.

224

• Similarly, a seizure is reasonable in scope if the detention is proportionate to the

seriousness of the alleged offense.

225

Case Spotlight: Student Questioning

Edwards v. Rees (1989)

226

A vice principal held and interrogated a high school student in a closed office for 20 minutes

to question him about a bomb threat. On review, the court held that the seizure was justified at

its inception because the student had been implicated by two other students, giving the vice

principal a reasonable basis for suspecting that questioning the student would yield evidence

related to the threat. The court also held that the seizure was reasonable in scope “[g]iven the

seriousness of the suspected offense” and the relatively short duration of the questioning.

227

220

Ebonie S. v. Pueblo Sch. Dist., 695 F.3d 1051, 1056 (10th Cir. 2021).

221

Id. at 1054-55

222

Id. at 1057.

223

Edwards, 883 F.2d at 884.

224

Id.

225

Id.

226

883 F.2d 882 (10th Cir. 1989).

227

Id. at 884.

Note: The case did not answer the preliminary question of whether the interrogation was a

seizure under the Fourth Amendment. Based on the subsequent analysis of Ebonie S., it seems

unlikely that the 20-minute interrogation would have met the preliminary hurdle to

demonstrate a seizure under the Fourth Amendment because the student was free to leave the

principal’s office.

228

Future cases may focus on the preliminary question more closely before

proceeding to the reasonableness standard.

Two cases from other jurisdictions illustrate how courts determine whether a student

seizure is reasonable under the circumstances. In Shuman v. Penn Manor School District, a high

school student who had been accused of sexual misconduct was detained for three and a half

hours. During that time, school officials questioned the student about the allegation. While the

student was not free to leave or attend his normal classes, he was permitted to do his homework,

get water, and eat lunch alone in the cafeteria. The court held that the seizure was reasonable

given the seriousness of the allegation and the reduced liberty typically afforded students in the

public-school setting.

229

In Wofford v. Evans, school officials, and later law enforcement, detained and questioned

an elementary school student for short portions of two separate days. The student was detained

because several other students had alleged that she had brought a gun to school, with one student

claiming to have seen her discard the gun near school grounds. The court held the detentions

were justified at their inception and reasonable in scope because the allegations were grave, and

the student was not held any “longer than necessary to address [the] allegation[s].” The court

also held that law enforcement’s involvement in the incident was reasonable because the gun

posed an ongoing threat to the school and the community if it was, in fact, discarded near school

grounds.

230

2. Seizure of a Student’s Property

Colorado courts have yet to address seizures of a student’s personal property. Three cases

from other jurisdictions provide insight into how Colorado courts may rule.

In Burlison v. Springfield Public Schools, high school students were required to exit their

classroom—leaving their backpacks, purses, and other personal items behind—while dogs

searched the room and their belongings for drugs. The search was conducted pursuant to a

district-wide policy, and the students were separated from their property for only a short period

of time. One student sued the school district claiming the separation constituted an unreasonable

seizure of his property. The court rejected his claim on the basis that the seizure was intended to

228

Ebonie S., 695 F.3d at 1056-57 (noting that the Tenth Circuit had assumed without deciding that a seizure

occurred in both Edwards ex rel. Edwards v. Rees, 883 F.2d 882, 883-84 (10th Cir. 1989) and Couture v. Bd. of

Educ. of Albuquerque Public Schools, 535 F.3d 1243, 1251 (10th Cir. 2008)).

229

422 F.3d 141, 144-49 (3d Cir. 2005).

230

Wofford v. Evans, 390 F.3d 318, 321, 326-27 (4th Cir. 2004).

maintain students’ safety and security, and therefore, was reasonable under the circumstances.

The court stated that “[r]equiring students to be separated from their property during such a

reasonable procedure avoids potential embarrassment to students, ensures that students are not

targeted by dogs, and decreases the possibility of dangerous interactions between dogs and

children.”

231

Similarly, in the case of In re D.H., students were required to leave their property in the

classroom and wait in the hall while police entered the room with drug-sniffing dogs. When a

dog alerted to a student’s backpack, the student’s backpack was opened outside the presence of

other students, and marijuana was discovered. The student attempted to suppress the discovery of

the marijuana, arguing (1) that her backpack had been unreasonably seized when she was

separated from it and (2) that the school did not have a reason to believe she was in violation of

school rules or the law prior to seizing her bag. The court held that the seizure was reasonable,

noting that a school’s role as guardians and tutors was an important consideration in its analysis.

Given the school’s educational objectives, the court held that the student’s brief separation from

her backpack implicated only a minor privacy interest.

232

In addition, the court held that any

invasion of her privacy was outweighed by the dog’s alert to her backpack and the minimally

intrusive way in which it was searched.

233

Finally, policies banning the use of cell phones and other personal electronic devices in

classrooms are generally considered to be legitimate exercises of a school’s right to maintain a

disruption-free educational environment. In Requa v. Kent School District, the court held that

school officials may temporarily confiscate a student’s cell phone or other personal electronic

device if they are caught violating a “no cell phone” policy.

234

However, as discussed earlier in

this Section, the right to seize a phone does not convey a right to search it. School officials can

search the contents of a student’s confiscated phone only if there are reasonable grounds for

suspecting that the phone contains evidence of other violations of law or school policies.

E. Policies

Colorado law requires school districts to establish written policies concerning searches on

school grounds, including locker searches.

235

While the law does not mandate the content of a

school’s search policies, schools may want to consider provisions that address whether—and

under what circumstances—school officials might conduct a search involving:

• Lockers (required)

231

Burlison v. Springfield Pub. Sch., 708 F.3d 1034, 1036-37, 1038, 1040 (8th Cir. 2013).

232

In re D.H., 306 S.W.3d 955, 957-60 (Tex. App. 2010).

233

Id. at 959-60.

234

Requa v. Kent Sch. Dist. No. 415, 492 F. Supp. 2d 1272, 1276, 1280-81 (W.D. Wash. 2007).

235

§ 22-32-109.1(2)(a)(I)(I), C.R.S.

• Cars

• Personal effects

• Drug/alcohol screenings

• Metal detectors

• Dog sniffs

• Video surveillance

• Building-wide sweeps/searches

Student searches raise important issues under the United States and Colorado

constitutions, making consultation with legal counsel important.

RESTRAINT

With respect to restraints of students, school districts must comply with federal

constitutional standards and state statute and regulations. Colorado’s “Protection of Persons from

Restraint and Seclusion Act” and its implementing regulations govern restraints in schools by

school employees. HB22-1376 impacted those standards. This manual provides guidance based

on the new law, though consulting legal counsel is important, based on this evolving area and

anticipated new regulations in 2023.

A. Distinguishing Between Physical Interventions and Restraints

Not all physical interventions and physical contact with students will qualify as a restraint

under Colorado law. Physical contact or intervention that does not qualify as a restraint could

include minimal physical contact or brief holding (under 1 minute) for the purposes of:

• Comforting or calming a student;

• Assisting the student in completing a task;

• Escorting a student from one area to another (often called an escort hold);

• Quelling a disturbance threating physical injury to the student or others;

• Protecting persons against physical injury or preventing the destruction of property

(e.g. grabbing a student’s arm before they throw a laptop at another student or out the

window); or

• Self-defense.

A school district employee may use “reasonable and appropriate” physical force with a

student to “maintain discipline” or “promote the welfare” of the student.

236

To ensure that

physical interventions do not run afoul of any Fourth Amendment standard, they should always

be justified at their inception and reasonable in their scope.

B. Restraints

Types of restraints that can be used by some school employees in defined circumstances

include physical restraints, seclusion, prone (face down on the ground), and mechanical (e.g.

handcuffs). The Colorado State Board of Education’s adopted rules state that such restraints may

only be used “in an emergency and with extreme caution,” and only after the failure of “less

restrictive alternatives” or a “determination that such alternatives would be inappropriate or

ineffective under the circumstances.”

237

Less restrictive means may include positive behavior

supports, constructive and non-physical de-escalation, and restructuring the environment.

238

could also mean that a school safety employee uses a physical restraint rather than handcuffs on

a student. “Restraints must never be used as a punitive form of discipline or as a threat to control

or gain compliance over a student’s behavior.”

239

School officials may only use restraints for the

period of time necessary and using no more force than is necessary.”

240

In addition to these

requirements, the more serious and/or dangerous types of restraints (seclusion, prone, and

mechanical) include additional restrictions, which are outlined in the specific sections below.

Chemical restraints, such as involuntary sedation for the purpose of restraining a student’s

freedom of movement, are always prohibited from use by school officials.

241

The regulations require several safety standards and regular training to minimize the

dangers of improper restraint. Restraints cannot be administered in a way that places excess

pressure on the student’s chest, back, or in a manner that could potentially limit breathing. The

school employee must provide opportunities to have the restraint removed if the student indicates

a willingness to cease violent or dangerous behavior. A student must be reasonably monitored to

ensure the student’s physical safety. When the restraint is no longer necessary – because the

emergency no longer exists – the restraint must be removed.

242

The Colorado State Board of Education’s Rules require school districts to train staff who

utilize restraints.

243

A review of the full list of required training components and actual training

should be completed at least every two years.

244

As a best practice, all school-based employees

236

§ 18-1-703(2), C.R.S.

237

1 CCR 301-45: 2620-R-2.01(1),-R-2.01(1)(b)(i).

238

Id. at 260-R-201(2).

239

Id. at 2620-R-2.01(2), (7).

240

Id. at 260-R-2.01(3).

241

Id. at 2620-R-2.00(8)(a), -2.02(2)(a).

242

Id. at 2620-R-2.02(1)(a).

243

Id. at 2620-R-2.03.

244

Id.

should receive this training. At minimum, it should be provided to school administrators and

front office staff, employees in special education classrooms, and school safety personnel. The

safety risk of prone restraints means that all employees should be trained on why these restraints

are prohibited, except for certain trained safety personnel.

The following are additional considerations or requirements associated with each type of

restraint.

1. Physical Restraint

With the passage of HB 22-1376, a physical restraint is “the use of bodily, physical force

to involuntarily limit an individual’s freedom of movement for more than one minute.”

245

The

reporting requirements vary depending on whether the physical restraint was between one minute

and five minutes or over five minutes. For a physical restraint between one and five minutes, the

school must notify the parent(s)/guardian in writing on the day of the restraint.

246

The notice

must include the date, the student’s name, and the number of restraints that day that lasted

between one and five minutes.

247

These notifications are essential because a true restraint lasting

more than one minute may be a significant event for a student and can, at times, induce trauma.

As a matter of best practice, a parent or guardian should hear about a restraint from the school

before they hear about it from their child. For a physical restraint over five minutes, the school

must use the longer notification process described below that will be used for all other restraints.

2. Seclusion

Seclusion should be rarely used and is defined as “the placement of a student alone in a

room from which egress is involuntarily prevented.”

248

Due to the seriousness of using

seclusion as a restraint, particularly when used with students with disabilities, some districts

prohibit its use entirely through their district policy. If a school district, charter school, or

institute charter school decides to permit seclusion, it must meet the following requirements:

• There must be at least one window for monitoring when the door is closed.

• If a window is not feasible, monitoring must be possible through a video camera.

• A student placed in a seclusion room must be continually monitored.

• The room must be a safe space free of injurious items.

245

§ 26-20-102(5), C.R.S. Prior to HB 22-1376, a physical restraint was defined by a physical restraint lasting more

than five minutes.

246

§ 26-20-111(7), C.R.S. This is a new addition from HB 22-1276 and will require most districts to revises their

current policies and practices.

247

§ 26-20-111(7), C.R.S.

248

1 CCR 301-45: 2620-R-2.00(9).

• The seclusion room must not be a room that is used by school staff for storage,

custodial, or office space.

249

3. Mechanical Restraints (e.g. Handcuffs)

A mechanical restraint is “a physical device used to involuntarily restrict the movement

of a student or the movement or normal function” of a student’s body.

250

The state regulations

include several categories that do not constitute a mechanical restraint.

251

For example,

mechanical restraints do not include devices recommended by a physician, occupational

therapist, or physical therapist and agreed to by a student’s IEP Team or Section 504 Team and

used in accordance with the student’s IEP or 504 Plan. The most common example of what does

constitute a mechanical restraint is the use of handcuffs by school safety personnel.

Mechanical restraints cannot be used by a school or district employee, except in two

narrow circumstances. A mechanical restraint could be used by any employee when a student

is openly displaying a deadly weapon.

252

Mechanical restraints can also be used by armed

security officers who: (1) have received documented training in defensive tactics utilizing

handcuffing procedures and (2) have made a referral to a law enforcement agency.

253

For

example, if a district employs its own internal armed safety personnel, those individuals can use

handcuffs with students if all of the other requirements of a restraint are met – e.g. “in an

emergency and with extreme caution,” and only after the failure of “less restrictive alternatives”

or a “determination that such alternatives would be inappropriate or ineffective under the

circumstances.”

Taking all these requirements together, the use of handcuffs by internal armed safety

personnel should be rare. For example, imagine a student brought a gun on campus and it was

located inside the student’s backpack during a search by the district’s armed safety personnel. A

referral to law enforcement will be made and the student will be detained until law enforcement

arrives. If the student is sitting in the school administrator’s office and is calm and compliant

with directives from staff, there may be no emergency that would justify the use of handcuffs

while the school officials wait for law enforcement to arrive. On the other hand, if there

continues to be a threat to student or staff safety (even once a student is disarmed) and there are

no less restrictive alternatives, the use of handcuffs may be permitted. If handcuffs are used, staff

should follow all the safety requirements and discontinue the restraint as soon as the emergency

subsides.

249

§ 26-20-111(5), C.R.S.

250

1 CCR 301-45: 2620-R-2.00(8)(b).

251

Id. at 2620-R-2.00(8)(b)(i)-(iv).

252

Id. at 2620-R-2.02(2)(b).

253

Id. at 2620-R-2.02(2)(b)(ii).

4. Prone Restraints

A prone restraint is a restraint where the student is secured in a face-down position. Prone

restraints follow the same rules as mechanical restraints. They are prohibited except in two

narrow circumstances: (1) when a student is openly displaying a deadly weapon or (2) when

utilized by armed security officers who are trained in restraint tactics utilizing prone holds who

have made a referral to law enforcement.

254

Like mechanical restraints, prone restraints should

not be used unless all the other conditions are present – e.g “in an emergency and with extreme

caution,” and only after the failure of “less restrictive alternatives” or a “determination that such

alternatives would be inappropriate or ineffective under the circumstances.” Because prone

restraints can be dangerous if not administered properly, there are almost always less restrictive

and safer alternative holds or restraints that can be utilized by school staff.

5. Documenting the Restraint – For a Physical Restraint Over 5 Minutes,

Mechanical Restraint, Prone Restraint (Any Length of Time), or Use of

Seclusion

When a restraint is used, proper documentation and notification to the family is critical.

The state regulations include the following requirements:

• The school principal or designee must verbally notify the student’s

parent(s)s/guardian as soon as possible and no later than the end of the school day.

255

• The employee or volunteer who used the restraint must provide a written report of

what occurred to the school administration within one school day of the restraint.

256

• Within five days of the restraint, the school administration must mail, fax, or e-mail a

written report of the incident to the student’s parent(s)/guardian.

257

• The written report should be placed in the student’s confidential file.

Practical Tip: Checklist for a Written Report of Restraint

258

The precursor to the student’s behavior, if known

Factual description of the incident

254

Id. at 2620-R-2.02(2)(d).

255

1 CCR 301-45: 2620-R-2.04(3).

256

Id. at 2620-R-2.04(2); § 22-32-147(3)(a).

257

§ 22-32-147(3)(c), C.R.S.

258

Id.

Any efforts made to de-escalate the situation

Any alternatives to the use of restraints that were attempted

The type and duration of the restraint used

Any injuries that occurred; and

The staff members present, and staff members involved in

administering the restraint.

Due to the intensity of some restraints, restorative approaches may be helpful to

reintegrate the student into the school or classroom or to repair the relationship with a school

employee.

Families may file a complaint with the Colorado Department of Education when they

believe that a student has been restrained in violation of state law.

259

6. Review Process

Each school and school district must also have a review process that provides an

evaluation of all restraint incidents. The state regulations provide details on what this review

should include.

260

Each school or district should also have a general annual review process.

261

The annual review process must consider the following items:

• Analysis of incident reports, including consideration of procedures used during the

restraint, preventative or alternative techniques attempted, documentation, and

follow-up;

• Training needs of staff;

• Staff-to-student ratios; and

• Environmental considerations, including physical space, student seating

arrangements, and noise levels.

262

The goal of this annual review is to ensure that the agency is properly administering

restraints, identifying additional training needs, minimizing, and preventing the use of restraint

259

1 CCR 301-45: 2620-R-2.07.

260

Id. at 2620-R-2.05(1).

261

Id. at 2620-R-2.05(2); § 22-32-147(3)(b), C.R.S.

262

§ 22-32-147(3)(b), C.R.S.

by increasing the use of positive behavior interventions, and reducing the incidence of injury to

students and staff.

263

Important Requirement: Students with Disabilities and Restraints

Physical restraints are most used on students with disabilities who may cause harm to

themselves or others because of their disability. If there is a reasonable probability that

restraint might be used with a particular student, the school must notify the student’s

parent(s)/guardian in writing and name the specific circumstances in which restraint might be

used.

264

These communications could occur in a meeting where a student’s Behavior

Intervention Plan (BIP) or IEP is developed or reviewed. When a student has a BIP in place

that includes recommendations on how to help a student de-escalate (so that restraints do not

need to be implemented) make sure to communicate the expectations to all relevant school

staff. This includes informing district safety staff who arrive at a school building to address an

elevated safety risk from a student in crisis. As with all students, the seclusion or restraint of

students with disabilities should be a last resort. School staff should consider all reasonable

alternatives for intervention before resorting to seclusion or restraint.

C. Positive Behavior Interventions and Supports

The Center on Positive Behavioral Interventions & Supports encourages educators to use

a three-tier approach to behavioral intervention. The three tiers escalate from (1) preventative

practices, to (2) small group interventions, to (3) individual crisis intervention.

Practical Tip: PBIS Tiered Approaches to Behavior Management

265

Restraint should be used as a last resort. Alternative approaches

to behavior management should be considered prior to using

restraint. The Center on Positive Behavioral Interventions &

Supports (PBIS) recommends a Three-Tier Approach to behavior

management:

Tier 1: Preventive Practices

• Positive expectations for all students

•

Explicitly teaching social and emotional skills

263

1 CCR 301-45: 2620-R-2.05(2)

264

Id. at 2620-R-2.04(1).

265

Restraint/Seclusion, CTR. ON POSITIVE BEHAVIORAL INTERVENTIONS & SUPPORTS,

https://www.pbis.org/topics/restraintseclusion

(last visited Oct. 3, 2022).

• Providing positive, specific feedback

• Reinforcing accomplishments

• Intentional de-escalation strategies

Tier 2: Small group interventions which teach:

• Appropriate, desired behaviors using social skills

instruction when applicable

• A replacement skill which results in similar desired

outcomes

• De-escalation and self-regulation strategies

Tier 3: Individual crisis intervention

• Follow function-based intervention plan.

Practical Tip: Behavior is Communication

Behavior is a form of communication, and all behavior serves a

function. Students use their behavior to communicate that they

want to get something (like attention or an activity) or avoid

something (like escape an unpleasant or undesired situation).

Therefore, when implementing more targeted (Tier 2) or intensive

(Tier 3) prevention supports, educators should (a) teach students

a replacement skill (i.e., more appropriate behavior) that

effectively results in similar consequences and (b) make

individualized adjustments to the classroom and school

environment to set students up for success. For example, some

evidence-based strategies include providing reminders,

establishing predictable routines, adjusting academic instruction

and tasks, and arranging the environment so the replacement

skills “work” for the student. Increasing the likelihood of student

success reduces the likelihood of a crisis.

266

D. Policies

The school or district’s code of conduct must describe the school’s policies on restraint

and seclusion of students, including:

266

Simonsen, B., Sugai, G., George, H.P., Freeman, J., & Evanovich, L., Preventing Restraint and Seclusion in

Schools, C

TR. ON POSITIVE BEHAVIORAL INTERVENTIONS AND SUPPORTS (May 2019),

https://www.pbis.org/resource/preventing-restraint-and-seclusion-in-schools

• the prohibition on the use of chemical, mechanical, or prone restraints on students

under most or all circumstances;

267

• the instances or circumstances in which certain types of restraint will be used;

• training requirements for school officials;

• information about how each incident will be documented; and

• the process for filing complaints regarding the use of restraint or seclusion.

268

Student restraint practices raise important issues under the United States and Colorado

constitutions, as well as Colorado law and regulation. School districts should contact their legal

counsel for guidance and training in adopting and implementing appropriate search policies.

E. Protections For School Employees

Under Colorado law, teachers and school officials are generally immune from civil

liability or criminal prosecution provided that they act within acceptable limits of the law as well

as within the parameters of the school district’s conduct and discipline code.

269

In addition to this

immunity, the appropriate use of physical force by an adult entrusted with the care of minors,

such as a teacher or school employee, against a violent or disruptive student is a recognized

affirmative defense to the crime of child abuse.

270

In contrast, teachers or employees who violate

the laws and policies governing the use of physical force against students may be subject to

disciplinary or legal action.

F. Conclusion

Searches should be initiated only with a student’s voluntary consent or when there are

articulable facts supporting a reasonable suspicion that a law or school rule has been violated.

Seizures should be initiated only to achieve a specific goal, such as detaining a student for

specific questioning or confiscating an object that violates a school rule. The scope of searches

and seizures should be connected to and proportional to the reason for initiating the search or

seizure.

Documentation should be made of all the facts that led to a decision to search or seize a

student or their belongings, including any reasonable, common-sense inferences that could be

drawn from the available information by school employees, based upon their training and

267

Pursuant to § 22-32-109.1(2)(a)(I)(L), C.R.S.

268

Pursuant to §§ 22-32-109.1(2)(a)(I)(L), 22-32-147(4), C.R.S.

269

§ 22-32-109.1(9), C.R.S.

270

See, e.g., People v. Taggart, 621 P.2d 1375, 1384 (Colo. 1981), abrogated in part on other grounds by James v.

People, 727 P.2d 850 (Colo. 1986). Additionally, school district policies may not conflict with state, municipal, or

county laws that govern or define the crime of child abuse.

experience. Facts, and not opinions, should be used when documenting anything that was learned

or discovered during the search or the seizure using

School officials should be mindful of when and how they restrain a student, which

includes seclusion. Students with disabilities should be managed in accordance with their

individual IEP or behavior plan. Any form of physical intervention with a student should only be

used when necessary to protect the safety and wellbeing of others and should only involve the

minimum force necessary to keep others safe. Any use of physical intervention should be

documented appropriately.

School leaders should work closely with other school employees to ensure that they

understand the school’s policies. School employees should also receive training on best practices

and legal requirements.

IV. INFORMATION SHARING AND REPORTING

CHAPTER INTRODUCTION

Preventing and responding to school violence is a systems issue that involves many

overlapping people and agencies. As a result, it requires coordinated information sharing from all

sides. However, many educators remain uncertain about privacy mandates under the Family

Educational Rights and Privacy Act (“FERPA”) and the extent to which they may share a

student’s information with partners from outside agencies. One of the key recommendations

from the final reports on the shootings at Columbine High School, Virginia Tech, and Arapahoe

High School was that school officials, juvenile authorities, law enforcement personnel, and other

members of the community should improve communication and information sharing to help

prevent future school violence tragedies.

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Sharing information can also be an important

component of suicide prevention, such as identifying at-risk students. Thus, understanding

FERPA is critical to enabling school officials to appropriately respond when issues and concerns

about individual students arise.

This Section of the manual discusses how the law can prohibit, permit, or even mandate

the exchange of information between agencies in connection with keeping schools safe. Section

A. provides an overview of FERPA, including its protections, exemptions and exceptions, and

school and staff liability for violations. Section B. discusses the sharing of information between

schools and criminal justice agencies, including when student information must be shared, may

be shared, or may be accessed upon request. Section C. explains the importance and

responsibilities of schools working cooperatively with other governmental agencies and includes

important resources for ensuring safe school environments.

A. Sharing Student Information Under FERPA

FERPA protects the privacy of student education records and applies to all schools that

receive funds under any program administered by the U.S. Department of Education. In general,

the law does two things: (1) it provides parents and eligible students the right to review and seek

to amend students’ education records; and (2) it protects those education records from

271

The Report of Governor Bill Owens’ Columbine Review Commission, STATE OF COLO. (2001),

https://schoolshooters.info/sites/default/files/Columbine%20-%20Governor%27s%20Commission%20Report.pdf

Mass Shootings at Virginia Tech, VIRGINIA TECH REVIEW PANEL (2007)

https://scholar.lib.vt.edu/prevail/docs/VTReviewPanelReport.pdf

Sarah Goodrum & William Woodward, Report on the Arapahoe High School Shooting: Lessons Learned on

Information Sharing, Threat Assessment, and Systems Integrity, C

TR. FOR THE STUDY & PREVENTION OF VIOLENCE

(2016),

https://cspv.colorado.edu/wp-

content/uploads/2019/03/Report_on_the_Arapahoe_High_School_Shooting_FINAL.pdf.

unwarranted disclosure without parental or student consent. Schools must annually notify parents

and eligible students of their rights under FERPA.

In seeking to ensure compliance with FERPA, many school officials may err on the side

of protecting information from disclosure even when the law does not require such an approach.

While legal compliance is an important goal,

violence prevention strategies that involve the

sharing of student information are generally not

in conflict with FERPA’s privacy protections.

To help guide school officials around this thorny

(but not as thorny as you may think!) topic, let’s

first go over the main concepts under FERPA.

1. FERPA Protections

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a. Who is Protected?

FERPA affords protections to parents

and eligible students. The definition of parent

includes “a natural parent, a guardian, or an

individual acting as a parent in the absence of a

parent or a guardian.” An eligible student is a

student that is 18 years of age or older or is

attending an institution of postsecondary

education.

The rights of most K-12 students under FERPA will be in the hands of parents. However,

once a student reaches 18 years old or enters a postsecondary institution, those rights transfer

from the parent(s) to the student.

b. What is Protected?

The general rules are that (1) the parent or eligible student must provide written consent

before a school discloses a student’s education records or personally identifiable information

(PII) contained in those records and (2) the school must maintain a record of every disclosure of

FERPA-protected information.

Education records are defined as records that are directly related to a student and

maintained by a school. This definition is expansive, but there are many limitations to its

application that are important to the concept of school safety and violence prevention. See

Section A.2. below.

272

20 U.S.C. § 1232g, 34 C.F.R. §§ 99.1-99.67.

Examples of PII



Direct identifiers of a student:

 Name

 Address

 Social security number

 Student identification number

 Biometric data (e.g.,

fingerprints, handwriting)

 Indirect identifiers of a student:

 Names of the student’s parents

or other family members

 Student’s date or place of birth

 Student’s race, religion, or

weight

Common examples of FERPA-protected education records in the K-12 environment

include grades and transcripts, course schedules, health records, and discipline records.

Education records can be in any format, from written documents to audio files to emails.

Education records may be handwritten, typed, recorded, printed, or digital. FERPA protects all

education records maintained by the school, even if the records were not created by the school or

school officials.

PII refers to data that “would allow a reasonable person in the school community, who

does not have personal knowledge of the relevant circumstances, to identify the student with

reasonable certainty.”

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2. FERPA Exemptions and Exceptions

The concept of an “education record” is often interpreted as any form of information

about a student, but this is not the case. Information that is not maintained in an education record

can be shared without prior consent and recordation if there is no other law protecting the

information. For example, a record that does not fall under FERPA might be subject to

withholding under the Colorado Open Records Act. FERPA also includes many exceptions

which permit the sharing of education records without prior consent and/or recordation.

a. FERPA Exemptions: Non-Education Records

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The following are examples of student information that are not education records that can

be shared without violating FERPA: personal knowledge or observation, private notes, law

enforcement unit records, employment records, alumni records, and treatment records of eligible

students.

i. Personal knowledge or observation

Information based on a school official’s personal knowledge or observation is not an

education record maintained by the school. FERPA protects only tangible education records; it

does not protect other types of information that a school employee gains through hearsay, from

overhearing a conversation, or from their own personal observations. Because such information

is not maintained in a student’s education record, the information may, depending on the

circumstances, be disclosed. Additionally, student-generated information not maintained in a

student’s education record (e.g., social media posts, notes to another student) do not qualify as an

education record. Consider the following scenarios:

A school employee overhears a student threaten to “shoot up the

school.”

273

34 C.F.R. § 99.3.

274

20 U.S.C. § 1232g(a)(4); 34 C.F.R. § 99.3.

A student tells a teacher that another student slammed them into a

locker.

A student posts a list of “targets” on Instagram.

In each scenario, the school employee is not required to obtain parental consent before

reporting this information to the appropriate authorities, school administrators, and parents

because the information is not kept in a student education record.

ii. Private notes

Records kept in the sole possession of the person who created them are not education

records if they are used only as a personal memory aid (i.e., private notes of instructors or staff

members). This exception is particularly relevant when a family requests the educational records

of a student, and the school is deciding what must be included in those records.

iii. Law enforcement unit records

This exemption applies to records (1) created by a law enforcement unit, (2) maintained

by that unit, (3) and that are for the purpose of law enforcement. Law enforcement unit records

can be kept in a variety of mediums including surveillance videos, photographs of students,

written reports, and any other way information can be stored. If the records are maintained by a

component of the school other than the law enforcement unit, or the records are maintained for

non-law enforcement purposes (e.g., disciplinary actions by the school), they are protected by

FERPA and the consent/recordation requirements apply.

Consider the following scenario:

An SRO investigates an on-campus weapons possession claim and

creates a report of that investigation. The SRO then provides a

copy of the report to school officials who use it as grounds for

disciplining a student. The report is maintained by the school

officials as part of the student’s disciplinary record.

In this example, the SRO’s investigation report only becomes an education record once

the school uses it to discipline the student (i.e., for a non-law enforcement purpose). Prior to that,

the SRO report is a law enforcement record that can be shared with local law enforcement or any

other partner agency without parental consent.

Distinguishing between records that fall under the law enforcement unit records

exemption and education records may be challenging at times, particularly when schools have

school resource officers (“SRO”) who are employees of the local law enforcement agency or

internal safety or security staff who are employees of the school or district. However, the

requirement that the records are created and maintained by a law enforcement unit for law

enforcement purposes is the key to differentiating between the two. For schools that do not have

a designated law enforcement unit, the U.S. Department of Education recommends “designating

an employee to serve as the ‘law enforcement unit’” in order to maintain records (such as

security camera footage) and determine under what conditions the school would disclose the

records.

275

Where the record does not fall under the law enforcement records exemption, there

may still be other conditions present that allow disclosure without the consent/recordation

requirement. Such conditions could include a health or safety emergency or a subpoena/judicial

order, which are discussed in Section A.2.b. below.

The U.S. Department of Education has created helpful guidance on the intersection

between FERPA, law enforcement records, and educational records.

276

The most common

challenge occurs when a parent would like to view surveillance camera footage (e.g. from a

school hallway or a bus) that includes other students. The standard practice is to allow the parent

to come into the school or district offices to view the video, but to not provide them with a copy

to retain.

iv. Employment records of school personnel

Note that this exemption only refers to records of non-student employees. Records which

relate only to an employee in that person’s capacity as an employee are not education records.

However, they may be subject to withholding under the Colorado Open Records Act.

v. Alumni records

Records containing information about a former student after the individual is no longer a

student at the school are not education records. However, records about former students are

protected by FERPA if they relate to the former student’s attendance at the school.

vi. Treatment records of an eligible student

For eligible students, (i.e., 18 years of age or older or attending a postsecondary

institution), records that are made by a doctor or other professional for the purposes of the

student’s treatment are not education records; however, they may be protected by HIPAA.

b. FERPA Exceptions: When Education Records May be Disclosed

Without Consent and/or Recordation

277

In addition to information that does not constitute an education record, FERPA provides

exceptions from its general consent/recordation requirements for disclosure of education

records/PII in specific circumstances. The most relevant to school violence prevention are

275

Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for

Elementary and Secondary Schools, U.S.

DEP’T OF EDUC. (Oct. 2007),

https://www.cde.state.co.us/sites/default/files/documents/fedprograms/dl/ov_tiv_progadmin_balancingelementary.p

df.

276

FAQ on Photos and Videos Under FERPA, U.S. DEP’T OF EDUC. https://studentprivacy.ed.gov/faq/faqs-photos-

and-videos-under-ferpa (last visited Oct. 3, 2022).

277

20 U.S.C. § 1232g(b)(1).

disclosures (1) of directory information; (2) to school officials with legitimate educational

interests; and (3) for health and safety emergencies.

278

i. Directory information

Directory information generally includes student names, addresses, telephone numbers,

participation in extracurricular activities or sports, height and weight of members of athletic

teams, dates of attendance, degrees received, and previous attendance at other educational

institutions. Such information may be disclosed without prior consent in accordance with school

policy and the disclosure does not need to be recorded by the school.

In its annual notice to parents and eligible students, the school must describe the types of

PII designated as directory information and must provide an opportunity to opt out of the

disclosure. Regarding former students, school officials do not have an ongoing obligation to

provide notice and the opportunity to refuse to those students or their parents or guardians.

However, if a student formerly enrolled at the school had made previous requests to withhold

disclosures of information, the school must honor those requests unless additional consent is

provided.

ii. Legitimate educational interests

PII from an education record may be disclosed to other school officials with legitimate

educational interests in the information. Generally, a school official has a legitimate educational

interest if the official needs to review an education record in order to fulfill their professional

responsibilities.

School officials usually include teachers, school administrators, board members, school

resource officers, specialized and related service providers, attorneys, information systems

specialists, and support staff. School officials are those who:

 Perform an institutional service or function for the school;

 Are under the direct control of the school with respect to the use and maintenance of

education records;

 May use the records only for the purposes for which the disclosure was made, e.g., to

promote school safety and the physical security of students; and

 Meet the criteria specified in the school’s annual notification of FERPA rights for

being a school official with a legitimate educational interest in the education records.

Teachers and other school officials may have legitimate educational interests in the

behavior of a student. To that end, schools are permitted to include information in a student’s

education record regarding disciplinary action for conduct that creates a significant risk to the

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FERPA has additional exceptions that are not relevant to this discussion.

safety and well-being of the student and/or the school community and disclosing such

information to those who qualify under this exception. Such information could also be disclosed

to school officials at another school, if the other school has a legitimate educational interest in

the behavior of the student (e.g., transferring to or attending a school-sponsored activity at the

other school).

Among those who may qualify as a school official with a legitimate educational interest

are members of a school’s threat assessment team. Threat assessment teams are established by

many schools in order to identify and respond to potential threats to the safety of a student and/or

the school community. If a school’s threat assessment team includes members who are not

employees of the school (e.g., local law enforcement), these individuals may only access student

education records if they are under the direct control of the school as it pertains to the

maintenance and use of the education records. Consider the following scenario:

A school violence detective from the local police department serves

on a school’s threat assessment team for some high-risk situations.

The team discusses concerns about Student A, who wrote a “hit

list” that included other students at the school. The police officer

sees that Student A’s education records include prior discipline for

bringing a knife to school.

In this scenario, the police officer may not share

information about Student A learned from Student A’s

education record with the local police department.

However, there may be other applicable exemptions or

exceptions that would allow disclosure. See the Health

or Safety Emergency section below for such an

example.

Whenever sharing information under this

exception, the school must use reasonable methods to

ensure that access is limited to education records in

which the school officials have a legitimate educational

interest. Under this exception, the school does not need

to record the disclosure.

iii. Health or Safety Emergency

In case of emergency, disclosure of a student’s education record is permitted without

consent to the extent necessary to protect the health or safety of the student or others. This

exception requires schools to make case-by-case determinations, based upon the totality of the

circumstances, as to whether there is “an articulable and significant threat to the health or safety

of a student or other individuals.” Additionally, unlike most other FERPA exceptions,

disclosures pursuant to this exception must be recorded.

Practical Tip: Threat

Assessment Teams

Schools can create a written agreement

for threat assessment team members,

outlining requirements related to

FERPA, confidentiality, and other

responsibilities.

Protecting Student Privacy,

U.S. Department of

Education

Before discussing the specifics of this exception, it is helpful to note that in 2008, the

Family Policy Compliance Office (FPCO) made specific changes to the FERPA regulations

relevant to school violence prevention. These changes removed language about narrowly

construing the health or safety emergency exception and requiring its use only in the face of

imminent threats. In place of those requirements, FPCO chose a more flexible approach. In light

of the 2007 shootings at Virginia Tech and similar incidents, FPCO made these changes to give

deference to school officials presented with concerns about potential harm to their school

communities.

279

Former Attorney General Cynthia Coffman also issued a formal opinion

encouraging the sharing of information in appropriate circumstances.

280

School officials should

feel confident about their ability to share relevant information in the face of health and safety

concerns in line with the following procedures.

FERPA requires that disclosures under this exception be made after a determination of an

“articulable and significant threat.” This standard simply requires that school officials be able to

explain their reasoning for making a disclosure under this exception. As long as there is a

“rational basis for the educational agency’s or institution’s decisions about the nature of the

emergency and the appropriate parties to whom the information should be disclosed,” the

Department of Education has made clear that it will not second-guess the decision of school

officials to disclose the information.

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An emergency that justifies disclosure could be related to student behavior (e.g., threats

of violence or suicide) or external forces (e.g., natural disasters or epidemic disease outbreaks).

As it pertains to student behavior, an emergency could be found where a student gives sufficient,

cumulative warning signs that lead the school to believe the student may harm themselves or

others at any moment.

There are reasonable limitations to this exception. The potential threat must be present;

disclosure is not permitted under this exception for emergency preparedness activities. The

exception is only available for the period in which the emergency exists. Finally, the exception

does not permit a blanket release of PII or education records. Only the information that is needed

to address the emergency may be disclosed.

Once the school determines there is an articulable and significant threat to the health or

safety of a student or others, the school must then determine who should receive the

PII/education record. FERPA allows the information to be shared with “appropriate parties” (i.e.,

those whose knowledge of the protected information is necessary to protect the student or others

from harm). This often includes law enforcement officials, public health officials, medical

279

Katrina Chapman, A Preventable Tragedy at Virginia Tech: Why Confusion Over FERPA’s Provisions Prevents

Schools from Addressing Student Violence, 18 B.U.

PUB. INT. L.J. 349, 360-362 (2009).

280

Formal Opinion, No. 18-01, COLO. DEP’T OF LAW (January 11, 2018)

https://www.cde.state.co.us/dataprivacyandsecurity/ag-ferpaandschoolsafety

281

34 C.F.R. § 99.36.

professionals, and/or parents. Information can also be disclosed to potential victims in order to

ensure their protection. However, there is not an exclusive list of appropriate parties and

disclosure should be made to any and all individuals necessary to address the emergency.

Within a reasonable time after the emergency has been addressed, schools are required to

make a specific record of the disclosure. The record must include (1) the articulable and

significant threat justifying the disclosure and (2) the parties to whom the school disclosed the

information.

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Questions to Ask Related to FERPA

Whether FERPA impacts the decision to share certain student information depends on if the

information (1) is protected by FERPA and (2) falls under a FERPA exception.

1. Is the information protected by FERPA (i.e., a student education record)?

Non-education records: personal knowledge, law enforcement unit records, employment records,

etc.

 If no, the information is not protected by FERPA and can be shared without prior

consent or recordation as long as no other law limits dissemination of the record.

 If yes, determine if an exception applies.

2. Is there an applicable FERPA exception?

Exceptions: directory information, school official with legitimate educational interest, health or

safety emergency

 If yes, the information can be shared without prior consent. The disclosure may need to

be recorded.

 If no, obtain consent before sharing and record disclosure.

3. School/Staff Liability under FERPA

School officials cannot be held personally liable for FERPA violations. FERPA is

designed to address institutional policies and practices related to students’ privacy interests, not

individual disclosures. If a school has a practice of violating FERPA protections, then the U.S.

Department of Education may issue a cease-and-desist order, require the school to make changes

to its procedures, or deny federal funding to the school.

283

However, students and parents do not

282

34 C.F.R. § 99.32(a).

283

34 CFR § 99.67(a)(1).

have a private right of action to directly sue a school district or school official for an

unauthorized disclosure of protected information.

284

When faced with the choice of remaining silent or sharing potentially valuable

information about a concerning student, school officials should err on the side of safety and

disclose the information to the proper authorities.

B. Information Sharing Between Schools and Criminal Justice Agencies

In addition to the applicable FERPA exceptions listed above, there are scenarios in which

schools and criminal justice agencies may (or must) share student information with one another.

This subsection explains the rules around when information should be shared between these

entities. These rules come from Colorado law and are not prohibited by FERPA.

1. Disclosures by Schools to Criminal Justice Agencies

Schools are required or permitted to disclose student information to criminal justice

agencies as follows:

a. Active Investigations

When an underage student is under investigation for committing a crime, the criminal

justice agency conducting the investigation may request the child’s attendance and disciplinary

records from the school. In making such request, the criminal justice agency must provide the

school a written certification that it will not further disclose the student’s information to others,

except as otherwise provided by law or consented to by the child’s parent.

285

Upon receiving the

request and certification, the school must provide these records to the criminal justice agency

regardless of parental consent.

286

Notably, this reporting requirement is triggered only if the child

is the subject of an active investigation; a criminal justice agency may not request records under

these statutes if there is no investigation. Additionally, the criminal justice agency cannot use the

disclosed records for any purpose other than the investigation. If the criminal justice agency is

seeking a broader set of records or is planning to use these records in a criminal case, the school

district should request a subpoena from the criminal justice agency prior to releasing the records.

b. Offenses Against School Employees

There are special statutory procedures for alleged criminal offenses committed by

students against teachers or other school employees. Under the Safe Schools Act, all schools or

districts should have a policy regarding these procedures. While this requirement applies to any

alleged offense under the Colorado Criminal Code, specific crimes are highlighted in the law,

284

Gonzaga Univ. v. Doe, 536 U.S. 273, 275 (2002). See §§ 1232g(b)(1)-(2).

285

§ 19-1-303(2)(c), C.R.S.

286

§ 22-32-109.3, C.R.S. If the student is in a public school, the school district superintendent or designee must

provide the attendance and disciplinary records to the requesting criminal justice agency; if the student is not in a

public school, the request is handled by a school principal or designee.

including assault, harassment, and knowingly making a false allegation of child abuse against a

teacher.

287

If one of these offenses occurs, the teacher or school employee may

288

file a complaint

with the school administration and the district’s board of education pursuant to the established

policy. After a complaint under the policy is filed, the school administration should investigate

the complaint and determine if suspension and/or expulsion is appropriate. The school

administration should then report the incident to the district attorney or local law enforcement for

a decision as to whether criminal charges or delinquency proceedings are appropriate.

c. Minors under Court Supervision

When a student is involved in a criminal justice process, mandatory school attendance is

often a condition of supervised release. This may be part of pre-trial release, probation, parole, or

a sentence imposed by a court. When a school is notified by a court or parole board that a student

is required to attend school as such a condition, Colorado law requires school officials to share

with supervising law enforcement officials the student’s failure to attend all or any portion of a

school day.

289

d. Information Tracked by School Resource Officers

Under Colorado law, school resource officers have specific reporting obligations to the

school and the state. As to their employing school, SROs must notify the principal:

 Within twenty-four hours, when the SRO arrests a student on campus or at a school

activity; and

 Within ten days, when the SRO issues a summons or a ticket to a student on school

grounds or at a school event.

As to the state, SROs (or other law enforcement agencies operating at schools) must

submit annual reports to the Division of Criminal Justice within the Department of Public Safety.

Such reports should detail all incidents that occurred on the campus during that year, including

identifying information about the involved students.

290

287 § 22-32-109.1(3), C.R.S.

288

Although the statute says “must,” a school employee has the discretion to decide whether they believe student

misconduct should be referred to law enforcement or handled through the school’s disciplinary process or through

the student’s behavior plan or Individualized Education Plan (IEP). For example, a student diagnosed with a Serious

Emotional Disability (SED) who is placed in a more restrictive educational environment may engage in behaviors

that could be considered assault (e.g. 10 year old student kicking the teacher in the shins). School districts are

encouraged to consider modifications to behavior plans or an IEP when behaviors escalate rather than referral to the

criminal justice system.

289

§ 22-33-107.5, C.R.S.

290

§ 22-32-146, C.R.S.

e. Mandatory Child Abuse Reporting

All school officials and employees are mandatory reporters of child abuse. This means

that, if the official or employee has reasonable cause to know or suspect that a child has been

abused or neglected, or if the official has observed a child being subjected to circumstances that

would reasonably result in abuse or neglect, they must immediately report the information to

the appropriate county department, the local law enforcement agency, or the child abuse

reporting hotline system.

291

CO4Kids coordinates the reporting hotline system (1-884-CO-4-KIDS) and provides

helpful resources and trainings for teachers on reporting child abuse and neglect. This

information can be found on the CO4Kids website.

School officials should also learn whether their school system has a board policy or an

administrative procedure for reporting suspected cases of child abuse and neglect.

Educators play a vital role in identifying,

reporting, and preventing child abuse and neglect.

They are often the first adults who see signs of abuse

or neglect and they have unique and trusting

relationships with children.

It is important to remember that child abuse

can apply to conduct by family or community

members, employees, or other students. For example,

an allegation of unlawful sexual contact must be

reported regardless of whether the person alleged to be

doing the touching is a family member, a school

district employee, or another student aged ten or older.

In all three of these situations, the report should be

made to local law enforcement rather than DHS. This

requirement applies even if the student victim pleads with you not to involve local law

enforcement. For example, a high school student may tell a trusted counselor in school that they

had an experience over the weekend where a fellow student “took it too far” in a sexual

encounter. The student is really upset, but they do not want anyone to know about it. This must

be reported because the educator has a reasonable suspicion that unlawful sexual contact or a

sexual assault may have occurred.

More information about mandatory reporting in Colorado is on the Colorado School

Safety Resource Center’s website at https://cssrc.colorado.gov/mandatory-reporting.

291

§ 19-3-304, C.R.S.

Reporting Suspected Child

Abuse or Neglect

While there are multiple ways to

report child abuse or neglect,

calling the Colorado Child Abuse

and Neglect Hotline at 1-884-CO-

4-KIDS (1-884-264-5437) is an

efficient method. The hotline is

available 24 hours a day and

routes callers to the appropriate

county department for reporting.

2. Disclosures from Law Enforcement to Schools

Law enforcement officials are required or permitted to report to schools when students

are charged with crimes as well as when students are the victims of crimes.

292

This subsection

outlines those circumstances and how schools can appropriately review the information.

a. Crimes of Violence and Unlawful Sexual Behavior

When a juvenile is charged with unlawful sexual behavior or a crime of violence, the

criminal justice agency or the court must notify the school district in which the juvenile is

enrolled. Unlawful sexual behavior includes conduct such as sexual assault; child sexual abuse,

trafficking, or exploitation; and indecent exposure.

293

Crimes of violence are generally those

which involve a deadly weapon or cause serious bodily injury or death. Such crimes include

murder, assault, kidnapping, robbery, arson, burglary, and any crime against an at-risk adult or

at-risk juvenile.

294

The notification to the school will include information identifying the juvenile and

detailing the alleged criminal act. Any information given to the school but not otherwise

available to the public must be kept confidential by the school. Discipline for this conduct is

discussed in Section II of the manual.

b. Other Specifically Enumerated Crimes

In addition to notifying schools about students charged with unlawful sexual behavior or

crimes of violence, schools must be notified when a student is charged with certain other

criminal offenses. Prosecutors must notify the principal of the school at which a student is

enrolled if the student is charged with the following crimes: felony menacing, harassment, fourth

degree arson, aggravated motor vehicle theft, hazing, possession of a handgun by a juvenile, and

some drug-related felonies. The statute also requires prosecutors to notify the principal whenever

a juvenile is charged if the alleged victim of a crime is a student or staff person in the same

school as the juvenile offender. The notification will include the arrest and criminal records of

the student charged.

c. Student Victims of Certain Enumerated Crimes

Generally, criminal justice officials must delete the names and identifying information of

sexual assault victims from documents before sharing the documents with any individual or

agency outside of the criminal justice system. In recent years, the Colorado legislature has made

changes to the legal requirements around sharing identifying information of crime victims, which

292

§§ 19-1-304(5) & 22-33-105(5), C.R.S.

293

In 2018, Colorado enacted a law regarding the possession and distribution of sexually explicit images of juveniles

by other underage people. This law is discussed in Section VI of the manual.

294

§ 18-1.3-406(2), C.R.S.

has included expanding the list of offenses for which child victims of sex crimes will have their

identities protected.

295

Importantly, the law also carved out a narrow exception that allows for the sharing of

child victims’ identifying information between criminal justice agencies, school districts, school

police departments, university administrators, assessment centers for children, or social services

agencies. This will help school districts better facilitate services for child victims. Additionally,

once school districts receive the identifying information of child victims, they may share that

information with schools for the limited purposes of suspension, expulsion, and reenrollment

determinations.

3. Inspection of Student Criminal Justice Records

Colorado law provides that, when a juvenile is criminally charged as an adult, the

juvenile’s arrest and criminal records must be made available to the public.

296

However, school

officials specifically can obtain arrest and charging information about any child who is or will be

enrolled at the school from criminal justice agencies or assessment centers for children if the

agency or center determines that the records relate to a public safety concern, a municipal

ordinance violation, or misdemeanor or felony charges. School principals are also permitted to

review the parole records of a juvenile that is or will be enrolled in the school.

Schools may also obtain any information from agencies providing services around

juvenile delinquency or dependency and neglect cases when that information is required by

school officials to perform their legal duties. The records that may be obtained by schools do not

include mental health or medical records and any information obtained under these exceptions

must be kept confidential.

297

295

§ 24-72-304(4.5), C.R.S.

296

§ 19-3-304(2)(a), C.R.S.

297

§ 19-1-303(2), C.R.S.

As a practical matter, school officials may

request records where there are merely rumors that a

student was involved in a matter reported to the police.

It may be prudent in such circumstances for the school

principal to obtain the records just to be sure that no

school response is necessary.

C. School Cooperation with Other

Governmental Agencies

Colorado law states that, as a matter of public

policy, schools should try to limit referring students to

law enforcement to avoid unnecessarily entangling

students in the criminal justice system for routine

student disciplinary matters. However, those general

principles do not restrict the school’s obligation to

involve law enforcement or other agencies to evaluate risk or prevent violence before it happens.

Likewise, it does not limit the duty of school staff to report possible child abuse. Most

importantly, if there is an emergency or a crime in progress, school officials should always call

911.

1. Interagency Cooperation

Information sharing among schools, law enforcement agencies, courts, mental health

professionals, social services, and other stakeholders plays an important role in preventing future

violent acts at schools. To ensure that agencies are exchanging information relevant to school

safety, the Colorado Legislature requires each board of education to work with law enforcement,

the juvenile justice system, and social services on processes around information sharing. School

districts should develop interagency information sharing agreements to facilitate the exchange of

information across agencies regarding cases of public safety concern.

298

Without such agreements, alarming or concerning student behaviors that foreshadow

larger threats could be overlooked. In the wake of the 2013 shooting at Arapahoe High School,

officials identified the school’s failure to develop an interagency information sharing agreement

as a factor leading up to the incident.

299

Without a process for centralized review of concerns

raised about the student-assailant by SROs, teachers, students, and others, the cumulative nature

of the threat was not identified. The General Assembly intentionally passed legislation allowing

298

§ 22-32-109.1, C.R.S.

299

Goodrum & Woodward, supra note 1, at 38.

Practical Tip: Education

vs. Law Enforcement Records

FERPA protects any education

records that contain information

directly related to a student and

that are maintained by a school,

even if the records were not

created by the school. Therefore,

if law enforcement records are

accessed and subsequently

maintained by the school, it must

treat those records as FERPA-

protected.

for such interagency cooperation in the wake of the Columbine shooting, to encourage “open

communication . . . to assist disruptive children and to maintain safe schools.”

300

The creation of an interagency social support team is one method of ensuring

collaboration across agencies. While a threat assessment team is responsible for conducting

threat assessments and monitoring individual students, an interagency social support team is

responsible for building an overarching support plan. Support teams can build and monitor the

plan for threat-assessed students and revise the assessment and plan whenever a new threat or

risk factor appears. In turn, the threat assessment team can assist the support team in building

safety and support plans for identified students.

The Colorado Attorney General’s Office has created a Self-Assessment Checklist for the

development of an Interagency Agreement and Social Support Team, which provides a list of

questions for stakeholders to answer to evaluate the level of agreement about the sharing of

information across agency lines.

301

2. Safe2Tell

Safe2Tell allows students, parents, and community members to anonymously report

information about any issues that concern their safety or the safety of others. Individuals can

report conduct on a variety of issues that may pose a threat to the safety of schools or

communities, including threats of violence or suicide, drug or alcohol abuse, and possession of

weapons. It should be emphasized that students and school staff may contact Safe2Tell regarding

any concerns they may have about threats to anyone, including themselves, others at school, or

the community at-large.

When Safe2Tell receives a report, the information is forwarded to a local

multidisciplinary team made up of school officials, law enforcement, mental health

professionals, and/or other partners. If Safe2Tell receives a report that is more appropriately

directed to another resource, the program will refer the reporting party accordingly.

Reporting to Safe2Tell is simple and anonymous. Anyone can call 1-877-542-7233 (toll-

free) or make a report on the Safe2Tell website, safe2tell.org. Mobile apps for iOS and Android

can also be downloaded and used for providing information. Reports are answered 24 hours a

day, every day. Notably, reporting to Safe2Tell does not satisfy the obligations of a mandatory

reporter.

Schools should help make students, parents, and employees aware of the Safe2Tell

program and these reporting options. The Safe2Tell website also includes a variety of resources

300

§ 19-1-302(1)(b), C.R.S.

301

Interagency Agreement and Social Support Team Self Assessment Check List, COLO. DEP’T OF LAW,

https://coag.gov/interagency-cooperation/ (last visited September 30, 2022).

for schools, including marketing materials and information about responding to reported

information.

3. Information Sharing Policy

In addition to any interagency information sharing agreements that a school may enter

with other governmental agencies; every school district must have a policy which details how

student information will be shared for the purposes of school safety. The policy must be

consistent with provisions of the Colorado Open Records Act protecting, among other things,

personal medical, scholastic, and financial records from public disclosure. The policy must also

comply with FERPA’s requirements.

302

§ 22-32-109.1(6), C.R.S.; § 24-72-204(3), C.R.S.

V. EMPLOYMENT ISSUES AND SCHOOL VIOLENCE

CHAPTER INTRODUCTION

All school employees serve a critical role in the prevention of school violence because

they regularly interact with students, and are most familiar with school buildings, grounds, and

vehicles. It is also important to screen potential employees to optimize the safety of students and

school personnel. This section discusses employee screening and reporting requirements to

ensure that school employees meet or exceed safety requirements, employee training to optimize

violence prevention and preparation techniques, and employee protection policies designed to

deter violence against school employees and immunize employees from legal actions for

appropriate student discipline procedures.

A. Employee Screening Requirements

Pre-employment and ongoing post-employment screenings help schools identify issues in

an employee’s criminal history that may preclude them from working in schools. The Safe

Schools Act requires schools to adopt pre-employment screening policies. It also requires

screening current employees when good cause exists to check for instances of new criminal

activity involving any felony or misdemeanor other than a misdemeanor traffic offense or traffic

infraction.

303

1. Inquiry Questions

Prior to the employment of any person, the school or district must ask the Colorado

Department of Education for the following information about applicants:

• Whether the person has been convicted, pled nolo contendere to or referred a deferred

sentence or prosecution for any felony; or a misdemeanor crime of unlawful behavior

or unlawful sexual behavior involving a child

• Whether the person was dismissed by or resigned from a school district based on

allegations of unlawful behavior or unlawful sexual behavior involving a child if the

allegations were supported by a preponderance of the evidence

• Whether the person’s license has ever been denied, annulled, suspended, or revoked

following a conviction, plea of nolo contendere, or deferred sentence for unlawful

behavior or unlawful sexual behavior involving a child.

303

§§ 22-32-109.1(8); 22-32-109.9(1)(a); and 22-32-109.8(2)(a), C.R.S.

Schools must also screen applicants by contacting applicants’ previous employers to

obtain relevant information of the applicant’s fitness for working in schools.

304

2. Fingerprints

Once selected for employment with a school district, a non-licensed applicant must

submit fingerprints and attest that they have never been convicted of a felony or misdemeanor, or

if convicted, the applicant must provide information regarding the specific crime, the date, and

the court that entered the conviction. The fingerprints are used to conduct a state and national

background check. If a fingerprint history reveals a record of arrest without a disposition, the

applicant must submit to an additional name-based criminal history record check. The person

may be employed pending results from the record check but must be terminated if the record

check discloses a conviction for felony child abuse, a crime of violence, a felony involving

unlawful sexual behavior, a domestic violence related felony, felony drug offense, felony

indecent exposure, or an equivalent offense in any other state, the U.S. or a U.S. territory.

However, disqualifications for felonies involving domestic violence or felony drug offenses are

limited to five years past the date the offense was committed. In addition, a school may consider

hiring an applicant involved in a felony drug offense or felony involving domestic violence

within that five-year period if it conducts an assessment of the current risks of employing the

applicant. An applicant may also request that a school district reconsider their disqualification

involving a felony drug or domestic violence offense. The employee may but is not required to

be dismissed if the information on the record check is inconsistent with what was reported by the

applicant,

305

because it may indicate a substantive misrepresentation. The same dismissal

requirements apply to current non-licensed employees who are convicted of these crimes.

Licensed applicants require the same fingerprint and criminal history attestation forms.

306

A school district must also require current licensed employees to submit to fingerprints when it

finds good cause to believe the employee has been convicted of any felony or misdemeanor other

than misdemeanor traffic-related infractions and must require the employee to submit to a

criminal history record check when the fingerprint-based check reveals a record of arrest.

307

3. Denials of Applications and License Revocations

Colorado law provides that an educator license must be revoked, or an application denied

when the applicant or holder is convicted of:

• Felony child abuse

• A crime of violence

304

§ 22-32-109.7(1), C.R.S.

305

§ 22-32-109.8, C.R.S.

306

§ 22-60.5-103, C.R.S.

307

§ 22-32-109.9, C.R.S.

• A felony offense involving unlawful sexual behavior

• A felony involving domestic violence

• A crime involving indecent exposure

• A crime in another state, the U.S., or a U.S. territory that is similar to these offenses;

• A crime involving indecent exposure or similar crime in another state, municipality,

U.S., or U.S. Territory.

An application must also be denied when an applicant fails to submit fingerprints on a

timely basis.

308

In addition, a license or application must be revoked or denied where the person

has been determined mentally incompetent and the court held that the incompetency renders the

person incapable of performing their job.

309

And, while not mandatory, an educator license may be revoked or an application denied if

the person has obtained or attempted to obtain a license based on fraud or misrepresentation, the

person is guilty of unethical behavior,

310

or been convicted of:

• Misdemeanor sexual assault

• Misdemeanor child abuse

• A second misdemeanor involving domestic violence

• The illegal sale of a controlled substance

• Contributing to the delinquency of a minor

• Misdemeanor sex exploitation of a child; or

• An adjudication or disposition for assault, battery, or drug-related offense in the last

ten years, or any similar crime committed in any municipality, other state, U.S., or

U.S. Territory.

B. Employee Reporting Requirements

Timely reporting plays a critical role in other schools’ screening processes so that

information in the Department of Education’s e-Licensing system is up to date.

311

308

§ 22-60.5-107 (2.5), C.R.S.

309

§ 22-60.5-107 (2)(a), C.R.S.

310

§ 22-60.5-107 (1) and (2)C.R.S.

311

Child abuse reporting requirements applicable to schools is discussed in Section IV, Information Sharing.

1. Reporting to the Colorado Department of Education

School districts must notify the Colorado Department of Education when an employee is

dismissed or elects to resign based on an allegation that they engaged in unlawful behavior

involving a child, including unlawful sexual behavior, if the allegation is supported by a

preponderance of the evidence. A preponderance of the evidence means that the facts

demonstrate that the allegation is more likely true than not.

A school district must also notify the

Department when it learns through sources other than the Department that any district current or

former employee is convicted of, received a deferred sentence for, or pled guilty or nolo

contendere to a felony or misdemeanor offense involving unlawful sexual behavior or unlawful

behavior involving children. The school district must generally notify the employee when these

reports are made to the Department.

312

A school or school district must also notify the Department when the school brings a

dismissal action against an employee based on a conviction, guilty plea, plea of nolo contendere,

or deferred sentence for any of the following offenses:

1. Any felony, including felony child abuse, felony unlawful sexual behavior, a felony

offense involving unlawful sexual behavior, and a felony offense involving domestic

violence

2. A crime of violence

3. Indecent exposure

4. Contributing to the delinquency of a minor

5. Misdemeanor domestic violence

6. Misdemeanor sexual assault

7. Misdemeanor unlawful sexual conduct

8. Misdemeanor sexual assault on a client by a psychotherapist

9. Misdemeanor child abuse

10. Misdemeanor sexual exploitation of children

11. Misdemeanor involving illegal sale of a controlled substance

12. Physical assault

13. Battery; or

14. A drug-related offense.

313

312

§ 22-32-109.7, C.R.S.

313

1 Code Colo. Regs. 301-37: 2260.5-R-15.00.

C. Employee Protection from Liability

Colorado law protects school employees and educational entities from liability under

certain circumstances. In addition to the Colorado Governmental Immunity Act protections, the

Teacher and School Administrator Protection Act states that employees are immune from

liability for any action related to the supervision, grading, suspension, expulsion, or discipline of

a student unless the employee’s action is willful and wanton and violates law or a clearly

established school policy. The Act also provides immunity when an employee reports reasonable

grounds for believing a student is under the influence of alcohol or drugs not prescribed to the

student; possesses a firearm, alcohol, or controlled substance not prescribed to the student; or is

involved in the illegal solicitation, sale, or distribution of firearms, alcohol, or controlled

substances. The Act also provides penalties for students and other individuals who make false

reports of criminal activity against school district employees.

314

Colorado’s Safe Schools Act also generally provides immunity from criminal prosecution

and civil liability for school boards, teachers, and other school staff when acting in good faith

compliance with the safe school plan, which includes all the components described in Section I

of this manual. For example, a teacher is immune from civil and criminal liability for good faith

implementation of the school’s policy on physical interventions and restraints. This can alleviate

a teacher’s fear of intervening in a safety situation (e.g. breaking up a fight) when they know that

the law protects them. Immunity is not available for any individual whose actions are considered

willful or wanton, which is generally defined as conduct that is reckless and in conscious

disregard of the rights of others or the risks inherent in the action.

315

Federal law also provides teachers (not other school employees) from liability under

certain circumstances. Teachers are protected from liability under federal law if they meet all the

following:

• Were within the scope of their employment or responsibilities, conformed with

federal, state, and local laws designed to control, discipline, expel, or suspend a

student or to maintain classroom or school control

• The teacher was properly licensed, certified, or authorized by the appropriate

authorities

• Their actions were not willful, criminal, grossly negligent, reckless, or a conscious,

flagrant indifference to the rights or safety of the individual harmed; and

• The harm did not involve a teacher operating a vehicle requiring an operator’s license

or insurance.

314

§ 22-12-101 et. seq. C.R.S.

315

§ 22-32-109.1(9) C.R.S.

The protections do not apply if, in connection with the misconduct, the teacher was

convicted of acts constituting a crime of violence under federal law, a sexual offense under state

law, a violation of federal or state civil rights law, or if the teacher was under the influence of

alcohol or drugs at the time of the misconduct.

316

Regardless of whether the claims are based in state or federal law, public employees are

not responsible for defense costs or any judgment or settlement if:

• The claim against the public employee arises out of injuries sustained from an act or

omission of the employee during the course of performance of their duties; and

• The employee’s act or omission was not willful or wanton.

317

Thus, school employees can rest assured that they will not bear the financial exposure of

liability as long as their actions are not willful or wanton.

D. Employee Training

School employees are best equipped to identify potential school violence issues because

they work with and are familiar with the students, their relationships, and their normal behaviors

and demeanor. Ongoing training in preventing, identifying, and responding to school violence

related issues and threat assessment protocols is an important school violence protection tool.

1. Child Sexual Abuse Training

Colorado law encourages school districts to include child sexual abuse and prevention

training in their employees’ professional development. It encourages training in preventing,

identifying, and responding to sexual abuse and assault, and in using the child abuse reporting

hotline system.

318

The law also encourages distributing related resources to increase employee

awareness.

319

The law also encourages school districts to use the curricula and professional

development materials, training, and other resources available from the School Safety Resource

Center, including child sexual abuse and assault prevention training.

320

2. Child Mental Health Training

The Behavioral Health Training Requirements Educator License bill requires that at least

10 hours of the 90 hours of professional development training required for teacher license

renewal must include behavioral health training that is culturally responsive, and trauma- and

evidence-informed.

321

Initial licensure teacher candidates must also complete similar behavioral

health training lasting one-semester or one-quarter. Training goals must include awareness of

316

Federal Teacher Protection Act, 20 U.S.C. § 7946 (2022).

317

§ 22-10-110(1), C.R.S.

318

The Child Abuse Reporting Hotline is: 844-CO-4-Kids.

319

§22-32-109.1(2.5)(b), C.R.S.

320

Id.

321

§ 22-60.5-110, C.R.S.

warning signs of dangerous behavior; identification of situations that present health and safety

threats; knowledge of available community resources to enhance students’ and schools’ health

and safety; youth mental health; safe de-escalation of crisis situations; and the recognition of

signs suggesting poor mental health or substance use.

The training may include topics such as:

• Mental health first aid specific to youth and teens

• Teen suicide prevention

• Interconnected systems framework for positive behavioral interventions, supports,

and mental health

• Addressing students with behavioral concerns or disabilities; and

• Child traumatic stress.

322

Colorado also has the crisis and suicide grant program, which provides crisis and suicide

prevention training for teachers and staff of public schools.

323

The Attorney General’s Colorado

School Safety Guide identifies numerous violence prevention training resources for schools and

includes student trauma and suicide indicator surveys.

324

Mental health and trauma training for

school resource officers and educators is also made available through the National Association of

School Resource Officers.

325

322

§ 23-1-121(2)(d.5), C.R.S.

323

§ 25-1.5-113(2)(a), C.R.S.

324

Colorado School Safety Guide, COLO. DEP’T OF LAW (April 2018),

https://cdpsdocs.state.co.us/safeschools/CSSRC%20Documents/ColoradoAG_SchoolSafetyGuide_2v4_ELECTRO

NIC.pdf.

325

NASRO Training Courses, NAT’L ASS’N OF SCH. RES. OFFICERS, https://www.nasro.org/training/training-courses/

(last visited Oct. 3, 2022).

VI. CRIMINAL OFFENSES SPECIFIC TO SCHOOLS

CHAPTER INTRODUCTION

As set forth in the chapter on discipline, school and district staff play an important role in

disrupting the school-to-prison pipeline. The legislature has made it clear that schools do not

need to involve law enforcement in school discipline matters. Recall the “three pillars of

effective discipline”:

• Reflective: The student should be reflecting and gaining insight into their behavior.

• Restorative: The student should have the opportunity to repair the relationship or

items that were damaged.

• Instructional: The student should gain knowledge and practice skills that will help

them in the future.

For all students, but especially for our younger students in elementary and middle school,

consider whether these three pillars are better addressed through use of the school’s disciplinary

code and restorative practices rather than a law enforcement referral.

However, when necessary to ensure school and student safety, Colorado law includes

criminal offenses for certain conduct that occurs on school property or involves school-age

individuals. Common offenses include weapons possession, drug use or sales, mistreatment of

at-risk students, hazing, and teen sexting.

This chapter discusses criminal offenses specific to school property and Colorado’s teen

sexting law.

A. Offenses on School Property

Crimes that most often occur in school settings involve: 1) weapons; 2) drugs;

3) interference or disruptive behavior in school; 4) threats against students and employees;

5) offenses against at-risk juveniles; 6) hazing; and 7) school vehicle offenses.

1. Weapons

Specific laws address the possession of weapons on school property. While these laws set

minimum requirements, school districts may adopt more stringent rules within their school safety

policies.

a. Deadly Weapons

Colorado distinguishes between a “deadly weapon” and a “dangerous weapon.” Deadly

weapons carry more serious consequences, and it is a felony to bring or possess a deadly weapon

onto the grounds of any K-12 school, including all areas inside and outside buildings.

326

“Deadly

weapon” includes a firearm (loaded or unloaded), a knife, bludgeon, or any other object if it is

used or could be used in a way capable of causing serious bodily injury or death.

327

Each of these

weapons has a specific statutory definition.

A firearm is any device that is or could be capable of discharging bullets, cartridges, or

other explosive projectiles. This includes firearms like pistols, rifles, and shotguns, and includes

any hand-made item that fires a projectile using an explosion.

328

A homemade device like a pipe

that can launch a projectile (e.g., a “zip gun”) may also count as a firearm.

329

A knife with a blade over 3.5 inches long is considered a deadly weapon.

330

Knives under

3.5 inches long may be considered a deadly weapon if it is intended to be used or used as a

weapon.

331

Colorado courts have confirmed that schools may adopt rules or policies prohibiting

possession of knives of any size on campus, whether or not the knife meets the definition of a

deadly weapon.

332

Generally, an object other than a firearm or a knife qualifies as a deadly weapon if the

object is used or intended to be used as a weapon and the object is capable of causing serious

bodily injury or death.

333

For example, Colorado courts have concluded that a BB gun may

constitute a deadly weapon if it was used in a manner intended to cause serious bodily injury.

Case Spotlight: BB Guns

People in the Interest of J.R.

334

A youth shot someone with a BB gun. The court held that whether the weapon actually

caused seriously bodily injury is not the issue. Instead, the issue is whether the weapon “as

used” could cause serious bodily injury.

326

§ 18-12-105.5, C.R.S.

327

§ 18-1-901(3)(e), C.R.S. The statutory definition of a “serious bodily injury” is an “injury which,

either at the time of the actual injury or at a later time, involves a substantial risk of death, a

substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment

of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third

degree.” § 18-1-901(3)(p), C.R.S.

328

§ 18-1-901(3)(h), C.R.S.

329

People v. O’Neal, 228 P.3d 211, 215 (Colo. App. 2009) (explaining that a “zip gun,” which is a pipe device capable

of discharging bullets and the like, is a firearm).

330

§ 18-12-101(f), C.R.S.

331

People ex rel. J.W.T., 93 P.3d 580, 583 (Colo. App. 2004).

332

Id.

333

§ 18-1-901(3)(e), C.R.S.

334

People in Interest of J.R., 867 P.2d 125, 127 (Colo. App. 1993).

The

definition of a “ dangerous weapon” is broader than the definition of a “

deadly

weapon.” It includes both deadly weapons as defined above, and any pellet gun, BB gun, or other

device

designed to propel projectiles by spring action or compressed air (whether or not it

works), as well as a fixed-blade knife with a blade that is longer than three inches in length.

335

b. Exceptions to Weapons Prohibitions

There are four exceptions where otherwise-prohibited weapons are allowed on school

grounds.

First, “deadly weapons” may be permitted for the purpose of authorized demonstrations

or instructional exhibitions related to an organized school or class, use in an approved

educational school program, or for participating in an authorized extracurricular activity or

athletic team (like archery).

336

Second, certain employees need to possess deadly weapons as part of their job. These

people include school resource officers or peace officers carrying a weapon in conformance with

the officers’ employer.

A concealed carry permit holder employed by the school as a security

officer may also be allowed to carry on campus while on duty.

337

Some districts arm an internal

non-sworn safety and security team pursuant to school board policy. Nothing in Colorado law

permits teachers, administrators, or other school staff to carry a firearm at school unless they fall

within these categories.

Lastly, there are two exceptions unique to vehicles. Any “person” in a private vehicle

may carry a weapon for lawful protection of property or people while travelling.

338

For example,

this “travelling” exception may arise when parents drop off and pick up children. Concealed

carry permit holders visiting a school campus may also have their handgun if it is kept within a

compartment of their locked vehicle.

339

Schools are required to report incidents involving weapons to its board as part of its safe

school plan.

340

The Safe Schools Act and safe school plans are discussed in Section I of the

manual.

2. Drugs

It is a crime to possess or sell drugs and certain other substances on school property in

Colorado. Drugs in schools can adversely affect student safety and can lead to violence.

335

§ 22-33-102(4), C.R.S.

336

§§ 18-12-105.5(1), 18-12-105.5(3)(h), C.R.S.

337

§ 18-12-214(3)(b), C.R.S.

338

§ 18-12-105.5(3)(c), C.R.S.

339

§ 18-12-214(3)(a), C.R.S.

340

§ 22-32-109.1(2)(b), C.R.S.

Any person selling, distributing, or possessing drugs with the intent to distribute them on

or within 1,000 feet of the grounds of any elementary, middle, junior, or high school may be

charged with the highest level of drug offense in Colorado.

The same is true for offenses in any

school vehicle while transporting students.

341

Any distribution of illegal drugs in any amount by

an adult to a minor (with at least a two-year age gap between participants) constitutes a felony.

342

For example, an 18-year-old student might violate this law by distributing drugs to another

student aged 16 or younger. The law might also be violated if a staff member distributes drugs to

students.

a. Drug Classifications

Colorado has five drug “schedules,” indicating the drug’s danger and the severity of a

potential drug-related offense.

343

Schedule I drugs are the most dangerous, and include most

illegal street drugs, like heroin, LSD, and ecstasy (MDMA). Schedule II drugs include many

prescription painkillers and stimulants, and are most susceptible to abuse.

344

Schedule III drugs

include anabolic steroids, prescription sedatives and sleeping pills, and depressants.

345

Schedule IV

drugs include prescription anxiety medications like Xanax and Ativan; prescription anti-seizure

medications like Klonopin; and stimulants like Sudafed (which contains pseudoephedrine).

346

Schedule V drugs include cough syrups that contain a small amount of codeine or

buprenorphine, used for treating opioid addiction.

347

b. Prescription Drugs

Many otherwise-legal drugs may not be possessed on-campus without a valid prescription

from a licensed healthcare professional.

348

School districts may adopt a policy allowing students

to possess and self-administer a valid prescription drug on school grounds, on a school bus, or at

any school-sponsored event.

The school policy must require the parent or legal guardian to notify

the school of the student’s medical need and that they are carrying a prescription drug at school.

The school should advise teachers (as needed) and the school nurse of the student’s medical

situation.

349

Medical marijuana use is discussed below.

341

§ 18-18-407(1)(g), C.R.S.

342

§§ 18-18-405(2)(a)(II), 18-18-405(2)(b)(II), C.R.S.

343

§ 18-18-201, et seq., C.R.S.

344

§ 18-18-204(1), C.R.S.

345

§ 18-18-205(1), C.R.S.

346

§ 18-18-206(1), C.R.S.

347

§ 18-18-207(1), C.R.S.

348

§§ 18-18-403.5, 18-18-308, C.R.S.

349

§ 22-1-119.3, C.R.S.

Practical Tip: Commonly Abused Prescription Drugs

350

Drug Name Retail Name

Oxycodone OxyContin, Percodan, Percocet

Hydrocodone Vicodin, Lortab, Lorcet

Diphenoxylate Lomotil

Morphine Kadian, Avinza, MS Contin

Codeine N/A

Fentanyl N/A

Hydromorphone Dilaudid

Methadone N/A

Amphetamines Adderall, Dexedrine

Methylphenidate Ritalin, Concerta

350

§ 18-18-204, C.R.S.

c. Marijuana

Marijuana and certain marijuana products are legal in Colorado for recreational use by

people over the age of 21 and for medical use.

351

Nevertheless, marijuana and its active

ingredient, tetrahydrocannabinol (THC), remains listed under the Federal Controlled Substances

Act as a Schedule I drug.

352

In addition, early use of marijuana carries dangers, and Colorado

generally prohibits the use of marijuana or marijuana products on school property.

353

Marijuana possession remains a criminal offense in certain circumstances. Marijuana

“possession” means one of three things: a person has or holds any amount of marijuana

anywhere on their person; a person owns or has custody of marijuana; or has marijuana within

their immediate presence and control.”

354

Examples of “possession” include marijuana in a

pocket, backpack, a locker, or a car at school. A person under 21 years old possessing two

ounces or less of marijuana commits the crime of illegal possession or consumption of marijuana

by an underage person.

355

Importantly, marijuana possession is a “strict liability offense,” which

means there are no defenses available. For example, it is not a defense that a student claims they

were holding it for another person or that they didn’t know it was in their backpack.

356

d. Medical Marijuana

Laws regulating medical marijuana are in flux. This information reflects the current state

of the law at the time this section was written. We recommend that school districts and schools

review the state of the law with their attorneys prior to issuing any policies.

Colorado adopted Jack’s Law, which authorizes a primary caregiver or a volunteer from

the school personnel to administer medical marijuana in a non-smokeable form to a student who

holds a valid recommendation for medical marijuana. The non-smokeable marijuana may be

administered on the grounds of a preschool, primary or secondary school, on a school bus, or at a

school-sponsored event.

However, it cannot be administered in a manner that creates a disruption

to the educational environment or that causes exposure to other students.

357

A “primary caregiver” is defined as “a person, other than the patient and the patient’s

physician, who is 18 years of age or older and has significant responsibility for managing the

well-being of a patient who has a debilitating medical condition” for which the patient “holds a

valid recommendation for medical marijuana.” Schools may adopt additional policies defining

351

Colo. Const. art. XVIII, § 16(3) (legalizing marijuana for individuals over the age of 21); § 25-1.5-106, C.R.S.

(legalizing marijuana for medical use).

352

21 U.S.C. § 812(c)(17).

353

§§ 18-13-122(1)(a), 25-14-103.5(3)(a)(I), C.R.S.

354

§ 18-13-122(2)(f), C.R.S.

355

§ 18-13-122(3)(b), C.R.S.

356

Id. Please note that crimes related to marijuana use must generally be reported, consistent with safe schools

reporting requirements.

357

§ 22-1-119.3(3)(d), C.R.S.

who may administer medical marijuana to a student, and other policies defining reasonable

parameters for the administration and use of medical marijuana

Jack’s Law applies to medical marijuana use by students, and does not address the use by

school employees, which is beyond the scope of this manual. A school district or charter school

can opt out of Jack’s Law if the school loses or will lose federal funding based upon

implementing the law.

358

e. Alcohol

The Colorado Legislature recognizes the dangers of early alcohol use. Alcohol possession

or consumption is illegal for people under 21.

359

f. Tobacco Products

Tobacco products are prohibited from use on school property because of their associated

health risks. School districts and charter schools are required to adopt rules and policies

prohibiting their use by students, teachers, staff, and visitors.

360

However, a school cannot expel a

student solely for tobacco use.

361

The definition of “tobacco product” includes smokeless tobacco

and e-cigarettes.

362

3. Campus Disruptions

Individuals, including students, are prohibited from willfully impeding school employees

while they are performing their duties. Impeding includes restraint, abduction, coercion, or

intimidation, or when force and violence are present or threatened.

363

The use of physical force

or the threat of such force is an important element of the crime.

364

For example, a student cannot

physically block teachers from entering a classroom or threaten them with violence to try to

prevent the assigning of homework or other duties. Restraints on students is discussed in Section

III of the manual.

358

§ 22-1-119.3, C.R.S.

359

§ 18-13-122(3)(a), C.R.S. Note that alcohol violations must be included in a school’s required safe school report.

360

§ 25-14-103.5, C.R.S.

361

§ 22-32-109(1)(bb)(I), C.R.S.

362

§§ 25-14-103.5(2)(c), 18-13-121(5)(a), C.R.S. Tobacco violations must be included in a school’s safe school

report.

363

§ 18-9-109(2), C.R.S.

364

People ex rel. C.A.J., 148 P.3d 436, 437 (Colo. App. 2006).

Case Spotlight: Students Impeding School Employees

People ex rel. C.A.J.

365

A student left voice messages at school claiming that a bomb was on campus. The court held

that the student could not be convicted under the interference statute because he was not on

campus at the time of the conduct. Nevertheless, other laws may apply for actions done

remotely.

4. Threats

Threats of any kind are likely to cause disruptions. A person can be asked to leave school

grounds if they commit, threaten to commit, or incite others to commit any act which would

disrupt, impair, interfere with, or obstruct a school’s lawful missions, processes, procedures, or

functions. It is against the law to refuse to leave school grounds when asked by the chief

administration officer, their designee, or a dean.

It is also a crime to knowingly make a credible threat to cause death or bodily injury with

a deadly weapon against any student, school employee, or guest on school property.

A “credible

threat” is any threat or physical action that would cause a reasonable person to fear bodily injury

or death.

366

For example, a person who says, “I hate you, and I hope you fall off a cliff” does not

make a credible threat because no reasonable person would be afraid of bodily injury or death

based on that statement. However, a student that says, “I hate you, and I am going to stab you

with the knife I keep hidden in my locker” probably has made a credible threat. Generally, the

more specific and realistic the statement is, the more likely it may be considered a “credible

threat.”

367

Threat assessments and response protocols are discussed in Section I of the manual.

5. Offenses Against At-Risk Juveniles

An “at-risk juvenile” is a person under the age of 18 years who has a statutorily defined

disability.

368

A “person with a disability” means any person who has permanent loss of a hand or

foot; is blind or virtually blind; is unable to walk, see, hear, or speak; cannot breathe without

mechanical assistance; has an intellectual and developmental disability; has a mental illness; is

mentally impaired; or is receiving care and treatment for a developmental disability.

369

365

Id.

366

§ 18-9-109, C.R.S.

367

People v. Chase, 411 P.3d 740, 745 & 748 (Colo. App. 2013) (defendant’s emails specifically referencing the victims

and stating that “someone’s going to get hurt, or worse” and that he will “headbutt” and “kick” someone constituted

a “credible threat”).

368

§§ 18-6.5-102(4) & (11), C.R.S.

369

§ 18-6.5-102(11), C.R.S.

Fear of mistreatment is a primary concern for at-risk juveniles. Penalties for specified

crimes against at-risk juveniles are more stringent than penalties for the commission of identical

crimes against other members of society.

370

At-risk juveniles are more vulnerable to, and disproportionately damaged by, crime in

general. They are more impacted by abuse, exploitation, and neglect because they are less able to

protect themselves against offenders. At-risk juveniles are more likely to receive serious injury

from crimes committed against them, and they are less likely to fully recover from those injuries.

They also tend to suffer from greater financial and psychological deprivation.

371

In the school

environment, at-risk juveniles may be subject to targeted bullying or harassment.

There are enhanced penalties for certain crimes committed against at-risk juveniles,

including: criminally negligent conduct, assault, robbery, theft, caretaker neglect, sexual assault,

unlawful sexual contact, and criminal exploitation.

372

Severe bullying or harassment of disabled

students may be punishable under this statute, depending on the specific facts of the

mistreatment.

6. Hazing

373

“Hazing” is a misdemeanor related to initiation or admission into or affiliation with any

student organization. It includes any activity that recklessly endangers the health or safety of

another individual or creates a risk of bodily injury to that individual. While some forms of

initiation are acceptable, hazing can become a dangerous form of intimidation and degradation.

Hazing may include forced and prolonged physical activity; forced consumption of any food,

beverage, medication, or controlled substance in excess of usual amounts; forced consumption of

any substance not generally intended for human consumption; and prolonged deprivation of

sleep, food, or drink.

Certain criminal statutes cover the more egregious hazing activities, such as assault or

kidnapping, and the specific crime of hazing is not meant to override those statutes. In other

words, if the hazing activity amounts to an assault, then the criminal behavior would be charged

as an assault.

The purpose of the hazing statute, by contrast, is to account for conduct that is not covered

by criminal statutes but may threaten the health of students or, if not stopped early enough, may

escalate into serious injury.

Hazing does not include customary athletic events such as team games or practices, or

other similar contests or competitions. Nor does hazing include authorized training activities

conducted by members of the armed forces of the State of Colorado or the United States. A

370

§ 18-6.5-101, C.R.S.

371

§ 18-6.5-101, C.R.S

372

§ 18-6.5-103, C.R.S.

373

§ 18-9-124, C.R.S.

team-building activity that does not endanger the health or safety of the student and does not

create a risk of bodily injury would generally not be considered hazing.

The Colorado School Safety Resource Center offers additional materials on hazing.

374

Offenses in School Vehicles

Colorado statutes define a “school vehicle” as any vehicle (not just a bus) owned or under

contract to the school that is being used to transport students.

375

There are five separate criminal

offenses related to conduct associated with a school vehicle: vehicle endangerment via tampering

that creates a substantial risk of death or serious bodily injury; stopping or boarding a vehicle

with intent to commit a crime; threats, attempts, or commission of serious bodily injury or death

of a person with a deadly weapon; false reports of explosives, chemical or biological agents,

poison weapons or any harmful radioactive substance on a school vehicle or school bus stop; and

smoking.

376

B. Colorado Teen “Sexting” Law

377

Colorado law provides reduced sentences for “sexting” among juveniles and offers more

lenient criminal or civil penalties and teen-specific diversion programs to help juveniles avoid

the far more serious felony crimes available to prosecutors.

378

Practical Tip: Defining Sexting

Sexting includes the posting, possession, or exchange of

sexually explicit images of anyone under 18, whether they are

images of oneself or of another person.

1. Definitions and Background

“Sexting” is the posting, possession, or exchange of sexually explicit images of anyone

under 18 years old, whether images of oneself or of another person. A “sexually explicit image”

is “any electronic or digital photograph, video, or video depiction of the external genitalia or

perineum or anus or buttocks or pubes of any person or the breast of a female person.”

379

374

Hazing, COLO. SCH. SAFETY RES. CTR., https://cssrc.colorado.gov/hazing (last visited October 3, 2022).

375

§ 42-1-102(88.5), C.R.S.

376

§ 18-9-115, C.R.S.

377

§ 18-7-109, C.R.S.

378

Id.

379

Id.

Prior to the passage of the teen sexting law, prosecutors generally charged juveniles who

engaged in sexting behavior with the crime of sexual exploitation, which required that the person

be placed on the sex offender registry. The teen sexting law aids authorities in educating

juveniles and impress upon them the serious, long-lasting consequences of their conduct and

grants courts discretion whether to require juvenile offender registration on the sex offender

registry.

Juvenile-Specific Sexting Offenses

Juvenile-specific offenses address the exchange, possession, and posting of sexually

explicit images of juveniles.

a. Exchanging

The lowest-level offense is a civil infraction for the exchange of a private image by a

juvenile, digitally or electronically. It commonly applies to the consensual exchange of images

between juveniles. It requires the juvenile know that they have sent a sexually explicit image or

images of solely themself to another person who is at least 14 years old or who is less than four

years younger than the juvenile and the sender reasonably believed that the recipient had

requested or agreed to receive the image(s). Similarly, an exchanging infraction occurs when a

juvenile knowingly possesses a sexually explicit image or images of another person who is at

least 14 years old or who is less than four years younger than the juvenile, only the sender is

depicted in the image(s), and the juvenile reasonably believed that the sender had sent or agreed

to send the image(s).

For example, if 16-year-old Steven texts a sexually explicit image of himself to his

consenting 15-year-old girlfriend, Mary, he has committed this infraction. Likewise, once Mary

has received the image on her phone—and she possesses a sexually explicit image from her

consenting boyfriend, Steven—she has also committed an exchange infraction.

Consequences include either participation in an educational program designed by the

Colorado School Safety Resource Center that addresses the risks and consequences of

exchanging sexually explicit images of juveniles or a fine of up to $50, which may be waived by

the court upon a showing of indigency. If the offending juvenile fails to appear in civil court or

refuses to complete the required punishment, the court may impose additional age-appropriate

punishments, but it may not issue an arrest warrant or impose jail time.

b. Possession

Possession generally applies to a juvenile’s nonconsensual possession of a sexually

explicit image of another juvenile. A juvenile commits the offense by knowingly possessing,

either digitally or electronically, a sexually explicit image of another person who is at least 14

years old or who is less than four years younger than the juvenile without that person’s

permission. A juvenile can avoid committing this crime if the juvenile takes reasonable steps to

destroy or delete the sexually explicit image within 72 hours of having initially seen it; or reports

the existence of the image to law enforcement or a school resource officer within 72 hours of

having initially seen it. In contrast, the petty offense is enhanced to a more serious class 2

misdemeanor if a juvenile possesses 10 or more separate sexually explicit images that depict

three or more different people without their permission.

Applying the above example to this violation, suppose that when Steven texted Mary a

sexually explicit image of himself, he told her that she could not show the picture to anybody

else. Unfortunately, without Steven’s

consent, Mary decided to text the photo to Jessica, her 17-

year- old best friend.

At that point, Jessica may have committed the petty offense of possessing a

private image by a juvenile unless she deletes or reports the image within 72 hours of having

seen it. If Jessica has accumulated at least 10 of these types of images depicting three or more

people in a similar fashion, then her violation would be enhanced

from the petty offense to a class

2 misdemeanor.

c. Posting

Posting commonly applies to a juvenile’s posting of a sexually explicit image of a

juvenile either without that person’s consent or without a viewer’s consent. This crime is

committed when a juvenile knowingly distributes, displays, or publishes to any person a sexually

explicit image of another person who is at least 14 years old or who is less than 4 years younger

than the juvenile and: (1) the depicted person did not give the juvenile permission to post the

image; or (2) the recipient of the image did not ask to see the image and suffered emotional

distress; or (3) the juvenile knew or should have known that the depicted person had a reasonable

expectation that the image would remain private.

The crime of posting a private image by a juvenile is also committed when a juvenile

digitally or electronically distributes, displays, or publishes a sexually explicit image of himself

or herself to another person who is at least 14 years old or who is less than four years younger

than the juvenile, and the viewer did not ask to see the image and suffers emotional distress.

Posting a private image by a juvenile moves from a class 2 misdemeanor to a class 1

misdemeanor if: (1) the juvenile committed the offense with intent to coerce, intimidate,

threaten, or cause emotional distress to the depicted person; (2) the juvenile has already

committed the crime of posting a private image by a juvenile; or (3) the juvenile distributed,

displayed, or published three or more sexually explicit images that depicted three or more

different people without their permission.

Continuing with the previous examples, Mary committed the crime of posting a private

image by a juvenile when she sent the sexually explicit image of Steven to her best friend,

Jessica, without his permission. Even if Steven had not explicitly told Mary that she could not

show anyone his sexually explicit image, Mary could still have been liable for having committed

this crime if she knew or should have known that Steven would have reasonably expected her to

keep the image private.

Next, suppose Steven was no longer interested in dating Mary and decided to send the

sexually explicit image of himself directly to Jessica, unsolicited, in a misguided attempt to court

her. If Jessica, ever loyal to Mary, saw the lewd image and consequently became emotionally

distressed, Steven has committed the class 2 misdemeanor of posting a private image by a

juvenile.

The penalties could also be enhanced. Suppose that Jessica tells Mary about Steven’s ill-

advised conduct, which causes Mary to try to get back at Steven by posting his sexually explicit

image to a private Facebook group page she shares with friends. Because Mary posted Steven’s

image without his permission to cause him emotional distress, she could be charged with the

enhanced class 1 posting misdemeanor.

Even if Mary had posted Steven’s image without the intent to cause him emotional

distress, she still could be charged with the enhanced posting crime. For example, if Mary had

already been adjudicated for her first posting violation (e.g., when she initially sent Steven’s

sexually explicit image to Jessica without his permission), then her second posting infraction

may be charged as the enhanced class 1 misdemeanor. Finally, if Mary’s posting of Steven’s

image to the Facebook group was the third time she had posted a person’s sexually explicit

image without their permission, she again would have committed the class 1 misdemeanor.

The Colorado School Safety Resource Center has produced the following chart to help

summarize the three offenses:

380

Offense

Committed if Juvenile:

Penalty

Enhanced to:

POSTING

Knowingly distributes, displays, or

publishes image of another who is

at least 14 or is less than 4 years

younger without permission; OR of

themselves if the recipient did not

request it and suffered emotional

distress;

OR the poster knew or should

have known that the depicted

person had a reasonable

expectation of privacy.

Class 2

Misdemeanor

Class 1 Misdemeanor

if: intent to coerce,

intimidate, threaten, or

cause emotional distress;

OR prior posting of a

private image and

completion of a diversion

or educational program;

OR a prior adjudication;

OR posted 3 or more

images of separate

persons.

380

Sexting: New Legislation/HB17-1302 (C.R.S. § 18-7-109) Juvenile Posting/Possessing/Exchanging Private

Images, C

OLO. SCH. SAFETY RES. CTR., https://cdpsdocs.state.co.us/safeschools/Resources/SextingFactSheet.pdf

(last visited October 3, 2022).

POSSESSION

Knowingly possesses image of

another who is at least 14 or is

less than 4 years younger without

permission.

Petty Offense

Class 2 Misdemeanor if:

possessor has 10 or more

images depicting 3 or more

separate persons.

EXCHANGING

Knowingly sends an image of self to

another who is at least 14

or is less

than 4 years younger

and reasonably

believed the

recipient agreed; OR

knowingly possesses an

image of

another who is at least

14 or is less

than 4

years younger and reasonably

believed the depicted person agreed.

Civil Infraction

May be required to

participate in an

educational

program

CSSRC

or pay a fine up to

$50, which may be

waived.

N/A

3. Felony Charges Still Possible

Prosecutors may still charge felony sexual exploitation of a child in more severe sexting

cases and enhanced penalties for possession or posting could apply. Offenses could include cases

involving the possession or posting of an unreasonably high number of images; cases where

images are maliciously used to coerce, intimidate, threaten, or cause emotional distress to others;

or cases where images are used for blackmail or profit. If prosecutors choose to charge a juvenile

with felony sexual exploitation of a child, they cannot also charge the juvenile with misdemeanor

posting for the same images or conduct.

381

Once someone turns 18, prosecutors are only able to charge them with felony sexual

exploitation of a child. Thus, while it is important that all students be made aware of the risks

and consequences of sexting behavior, older high school students should be educated about the

serious criminal liability that they could potentially face once they reach 18.

4. Alternative Discipline

The law also includes alternative disciplinary processes, like restorative justice practices

and diversion programs for first-time offenders.

The teen sexting law encourages each district attorney to develop diversion programs for

juveniles who commit the offenses of possession or posting, allowing first time offenders to

avoid adjudication

382

If no program exists in a jurisdiction, the law encourages district attorneys

to offer any other type of alternative program to help first time offenders avoid adjudication. In

381

§ 18-6-403(7), C.R.S.

382

§ 18-7-109(5)(e), C.R.S.

addition, once a juvenile completes their sentence, diversion program, or other alternative

program, the court should have all records of the juvenile delinquency case expunged.

383

The court may also order the juvenile to be assessed for restorative justice practices.

384

Restorative justice emphasizes repairing the harm offenders caused to victims and the

community. These may include victim-offender conferences, family group conferences, and

other victim-centered practices. The goal is that “[b]y engaging the parties to the offense in

voluntary dialogue, restorative justice practices [can] provide an opportunity for the offender to

accept responsibility for the harm caused to the victim and community, promote victim healing,

and enable the participants to agree on consequences to repair the harm.”

385

The Colorado School Safety Resource Center has a model educational program for

school districts to discuss sexting with its students.

386

5. Sex Offender Registry

The teen sexting law grants courts discretion as to whether a juvenile offender must

posting would typically also constitute violations of felony sexual exploitation of a child, which

is “unlawful sexual behavior” mandating sex offender registration.

The teen sexting law allows

first-time juvenile offenders that have engaged in the possession or posting of sexually explicit

images to be exempted from sex offender registration, but only if particular criteria are satisfied.

First, the juvenile’s conduct must be limited to posting or possession, without other aggravating

factors.

Second, the court must consider the totality of the circumstances and determine that

registration would be unfairly punitive, and that exemption would not pose a significant risk to

the community.

387

383

§ 18-7-109(6), C.R.S.

384

§ 18-7-109(5)(d), C.R.S.

385

§ 18-1-901(3)(o.5), C.R.S.

386

Sexting: What You Need to Know, COLO. SCH. SAFETY RES. CTR., https://cssrc.colorado.gov/sexting (last visited

October 3, 2022).

387

§ 16-22-103(5)(a), C.R.S.

VII. LIABILITY CONSIDERATIONS

Student misconduct – such as bullying, violence, and sexual harassment – creates harm

and interferes with the learning environment. It can also have legal consequences. Although

schools and their staff are generally not liable for damage and injury inflicted by students, the

protection for schools and staff is not absolute. When school officials unreasonably fail to

respond to student misconduct or address known risks, certain student actions can expose

districts, schools, and personnel to liability.

For state law claims, the Colorado Governmental Immunity Act bars most claims for

harm caused by students.

388

For very serious acts of violence, the Claire Davis School Safety Act

waives that governmental immunity. Under this 2015 law, all school districts, charter schools,

and their employees have a duty to exercise reasonable care to protect all students and staff from

reasonably foreseeable acts of violence – murder, first degree assault, and felony sexual assault –

that occur at school or a school-sponsored activity.

389

With respect to federal claims, this chapter provides a very high-level overview of the

potential legal claims based on student misconduct such as bullying, harassment, or

discrimination based on a protected class.

In a state that serves almost 900,000 public school students in almost 2,000 schools, it is

impossible to eliminate all potential liability, though liability can be mitigated with (1) strong

policies and procedures; and (2) regular training to help employees issue spot and implement

those policies and procedures. More important than mitigating liability, it is the right thing to do.

A. Claire Davis School Safety Act

Every public school district, school, and charter school in Colorado is subject to the

Claire Davis School Safety Act (“Claire Davis Act”).390 The Claire Davis Act identifies certain

instances in which districts, schools, or their employees may be liable for serious acts of violence

at school or a school-sponsored event.

1. “Acts of School Violence”

An incident of school violence is defined as “an occurrence at a public school or public

school-sponsored activity” where a person: (1) “engaged in a crime of violence” and (2) “caused

serious bodily injury or death to any other person.”

391

388

§§ 24-10-106, 106.3(4), & 108, C.R.S.

389

§ 24-10-106.3, C.R.S.

390

Id.

391

Id. at -106.3(2)(c).

A “crime of violence” means the person “committed, conspired to commit, or attempted

to commit”: murder, first degree assault, or felony sexual assault, as defined in section 18-3-402,

C.R.S.

392

2. “Reasonable Care”

Public schools and their employees must exercise “reasonable care” to protect students,

faculty, and staff from “incidents of school violence” caused by students and other persons.

393

Key considerations to understand regarding this duty include:

1. Employees must use the same degree of care that a reasonable person with ordinary

judgment would use.

2. Liability only lies for incidents that occur while students, faculty, and staff are within

school facilities or participating in school-sponsored activities.

3. Liability only lies for a harm that is “reasonably foreseeable.” An act is “reasonably

foreseeable” when a reasonably thoughtful person could anticipate that harm or injury

is likely to occur under the circumstances.

4. The statute expressly states that negligence cannot be based solely on a failure to

expel or suspend any student. The statute was not intended to encourage districts to

use suspension or expulsion out of fear of liability.

Although the liability provisions of the Claire Davis Act are often linked to horrific

school shootings, it is also applicable to first degree assault and felony sexual assault. These acts

of violence are not uncommon in schools. To ensure school officials meet that reasonable

standard of care, it is critical to train regularly on the school’s Title IX procedures, bullying

policies, and safety measures to address school-based fighting and other assaults.

3. Liability

While immunity can be waived by public schools if they fail to exercise reasonable care,

individual employees are not subject to liability unless their actions (or failures to act) are willful

and wanton.

394

To be willful and wanton, an employee must have understood that their actions or

failures to act were dangerous, done heedlessly and recklessly, without regard to consequences,

or without regard to the rights and safety of others.

392

Id. at -106.3(2)(b).

393

§ 24-10-106.3(4), C.R.S.

394

Id.

If liability is imposed for schools or districts, damages are capped pursuant to section 24-

10-114. C.R.S. The current cap is $424,000 for any injury to one person in any single occurrence

and $1,195,000 for any injury to two or more persons in any single occurrence.

395

B. Federal Liability for Student Misconduct

Schools are not immune from liability for actions that violate federal laws because

federal law supersedes state law in most circumstances. Schools may incur civil liability for

school violence under multiple federal laws. To avoid liability, schools should proactively act to

deter and prevent school violence.

1. State-Created-Danger Claims Under Section 1983

Generally, a state actor’s failure to prevent harm to an individual by a private actor does

not amount to a constitutional violation.

396

One recognized exemption that could apply to school

officials in extremely rare situations is the “danger creation” theory that can be brought under a

Section 1983 case.

397

Liability is a high bar, but may be imposed under this theory if the following six

standards are satisfied:

i. the victim of violent behavior or harassment is a member of a limited and specifically

definable group;

ii. is subject to a substantial risk of serious and immediate harm;

iii. the risk is obvious or known;

iv. the school or school employee acts recklessly by consciously disregarding the risk;

v. the school’s or school employee’s conduct is conscience-shocking when viewed in its

totality; and

vi. the school or school employee either created the danger or increased the student’s

vulnerability to danger.

398

The Sutton case is an example of where a court found that plaintiff had pled sufficient

facts to state a claim under the “danger creation” theory.

399

The plaintiff was a 14 year-old

student at the Utah State School for Deaf and Blind who had severe cerebral palsy, was totally

blind and could not speak, and whose mental capacity was the age of a three- to five-year-old

395

Limitations on Judgments Certificate, COLORADO SECRETARY OF STATE (Jan. 5, 2022),

https://www.sos.state.co.us/pubs/info_center/files/LimitationsOnJudgments.pdf

396

DeShaney v. Winnebago Cnty. Dept. of Social Servs., 489 U.S. 189, 196-97 (1989).

397

Sutton v. Utah State Sch. for the Deaf and Blind, 173 F.3d 1226, 1237-38 (10th Cir. 1999).

398

Armijo v. Wagon Mound Public Sch., 159 F.3d 1253, 1262-63 (10th Cir. 1998); Uhlrig v. Harder, 64 F.3d 567,

572-74 (10th Cir. 1995).

399

Sutton, 173 F.3d at 1240-41.

child.

400

The claim alleged that the principal acted with deliberate indifference when he failed to

protect the plaintiff from being molested in the bathroom by a large student after the plaintiff and

his mother had already complained about previous molestations in the bathroom by that same

student.

401

This “deliberate indifference” of failing to act after notice of misconduct toward a

vulnerable student in a manner that shocks the conscience creates potential for liability when the

student is subsequently molested.

2. Federal

Anti-discrimination Laws

School districts may violate federal civil rights statutes when students are bullied or

harassed based on a protected class, including race, color, religion, national origin, sex, or

disability. Addressing this behavior in school policies—including anti-bullying, sexual

harassment, and anti-discrimination policies—or in response to single incidences may be

insufficient to protect a school from liability. Districts should consult with their counsel to ensure

compliance with these federal anti-discrimination laws and to avoid liability. Also, districts must

designate a person(s) responsible for coordinating schools’ compliance with Title IX, Section

504, and the ADA.

402

Practical Tip: Applicable Federal Civil Rights Laws

Title VI of the Civil Rights Act of 1964 (“Title VI”)

prohibits race, color, and national origin

discrimination, and is interpreted to include religious discrimination.

403

Title IX of the Education Amendments of 1972 (“Title IX”), prohibits sex discrimination,

404

which includes discrimination on the basis of gender identity and sexual orientation.

Section 504 of the Rehabilitation Act of 1973 (“Section 504”),

prohibits disability

discrimination.

405

Title II of the Americans with Disabilities Act of 1990 (“ADA”) also prohibits disability

discrimination.

406

400

Id. at 1240.

401

Id.

402

28 C.F.R. § 35.107(a) (Title II); 34 C.F.R. § 104.7(a) (Section 504); 34 C.F.R. § 106.8(a) (Title IX).

403

42 U.S.C. § 2000d, et seq.

404

20 U.S.C. § 1681.

405

29 U.S.C. § 794.

406

42 U.S.C. § 12101, et seq.

a. Title VI.

Title VI generally prohibits discrimination based on race, color, or national origin.

407

While not expressly prohibiting religious discrimination, it is also interpreted to prohibit

discrimination against students of any religion involving racial, ethnic, or ancestral epithets, or

slurs, or when based on how a student or group of students look, dress, or speak if these things

are linked to ancestry or ethnicity.

408

Religious discrimination against students is also prohibited

when it is based on actual or perceived citizenship or residency in a country whose residents

share a dominant religion or a distinct religious identity.

b. Title IX.

Title IX prohibits discrimination on the basis of sex.

409

While Title IX does not explicitly

list “gender identity” or “sexual orientation” as protected classes, the U.S. Department of

Education and the U.S. Department of Justice issued guidance in 2021 explaining that Title IX

prohibits discrimination based on gender identity and sexual orientation.

410

Schools should act

on any discrimination, harassment, or bullying on the basis of gender identity or sexual

orientation just as they would for sex-based discrimination. Section II of this manual does a

deeper dive into Title IX.

c. Section 504 and the ADA

Both Section 504 and the ADA prohibit discrimination against students with disabilities.

A school’s policies should reflect these protections.

3. Civil Rights and Hostile Environment Claims

Schools risk violating federal civil rights laws—and being liable—when bullying or

harassment of protected individuals is “sufficiently serious” that a hostile environment is created

and the harassment is encouraged, tolerated, inadequately addressed, or ignored by school

employees. Hostile environment claims against schools may be brought under the federal civil

rights statutes discussed above. Sufficiently serious conduct is defined as conduct so severe,

pervasive, or persistent that it interferes with or limits a student’s ability to participate in or

benefit from the school’s activities, opportunities, or services. Examples include:

407

42 U.S.C. § 2000d, et seq.

408

See Know Your Rights: Title VI and Religion, U.S. DEP’T OF EDUC., OFF. FOR CIV. RTS. (Jan. 2017),

https://www2.ed.gov/about/offices/list/ocr/docs/know-rights-201701-religious-disc.pdf.

409

20 U.S.C. § 1681.

410

Enforcement of Title IX with Respect to Discrimination Based on Sexual Orientation and Gender Identity in

Light of Bostock v. Clayton County, 86 Fed. Reg. 32637 (to be codified at 34 C.F.R. ch. I), preliminarily enjoined

by State of Tenn. v. U.S. Dep’t of Educ., No. 3:21-cv-308, 2022 WL 2791450 (E.D. Tenn. July 15, 2022), appeal

filed, No. 22-5807 (6th Cir. Sept. 13, 2022); Memorandum from Principal Deputy Assistant Attorney General Pam

Karlan, Civil Rights Division to Federal Agency Civil Rights Directors and General Counsels, Application of

Bostock v. Clayton County to Title IX of the Education Amendments of 1972 (March 25, 2021),

https://www.justice.gov/crt/page/file/1383026/download

•

Verbal abuse;

•

Graphic or written statements;

•

Threats;

•

Physical assault; and

•

Other conduct that may be physically threatening, harmful, or humiliating.

When such conduct creates a hostile environment and is targeted towards a student who

is a member of one of the classes protected by the federal civil rights laws discussed above, it

can violate those civil rights laws.

Schools are responsible for addressing any incidents when the school or its employees

knows or reasonably should have known about the bullying or harassment.

A school employee

“reasonably should have known” about an incident when, given the facts and circumstances, the

existence of the bullying or harassing behavior could have been discovered by exercising

reasonable care.

A school, through its employees, may become aware of bullying or harassment

through direct observation of the conduct or being told about the misconduct.

Case Spotlight: Hostile Environment

I.G. v. Jefferson County School District

411

A student identifying as Jewish alleged multiple and ongoing instances of anti-Semitic

behavior by other students in her school, including regular use of Nazi salutes, saying “Heil

Hitler” regularly in school hallways, wearing swastikas, and referencing gas chambers. The

student alleged that she reported the behavior to school and school district officials. While

the school addressed some issues, others were never addressed or were addressed

ineffectually. For example, the student alleged that one student received a one-day

suspension but continued his behavior. She also alleged that she was forced to drop a class,

suffered academic difficulties, and ultimately was forced to transfer out of the school. The

court held that the student met all four elements of a hostile environment claim, sufficient to

survive a motion to dismiss.

4. Investigation and Documentation

A school should take immediate action to investigate and document suspected bullying or

harassment.

The scope of the investigation depends on the nature and source of the allegations,

411

I.G. v. Jefferson Cnty. Sch. Dist., 452 F. Supp. 3d 989 (D. Colo. 2020).

the age of the students involved, and other relevant factors.

The investigation must be prompt,

thorough, and impartial.

If the investigation concludes that students were the subject of bullying or harassment,

the school must take prompt and effective steps to end the harassment, correct any hostile

environment and its effects, and prevent the harassment from recurring. The Department of

Education also suggests separating the harasser and victim,

providing counseling for both, taking

disciplinary action against the harasser, or using alternative discipline strategies. Discipline and

alternative discipline strategies are further discussed in Section II of the manual. A school should

not inadvertently penalize the student who is the victim while taking these or other steps,

however.

For example, in separating a student from their harasser, care should be taken to

minimize the burden on the victim’s education.

The school may need to provide additional

services to the victim to address the effects of the harassment. Schools may also need to provide

training or other types of counseling for perpetrators, victims, and the larger school community

to help them identify and prevent future discrimination.

Finally, schools must take whatever steps are necessary to prevent further harassment and

bullying and to prevent any retaliation against the student victim and against any witnesses. This

includes encouraging affected students and their families to report subsequent problems,

conducting follow-ups with affected students to see if there have been any new incidents or

retaliation, and responding promptly to address new or continuing problems.

Practical Tip: Additional Liability Consideration

Schools that fail to address discriminatory conduct may also be subject to investigation and

legal action by the Office for Civil Rights, U.S. Department of Education, or the U.S.

Justice Department.

412

Schools that fail to properly address discriminatory acts of student-on-student bullying or

harassment may be subject to an investigation and legal action by the Office of Civil Rights of

the U.S. Department of Education or the U.S. Justice Department. The United States Department

of Education’s Office of Civil Rights has issued formal guidance (in the form of “Dear

Colleague” letters cited throughout this manual) reminding school districts that harassment based

on race, ethnicity, national origin, disability, or sex violates federal civil rights statutes and that

students are protected from such harassment from school employees, other students, and third

parties. When school officials know of harassment and fail to respond appropriately, it can

trigger enforcement proceedings.

412

28 C.F.R. § 35.170 (ADA enforcement); 34 C.F.R. § 100.8 (Title VI enforcement); 34 C.F.R. § 104.6 (Section

504 enforcement); 34 C.F.R. § 106.3 (Title IX enforcement).