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Published in Print: May 5, 1999, as Shootings Raise Host of Legal Questions

Shootings Raise Host of Legal Questions

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The lawsuit begins with a dramatic review of the recent nationwide spate of school violence.

"Our schools have become killing fields," says the suit stemming from the fatal shootings of three students at Heath High School in West Paducah, Ky., in December 1997.

"The shootings described in this lawsuit are the direct result of the failure of the family, the educational system, the social organization and structure, and those who lead it," the document continues.

The lawsuit named 45 defendants, including McCracken County school board members and numerous teachers and administrators, who allegedly failed to interpret "warning signals" that 14-year-old Michael Carneal would go on a murderous rampage.

Just days after last month's killings at Columbine High School in Jefferson County, Colo., legal experts were predicting a wave of similar litigation against the families of Eric Harris and Dylan Klebold, the student gunmen there, as well as against local law-enforcement agencies and the county school system.

The string of school shootings over the past year and a half has left educators and school law experts wondering what measures they can legally take to reduce the possibility of such violence. And it has motivated them to ask whether they might be held legally responsible if violence does occur.

"That's all my students wanted to talk about" after the April 20 shootings at Columbine, said Julie Underwood, the general counsel of the National School Boards Association, who teaches a school law class for administrators at the northern Virginia campus of Virginia Polytechnic Institute and State University.

Last month, little more than a week before the Columbine incident, members of the NSBA's Council of School Attorneys met in San Francisco and discussed the legal issues surrounding school violence.

One major topic was the lawsuit in the West Paducah case.

The suit was filed by the surviving family members of the three students killed at Heath High School. It is a state-law negligence suit naming Michael Carneal and his parents, residents from whom Mr. Carneal stole guns, friends of Mr. Carneal's who allegedly knew of his plans to go on a shooting spree, and the school officials.

'Warning Signals'

The lawsuit seeks to hold the defendants liable for what it describes as "plenty of warning signals" about Mr. Carneal. As for educators in the 6,700-student McCracken County district, it alleges that they should have been on notice, in light of class papers the boy wrote about shooting students and detonating an atomic bomb at school.

In one story, "Halloween Surprise," a character is attacked by a gang of students called the preps. The student exacts revenge by opening fire on the preps with a sawed-off shotgun. The story concludes with another character named Mike detonating an atomic bomb and then taking over as leader of the school.

"Apparently, Michael Carneal received a passing grade for this story," the lawsuit states. "His teacher never notified anyone of Michael's violent and grotesque story."

In March, a McCracken County circuit judge dismissed all the school defendants from the lawsuit. Judge William L. Shadoan ruled that the board members, administrators, and teachers named as defendants were all protected from liability by sovereign immunity under Kentucky law.

In a short written order dismissing those defendants, Judge Shadoan said it is the job of educators to "see that all children receive the best education possible. We cannot expect those teachers and administrators to be psychiatrists, lawyers, psychologists, or physicians."

"They are to educate our children, nothing more and nothing less," the judge said.

A number of other individual defendants have also been dropped from the lawsuit, but the case is proceeding against Mr. Carneal, his parents, the gun owners, and several of his friends. Mr. Carneal pleaded guilty to murder in criminal court and was sentenced to life in prison without the possibility of parole for 25 years.

Michael Breen, the lawyer representing the families who filed the lawsuit, has appealed the dismissal of the school defendants. He is seeking to have the Kentucky Supreme Court review the appeal on an expedited basis.

"We have a whole panoply of conduct [alleged here] that a reasonable teacher would say, 'Gee, there is something wrong here with this kid and we have to take steps,' " Mr. Breen said.

The lawyer has filed a separate lawsuit on behalf of the families against numerous media companies, including the producers of the film "The Basketball Diaries" and the producers of video games such as Quake and Doom. The federal lawsuit filed April 12 alleges that Mr. Carneal was influenced by a school shooting scene in "The Basketball Diaries" and that he became proficient at shooting and desensitized to violence from playing the video games.

Public Purpose?

To some legal observers, the Columbine High School shootings raise similar questions about whether there were warning signs about Eric Harris and Dylan Klebold.

Marc Kaplan, the president of the Colorado Trial Lawyers Association, said the early evidence about the incident suggests that lawsuits may be filed against any party with prior knowledge of the students' actions or their violent tendencies.

"Potential defendants at this point appear to be the parents, the school, and the sheriff's department," said Mr. Kaplan, whose association generally is made up of lawyers who specialize in representing plaintiffs in civil-liability cases.

As a practical matter, it is still too early for any lawsuits to be filed, and Colorado has a law that prohibits lawyers from soliciting clients for 30 days after an incident. But that law does not prohibit a potential plaintiff from seeking out a lawyer, and the parent of one student killed at Columbine reportedly has done that.

Geoffrey Fieger, a Michigan lawyer who is best known for his past representation of Dr. Jack Kevorkian in assisted-suicide cases, said last week that he had been contacted by the family of Isaiah Shoels, an 18-year-old Columbine student who was killed in the shootings.

Mr. Kaplan said that, at first glance, it did not appear that Jefferson County school employees had acted with any "willful and wanton" conduct prior to the shootings, which would be the legal standard in a state lawsuit.

He argued that civil litigation following an incident such as the one at Columbine High can serve a public purpose by uncovering information that otherwise would not be revealed.

For example, school officials may not want to discuss voluntarily why they didn't know more about the group of students called the "Trenchcoat Mafia" that Mr. Harris and Mr. Klebold are said to have associated with, Mr. Kaplan said.


As for the prevention of violent incidents, a number of legal issues took on particular resonance after the Columbine shootings.

One such issue is how teachers and administrators should respond to student work--essays, compositions, videos, and so forth--that is violent.

"That may be an indication of how a child is thinking," Ms. Underwood of the NSBA said. "Teachers are in a position that when they see those [danger] signs, they can talk to children or to others."

But school board lawyers and civil liberties advocates are often at odds over where to draw the line on student expression that contains violence.

Last year, the Cabrillo, Calif., school district suspended a 14-year-old student for two essays depicting violence that he turned in for an English assignment. In one of the essays, "Goin' Postal," a boy goes to school armed with a gun and shoots the principal seven times.

Is that creative writing or a threat to the student's real principal?

The student's suspension was based on a California law, which took effect last year, that allows schools to discipline students for making any verbal or written threat, even if the student does not intend to carry it out.

The student's family sued the school district to protest his suspension with the help of the local chapter of the American Civil Liberties Union.

The case was settled, according to the school district, which said it had agreed not to disclose the details of the settlement.

Joan Bertin, the executive director of the New York City-based National Coalition Against Censorship, said disciplining students for such written expression as depictions of violence was misguided.

"What you really want is to do is make people not act in a violent way," she said. "By making people suppress their feelings, you don't really accomplish that.

"What good is it going to do to suspend a student who writes a diary full of all kinds of horrible fantasies?" Ms. Bertin added. "You don't really help them with their problems."

Intervention would be a better response, she said.

Trench Coat Bans

What about the rush by some school districts to prohibit students from wearing trench coats or other long coats such as those associated with the Columbine gunmen?

Ms. Underwood said the federal circuit courts of appeal are split on whether clothing that does not carry a particular message constitutes a form of expression protected by the First Amendment.

"I wouldn't ban them in all [federal] circuits," she said.

However, even where the wearing of a trench coat is considered a protected form of expression, districts could still prohibit them if they could show they were contributing to the disruption of school, Ms. Underwood said.

Vol. 18, Issue 34, Pages 1,14-15

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