School Resource Officers and Students With Disabilities: Wilson v. City of Southlake (2019)

Abstract

Given the disproportionate rates of youth with disabilities who experience exclusionary discipline in schools, it is important to consider the involvement of law enforcement officers in the discipline of these students and the students’ right to an equitable education. One recent case of concern was Wilson v. City of Southlake, which clarified that police can be sued for disability discrimination based on their response to a student with a disability under the Americans with Disabilities Act or Section 504 of the Rehabilitation Act of 1973 where life-threatening circumstances are not present. This finding has implications for schools that involve school resource officers in responding to children who are protected under either of these provisions.

The use of school resource officers (SRO) has been under review among school districts in recent years. These reviews—and districts’ likelihood to take action—have increased since May 2020 when millions of people watched the murder of George Floyd by police officers on their television screens. In the time since Mr. Floyd’s death, 47 districts have made their concerns about using SROs public (Riser-Kositsky & Sawchuk, 2021). Of these, 33 districts have ended their contracts with local police departments or disbanded their school police divisions, while 11 others continue to examine this issue in their district. Two large school districts (i.e., Chicago and Los Angeles) significantly reduced their budgets for SROs (Riser-Kositsky & Sawchuk, 2021). The aftermath of removing police officers from schools that previously utilized their services is yet to be seen. Previous research has found that when SROs are in public schools, the disciplinary actions that would previously be handled by school personnel are now being addressed by police (Zhang, 2019).

Discipline Disparities for Students With Disabilities

Students with disabilities are more likely than their typically developing peers to experience behavior issues and exclusionary discipline at school. According to the U.S. Department of Education’s Office of Civil Rights (OCR), during the 2017–2018 school year, students collectively missed over 11 million days of school due to out-of-school suspensions. Nearly a quarter of these days were missed by students with Individualized Education Programs (IEP), though they only constituted 13% of the school-age population at the time (U.S. Department of Education, Office for Special Education Programs, 2020). Students with IEPs also comprised 26.1% of students who were referred to law enforcement (n = 59,951) and 25.8% of students who were subject to school-related arrests (n = 13,996; U.S. Department of Education, Office for Civil Rights [OCR], 2020). Yet, students with disabilities are often not considered in school discipline policies, which means they may subject these students to zero-tolerance policies, even when the problem behavior is a manifestation of the student’s disability (Ryan et al., 2018).

Wilson v. City of Southlake (2019)

In Wilson v. City of Southlake (2019), S.W. was a second-grade student with autism spectrum disorder, oppositional defiant disorder, and separation anxiety disorder who had a history of behavioral incidents at school that included throwing items, screaming obscenities, being physically aggressive, and expressing thoughts of killing himself and others. This case arose from an incident when S.W. was eight years old and attending school in the Carroll Independent School District in Southlake, Texas.

S.W. was serving an in-school suspension in Principal Stacy Wagnon’s office when S.W. said he had a weapon in his backpack. When Wagnon asked S.W. to see the weapon, the student pulled a school-provided jump rope from his backpack that he called “home-built nunchucks.” According to the principal, the child began shouting obscenities and trying to hit the principal with the jump rope and was “threatening to harm others.” After S.W. threw a cup of coffee at the wall, the principal called the SRO to her office, who called SRO Sergeant Randy Bakker to the school. When Sergeant Bakker arrived, S.W. was in the hallway. The SRO told Sergeant Bakker to “stand and watch right here, say nothing.” In response, the sergeant handcuffed S.W., allegedly screaming at the child, calling the child names, and laughing at the child. Following an investigation into Sergeant Bakker’s actions by the Southlake Police Department, the sergeant’s employment was terminated.

S.W.’s parents sued the City of Southlake, the police department, and former SRO Sergeant Bakker for disability discrimination against their son under the Americans with Disabilities Act (ADA, 1990) and Section 504 of the Rehabilitation Act of 1973. The trial court granted the police department a summary judgment based on precedent set by the case Hainze v. Richards, 17 NDLR 228, 207 F.3d 795 (2000) in the Fifth Circuit Court of Appeals. A summary judgment occurs when one party believes that the outcome of a legal case is already clear, so a trial is not needed. In Hainze, a police officer shot an adult with a mental illness who was brandishing a knife and did not comply with the officer’s orders. The U.S. Court of Appeals for the Fifth Circuit created an exemption to ADA liability by finding that the ADA does not apply to a police officer’s response in cases of exigent circumstances prior to “securing the scene and ensuring that there is no threat to human life” (p. 1). This means that the officer’s actions when assessing whether the events of the situation could potentially lead to death or substantial bodily harm cannot be the basis for disability discrimination case under the ADA or Section 504.

The Wilson family appealed the summary judgment. The Fifth Circuit Court vacated the summary judgment, and the case was remanded back to district court for resolution of genuine disputes about material facts of the case. In its decision, the Court of Appeals relied heavily on distinguishing the facts in the Hainze case from the case involving S.W. In brief, the appeals court found that the Hainze case did not provide authority for courts to extend this exemption to cases in which exigent circumstances were not present. This means that without an emergency in which death or substantial bodily harm is likely to occur due to the activities taking place, the court did not find a legal reason to excuse the officer’s behavior or prevent the family’s lawsuit for disability discrimination from proceeding.

The appeals court found that the district court erred in granting summary judgment on the ADA and Rehabilitation Act claims based on Hainze when there was no potentially life-threatening situation. The court reasoned that a school-provided jump rope being wielded by an 8-year-old is neither a weapon nor capable of inflicting serious injury. The court further clarified that any threats by the child to hurt anyone with the jump rope could not serve as a basis to overcome the fact that he could not actually hurt anyone with the jump rope. In addition, the court relied upon evidence that SRO Sergeant Bakker had prior knowledge of S.W.’s issues, that Sergeant Bakker was not trained to deal with this type of situation as was required by his contract, and that S. W.’s actions prior to Sergeant Bakker’s involvement could not be used to justify his responses once Bakker arrived on scene.

Implications for Practitioners

While this case represents one child who was negatively impacted by an interaction with an SRO who was used as a behavior management “tool” or surrogate, the ruling in this case has potential implications for many students with disabilities. The Wilson and Hainze rulings were decided in the U.S. Court of Appeals for the Fifth Circuit, which includes the states of Mississippi, Louisiana, and Texas. While these decisions only apply to the Fifth Circuit, these rulings also impact the nine district courts in the circuit. In the Fall of 2019, these three states included nearly 785,000 students with disabilities (U.S. Department of Education, 2022).

In this case, S.W. had an IEP that included a behavior intervention plan (BIP). Under the Individuals with Disabilities Education Improvement Act of 2004 (2006), a BIP is intended for use with students whose behavior negatively impacts their educational performance or that of their peers. Yet, no mention of how the BIP was followed prior to including SROs was mentioned. Whether or not the student’s IEP includes a BIP, educators can employ de-escalating techniques prior to employing an SRO such as (a) provide the student an opportunity and location to cool down, (b) offer verbal redirections, (c) provide behavior specific praise, (d) reduce verbal interactions, and (e) apply calming techniques.

For school districts that elect to employ SROs, it is imperative that these officers receive adequate training. According to the National Association of School Resource Officers (NASRO, 2022), modern-day SROs should be used to advance the “triad concept” of effective SRO programs focusing on three roles: educator, informal counselor, and law enforcement officer. Nationwide, no formal training requirements exist for the initial and continued use of SROs, although NASRO (2022) recommends a minimum of 40 hours of specialized training for carefully selected sworn law enforcement officers. It is also important that they utilize good judgment and treat children like children instead of relying on the training they use when dealing with adults in the community.

Finally, it is important for districts to understand that they may be liable for violations of students’ rights if death or great bodily injury is unlikely to result from the actions of a student with a disability protected under the Americans with Disabilities Act or Section 504 of the Rehabilitation Act of 1973. As a final deterrent to employing an SRO in a behavior management situation, educators can employ other techniques that promote the safety of the peers while preserving the rights of the student who may be experiencing a crisis. Following explicit instruction and practice, an educator can announce “This is a room-clear.” Teaching students how to leave the room when directed will keep students safe (Beyond Seclusion and Restraint, 2012).

Conclusion

While many districts around the country are examining their use of SROs, those who choose to employ them should take great care in making sure these officers are adequately trained. When interacting with students who have IEPs, it is also essential that these officers be aware of the student’s strengths, interests, preferences, and needs. In the case of a student like S. W. who also had a BIP, that should also be implemented with fidelity. This means that everyone who interacts with a student for school-based behavior needs should follow the BIP as written. The case of Wilson v. City of Southlake (2019) clarifies that an exemption to liability under the ADA and Section 504 may not extend to other situations if imminent physical harm is not present.