Published by MARE, April 2015
Under the Safe Schools Act, R.S.Mo. § 167.117, school principals are required to immediately report to local law enforcement and the school district superintendent any conduct which if committed by an adult would constitute possession of a weapon or controlled substance, or assault in the first, second or third degree, sexual assault, or deviate sexual assault against a pupil or school employee while on school property, or while involved in school activities.[1] Compliance with Section 167.117 can carry big ramifications so school administrators must be aware of their duties under the Statute and be diligent in their efforts to comply. This article will review compliance with the Statute’s mandate, specifically as it relates to reporting third degree assault, and consequences for failure to comply.
One of the biggest, if not the biggest, obstacle for school administrators in their efforts to comply with the Statute’s reporting requirements is the breadth of the current[2] statutory definition of third degree assault. Currently in Missouri, a person commits third degree assault if:
(1) The person attempts to cause or recklessly causes physical injury to another person; or
(2) With criminal negligence the person causes physical injury to another person by means of a deadly weapon; or
(3) The person purposely places another person in apprehension of immediate physical injury; or
(4) The person recklessly engages in conduct which creates a grave risk of death or serious physical injury to another person; or
(5) The person knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative; or
(6) The person knowingly causes physical contact with an incapacitated person, as defined in section 475.010, which a reasonable person, who is not incapacitated, would consider offensive or provocative.
R.S.Mo. § 565.070. Unfortunately, under this definition, much misconduct among students in the school setting could be considered third degree assault. For example, if a student threatens to hit another student making the student that was the subject of the threat fearful, this could be considered third degree assault regardless of the fact that the student who made the threat did not actually touch the other student or even have any intention of actually hitting the student. Even conduct as innocent as a student poking another student whom the student knows does not want to be touched could arguably be considered third degree assault. Thus, the Statute potentially requires principals to report to law enforcement conduct that often times may be considered rather minor.
The difficulty for school administrators in complying with the requirement to report third degree assault is further compounded by the fact that at least one Missouri court has strictly construed the requirement that the report to law enforcement be made “immediately.” In T.B. v. Hazelwood Sch. Dist., 417 S.W.3d 261 (Mo.App.E.D. 2013), a student alleged that she was abducted and sexually assaulted by other students. Among other claims, the student, through her mother, sued her principal for negligence and negligent supervision. The principal filed a summary judgment motion alleging that she was entitled to immunity from the claims under the Coverdell Act. The trial court granted judgment in favor of the principal and the student appealed arguing that the principal was not entitled to immunity because she failed to immediately report the alleged assault to law enforcement as required by Section 167.117. It appears that the principal alleged that she reported the incident to law enforcement at 3:07 p.m. and the student alleged that the principal did not report it until 4:41 p.m. The appellate court agreed with the student that this created an issue of fact as to whether the principal complied with her statutory duty to “immediately” report the alleged assault to law enforcement and remanded the case to the trial court for further proceedings.
Given the strict interpretation of “immediately” that may be applied when considering compliance with the Statute, it is important to note that Section 167.117 does permit a limited exception to the requirement that third degree assault be immediately reported to law enforcement for those school districts that opt to enter into a written agreement with local law enforcement as to the procedure for the reporting third degree assault. If such an agreement has been executed, a principal is allowed to report any incidents of possible third degree assault to the appropriate local law enforcement agency in accordance with the agreement. The Statute does not include any specific protocols that must be included in such an agreement and thus, it would seem to give school districts the ability to establish a procedure that is workable for the school district. As such, school districts who do not have such an agreement with local law enforcment in place may want to consult with their district’s attorney regarding this option for compliance.
Whether a school district opts to immediately report all third degree assaults or enter into a written agreement with local law enforcement, compliance with the Statute’s requirements is very important. Obviously, it goes without saying that it is of utmost importance for a school district to provide the safest environment possible for its students. While the Statute does not expressly provide for a private cause of action for failure to comply with R.S.Mo. § 167.117, and at least one court has rejected the notion that parents and/or students can bring a claim solely for noncompliance with the Statute, the Statue does provide for criminal penalties for noncompliance. Specifically, any school official responsible for reporting “who willfully neglects or refuses to perform this duty” is guilty of a misdemeanor punishable by a fine of not more than five hundred dollars or imprisonment not to exceed one year.[3] Additionally, failure to comply with the Statute may affect the availability of federal and state immunities from liability for civil claims, such as those raised in the Hazelwood case. See T.B., 417 S.W.3d 261.
[1] Section 167.117 also requires teachers to immediately report to the principal any of the offenses specifically identified in the Statute.
[2] Effective January 1, 2017, there will be four degrees of assault in Missouri, rather than three, and the statutory definition of third degree assault will change.
[3] R.S.Mo. §§ 167.117, 162.091.
