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School Threat Assessment Teams Revisited

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sherlockj
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by James C. Sherlock

I wrote on February 12 of this year about what I consider an indicator of a potential overreach by the Fairfax County Public Schools (FCPS).  FCPS security has published an RFP for corporate support for web search to support its threat assessment team.

Since that article, I have conducted extensive email exchange with Donna Michaelis, Director of the Virginia Center for School and Campus Safety at the Department of Criminal Justice Services (DCJS). She is a dedicated public servant responsible for policy in this area. She gave me a lot of her time. It has proven an informative exchange and I thank her for it.

I see three gaps in current law and policy on school threat assessment teams.

They both set school divisions up to make mistakes that may possibly compromise any case that may be built against an actual threat and can permit them to overreach on matters that they should leave to law enforcement:

  1. Virginia law and policy fail to define roles and responsibilities
    1. on school threat assessment teams between law enforcement and school system personnel on the teams; and
    2. between school systems and law enforcement agencies.
  2. They set no clear limits on what types of “individuals” are within the scope of school investigations.
  3. Finally, there is no requirement that the school division threat assessment oversight teams as currently constituted under Virginia law have the expertise to deal with the legal complexities involved.

Virginia law on school threat assessment teams and its supporting guidelines deal with legal issues by avoiding them.  Code of Virginia § 22.1-79.4 requires

“A. Each local school board shall adopt policies for the establishment of threat assessment teams, including the assessment of and intervention with individuals whose behavior may pose a threat to the safety of school staff or students consistent with the model policies developed by the Virginia Center for School and Campus Safety (the Center) in accordance with § 9.1-184.

B. The superintendent of each school division may establish a committee charged with oversight of the threat assessment teams operating within the division, which may be an existing committee established by the division. The committee shall include individuals with expertise in human resources, education, school administration, mental health, and law enforcement.

C. Each division superintendent shall establish, for each school, a threat assessment team that shall include persons with expertise in counseling, instruction, school administration, and law enforcement.”

No attorney is required or even recommended. Legal issues for the threat assessment teams include but are not limited to:

  1. Family Educational Rights and Privacy Act (FERPA)
  2. Duty to warn
  3. Civil rights and anti-discrimination laws
  4. Foreseeability and Negligence
  5. Professional Immunity
  6. 1st Amendment (Free Speech)
  7. 4th Amendment (Search & Seizure)
  8. 14th Amendment (Due Process)

Threat Assessment and Management

 in Virginia Public Schools: Model Policies Procedures and Guidelines (Model Policies) on page 93 lists 36 Virginia laws with which the threat assessment team must comply.

It is unrealistic and unfair to expect a sheriff’s deputy or policeman to be an authority on each of those issues.

The solution seems straightforward.

Modify § 22.1-79.4. and Model Policies

  • to define roles and responsibilities of each member of any threat assessment team and between school divisions and law enforcement agencies;
  • to require representation from the local Commonwealth Attorney’s office on the threat assessment oversight team of each school division; and
  • to clearly define what “individuals” are within the scope of an investigation by a school threat assessment team.

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Comments

9 responses to “School Threat Assessment Teams Revisited”

  1. vicnicholls Avatar
    vicnicholls

    Capt. how do you think we’ll modify the law now its past crossover day? Are we going to be able to get away with rewriting the guidelines?

    1. James C. Sherlock Avatar
      James C. Sherlock

      Modifying the law will have to wait until next year. DCJS will have to decide what they can do in the meantime.

  2. energyNOW_Fan Avatar
    energyNOW_Fan

    Good backgrounder.
    Thus if I understand, the general concept of what Fairfax FCPS was trying to propose is within Va. guidelines, but the devil is in the details. I wonder if the counties also have a threat assessment teams for non-school overall threats, and I wonder what other states do that might serve as a template.

  3. WayneS Avatar
    WayneS

    This article seems to end a bit abruptly. The last paragraph starts with a “First,” but there is no “Second,”, “Third,”, etc.

    Is part of it missing?

    1. James C. Sherlock Avatar
      James C. Sherlock

      Fixed. Thanks.

  4. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    I am pretty sure that Donna Michaelis was at DCJS when this legislation was enacted. If so, I assume that she provided a good deal of background.

    This section was enacted in 2013 when concern over school shootings and safety was new. The legislative history is interesting.

    Sec. 22.1-79.4 was first proposed in bill (HB 2344), which was introduced in the 2013 General Assembly by Del. Mark Cole (R-Spotsylvania). The original bill referred to “individuals” who may constitute a threat. The bill did not get through without considerable scrutiny. There were several substitutes and floor amendments. One floor amendment in the House that was adopted changed “individuals” to “students”. The House passed the bill with a vote of 78-19. It was agreed to unanimously in the Senate.

    There were several amendments to the section in the 2016 session. Del. Jimmie Massie (R-Henrico) was the bill’s patron. One of the changes was the substitution of “individual” for “student”. The ostensible purpose of the bill was to have the section on threat assessment teams in K-12 mirror the provisions of the statute relating to threat assessment teams in higher education institutions.

    On a personal note, I was assigned to write the fiscal impact statement on the bill. Just like Mr. Sherlock, I was alarmed at the proposed scope of the legislation. It is not the purpose of a fiscal impact statement to comment on the substance of a bill or to express support or opposition to the bill. However, preparing the fiscal impact statement, I went to some lengths to spell out how the scope of the statute was being broadened. It did not make any difference; the bill was passed unanimously by both houses. Here is the fiscal impact statement: https://lis.virginia.gov/cgi-bin/legp604.exe?161+oth+HB1013F122+PDF

    1. James C. Sherlock Avatar
      James C. Sherlock

      Thanks, Dick. Donna was in fact there at the beginning and shared a lot. I have communicated this column to her and to the new ream at VDOE. I honestly think the flaws are too obvious and the fixes too straightforward to ignore. Hard to imagine an organized opposition.

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        It is not hard for me to imagine an organized opposition. There is a national group, Moms Demand Action that has chapters in Virginia. The group is focused on guns in schools, of which there has been an uptick recently. They are likely to see any attempt to reduce the scope or authority of threat assessment teams as a threat to school safety. I would not be surprised if the Youngkin administration would be reluctant to pursue the changes you advocate. It could open itself up to charges that it is attempting to diminish school safety, which fly directly into the face of the governor’s call for more SROs.

        The statute requires schools to report data from their threat assessment team activities to DCJS annually. There is a lot of data involved. It is included in the agency’s annual Virginia School and Division Safety Survey Results report. Here is the link to the latest report if you have not seen it: https://www.dcjs.virginia.gov/sites/dcjs.virginia.gov/files/2020_virginia_school_and_division_safety_survey_results.pdf

        There was a lot more activity and assessments than I had expected. (Suicide threats are also included in the assessments.) The good news, as far as our worries are concerned, is that about 98 percent of the threat assessments involved students in the school itself. Only a very few involved parents or “others”. By the way, according to the report, numerous schools and divisions monitor social media. So, your ire should not be confined to Fairfax County Public Schools.

    2. James C. Sherlock Avatar
      James C. Sherlock

      Thanks, Dick. Donna was in fact there at the beginning and shared a lot. I have communicated this column to her and to the new ream at VDOE. I honestly think the flaws are too obvious and the fixes too straightforward to ignore. Hard to imagine an organized opposition.

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