Gabrielle C. Goham, Raffaele Puppio

School districts have an obligation to provide a free appropriate public education to all of their resident students. Part of this “FAPE” mandate is the duty to locate, identify and evaluate students who may require special education and related services in school according to the “child find” obligation under the federal Individuals with Disabilities Education Act (IDEA).

Typically, that child find obligation is triggered when the school district has reason to believe that a student may be in need of special education school services, whether by its own observation, information from parents or some other source, such as a prior educational provider. The child find obligation requires school districts to conduct a comprehensive multidisciplinary evaluation of the student in all areas of suspected disability. If the student is eligible for services, it must offer an individualized education plan (IEP) under the IDEA, or a service agreement under Section 504 of the Rehabilitation Act, in accordance with those federal laws as well as Pennsylvania's regulations to those statutes.

In response to the increasing widespread violence in today's schools, some of which has been linked to prior threatening social media use by youth perpetrators, the Pennsylvania Office of Attorney General has instituted a youth violence prevention program called Safe2Say Something, which is an anonymous reporting process by which students and adults can report warning signs or signals, including from social media, that an individual may be a threat to self or others. The anonymous tip sent to Safe2Say Something is reviewed by a crisis center. The crisis center then contacts law enforcement and school administration for intervention. Students are encouraged to anonymously report anything that makes them uncomfortable or which they find frightening, whether on or off campus or online, particularly if they feel that someone may harm himself or others.

This program is a laudable response to the terrifying increase in deadly violence in our schools. In addition to seeking to protect the student body and community as a whole, however, it also raises questions about the child find responsibility of the school district receiving the information. Specifically, it raises questions about whether to evaluate the alleged student actor for special education school services as they may pertain to an as-yet unidentified disability, such as emotional disturbance, which might require the school district to provide the student with emotional support and other special education services in school. Moreover, for discipline purposes, the IDEA also contains certain added protections for students identified with disabilities, and for students whom the district has reason to believe may have disabilities requiring special education and related services, who engage in violations of the school's disciplinary code of conduct. While off-campus conduct is typically not within the disciplinary authority of our school districts unless there is sufficient nexus between the off-campus conduct and a disruption to the school environment, where such a nexus exists, these added protections, which have not been revisited since IDEA was last amended well over a decade ago, often limit school districts' permissible responses to disciplinary infractions for these students. IDEA protections also often require school districts to utilize and provide resources and supports for these student actors beyond those typically provided in school in a climate where special education funding is already not meeting the needs of our school districts.

The need for a program like the proactive Safe2Say Something also raises several questions as to whether and how Pennsylvania will otherwise respond to support schools and students in need in this crisis of youth violence. Specifically, will the Department of Education increase special education funding to our schools to allow them to proactively act to prevent violence through evaluation and provision of appropriate special education services without having to rely on local funding sources such as property taxes? Will our legislators respond to the increase in school violence by revisiting the discipline requirements and limitations of IDEA to bring them up to date with the reality of violence in our schools by mandating referral to the mental health system which, unlike schools districts, is equipped to address underlying mental health needs?

Will the mental health system in Pennsylvania be charged with the responsibility, with at least the same level of accountability to which our school districts are held, to proactively respond to the increasing need for mental health intervention services for our youth?

While Safe2Say Something was implemented to address a specific problem of violence in our schools, the ever-growing need for increased supports for students with special needs will likely soon precipitate another crisis unless our legislature addresses these questions.

Gabrielle C. Goham joined Delaware County full-service law firm Raffaele Puppio in 2010 as a partner and chair of the special education department. She represents school districts, charter schools, private schools and intermediate units in special education matters.