Law & Courts

Schools Routinely Search Students for Weapons Under Safety Plans. Should They?

By Mark Walsh — March 30, 2023 9 min read
Emergency personnel remove police tape outside East High School after a school shooting, Wednesday, March 22, 2023, in Denver.
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The March 22 shooting at a Denver high school by a student during his daily patdown for guns has focused new attention on “safety plans.” Those are individualized agreements that can involve school personnel routinely searching students who have previously broken laws or school rules for weapons, drugs, or other contraband.

Such safety plans are in much wider use than the general public realizes, school safety experts say. They are a tool of the threat assessment model for dealing with school violence that emerged after the 1999 deadly mass shooting at Columbine High School in Littleton, Colo.

“It’s not unusual for a big district like Denver Public Schools to have hundreds of safety plans in place in a school year,” said John McDonald, who was security chief in the neighboring 69,000-student Jefferson County, Colo., school district after the mass shooting at Columbine, which is part of that district. “We had 700 to 800 in Jefferson County.”

Such safety plans can vary in duration, and often cover students with emotional or mental health issues, substance use problems, sexual offenses, bullying, and histories with weapons or other violence, said McDonald, now the chief operating officer of the Council for School Safety Leadership, a Columbia, Mo.-based organization that trains and consults with school personnel nationwide.

That means the plans often permit students who may have weapons infractions on their records to return to school, but with conditions such as daily patdowns and searches of their backpacks or lockers.

Shifts in thinking in recent years on school discipline, juvenile justice policies, and the embrace of “restorative justice” have led to efforts to return some students with relatively mild records of infractions to the classroom rather than permanently expel them or push them to alternative schools, McDonald said.

“What used to be a line in the sand for school districts” for removing many offending students “is no longer there,” he said. “We’ve inherited those students again. And we want to educate them.”

A change in routine may have sparked an outburst of violence

On March 22, 17-year-old student Austin Lyle arrived at East High School in Denver, which he was attending under a safety plan that required a daily patdown for weapons.

The student had been removed from a high school in the suburban Cherry Creek School District during the 2021-22 school year for violating board policy. Media reports indicate that Lyle had been arrested on a weapons charge shortly before his expulsion, though there has been no confirmation that the weapons charge was the basis for the expulsion from Cherry Creek.

That day, the administrator who usually did the patdown was not available, and two other school officials conducted the search. They discovered a weapon, and reports say Lyle allegedly shot the two administrators before fleeing the school. The administrators were hospitalized, including one in serious condition.

Lyle was found dead in a park later that day, with local outlets reporting that the coroner had determined the student died of a self-inflicted gunshot.

The shooting prompted concern and debate in the 89,000-student Denver district, in part over that district’s earlier decision to remove school resource officers from its campuses. The day after the shooting, the Denver school board voted to support the decision of Superintendent Alex Marrero to return armed officers to schools, at least through the end of the school year.

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Students leave East High School following a school shooting on March 22, 2023, in Denver. Two school administrators were shot at the high school after a handgun was found on a student subjected to daily searches, authorities said.
Students leave East High School following a school shooting on March 22, 2023, in Denver. Two school administrators were shot at the high school after a handgun was found on a student subjected to daily searches, authorities said.
Hyoung Chang/The Denver Post via AP

Marrero, at a press conference the day after the shooting, was asked about student safety plans and the circumstances of Lyle’s plan.

The superintendent briefly speculated that the fact that two administrators instead of the one who usually conducted the patdown may have sparked the student’s violent reaction.

“There was a common administrator who normally engaged with the student upon arrival. That administrator was not available, hence the two others, and perhaps that prompted …” Marrero said, before trailing off.

Asked about reports that Lyle had faced a weapons charge and whether such a student should still be allowed to attend school, Marrero said East High administrators were aware of Lyle’s history. He defended the idea of using safety plans to allow a range of students facing difficulties to stay in school. He declined to say how many safety plans were in effect in Denver Public Schools, though he said the number fluctuated.

“On any given day we can have an additional student put on a plan, and also a plan can expire,” Marrero said. “There are a lot of students that are struggling, whether it’s emotional, or academic, or behavioral. We receive students all throughout the year. We are obligated to provide a free and adequate education for all students. So of course, our doors will continue to be open for all students.”

Having students on safety plans can be “like walking a tightrope”

Frank G. Straub, the senior director of violence prevention research and programs at Safe and Sound Schools, a Newtown, Conn.-based organization founded after the deadly 2012 mass shooting at Sandy Hook Elementary School, said he agreed that the use of safety plans and other threat-assessment tools means that “more forward-looking schools are thinking about how they can keep students connected to school.”

“What people are trying to do with these safety plans is figure out how do we keep that connection while at the same time keeping the school community safe from harm,” he said. “Sometimes it is like walking a tightrope. There is little margin for error.”

Straub said one concern he had with how the Denver district carried out the safety plan for Lyle was that administrators and not trained law enforcement officers regularly conducted the patdowns of the student.

“Part of the problem in the Denver case, potentially, is you had very well-intentioned school officials trying to do the right thing and keep this individual in school and integrated into the school’s support system,” he said. “But the people doing the safety search really didn’t have the training to protect themselves. If we are going to put teachers or administrators in harm’s way, then at a minimum there should be proper training.”

Marrero, the Denver superintendent, said at his press conference that law enforcement officers in schools would not be the ones to conduct such patdowns as part of a student’s safety plan.

“An armed officer, whether it was an SRO or an armed officer that happened to be on site, would have never patted down that student,” Marrero said. “An officer, in order to search a student, they need to have probable cause.”

That observation leads to the question of what legal or constitutional issues revolve around the use of individualized safety plans in schools. A search of legal databases found few, if any, court decisions directly on point. One exception is a pending case in Colorado that bears some factual resemblance to last week’s incident and may offer schools some guidance.

In 2019, a student identified in court papers as J.G. arrived at his Denver high school, where he was subject to a safety plan. One year earlier, the student had been adjudicated delinquent for felony menacing and possession of a handgun by a juvenile.

The threat appraisal team at J.G.’s Denver high school developed a safety plan before he would be allowed back into school. The student’s mother participated in the development of the plan, which did not initially require daily patdowns.

After J.G. committed another juvenile offense, motor vehicle theft, and spent months in juvenile detention, the threat appraisal team at his school tightened J.G.’s safety plan to include daily searches, frequent check-ins with administrators, and no use of lockers or book bags.

J.G. returned to his high school in the fall of 2019. On the third day under his safety plan, the student did not fully comply with directions from school officials and a school resource officer. The student agreed to a patdown, but not to a search of his backpack.

J.G. was restrained, and the SRO opened the backpack and found a loaded handgun. J.G. was arrested and suspended from school.

The student challenged the school’s justification for the backpack search, arguing that his safety plan did not constitute consent to a search. His lawyers also argued that officials had no “reasonable suspicion” for the search.

Reasonable suspicion is the standard set for searches of students by school officials under the U.S. Supreme Court’s 1985 decision in New Jersey v. T.L.O. That standard is considered easier to satisfy than the normal requirement of probable cause for a warrantless search to satisfy the Fourth Amendment’s protections against unreasonable searches and seizures.

A safety plan strips a student’s expectation of privacy, a state appeals court rules

A juvenile court denied J.G.’s motion to suppress the evidence obtained from the search, and in a decision last year, the Colorado Court of Appeals upheld that ruling. The appellate court determined that J.G.’s safety plan authorized school officials to search him and his backpack.

The court further held that the search of J.G.’s backpack satisfied the two-part test laid out by the Supreme Court in T.L.O.—that it was justified at its inception and permissible in its scope.

“Because the high school here implemented a safety plan for J.G. that included a search requirement, J.G. didn’t have a legitimate expectation of privacy in his backpack sufficient to trigger a warrant requirement,” the court said in People in the Matter of J.G.

The court also concluded that the search of the backpack was permissible in its scope because it wasn’t excessively intrusive.

Lawyers for J.G. appealed to the Colorado Supreme Court. On Jan. 23, the state’s highest court announced that it would take up the appeal. It reframed the issue it would decide this way: “Whether school officials’ knowledge of a student’s prior adjudications, resulting from off-campus behavior and which prompted the school to impose a safety plan, can justify seizing him at school and conducting a warrantless search of his backpack.”

A spokesman for the Colorado Supreme Court said the first merits briefs in the case are due in April and oral argument likely would not occur until this fall.

Tristan Gorman, the legislative policy coordinator of the Colorado Criminal Defense Bar, which provides training and other assistance to defense lawyers in the state, said the case could provide some needed legal guidance about individual safety plans. But she was worried that the state high court might undercut students’ constitutional rights.

“The schools have so much power as to what goes into these safety plans,” said Gorman, who is not involved in representing J.G. “I’m worried that our state supreme court will say that if the prior offense involved a handgun, they will uphold safety plans that allow searches.”

She worries that the more recent shooting at East High School will weigh on the justices’ minds and may lead them to “expand the law” in favor of school districts and the state.

“But how can you have reasonable suspicion of a student every day, in perpetuity?” Gorman said. “I can’t say I’m optimistic for the Fourth Amendment rights of students.”

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