The ABCs of SROs: Legal Considerations for 2018-19

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School safety and security has been in the news and at the forefront of administrative and board discussions this year.  Nationally, 42% of schools now have an SRO in the building. Whether your school district has an SRO, is in the process of adding one, or may add one in the future, there are unique legal issues to consider that affect how SROs function alongside the school staff. Even if you don’t have an SRO and don’t think you ever will, many of these issues are important to consider whenever you have an interaction with law enforcement.

Employing vs. Contracting

It is important to determine the type of relationship your school wants with an SRO.  The most common scenario is a contract with a branch of local law enforcement to dedicate an officer to the school building.  The other option is to hire a former officer to be an employee of the school. As you can imagine, the dynamic of the relationship will change the way the SRO interacts with the school.  For example, only a member of law enforcement can carry a firearm in a school. On the other hand, a former officer who is a school employee can have greater access to records and student information.

Record Sharing and FERPA

SROs do not have open access to the school district’s education records.  When an administrator denies SRO access to records, it can feel like the school district is impeding a law enforcement investigation.  Yet in many cases this is the correct and lawful response.  Anything that is identified as an education record of a student can only be disclosed with consent from the parents, or if the disclosure falls into a FERPA exception.   An emergency that threatens the health and safety of students is a FERPA exception often used when a district shares information and records with an SRO.   In the event of such an emergency, schools may disclose education records, including security and other video, without notice to and consent from parents.  If law enforcement requests a copy of education records and there is no emergency, the district should either obtain consent from parents or ask law enforcement to provide the district with a subpoena, warrant, or court order that requires the disclosure.

It is important to know what is an education record, and equally important to know what is NOT an education record.  FERPA excludes pictures and videos created and maintained by law enforcement from education records. If your district has an SRO that is equipped with a body-worn camera, the video taken on the camera will be a law enforcement record unless disclosed to the district, and subsequently maintained by the district pursuant to your FERPA policy and how it defines “maintain.”  You should review any memorandum of understanding or contract your district has with the local police department or city to make sure this is made clear in the document.

Reporting Criminal Activity of Students Under Neb. Rev. Stat. 79-293

LB 1081 passed this legislative session.  Among other things it amended § 79-262 and § 79-293 to require that school districts collaborate with their local county attorney in order to determine what student conduct should be reported to law enforcement as a criminal violation.  The new law requires annual communication with the county attorney, which means the offenses that are required reports to law enforcement will likely vary from county to county and as new county attorneys take office.

The amended portion of 79-262 now reads:

On or before August 1 of each year, all school boards shall annually review in collaboration with the county attorney of the county in which the principal office of the school district is located the rules and standards concerning student conduct adopted by the school board and the provisions of section 79-267 to define conduct which the principal or designee is required to report to law enforcement under section 79-293.

79-293 now reads:

Nebraska Criminal Code violation; principal or principal's designee; notify law enforcement authorities; immunity.

(1) The principal of a school or the principal's designee shall notify as soon as possible the appropriate law enforcement authorities, of the county or city in which the school is located, of any act of the student as provided in subsection (1) of section 79-262 which the principal or designee knows or suspects is a violation of the Nebraska Criminal Code.

(2) The principal, the principal's designee, or any other school employee reporting an alleged violation of the Nebraska Criminal Code shall not be civilly or criminally liable as a result of any report authorized by this section unless (a) such report was false and the person making such report knew or should have known it was false or (b) the report was made with negligent disregard for the truth or falsity of the report.

At a minimum school districts should be sending a letter to the county attorney for the county where the district’s main office resides to request collaboration on reportable criminal offenses prior to August 1.  This collaboration model is similar to the annual policy review and collaboration districts are already required to do for excessive absenteeism.

Once a school district and county attorney have established what offenses are required reports to law enforcement, that list and/or guidance should be shared with your SRO so the officer is aware that some minor offenses may not be reported.  For instance, your county attorney may not want minor theft or shoving matches reported to law enforcement, even though technically both are violations of the Nebraska Criminal Code.  When a district shares the required reportable offenses with its SRO, the school district can collaborate with law enforcement, not report every minor infraction, and still have a lawful practice due to communication with the county attorney.

We should note that some county attorneys have taken the position that they still want every crime reported.  There is some confusion regarding exactly what the changes to 79-262 and 79-293 were intended to do.  As we understand it, the law before the change meant every suspected violation of Nebraska’s Criminal Code had to be reported.  Now, county attorneys can tell schools which crimes they do or do not want to be reported.  In addition to sending a letter that documents the district's efforts at collaboration, the district should arrange a phone call or meeting with your county attorney to discuss their interpretation of the change.  One great idea we've heard is to get all of the superintendents in your county together with the county attorney at the same time. This will ease the burden on the county attorney and hopefully create a more predictable system for reporting.  If you have an SRO, that would be a great person to invite to this meeting as well.

SRO Agreements

As noted above, your district should clearly establish things like the type of relationship (contract vs. employee) you have with your SRO, how records will be shared, and other aspects of the relationship in a contract or memorandum of understanding between the school district and the local police department or SRO.  Clear procedures and protocols can avoid territorial disputes, confusion, and friction when law enforcement wants to access school records such as school district video, or when the school district wishes to view the video from a body-worn camera.

Outside groups, including the ACLU, have begun making public records requests that relate to school district SROs.  As law enforcement presence grows in public schools, so too will those outside of the school scrutinizing the protection of student rights and other responsibilities schools have under FERPA and similar privacy laws.  In other words, now is the time to audit your SRO setup or begin the conversation the right way if your district may consider an SRO.

Districts should make sure that administrators and staff are aware of the provisions of any SRO agreement, and that they are carefully followed.  If you have any questions about how to properly share records between a school district and an SRO, or if you need an agreement between the school district and SRO drafted, you should contact your school district’s attorney or call Karen, Steve, Bobby, or Tim.