ACTION ALERT: MO House Bill 96 "School Protection Measures" 2009

Missouri House Bill 96 has been introduced into the House of Representatives. This bill is to repeal sections 160.261, 160.660, 161.650, 167.020, 167.022, 167.023, 167.029, 167.115, 167.117, 167.161, 167.164, 167.621, 167.624, 167.627, 167.630, 168.133, and 210.102, and form a new policy for "School Protection Measures."

The bill can be read in its entirety here: http://www.house.mo.gov/billtracking/bills091/biltxt/intro/HB0096I.htm.

To say this bill is a "hot mess" is being generous.

Below are some of the more alarming changes and/or additions to the provisions, along with our "notes" relating our concerns. Please join us in expressing our concerns to the bill's Sponsor, Representative Wallace, and the others supporting this bill:

Missouri House Bill 96 Specific Concerns:

7. All school district personnel responsible for the care and supervision of students are authorized to hold every pupil strictly accountable for any disorderly conduct in school or on any property of the school, on any school bus going to or returning from school, during school-sponsored activities, or during intermission or recess periods.

NOTE: This provision violates the federal IDEA and is discriminatory towards children with disabilities in that it does not include any provisions or exceptions for children with disabilities whose "behaviors" or "actions" - including disorderly conduct - may be a resultant of manifestations of that child's disabilities.

8. Teachers and other authorized district personnel in public schools responsible for the care, supervision, and discipline of schoolchildren, including volunteers selected with reasonable care by the school district, shall not be civilly liable when acting in conformity with the established [policy of discipline] policies developed by each board [under this section], including but not limited to policies of student discipline or when reporting to his or her supervisor or other person as mandated by state law acts of school violence or threatened acts of school violence, within the course and scope of the duties of the teacher, authorized district personnel or volunteer, when such individual is acting in conformity with the established policies developed by the board. Nothing in this section shall be construed to create a new cause of action against such school district, or to relieve the school district from liability for the negligent acts of such persons.

*NOTE: This effectively renders district personnel and any volunteers working on behalf of the district exempt from civil suits resulting from staff abuse of a child.

9. Each school board shall define in its discipline policy acts of violence and any other acts that constitute a serious violation of that policy. "Acts of violence" as defined by school boards shall include but not be limited to exertion of physical force by a student with the intent to do serious bodily harm to another person while on school property, including a school bus in service on behalf of the district, or while involved in school activities. School districts shall for each student enrolled in the school district compile and maintain records of any serious violation of the district's discipline policy. Such records shall be made available to teachers and other school district employees with a need to know while acting within the scope of their assigned duties, and shall be provided as required in section 167.020, RSMo, to any school district in which the student subsequently attempts to enroll. *NOTE: No provisions for violence done against students by school personnel.

*NOTE: There are no provisions for or explanations of what constitutes violence committed against students by school personnel.

10. Spanking or the use of force to protect persons or property, when administered by [certificated] personnel of a school district in a reasonable manner in accordance with the local board of education's written policy of discipline, is not abuse within the meaning of chapter 210, RSMo, as long as no allegation of sexual misconduct arises from the incident, and in addition, in the case of spanking, as long as another employee of the school is present as a witness.

NOTE: This is one of the more alarming change thus far. The term "reasonable manner" is subjective and as such, is individually defined. Therefore, it can in no way be definitively or logically defined. Anyone could say that their decision to spank a child was "reasonable," and who could argue with that when the person administering the spanking is the one determining what is "reasonable?" Additionally, research indicates that schools that use "corporal punishment" have lower test scores and higher drop out rates than schools that do not use corporal punishment. There is also no peer-reviewed evidence based research that supports that "corporal punishment" of students is effective, yet ample evidence of the physical and psychological harm done to victims of corporal punishment. There is also ample evidence to support that positive behavioral interventions and supports are a much more effective way to address "problem behaviors." It is therefore incomprehensible that corporal punishment has not yet been abolished in Missouri schools.

The provisions of sections 210.110 to 210.165, RSMo, notwithstanding, the children's division [of family services] shall not have jurisdiction over or investigate any report of alleged child abuse arising out of or related to any spanking administered in a reasonable manner by any [certificated] school personnel pursuant to a written policy of discipline established by the board of education of the school district. Upon receipt of any reports of child abuse by the children's division [of family services] pursuant to sections 210.110 to 210.165, RSMo, which allegedly involves personnel of a school district, the children's division [of family services] shall notify the superintendent of schools of the district or, if the person named in the alleged incident is the superintendent of schools, the president of the school board of the school district where the alleged incident occurred.

If, after an initial investigation, the superintendent of schools or the president of the school board finds that the report involves an alleged incident of child abuse other than the administration of a spanking or the use of force to protect persons or property by [certificated] school personnel pursuant to a written policy of discipline or [a] that the report was made for the sole purpose of harassing a public school employee, the superintendent of schools or the president of the school board shall immediately refer the matter back to the children's division [of family services] and take no further action.

In all matters referred back to the children's division [of family services], the division [of family services] shall treat the report in the same manner as other reports of alleged child abuse received by the division.

If the report pertains to an alleged incident which arose out of or is related to a spanking or the use of force to protect persons or property administered by [certificated] personnel of a school district pursuant to a written policy of discipline or a report made for the sole purpose of harassing a public school employee, a notification of the reported child abuse shall be sent by the superintendent of schools or the president of the school board to the juvenile officer of the county in which the alleged incident occurred. The report shall be jointly investigated by the juvenile officer or a law enforcement officer designated by the juvenile officer and the superintendent of schools or, if the subject of the report is the superintendent of schools, by the juvenile officer or a law enforcement officer designated by the juvenile officer and the president of the school board or such president's designee.

The investigation shall begin no later than forty-eight hours after notification from the children's division [of family services] is received, and shall consist of, but need not be limited to, interviewing and recording statements of the child and the child's parents or guardian within two working days after the start of the investigation, of the school district personnel allegedly involved in the report, and of any witnesses to the alleged incident.

The juvenile officer or a law enforcement officer designated by the juvenile officer and the investigating school district personnel shall issue separate reports of their findings and recommendations after the conclusion of the investigation to the school board of the school district within seven days after receiving notice from the children's division [of family services]. The reports shall contain a statement of conclusion as to whether the report of alleged child abuse is substantiated or is unsubstantiated. The school board shall consider the separate reports and shall issue its findings and conclusions and the action to be taken, if any, within seven days after receiving the last of the two reports. The findings and conclusions shall be made in substantially the following form:

NOTE: THIS is the most alarming thing about this provision. How could this even remotely be construed as legal; the federal government, supported by circuit court decisions, has established that Protection and Advocacy (Disability Rights Network) is mandated to investigate allegations of abuse in public schools and that schools cannot deny P&A’s access to the school to conduct an investigation. The Division of Children's Services is also mandated to investigate abuse allegations. Yet the House is trying to remove the rights of the Division of Children’s Services from investigating abuse allegations in schools. What legal authority is the State House of Rep basing this decision on? How can they refuse an entity's mandated authority and/or right to investigate allegations of abuse? This provision is not only absolutely terrifying, but it also makes one wonder what they're so concerned about hiding if they are attempting to establish what outside agencies - which are mandated to investigation abuse - are permitted to consider "abuse." Seems like an over-reach of the state's authority to us...

162.215. 1. District school boards may authorize and commission school officers to enforce laws relating to crimes committed on school premises, at school activities, and on school buses. School officers shall be certified law enforcement officers, as defined in section 556.061, RSMo, and shall comply with the provisions of chapter 590, RSMo. The powers and duties of a law enforcement officer shall continue throughout the employee's tenure as a school officer.

2. School officers shall abide by district school board policies and shall consult with and coordinate activities through the school superintendent or the superintendent's designee. School officers' authority shall be limited to crimes committed on school premises, at school activities, and on school buses.

QUESTION: The statement that the "powers and duties of a law enforcement officer shall continue throughout the employee's tenure as a school officer" is in direct contradiction with that "authority [be] limited to crimes committed on school premises..." Additionally, what legal authority permits the redefinition of and limitation in scope of duties assigned to “certified law enforcement officer?”

All crimes involving any sexual offense or any felony involving the threat or use of force shall remain under the authority of the local jurisdiction where the crime occurred. School officers may conduct any justified stop on school property and enforce any local violation that occurs on school grounds. School officers shall have the authority to stop, detain, and arrest for crimes committed on school property, at school activities, and on school buses.

NOTE: Again, these are missing provisions regarding children with disabilities. Also, do we really want or need trained police officers in our schools? Are Missouri schools so violent or is crime so non-existent in the state of Missouri that the state could afford to pull trained police officers off the streets to "fight crime" in schools? Where is the funding coming from to recruit all these trained officers?

167.117. 1. In any instance when any person is believed to have committed an act which if committed by an adult would be assault in the first, second or third degree, sexual assault, or deviate sexual assault against a pupil or school employee, while on school property, including a school bus in service on behalf of the district, or while involved in school activities, the principal shall immediately report such incident to the appropriate local law enforcement agency and to the superintendent, except in any instance when any person is believed to have committed an act which if committed by an adult would be assault in the third degree and a written agreement as to the procedure for the reporting of such incidents of third degree assault has been executed between the superintendent of the school district and the appropriate local law enforcement agency, the principal shall report such incident to the appropriate local law enforcement agency in accordance with such agreement.

QUESTION: Why aren’t these acts clearly spelled out? Are teachers supposed to commit to memory what a 1st, 2nd or 3rd degree offense is? How are teachers/school administrators to determine the “degree” of offense? Isn’t it up to district attorneys to decide what “degree” the offense was?

4. A school employee, superintendent or such person's designee who in good faith provides information to law enforcement or juvenile authorities pursuant to this section or section 160.261, RSMo, shall not be civilly liable for providing such information.
5. Any school official responsible for reporting pursuant to this section or section 160.261, RSMo, who willfully neglects or refuses to perform this duty shall be subject to the penalty established pursuant to section 162.091, RSMo.

QUESTION: What are the penalties for knowingly and/or falsely reporting “information” to the proper authorities as retaliation against a parent for advocating for their child’s right to FAPE? *NOTE: Effectively renders district personnel and any volunteers working on behalf of the district exempt from civil suits resulting from “good faith reporting” so long as they give the slightest indication their intentions were “good.”

The school board of any district, after notice to parents or others having custodial care and a hearing upon charges preferred, may suspend or expel a pupil for conduct which is prejudicial to good order and discipline in the schools or which tends to impair the morale or good conduct of the pupils. In addition to the authority granted in section 167.171, a school board may authorize, by general rule, the immediate removal of a pupil upon a finding by the principal, superintendent, or school board that the pupil poses a threat of harm to such pupil or others, as evidenced by the prior conduct of such pupil.

NOTE: This means schools can effectively suspend or expel a student for ANY reason.

3. Any qualified employee shall be held harmless and immune from any civil liability for administering medication or medical services in good faith and according to standard medical practices.
NOTE: Doctors don’t even have this type of immunity! Why should school personnel be exempt?

Any trained employee shall be held harmless and immune from any civil liability for administering cardiopulmonary resuscitation and other lifesaving methods in good faith and according to standard medical practices.

NOTE: Again, DOCTORS don’t even have this type of immunity! Why should school personnel be exempt?

The school district shall ensure that a criminal background check is conducted on any person employed after January 1, 2005, authorized to have contact with pupils and prior to the individual having contact with any pupil. Such persons include, but are not limited to, administrators, teachers, aides, paraprofessionals, assistants, secretaries, custodians, cooks, and nurses. The school district shall also ensure that a criminal background check is conducted for school bus drivers. The district may allow such drivers to operate buses pending the result of the criminal background check. For bus drivers, the background check shall be conducted on drivers employed by the school district or employed by a pupil transportation company under contract with the school district.

QUESTION: Why is this only applicable to employees hired after 2005? How were employees prior to 2005 vetted? Why isn’t the policy worded “Anyone hired after 2005 or who has not previously been subjected to a background check, including fingerprinting, must do so?”