Opinion
School Climate & Safety Opinion

The Troubling Legal Gap in Schools’ Ability to Prevent Mass Shootings

Many principals bring me violent threats they’re not sure how to act on
By Chris W. McCarty — November 01, 2023 5 min read
Illustration of teen boy making threats on social media.
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A 10th grader in the geometry class you teach walks in early one morning, wanting to show you an Instagram post made the night before by one of your other students. The post is a photo of that other student holding an assault rifle, with a caption reading: “#hateschool #columbine #comingforyall.” Asking school administrators to assess and address a post like this one is already a tough task, and current federal regulations make that task even tougher.

As a lawyer for numerous school systems, I see more of those posts than anyone would want to believe. Kids making threats of violence on Instagram, via Snapchat stories, or while on a headset playing Xbox. You might be able to dismiss the possible danger until that student sits in your 3rd period with 25 kids while you try to teach U.S. history or is a classmate of your daughter’s.

According to the FBI, the agency received almost 6,000 reports of school threats in 2022, which marked a 60 percent increase from 2021. Yet, the first people to typically learn about online threats to schools are not FBI agents or police officers; instead, news of such threats often comes in first to principals or classroom teachers.

How are educators supposed to respond to threats of violence? Often, even schools’ top administrators have little guidance about what to do. One result is inconsistency. In my practice, I often see a range of responses, not only from district to district in Tennessee but sometimes within the same district.

After the tragic shooting at the Covenant School in Nashville this past March, the Tennessee legislature passed a law creating a new type of zero-tolerance offense in schools. Under this law, as of this school year, public school students who threaten mass violence—online or off—are to be expelled from school for one year.

Educators and politicians can and should continue to debate the need for such a law, but everyone within the education realm should also want to address the rise—fueled by social media—in serious threats coming from students. In 2019, the U.S. Secret Service found that about half the school attackers the agency identified sent concerning electronic messages to specific persons or posted online to groups or to the general public before they committed the acts of violence.

Federal disability laws preempt—or trump—state education laws.

With statistics like that to ponder, Tennessee is not the only state to consider specifying stiff punishment for students who threaten school violence. At least five others (Arizona, Florida, Kentucky, Nevada, and West Virginia) have new laws with stricter punishments for students who exhibit disruptive behavior or who threaten violence, according to recent reporting in the Missouri Independent. Lawmakers in several other states have weighed such measures.

We have little evidence about what responses to threats make the most sense, but we do know that certain important options for school administrators are often foreclosed if the student has an individualized educational program. For instance, what if the assault-weapon-toting student from my first example has an IEP that specifies services and accommodations at school stemming from a diagnosis of oppositional defiant disorder? If that is the case, the school system would need to conduct a so-called “manifestation determination” meeting before removing the student (by suspension or an alternative placement) from the school for any period beyond 10 cumulative days during a school year. And, if the threat in that student’s Instagram post “manifested” or stemmed from their disability as determined in that meeting, then often they will be coming back to school very soon to sit with about 300 of their classmates during lunch. Tennessee’s new law would not change that outcome, either, as federal disability laws preempt—or trump—state education laws.

After the Parkland shooting, the South Florida Sun Sentinel ran a series of articles addressing this complicated issue of IEPs and potential violence, one of which was titled: “Violent Kids Take Over Florida’s Classrooms, and They Have the Law on Their Side.” That article highlighted a real—yet often overlooked—problem: “State and federal laws guarantee [special need] students a spot in regular classrooms until they seriously harm or maim others. Even threatening to shoot classmates is not a lawful reason to expel the child.”

See Also

Crosses and flowers hang on a fence outside Marjory Stoneman Douglas High School, near Parkland, Fla., in memory of the 17 people killed in a school shooting there in 2018.
Crosses and flowers were part of a memorial for the 17 people killed in a mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla., in 2018. Following that shooting, schools around the country considered additional safety measures, including threat-assessment policies.
Brynn Anderson/AP
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The article was referencing what some see as a gap within the federal regulations that do already attempt to strike a balance between the needs of an individual student and the safety of fellow students. Under those regulations, even if a student’s conduct stems from their disability, schools may still remove a special-needs student from their regular placement for up to 45 school days if they bring a weapon to school, have illegal drugs at school, or have “inflicted serious bodily injury upon another person while at school.” Everyone likely agrees that a student whose behaviors stem from mental illness should not receive the same punishment for those behaviors as a peer without disabilities, yet administrators often need time they don’t get under the current process to ensure a student’s presence at school can be managed in a way to mitigate any danger to others.

The glaring flaw in the regulatory language at issue is that it is reactive, rather than proactive, because it does not include threats as reason to remove a student. To remedy the flaw, the U. S. Department of Education should amend the regulation to say: “has threatened or inflicted serious bodily injury upon another person. …”

If making such a threat truly stems from a student’s disability, then the 45 school days the regulation allows for should be spent further assessing that student, including modifications to any behavior plan or the consideration of counseling or other services. It’s easier to further assess or make modifications while not also worrying about an entire school full of kids and teachers who could become victims of mass violence.

If there is a report of a bomb in a building, we don’t ask the bomb squad to assess and defuse when surrounded by hundreds of bystanders who might be killed. And likewise, we should not ask school administrators to do their equally delicate work of supporting a troubled and possibly violent student while the lives of other students in the school may be at risk.

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