The mass shooting that killed 17 students and staff members at a Florida high school thrusts the Broward County school system into a hornet’s nest of legal issues including the complexities of a crime scene, the privacy of student records, and the threat of liability.
And it’s fueling what could become a national debate over the proper responses by schools and mental health professionals for those deemed at risk of violence.
If the experience of other districts that have had to deal with school shootings is any guide, the school district’s in-house staff of eight lawyers, along with its outside attorneys, will be consumed for months, if not years, with issues arising out of the incident at Marjory Stoneman Douglas High School in Parkland, Fla.
“Today, we had one staff member who did nothing but work on an emergency contract with a cleanup company to go into the building” on the Stoneman Douglas campus where the shootings occurred, said Barbara J. Myrick, the general counsel of the 273,000-student Broward County district.
All manner of legal issues face a school district after a major school shooter incident, ranging from short-term concerns such as the reopening of school and maintaining proper access to records and school property to long-term matters such as defending against any lawsuits seeking to hold the district or school officials partially liable.
“Unfortunately, it seems that with every situation that arises, there is some new element that perhaps hasn’t been considered before,” said Francisco Negrón, the general counsel of the National School Boards Association. That confronts school officials with the need to re-examine their existing plans for dealing with such events and make changes if necessary, he said.
Records Trickle Out
Myrick spoke to Education Week just two days after the shooting at Stoneman Douglas. The biggest initial demand involved requests for information about the alleged perpetrator, Nikolas Cruz, she said.
“We have lots of requests for information, but, of course, any of the student records are protected by FERPA,” Myrick said, referring to the federal Family Educational Rights and Privacy Act of 1974, which requires law enforcement to get a court order to gain access to the records.
W. Stuart Stuller, a Boulder, Colo., lawyer who represented the Jefferson County school district in that state after the 1999 attacks at Columbine High School that killed 13 students and teachers as well as the two student perpetrators, recalled a crush of demands for the perpetrators’ school records in the days after that incident.
“The thing to remember is that there are no exceptions” in FERPA or in Colorado’s student-privacy laws “even for horrific incidents,” said Stuller, who continues to represent multiple Colorado districts. “When the police wanted those students’ education records, we said, ‘Go get a warrant.’ ”
Law-enforcement authorities will likely follow the steps necessary to get Cruz’s records. But some have already leaked. One was a 2016 Florida social-services-agency report of an in-home investigation of Cruz conducted in response to troubling Snapchat posts by the student. But the state Department of Children and Families determined that Cruz was a low risk of harming himself or others.
Meanwhile, on the weekend after the shootings at Stoneman Douglas, WPLG-TV in Miami obtained disciplinary records for Cruz from his middle school years, which showed a pattern of fights and unruly behavior. The TV station shared the reports with The Washington Post, which published a story about them as well.
There were also the reports that the FBI had failed to check out more-recent troubling reports of Cruz’s social-media postings.
In the days after the shootings, Broward County Sheriff Scott Israel called on Florida lawmakers to expand the ability of law-enforcement officers to involuntarily commit for a short-term evaluation anyone, including a minor, who produces social-media postings exhibiting violent tendencies or an inclination to commit violence.
The sheriff called on state lawmakers to expand the Baker Act, a Florida law that already allows law-enforcement and mental-health personnel to order a detention of up to 72 hours for an evaluation of someone viewed as a potential threat to himself or others.
A state-mandated report on the Baker Act shows that in the 2015-16 fiscal year, some 22.5 percent of Baker Act evaluations were initiated for children who were at school at the time of the initiation. The report showed that more than 600 such evaluations of children were initiated at schools in Broward County that fiscal year, though the report did not distinguish between traditional public schools, charter schools, or private schools.
“I guess there is an impulse to change the criteria” for civil commitment to cover social-media posts, said Annette Christy, an associate professor in the department of mental-health law and policy at the University of South Florida in Tampa and the lead author of the report. “What I would say is the Baker Act is just one component [of responding to potentially dangerous people.] I would advocate more for improving our overall mental-health system.”
Jennifer Sughrue, a professor of educational leadership at Florida Gulf Coast University in Fort Myers, teaches school law and other subjects to educators seeking advanced degrees. Sughrue said she expects teacher-educators are going eventually to get new levels of training of how to identify potentially violent students.
“How are we going to prepare teachers and administrators to identify the kind of behaviors that might raise red flags?” Sughrue asked. “And what would be the procedure for not identifying just a kid who is acting out?”
“How comfortable are people about pointing a finger and saying that kid is going to be a terrorist or that kid is going to go postal on us?”
In Colorado, the Jefferson County district faced nine lawsuits from injured victims and the family of one slain student alleging that the violence at Columbine High could have been prevented had educators familiar with the two gunmen, Eric Harris and Dylan Klebold, responded to numerous warning signs.
Those warning signs, the plaintiffs alleged, included school video projects by the pair depicting the use of guns, violent themes in their writing assignments and website content, and statements the two made about blowing up their school in the year before the slayings.
“The litigation we got was not so much from families of children who were murdered, except for one, but families of children who were wounded,” said Stuller. “Those children needed lifetime care, and our society does not do a good job of providing that.”
He says that a number of prominent lawyers in the Denver area represented those families for free.
“The school district viewed that with a sense of understanding,” Stuller said. “Everybody understood this was an effort to get resources for children who were badly injured.”
Still, the district did not concede any liability. The lawsuits, which raised federal and state law claims, were consolidated before U.S. District Judge Lewis T. Babcock of Denver, who in 2001 dismissed all cases against the district and other school defendants.
“Harris’ and Klebold’s actions on April 20, 1999, were the predominant, if not sole, cause of plaintiffs’ injuries,” the judge said.
Babcock concluded that some Jefferson County educators had acted negligently in regard to the warning signs about the two students. Harris’ video-production teacher, for example, “was privy to information that demonstrated Harris’ and Klebold’s long-time obsession with violent themes and ideas,” the judge said. But the teacher’s failure to take action did not amount to “willful and wanton” conduct under Colorado law, the judge held.
The plaintiffs filed a notice of appeal, but the cases were settled soon after Babcock’s ruling without any significant concessions by the school defendants.
“You have a really high bar” for finding the school defendants liable in such a case, said Stuller.
Putting On a Lawyer’s Hat
Myrick, the Broward County district’s general counsel, and her staff were more preoccupied with short-term concerns in the days after the Stoneman Douglas shooting. Those include working with a local funeral home that offered to donate burial services for the victims, exploring the possibility of providing money to the victims from a state victim-advocacy fund, and advising administrators and teachers on how to respond to requests for information.
“It really is a thousand phone calls,” Myrick said. “It is a struggle because we are all so devastated by what occurred. At the same time we are dealing with those emotions, we have to put on our lawyer hats.”
Myrick said she fully expects that the district or some of its officials and educators will face lawsuits stemming from the mass shooting. Under Florida law, Myrick said, plaintiffs would have to wait six months from the day of the incident.
“I understand that people, emotionally, need someone to blame,” she said. “Whether we are to blame, I don’t know at this point.”
A version of this article appeared in the February 28, 2018 edition of Education Week as Legal Issues Loom for District in Shooting’s Wake