Several recent rulings from courts in Ohio could have a big impact on public school districts. These decisions provide clarity and parameters on search and seizure in the context of public employment, school liability for employees’ inappropriate behavior, and student free speech rights.
Search and Seizure of an Employee Alleged to be in Possession of a Firearm on School Property
The Sixth Circuit Court of Appeals recently held that school employees’ search of their colleague’s personal belongings did not violate the Fourth Amendment of the U.S. Constitution. In Lawson v. Creely, Holly Lawson, a school guidance counselor, brought her handgun to a Kentucky Derby party over the weekend. After leaving the party, Lawson stored the handgun in her tote bag. Lawson failed to unpack her tote bag, and as a result, took the handgun with her to school May 3-5.
On May 3, another guidance counselor, Kayla Creely, observed Lawson “babbling,” struggling to communicate and acting “sluggish” and “intoxicated.” On the afternoon of May 4, while Lawson was out of her office, Creely and Lori Franke, school guidance counselor, entered Lawson’s office and searched through Lawson’s tote bag to determine what medication Lawson had been taking. While doing so, Creely and Franke discovered what they believed to be a handgun. Creely and Franke informed the school resource officer and superintendent of Lawson’s possession of a handgun on school property.
When Lawson reported to work on May 5, the superintendent met her at the entrance of the building. The superintendent asked if he could speak to Lawson and, after she agreed, walked with her to the SRO’s office. Once in the office, the superintendent informed Lawson that he had received a report that she possessed a weapon on school grounds. Lawson said she was not sure and that she needed to look in her bag. Upon doing so, Lawson acknowledged her handgun was in the bottom of her tote bag. Following this interaction, the superintendent placed Lawson on paid administrative leave pending an investigation into the incident. The SRO took custody of Lawson’s bag and handgun and later charged Lawson with unlawful possession of a weapon on school property. Lawson ultimately resigned her counselor position to avoid prosecution.
Subsequently, Lawson filed a complaint alleging that the other two counselors conducted warrantless searches when they searched Lawson’s tote bag in her office. The Fourth Amendment protects individuals from unreasonable searches and seizures. However, to succeed in such a case, a plaintiff must establish that the defendant was acting “under the color of state law” and deprived the plaintiff of “rights secured under federal law.” In analyzing Lawson’s claim, the Sixth Circuit ultimately determined that Board policy did not instruct Creely or Franke to investigate Lawson. Rather, Board policy instructed employees to report concerns regarding the possession of weapons on school property to the proper administration and/or law enforcement personnel. As such, Creely and Franke’s actions were not done under the color of state law.
In addition, Lawson also brought forth a claim alleging the superintendent unlawfully seized her in violation of the Fourth Amendment when he met her upon her entrance into the school building and led her to the SRO’s office. The Court found the superintendent had not seized Lawson when he asked her to join him in the SRO’s office, because her compliance was not compelled. The Court further held that the superintendent did seize Lawson when he closed her in the SRO’s office, but that such seizure was appropriate and not in violation of the Fourth Amendment because the superintendent had a reasonable, articulable suspicion that Lawson possessed a firearm on school grounds; the seizure lasted approximately four minutes in length; and because Lawson searched her own tote bag for the firearm.
What this means for your District: This case does not mean employees can start searching each other’s belongings. It is critically important that districts provide their staff with adequate training on the district’s search and seizure policies. In doing so, districts should remind staff of their obligations to report allegations of weapons and/or other threats to the health, safety or welfare of district students or staff to the appropriate school administrator or law enforcement personnel. If it is determined that there is reasonable suspension that a student or staff member has violated a law or school rule, then the school official may detain the individual to investigate, provided it remains reasonable in light of the suspected infraction and is not excessively intrusive.
Liability of School Officials For Failure to Adequately Respond to Allegations of Grooming
The U.S. District Court for the Southern District of Ohio recently shed light on the responsibility of school officials to take reasonable action to investigate and/or remedy allegations of grooming behavior. In Doe v. Bd. of Educ. of Columbus City Sch., a school principal learned that an elementary school instructional aide had sent inappropriate texts containing sexual innuendo to a 12-year-old student late at night. Upon being made aware of these allegations, the principal directed the aide to stop texting the student. However, the principal failed to report the behavior to any other administrator or law enforcement official, did not engage in further investigation, and did not take any disciplinary action against the aide. A year later, the aide’s colleagues sent an anonymous letter voicing concerns about the aide’s inappropriate sexual behavior. (i.e., using offensive sexual language, presenting graphic sexual content on his cell phone to colleagues, etc.). While the employee was reassigned to a different school, the principal did not undertake any further investigation, nor did she take any disciplinary action against the employee.
Subsequently, the aide sexually assaulted a male student. Upon investigating the matter, it was discovered that the aide had groomed the student for several years, showing the student nude photos, making comments about how attractive the student was, requesting and receiving a nude photo of the student, etc. The student brought several claims against the board of education, the principal and the aide, including alleged violations of Title IX.
The Court recognized that in order to succeed on an employee-student sexual harassment claim under Title IX, a plaintiff must show: 1) an employee sexually harassed the student; 2) an official with authority to take corrective action had “actual notice” of a substantial risk that the employee would harass a student like they harassed plaintiff; 3) the school’s response exhibited “deliberate indifference” to that risk: and 4) the school’s deliberate indifference caused the student to suffer discrimination.
In this case, it was undisputed that the student was subject to sexual harassment. The Court also found that the principal in this case was an official with the authority to take corrective action. Given that the principal knew that the aide had sent sexually suggestive texts to a student late at night, the Court also found that such conduct plausibly signaled a substantial risk that the aide would sexually abuse a student. The Court also found that a reasonable jury could conclude that the principal’s failure to investigate or otherwise discipline the aide could amount to a “clearly unreasonable response.” Lastly, the Court definitively concluded that because the principal knew of the text messages the aide previously sent to another student and failed to take proper measures upon receiving such notice, the school’s actions caused the student to suffer discrimination. Thus, the Court ultimately held that a reasonable jury could find the board of education liable on the student’s Title IX claim.
What does this mean for your District: Each school employee must be made aware of their obligations to report allegations involving sexual harassment under Title IX, including allegations of grooming behavior, to the District’s Title IX Coordinator. Upon receipt of such a report, the District’s Title IX Coordinator must implement the District’s Title IX grievance procedures and appropriate measures to remedy and deter further potential sexual harassment. Such a course of action may assist in limiting your district’s liability if faced with litigation under Title IX.
If you have questions or concerns regarding allegations of sexual harassment or your formal or informal grievance procedures set forth in your district’s Title IX policies, please contact your legal counsel for assistance.
District Authority to Restrict Student Speech Containing Violent or Threatening Imagery
In C.S. v. McCrumb, the Sixth Circuit Court of Appeals upheld a school district’s request that a third-grade student remove their hat that depicted an AR-15 rifle with the phrase, “Come and Take It” written across it.
In November of 2021, Oxford School District in Oakland County, Michigan, experienced one of the deadliest school shootings in Michigan history. As a result of the shooting, several families opted to change school districts mid-year and enrolled at Robert Kerr Elementary. During the 2021-2022 school year, a third-grade student at Robert Kerr wore a hat that had an image of an AR-15 with the phrase, “Come and Take It.” The student wore the hat on “Wear a Hat Day,” which was part of the Great Kindness Challenge (an initiative to encourage students to complete as many acts of kindness as possible). The principal felt the hat had the potential to incite an altercation between young children and disrupt the learning environment, and that some students may find it threatening. Specifically, the principal believed that the hat could cause a disruption amongst students who had recently transferred to the district from Oxford as a result of the shooting in November 2021. School officials called the student’s parents and asked that they bring their child a different hat to wear. After the student’s parents declined to do so, school officials asked the student to remove her hat and put it inside her locker. The student complied without issue.
The student’s parents filed a lawsuit against the school officials under 42 U.S.C. § 1983, alleging violations of the student’s right to free expression. In analyzing the student’s claims, the Sixth Circuit Court of Appeals examined the Supreme Court’s landmark ruling in Tinker v. Des Moines Independent Community School District. In Tinker, the Supreme Court acknowledged students do not shed their constitutional rights when they enter the schoolhouse gate but also recognized the rights of school officials to restrict student speech when the facts reasonably lead them to forecast substantial disruption of, or material interference with, school activities.
In this case, the Sixth Circuit ultimately concluded school officials did not violate the student’s First Amendment rights when they asked her to remove her hat. In reaching this decision, the Court considered the presence of students at Robert Kerr Elementary school that previously attended the Oxford School District and the trauma that those students suffered as a result of the school shooting at their prior school. The Court also noted the nature of the phrase, “Come and Take It,” could incite fear or conflict amongst the elementary age students. As such, the Court determined that the school officials could reasonably forecast that the hat could cause a substantial disruption to school activities.
What this means for your District: School officials may restrict student speech, which includes the speech contained on student clothing, if circumstances would lead them to forecast substantial disruption or material interference with school activities. In making this determination, school officials may consider recent events impacting the school’s students and/or community members, as well as the age or emotional maturity level of the students involved.
If you have questions or concerns relating to issues surrounding the restriction of student speech, please contact your district’s legal counsel.