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KCSD bullying case might impact SRO discussion

Posted: October 30, 2017 5:13 p.m.
Updated: October 31, 2017 1:00 a.m.

A civil complaint filed against the Kershaw County School District (KCSD) by the parent of an allegedly bullied student might have an impact on the Kershaw County Board of School Trustees’ discussions about school resource officers (SROs) with Kershaw County Council. The parties in the case are required to enter an alternative dispute resolution (ADR) process by March 16, 2018. Meanwhile, other aspects of the case can move forward.

(In order to protect the identity of the student involved in the case, the C-I is not naming the student, his parent or the school where the alleged bullying took place.)

In the complaint, filed Aug. 18, the parent states that their child attended a particular school during the 2015-16 and 2016-17 school years, during which they became the target of bullying and harassment from fellow students. The bullying allegedly took place in person and over social media. As a result, the parent claims their child “ended friendships, quit” a sports team, and “generally retreated from normal school-age activities.”

The complaint claims the student reported the bullying to school administrators and guidance counselors. In addition, the student’s parent “reported the misconduct to the school resource officer.”

The complaint then goes on to cite a portion of Section 5-7-12 of the S.C. State Code of Laws, which defines a SRO as “a person who is a sworn law enforcement officer pursuant to the requirements of any jurisdiction of this State […] and who is assigned to one or more school districts within this State to have as a primary duty the responsibility to act as a law enforcement officer, advisor, and teacher (emphasis added by the plaintiff’s attorney) for that school district.”

The complaint argues that because of that definition, the defendant -- the school district -- “rather than the respective policy agency, is responsible for the school resource officer and his conduct related to (the student’s) complaints of bullying, intimidation, and harassment.”

The complaint then gets into definitions of harassment, intimidation and bullying and claims that the child’s fellow students engaged in such behavior including, but not limited to, “verbal harassment, cyberbullying, and physical altercations.”

In the complaint, the student’s parent claims that they met with the school’s principal, assistant principal and guidance counselor to discuss the bullying. In addition, they claim they also voiced concerns to the district’s director of pupil services and the superintendent. Despite this contact, the parent claims the school “failed to take any action to remedy past bullying, intimidation, and harassment or to prevent future bullying, intimidation, and harassment.”

The complaint states that pursuant to state law, the school’s employees “had a duty to report to the appropriate school official whenever they became aware that a student had been subject to harassment, intimidation, or bullying.” Furthermore, the complaint contends that the district has an anti-bullying policy that also stipulates school employees “had a duty to report alleged violations … to the school principal or the principal’s designee,” but that employees failed to do so and failed to “promptly, thoroughly, and confidentially investigate the complaints” made by the student and their parent.

The complaint then goes back to the role of an SRO. The student’s parent claims that they were informed that once the harassment was reported to the SRO, the matter was “out of (the school’s) hands” and could not be investigated further by school employees.

On behalf of their child, the parent states in the complaint they believe the district’s “inaction under the circumstances is based upon an incorrect understanding of the role played by a school resource officer” and that this should be corrected by the court so that “further damage cannot be done to (the student) and/or similarly situated students.”

The civil action seeks a declaratory judgment that the district “must abide by its own policy and that its responsibility to report and investigate allegations of student harassment may not be excused or discharged merely because the harassment has been reported to a school resource officer.” This portion of the complaint also reiterates that because an SRO is defined in state law as having responsibilities as both a law enforcement officer and “teacher,” this makes them subject to the requirements of the district’s anti-bullying policy.

The parent and student also ask for an injunction that would keep the district from refusing to follow its own anti-bullying policy and from refusing to investigate harassment reports just because they have been made to an SRO.

The plaintiffs (the parent and student) are only seeking attorney’s fees and costs in addition to the declaratory judgment and injunction.

While he would not comment on the case directly, attorney Kirby Darr Shealy II, who is representing the student and their parent, confirmed that the purpose of the complaint is two-fold: 1) to have the district properly uphold its anti-bullying policy, and 2) to clarify the role of SROs.

Two years ago, the S.C. Attorney General’s Office (AGO) issued an opinion in a Dorchester County case that -- at its core -- dealt with two SRO-related issues. First, does a SRO who is not a member of a law enforcement agency have the same powers as one who is? Second, does using county property taxes to fund those positions violate S.C. Act 388, which shifted primary state school funding from owner-occupied homes to an additional 1 percent sales tax?

The AGO’s opinions were, essentially, “yes” to the first question and “no” to the second.

“School Resource Officer(s) should have equivalent statutory authority and powers … regardless of (their) employer” -- as long as they go through the necessary process of becoming a SRO, the opinion said.

It also stated that since Act 388 provided owner-occupied home tax relief in terms of school operations -- of which the AGO’s office concluded SROs are a part -- county taxes cannot be used to pay for them.

Essentially, the AGO was offering the opinion that it doesn’t matter who actually employs a SRO, they are part of the school district’s operations and county taxes can’t be used to pay for them. However, the AGO’s opinion does not have the force of law. It merely provides an opinion on how existing law is likely to be used should someone -- like the student and his parent -- file a case speaking to the duties of and funding for SROs.

Back and forth

Who should pay for SROs in Kershaw County is a question that has come up several times for nearly two decades.

SROs were introduced to Kershaw County schools in 1999 and were initially funded through grants. Most worked for the Kershaw County Sheriff’s Office (KCSO) while a few worked for the Camden Police Department (CPD). According to CPD Chief Joe Floyd, the grants worked on a 75/25 split where the grant paid 75 percent of the SRO costs and local government paid the remaining 25 percent. Floyd said the city and school district split the cost of the 25 percent so that each was only paying 12.5 percent of the SRO grant-related funding.

When those grants ran out, counties and cities were left with the choice of either removing SROs from schools or funding the positions themselves. This was around 2003, and Floyd said he recalled that the city and district split the cost evenly for a short time. At some point, he said, the city learned the KCSO-based SROs were being fully funded by either the county or the school district. City and county officials worked out a similar deal.

“Afterward, I had a talk with (then) Sheriff (Steve) McCaskill and asked him if he would hire our SROs and keep them in the schools and he said he would,” Floyd said Tuesday.

That’s how things stood for nearly a decade: SROs worked for the sheriff’s office and were paid accordingly.

In May 2012, current Sheriff Jim Matthews introduced a plan to remove SROs from three schools located in the Camden city limits by the end of that particular school year. He said he needed more officers on the road and that, while he was “all in favor” of having SROs in schools, it was the least efficient use of law enforcement manpower. At the time, County Administer Vic Carpenter and then Camden City Manager Kevin Bronson said a proposal was in the works to have the county provide the necessary funds to the school district to pay for city of Camden SROs.

A month later, Matthews clarified that he would keep Kershaw County deputies as SROs at Camden schools if the CPD did not supply them. City officials, however, indicated they thought of SROs as being a service one county agency (the sheriff’s office) provided another (the school district). However, both Bronson and Floyd said they would supply SROs if the sheriff’s office pulled them.

When school opened that August, the KCSO supplied SROs to the three Camden schools.

In May 2013, Kershaw County Council amended its Fiscal Year 2014 budget to transfer funding for Camden-based SROs from the KCSO to the CPD. Since then, Camden-based SROs have worked for the CPD despite funding for their positions coming from the county in various ways.

“They work for me, but they are obligated to working for -- not just with -- those principals for the safety of those schools,” Floyd said.

Around the same time, three county-based SRO positions were being funded by a Safe Schools/Healthy Students grant, but that funding was slated to end in June 2014. As it worked on creating its Fiscal Year 2015 budget in May 2014, some council members proposed continuing funding for the three SRO positions at a total cost of $175,000 per year as an amendment to the budget. The amendment proposed moving funds out of the KCSO budget and creating a separate “Outside Public Safety” line item.

Earlier this year, when council passed the county’s Fiscal Year 2018 budget, it included an amendment to spend $63,000 on a Camden-based SRO position. At a subsequent meeting, council had Carpenter transfer $48,000 from a professional services line item to help fund a SRO position. During that discussion Carpenter said the county had paid the city of Camden a lump sum for funding a SRO rather than having the county hire and fund the SRO itself.

A few weeks later, KCSD Superintendent Dr. Frank Morgan recommended to trustees that it allot $25,000 to fund half of a school year’s worth of a SRO position in Camden. By the end of August, the board and council created its ad hoc committee.

Camden City Manager Mel Pearson recently confirmed that is how things currently stand: Camden-based SROs report to Floyd, but are paid by the district and county.

Shifting role?

On Sept. 7, the district filed a motion to dismiss the parent’s civil action claiming the parent had not exhausted all administrative remedies concerning the alleged bullying; that the board of trustees had not entered a final appealable order; and that the parent had failed to show sufficient facts to support their claims or even bring the action to court.

A judge was set to hear that motion Oct. 24 at 3:30 p.m., but the district and the student’s parent filed a joint motion on Oct. 23 for a continuance of the motion to dismiss. In the new motion, the parties said they were continuing to negotiate and wanted more time to continue that process. On Oct. 24, a judge signed an order to that effect, continuing the motion to dismiss to the next term of court.

It’s unclear exactly how much of an impact the case could have on the discussions between county council and the school board.

While University of South Carolina School of Law Assistant Professor Josh Gupta-Kagan would not speak directly about the case against the Kershaw County School District, he did say that the “law enforcement, advisor, and teacher” clause in the S.C. code mirrors that of others around the country.

Gupta-Kagan, who specializes in, among others, legal issues affecting children and families, including juvenile justice issues, said that clause is referred to as a “triad” by the National Association of School Resource Officers (NASRO).

Indeed, according to the NASRO’s website, the association considers it a “best practice to use a ‘triad concept’ to define the three main roles of school resource officers: educator (i.e., guest lecturer), informal counselor/mentor, and law enforcement officer.”

In that light, Gupta-Kagan said the state as a whole is dealing with the fallout of an incident at Richland County’s Spring Valley High School caught on video in October 2015 where a male SRO forcibly removed a female student from a classroom. The video appeared to show the SRO “tossing” the student from her chair when she allegedly refused to get up at his command. He had reportedly been asked to come to the classroom because the girl refused to put away a mobile phone or leave the classroom. The Richland County Sheriff’s Department fired the SRO, but no charges were filed against him, the student or another female student involved in the altercation.

Gupta-Kagan said that incident led the S.C. Department of Education (SCDE) to come up with new regulations in May requiring school districts to have a Memorandum of Understanding (MOU) with the law enforcement agencies supplying them with SROs.

“It serves as a clear statement of what the relationship is,” Gupta-Kagan said.

As part of defining that relationship, he said, an MOU would provide clarity by putting “lines around the role.” Gupta-Kagan said that definition is shifting.

“Their primary goal is law enforcement, with other purposes, but not to bring them in every time there’s a disciplinary issue,” he said. “The Spring Valley incident led to reform to nudge that definition to a place where you have a law enforcement officer, but not in a school disciplinary role.”

This way, Gupta-Kagan said, SRO’s would continue to make arrests when appropriate, but would otherwise have more of a community policing role. He said as SROs statewide began responding to the SCDE’s shift, the overall number of referrals to the S.C. Department of Juvenile Justice (DJJ) have decreased, in some cases dramatically.

According to an annual statistical report DJJ release in September, there was a “sharp decrease” in the number of juveniles charged with disturbing schools.

“This comes as part of larger efforts to prevent students from entering the ‘school-to-prison’ pipeline for minor transgressions,” DJJ Acting Director Freddie Pough wrote in the report’s introduction. “It is best to be handled directly by school officials and local resource officers, rather than pushing youth into the juvenile justice system.”

According to DJJ, during Fiscal Year (FY) 2016-17, it processed 13,591 new juvenile cases, an 11.9 percent decrease from FY 2015-16. More specifically, disturbing school cases dropped by more than half -- 51 percent -- from approximately 1,300 in FY 2015-16 to only around 600 in FY 2016-17.

Gupta-Kagan said drops in disturbing school cases usually lead to increases in simple assault cases among juveniles. This time, however, he said that cycle has been broken, with assault cases coming in slightly lower since the last fiscal year.

“It’s part of the shift of keeping SROs out of school disciplinary matters,” he said.

KCSD Director of Communications Mary Anne Byrd confirmed the district has a MOU with the KCSO and is currently working on drafting one with the CPD.


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