January 4, 2022 - Threat Assessments for Students with Disabilities

 Threat Assessments for Students with Disabilities 

Brandon K. Wright

Christine G. Christensen

Anastasia E. Brunner

Miller, Tracy, Braun, Funk & Miller, Ltd.

 

       One of the many effects of the ongoing COVID-19 pandemic is the lack of attention paid to other important legal issues to the school community. One of the very important issues that lost traction due to the onset of the pandemic in March 2020 was the initiation of each school district’s threat assessment procedures required under the Illinois School Safety Drill Act, 105 ILCS 128/45. Each school district’s threat assessment procedures and threat assessment team were to be instituted just prior to March 2020, and understandably took a back seat to the obvious priority of the pandemic. However, these requirements still exist, are still important, and deserve our attention, particularly as issues of targeted school violence and safety issues take priority after major incidents like the December 2021 school shooting in Oxford, Michigan. There are a number of requirements and considerations that districts must consider in conducting threat assessments, all of which are necessary to ensure the safety of the school community. Beyond these requirements, there are additional considerations necessary for students with disabilities.

1. Safety Drill Act Requirements

First, school districts must complete safety drills. A school building must conduct at least three evacuation drills each academic year. 105 ILCS § 128/20. At least one of these drills must include participation by a local fire department or district. Id.  Each school must also conduct an annual law enforcement lockdown drill to address a school shooting incident, which must involve local police officials and cannot occur any later than 90 days after the start of each school year. Id. The Illinois General Assembly recently amended the Illinois School Safety Drill Act to prohibit school districts from mimicking an actual school shooting incident, and to require that the school shooting drill must be announced in advance to school personnel and students before the drill occurs. 105 ILCS § 128/20(c)(1)(C-D). Public Act 102-395.

Also embedded within the Illinois School Safety Drill Act is the requirement that each school district create a threat assessment team.  Section 45 of the Illinois School Safety Drill Act requires each school district to implement a threat assessment procedure as part of its targeted school violence prevention policies. The procedure must include the creation of a threat assessment team, which must include at least one administrator, one teacher, one school counselor, one school psychologist, one school social worker, and one law enforcement official.  For most school districts, these requirements were implemented as part of their PRESS Policy No. 4:190 and related administrative procedures and exhibits.  This policy and related procedures are very specific, and it is essential that every member of a school district’s threat assessment team is familiar with both the policy and the procedures.

2. Threat Assessment Guidance

In addition to these state law requirements, federal guidance over time has suggested that school districts must conduct threat assessments as part of any well-designed approach to school safety. Threat assessments are of vital importance to ensuring the safety and security of students and the larger community. Threat assessments and school safety plans should not be a one-size-fits-all solution and should instead consider the nuances of the situation and the individual. Enhancing School Safety Using a Threat Assessment Model: An Operational Guide for Preventing Targeted School Violence, National Threat Assessment Center, July 2018, available at https://www.cisa.gov/sites/default/files/publications/18_0711_USSS_NTAC-Enhancing-School-Safety-Guide.pdf. 

The threat assessment team is an important part of the threat assessment process because it allows persons with differing perspectives to discuss potential threats and help develop an appropriate response. Using a Threat Assessment Model: An Operational Guide for Preventing Targeted School Violence, National Threat Assessment Center, July 2018, available at https://www.cisa.gov/sites/default/files/publications/18_0711_USSS_NTAC-Enhancing-School-Safety-Guide.pdf. The threat assessment team must include the following persons, each employed by the school district or the special education cooperative, (1) an administrator, (2) a teacher, (3) a school counselor, (4) a school psychologist, (5) a school social worker, and (6) at least one law enforcement professional. 105 ILCS 128/45. The threat assessment team should designate a team leader. Using a Threat Assessment Model: An Operational Guide for Preventing Targeted School Violence, National Threat Assessment Center, July 2018, available at https://www.cisa.gov/sites/default/files/publications/18_0711_USSS_NTAC-Enhancing-School-Safety-Guide.pdf. This team leader could, but need not be, a senior administrator at the school. Id. Whoever is chosen to fill the role of team leader should be able to facilitate a timely response from all other team members to address any potential threats. Id.

Threat assessment teams should consider mental health factors or factors related to a student’s disability when determining the proper response. Id. at 3. The National Threat Assessment Center (hereinafter sometimes “NTAC”) advises that threat assessment teams should meet regularly – not only when there is a perceived threat – because of the importance of acting as a cohesive unit during an actual threat assessment. Id. It is also important for the threat assessment team to ensure there are clear policies related to prohibited behaviors warranting immediate intervention and options for reporting potentially concerning behavior. Id. at 4 and 6. 

The primary goal of a threat assessment team is “not to administer discipline or have a student arrested,” but to get the student in question the assistance they need to ensure a positive outcome for both the student and the larger community.  Averting Targeted School Violence, a U.S. Secret Service Analysis of Plots Against Schools, Lina Alathari et al., National Threat Assessment Center, March 2021, available at https://www.secretservice.gov/sites/default/files/reports/202103/USSS%20Averting%20Targeted%20School%20Violence.2021.03.pdf. According to the 2021 NTAC report, approximately 70% of plotters “exhibited behaviors indicating the presence of some type of mental health symptom in the time leading up to, or around, the discovery of their plots.” Id. at page 36.  There “are almost always intervention points available before a student’s behavior escalates to the point where an arrest may be warranted.” Id. at page 49. Further, simply removing a student from school may not eliminate the risk the student poses to themselves or to others. Id. at page 51.  

School violence is preventable when there is community involvement in identifying warning signs and intervening. Id. at 50-52. Students, parents, community members, and staff are all persons who could assist in recognizing and reporting concerning behaviors before they escalate into a threat. As such, their training and involvement in the process is paramount to a threat assessment team’s success. 

Courts, hearing officers, and threat assessment teams have struggled with the careful balance required for a threat assessment.  The court in Wyner v. Douglas County Sch. Dist.,113 LRP 35121 (9th Cir. 08/29/13) aptly observed: “it [threat assessment] is a feat like a tightrope balancing, where an error in judgment can lead to a tragic result.” The central question of the threat assessment should therefore be whether an individual poses a threat, not simply whether or not the individual has made a threat. This distinction is imperative when discussing students with disabilities. 

Ultimately, the goal of the threat assessment process must be intervention, not merely discipline.  In order to foster the culture of intervention, school district threat assessment teams need to know and understand their role, be prepared to act quickly, be prepared to remain involved with a student over a long period of time to ensure interventions are monitored, and do much more than merely “checking a box” as having met.

3. Considerations for students with disabilities 

School districts may remove a student with a disability if the student poses a direct threat to the health and safety of others. 28 C.F.R. §35.104. See also 23 Ill. Admin. Code § 375.60(a). A direct threat is a “significant risk to the health and safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids and services.” Id. This regulation applies to those who might become violent and circumstances that pose a health or safety risk. Id. Section 504 has also been interpreted to allow a district to deny participation to a student with a disability who poses a direct threat to the health and safety of others. See Berkeley (IL) Sch. Dist., 67 IDELR 100 (OCR 2015); see also St. Charles (MO) R-VI Sch. Dist., 55 IDELR 175 (OCR 2010). 

Generally, a school district is required to conduct a manifestation determination review (“MDR”) prior to removing a student for a disciplinary purpose beyond ten (10) days.  34 C.F.R. 300.530, et seq.  As threat assessment teams consider the interventions, and possible recommendations for removals from school as part of the intervention process, the requirement to consider the rights of students with disabilities, particularly both the procedural and substantive aspects of the MDR process. 

Under the IDEA, a school may remove a student to an interim alternative educational setting for no more than forty-five (45) school days if certain conditions are met. Namely, the school district may remove a student with a disability to an alternative setting if the student: (1) Carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a state or local educational agency; (2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or LEA; or (3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or LEA.20 U.S.C. §1415 (k) (1) (G). The school district may remove the student for forty-five (45) days – regardless of the outcome of the MDR – if one of the three scenarios described above occurs. Questions and Answers on Discipline Procedures, 52 IDELR 231 (OSERS 2009);34 C.F.R. §300.530(g)(1).

School districts should also consider whether or not the behaviors discussed during the threat assessment warrant additional supports. In this determination, schools should consider the impact a Functional Behavioral Assessment or a Behavioral Intervention Plan may have.  Remember, the main purpose of the threat assessment is not to discipline, nor is it to introduce students to the criminal justice system. The main objective is getting the student in question the help they need.  For students with disabilities, this certainly may be a FAPE issue with an important role for the IEP team - not merely the threat assessment team.

4. When is an assessment an evaluation?

It is important for school districts and threat assessment teams to understand the extent to which a threat assessment might constitute an evaluation under the IDEA or Section 504. An evaluation may be required for students with disabilities before a school district can significantly change their placement, including non-disciplinary removals for medical and psychiatric problems. The need to consider the protections afforded to students with disabilities in the midst of threat assessments is highlighted in Boston (MA) Public Schs., 53 IDELR 199 (OCR 2009).  In Boston Public Schools, a student with neurological delays expressed suicidal ideations to school staff members. School staff determined the student’s safety was at risk and the student’s parents were asked to pick the student up from school. Id. The student missed seventeen (17) school days because of the school district’s suicide-prevention policy, which prohibited a student from returning to school without a letter of authorization from a medical or mental health provider. Id. The school district failed to provide special education services for those seventeen (17) days. Id. The student was also not reevaluated until approximately two (2) months after the student was initially removed. Id. In reviewing the district’s actions, OCR found the school district did not meet its Section 504 obligations for the student. Id. Without question, there are time where requiring an assessment outside of the threat assessment team or IEP team review process would constitute an “evaluation” - which means that the procedural and consent requirements related to the evaluation must be followed.

Even if it is determined an assessment is not an evaluation, school districts should consider whether the threat assessment meeting demonstrates that an IEP meeting is necessary and that there should be any changes to the student’s IEP in connection with the threat assessment team’s recommendations. 

Additionally, parents must be provided the opportunity to participate if a threat assessment is related to the provision of a free and appropriate public education. In re: Student with a Disability, 120 LRP 14940 (SEA NM 04/01/20). In Student with a Disability, a hearing officer concluded that a school district’s failure to include parents in a threat assessment meeting significantly impeded the parents’ ability to participate in the decision-making process. Id. This determination was reached in part because the student’s behavioral needs were a major component for the student’s need for special education services. Id. Additionally, the threat assessment itself focused solely on those behavioral needs and challenges. Id. 

5. Confidentiality Concerns

As threat assessment teams are completing their work, they must also bear in mind the confidentiality concerns inherent in the process.  The Illinois School Safety Drill Act specifically notes that “any sharing of student information under this Section must comply with the federal Family Educational Rights and Privacy Act of 1974 and the Illinois School Student Records Act.” 105 ILCS 128/45(c).  While FERPA and ISSRA certainly permit school officials to have access to student records when in the student’s current interest and when in the course of their duties, the inclusion of a law enforcement officer on the threat assessment team may require additional consideration.

Schools are permitted to disclose education records if a state statute specifically authorizes such a disclosure and the disclosure is made for the purpose of effectively serving the student. 34 FR 99.31(a)(5) and 34 C.F.R. 99.38(a). In Illinois, information may be released without parental consent “in connection with an articulable and significant threat to the health and safety of a student or other individuals, to appropriate persons if the knowledge of the requested information is necessary to protect the health or safety or the student or other individuals …” 23 Ill. Adm. Code § 375.60(a). However, when such information is released, parents must be notified no later than the following school day after the information is released. Id. 

The Family Policy Compliance Office has stated it will not substitute its own judgment for the judgment of the school district. Letter to Anonymous, 115 LRP 33141 (FPCO 2015). Therefore, there was no FERPA violation when the school district decided to disclose a student’s threat assessment to the police and to area schools. In making this ruling, the Office cited the exception to FERPA wherein a school district could without parental consent disclose information from students’ education records in order to protect the health or safety of the student or of other individuals. The district, in this case, determined the student presented a “high level of risk” and therefore nonconsensual disclosure was rationally related to the goal of protecting the health and safety of students and other individuals. The US Department of Education reiterated this position in guidance proliferated in 2019.  See School Resource Officers, School Law Enforcement Units and the Family Educational Rights and Privacy Act (FERPA), 119 LRP 4185 (EDU 02/12/19). As a result of this deference, school officials need only have reasonable grounds for reaching the conclusion that a health or safety emergency exists. Letter to Anonymous, 53 IELR 235 (EDU 2008). Once a student has been reported to and is in the hands of the authorities, the emergency no longer exists in most situations. Id. 

6. Consider the individual student 

Perhaps the most important piece for threat assessment teams and school districts to remember is to consider the individual student. When school officials do not understand a student’s disability, they are also unlikely to understand and appropriately respond to a threat made by that student. It is imperative, therefore, for school districts to consider all requisite factors when making a determination as to whether or not a student with a disability poses a threat to the health and safety of others. In Prince William County Public Schools, OCR determined the school district’s threat assessment for a student on the autism spectrum was flawed because it failed to account for the student’s social skills deficits resulting from the student’s disability. In re Prince William County Public Schools, 116 LRP 21763 (OCR 2015). The threat assessment team must understand and consider the student’s disability along with other individual characteristics of the student. 

Threat assessment teams need to make considerations related to the individual student, including: a student’s capacity, a student’s planning for the potential attack, and other factors. See Averting Targeted School Violence, a U.S. Secret Service Analysis of Plots Against Schools, Lina Alathari et al., National Threat Assessment Center, March 2021. When considering a student’s capacity, teams should determine if a student is organized enough to plan and execute an attack. They should also consider whether or not there is evidence of planning related to an attack. For example, teams should consider whether there is evidence of research into tactics, selecting targets, practice or access to a weapon. Teams should also consider whether the student has a history of showing an interest in violence or hate-filled topics. Threat assessment teams need to also consider the impact of the student’s mental health and/or disability. 

Even when drafting school safety policies, schools must be careful their policies do not ignore the protections given to students with disabilities via Section 504 and the ADA. This means threat assessment procedures need to be sufficiently individualized for students with disabilities. See Chino Valley (CA) Unified Sch. Dist., 121 LRP 21877 (OCR, 04/16/21) (finding concerns with the procedures of a California district’s homicide risk threat assessment procedures in that the procedures failed to account for the possibility of behaviors related to a student’s disability and failed to show coordination between the IEP or Section 504 team members and the threat assessment team.)

School safety is undoubtedly a fundamental priority of school districts.  With the ever-present stories of school violence around the country, the resources available to prevent targeted school violence are becoming more and more clear.  As you and your school district work to continually review and improve your threat assessment processes (as required by the statute at least annually), keep in mind the important practical and legal considerations that apply to students with disabilities.  Recognizing and implementing the connection between FAPE and threat assessments will not only keep you legal, it will keep you and your school community safer.