The Case of Marshall County: Exploring District Exposure in School Shooting Situations

Almost one year after the 2018 Marshall County High School shooting, parents of the victims have filed suit. The suit names several school administrators, board members, and the district’s superintendent both individually and in their respective official capacities within the Marshall County School District.  The shooter and his family are also named defendants to the lawsuit.

six woman standing and siting inside the room
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With respect to the school district, the suit alleges that the district, its administrators, teachers, and various counselors (collectively referred to as the “School Defendants”) are liable under theories of negligence and strict liability. Plaintiffs first assert that the School Defendants “negligently supervised and negligently trained employees of Marshall County High School in executing an appropriate Emergency Action Plan, in identifying warning signs, and in implementing policies, procedures and protocols.” (Complaint, ¶ 29) Essentially, Plaintiffs argue that the School Defendants owed them a duty to maintain a safe education environment, and the school breached that duty by failing to implement an adequate action plan for an active shooter situation. Thus, according to Plaintiffs, the School Defendants are at least partially responsible for the victims’ respective injuries.

Furthermore, the suit claims that this alleged failure to implement an adequate action plan was a direct violation K.R.S. § 158.162. (Complaint ¶ 34-35) Generally speaking, this statute mandates that all public schools adopt an an “emergency management response plan.” While this statute primarily refers to severe weather emergency plans, there are provisions which state that public schools must adopt a response plan for “lockdown” scenarios and adhere to practices to control the access to each school building.

In the context of school shootings, courts have generally recognized the discretionary nature of the actions of teachers and administrators in handling troubled students and emergency responses. Historically, claims against school districts and officials relating to school shooting haven been unsuccessful because the requisite standard of proof is high. For instance, tort claims asserted against school officials in Kentucky would need to demonstrate that the defendants actively engaged in bad faith in the implementation– or lack thereof– of a legal duty, such as the implementation of emergency management response plan. See James v. Wilson, 95 S.W.3d 875, 909 (Ky. Ct. App. 2002). Bad faith is not easily demonstrated because it is often difficult to demonstrate that school officials, in fact, had foreknowledge of potential violence from students and failed to act.

With that said, the conversation on school safety is an evolving one in Kentucky and nationwide. For example, just today the Kentucky legislature considered and passed through committee Senate Bill 1 as an attempt to improve school safety in the Commonwealth. As a result, it remains to be seen whether and how the conversation around school safety may affect lawsuits like the one against Marshall County in the future.

 

How Careful Documentation Helped a Kentucky School District Avoid Liability for Section 504 Retaliation: H.C. v. Fleming County Bd. of Educ.

Retaliation is something that most public entities should be on guard against. Numerous provisions, including the Civil Rights Act, Section 504 of the Rehabilitation Act, and even the United States Constitution prohibit retaliating against parents or student who engage in protected activity. If a parent or student makes a complaint under any of these provisions, it can be very difficult for public entities to determine when it is appropriate and lawful to take action when necessary.

In H.C. v. Fleming Cty., Ky. Bd. of Educ., 2018 U.S. App. LEXIS 1901 (6th Cir. July 11, 2018), the Sixth Circuit held a Kentucky school district walked this line correctly. It found itself in a strained relationship with the parent of a student who was disciplined numerous times during fifth and sixth grade for bullying and harassment of other students. The student’s parent felt that the student was actually the victim of bullying and blamed school staff for failing to address the problem. She began with a “very aggressive” defense of her child and then escalated her behavior, which included among other things, the filing of a Section 504 hearing request for an alleged failure to identify the student as a child with a disability.

red school blur factory
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Subsequent to the request, and due to allegedly disruptive and abusive behavior on the parent’s part, the district sent a letter banning the parent from school grounds without prior approval. The parent claimed that she was banned from school property in an act of retaliation for advocating on her child’s behalf and therefore decided to return to school property without prior approval. After the district filed a criminal trespass complaint against the parent, she filed an action alleging that the district violated Section 504 and retaliated against her. The Eastern District of Kentucky disagreed with the parent’s allegations and granted summary judgment in favor of the School District. On appeal, the Sixth Circuit affirmed this decision.

As with most retaliation theories, the Court relied on the McDonnell Douglas burden-shifting analysis. First, the Court considered whether the plaintiff could make out an initial case of retaliation by showing that (1) the plaintiff engaged in a protected activity, (2) the defendant knew of the protected activity, (3) the defendant took an adverse action against the plaintiff, and (4) there was a causal connection between the protected activity and the adverse action. Next, the Court considered whether the district had shown that its actions were reasonable and unrelated to the protective activity and whether the plaintiff could show that this rationale was pretextual.

In H.C., the Sixth Circuit held that the parent had satisfied the initial elements of their claim, but found that the district’s rationale for banning her from school property was reasonable and not pretextual. The Court found it significant that, prior to the ban, the district had weathered a long and difficult history with the parent and the student, including the student’s suspended from school for hitting one student with an oversized pencil and threatening to shoot another, and truancy charges against the parent for her daughter’s 22 unexcused absences. Though the parent argued that the temporal proximity in time established a causal connection between these events. However, the District’s thorough documentation came to its rescue.

The Sixth Circuit held that the district clearly had a solid basis for banning the parent from school property based on the detailed records of the parent’s “contentious and unpleasant interactions” with school staff and thorough explanations for its other actions. These detailed records demonstrated a legitimate, nondiscriminatory reason for banning the parent from school grounds without prior approval, as well as for the suspension and truancy charge. Since the parent was unable to produce any evidence which would suggest this reason was pretextual, the parent’s claim failed as a matter of law.

Does this mean that school districts can go banning parents as they see fit? No, it doesn’t. What it does tell us, however, is that banning a parent from school property is an action that could result in a claim of retaliation. As a result, districts considering that action should proceed with caution and carefully document the facts supporting their decisions. For parents, on the other hand, this case should tell them that there are limits to what they can do to advocate for their children. Even when relationships are strained, courts will uphold the decisions of school districts to ban a parent from school if they resort to abuse or threatening behavior.