Last Updated on March 7, 2023 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
School officials are mandated to report some students to the police already. However, a new California law now mandates students must be reported for writings, pictures, art, journal entries and other depictions or communications, which could evidence homicidal intent.
Watching students’ every communication, assignment, scribble, picture and otherwise, to see if they should be reported to the police as “homicidal,” reminds one of the famous book “1984.” Big Brother really is here and is at our children’s schools, now watching their doodles.
This should scare every parent.
An Evolution of My Student Rights Concerns
In almost thirty years of practicing as a lawyer for students, I have seen a lot, including the tightening noose of the public schools.
Years ago, I had a discipline matter where a student was facing an expulsion for putting his fingers (pointer and thumb) in the form of a gun and pointing his hand at the teacher. Discipline for a “finger gun” seemed like the most farfetched, ridiculous thing ever, and I could not believe any school would pursue it.
Later, I faced students getting disciplined for drawing guns or weapons on the side of a paper, or for violent looking scribbles, usually of a video game. Even advanced teacher permission did not protect students researching controversial subjects such as school shootings. Talk about illogical.
Students began being punished for random posts, texts, or communications which supposedly contained threats, but which clearly did not. It seemed all school administrators interpreted student posts literally, every time, and ignored all context. Jokes were under attack, particularly sarcastic ones.
One time I walked into a school meeting, and was asked if I wanted a drink? It was hot and I said “I would kill for a drink!” What I meant was that I really wanted one, not that I would kill someone. Everyone there understood this. However, what could have happened if I were a student and said the same thing? I think we all know the answer.
The past decades have found students more frequently suspended and even expelled for all sorts of communications and situations which an average person could not imagine were punishable.
These comments could range from supportive words to a friend during a private conversation or joking and telling students to “stay home tomorrow” in a sinister voice, while laughing. If students spoke about school shootings on campus, to reflect on what the shooter was thinking, they could be hauled into the office and questioned. If they made a joke, they could find themselves up for expulsion. It is too much.
The First Amendment has gotten lost.
But, the newest California law requiring mandatory reporting of students to the police for “homicidal” communications really tops them all.
Homicide Suspicions Reported to Law Enforcement
Under California Education Code sections 49390-49395, any school staff member who basically sees any indication of student homicidal intent or purpose MUST report this to law enforcement.
“Law enforcement” may include local police or security on a school site.
Reporting to Cops is Mandatory for School Staff
School discretion to evaluate some of the above scenarios I encountered seems to have been taken away.
California Education Code 49393(a) states:
A school official who is alerted to or observes any threat or perceived threat… shall immediately report the threat or perceived threat to law enforcement. The report shall include copies of any documentary or other evidence associated with the threat or perceived threat.
These sections make reporting to the police MANDATORY for school staff. Staff also cannot be liable for their reports.
A “Homicidal Threat” Covers More than Parents May Think
I never thought the day would come when minor students would HAVE TO be reported to the cops for drawing a destructive image on a paper, describing a school bus being destroyed in a journal, or writing a fictional story about someone dying. Yet, here we are.
Section 49390(e) of the California Education Code defines “Threat or perceived threat,” as:
Any writing or action of a pupil that creates a reasonable suspicion that the pupil is preparing to commit a homicidal act related to school or a school activity. This may include possession, use, or depictions of firearms, ammunition, shootings, or targets in association with infliction of physical harm, destruction, or death in a social media post, journal, class note, or other media associated with the pupil. It may also include a warning by a parent, pupil, or other individual.
This covers many things students do and communicate about in every day life. Their video games are filled with death, destruction and blowing things up. Their lives are surrounded by school shooters killing people, yet they cannot talk about it, lest this communication be misconstrued.
Topic, context, and subject are apparently not taken into account when looking at student communications.
I can only hope that some school staff will still use common sense. I won’t hold my breath.
Student Drawings, Pictures and Writings about Weapons, Ammunition, Guns, Destruction and Death Can Be Reportable
The elements triggering the mandatory reporting duty are:
- Any student writing or action
- Creating a reasonable suspicion [defined as articulable facts, together with rational inferences from those facts, warranting an objective suspicion]
- Student is preparing
- To commit a homicidal act
- Related to school or a school activity
Reportable items include “depictions” of:
- targets associated with physical harm
As if this was not enough, this is specifically noted as applying to:
- classroom notes
- social media posts
- media associated with the pupil
However, as the overall law says “any writing or action” this list will certainly be expanded.
This law has no time or place restriction, meaning students could be reported to police for a post at midnight on a Saturday night, when they inadvertently share a meme with a gun in it or people blowing up.
Parents Beware of Police Reporting Mandates
The long arm of the schools keeps extending. Schools now have a law in California which can cause criminal charges to be sought for a school journal entry where a student writes a horror story, similar to Stephen King’s masterpieces I grew up on.
This law is the ultimate muzzle as well as an immediate school to jail pipeline for students.
Now a 5 year old who scribbles their favorite superhero with a weapon shooting an adult (who could be their teacher) has to be reported to police?
Here is my life lesson: don’t ever believe you have seen it all or that the government won’t do something worse, as clearly, they will.
Michelle Ball is an attorney for students who assists parents to fight school discipline, suspension and expulsion. As an education lawyer in California’s capitol, Michelle can assist throughout the state, from Penryn to Bodega Bay, San Bernardino to Redwood City and throughout California.