To: Superintendents, Member School Districts (K-12)
From: Robert J. Henry, General Counsel
Subject: Student Discipline For Failing to Report Knowledge of Weapons or Dangerous Objects on Campus
Memo No. 10–2001
Education Code section 48900 provides, in pertinent part, as follows:
A pupil may not be suspended from school or recommended for expulsion unless the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has committed an act as defined pursuant to one or more of subdivisions (a) to (o), inclusive:
(k) Disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties. (Emphasis added.)
It is our opinion that under this provision a school safety plan, developed pursuant to Education Code sections 35294 et seq., could require students to report knowledge of dangerous objects on campus or other “school designated serious acts” relating to the health and safety of students.
By way of example, a school safety plan could require all students with knowledge of any conduct specified in Education Code section 48915(c)[1] to report the conduct to a designated school officer or employee. If students are informed of the requirement to report, a failure to do so would then constitute willful defiance of the valid authority of “… supervisors, teachers, administrators, school [and] officials …” Obviously, the school safety plan should address reasonable safeguards necessary to protect the student who discloses the information. Because of possible “civil liberty” objections to such a rule we recommend that wide distribution be made of the intent to amend the school safety plan and that an adequate opportunity be given to students, parents and others to provide comment.
For your information effective January 1, 2001 the state legislature added Section 152.3 to the Penal Code to read as follows:
(a) Any person who reasonably believes that he or she has observed the commission of any of the following offenses where the victim is a child under the age of 14 years shall notify a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2:
(1) Murder.
(2) Rape.
(3) A violation of paragraph (1) of subdivision (b) of Section 288 of the Penal Code.[2]
(b) This section shall not be construed to affect privileged relationships as provided by law.
(c) The duty to notify a peace officer imposed pursuant to subdivision (a) is satisfied if the notification or an attempt to provide notice is made by telephone or any other means.
(d) Failure to notify as required pursuant to subdivision (a) is a misdemeanor and is punishable by a fine of not more than one thousand five hundred dollars ($1,500), by imprisonment in a county jail for not more than six months, or by both that fine and imprisonment.
(e) The requirements of this section shall not apply to the following:
(1) A person who is related to either the victim or the offender, including a husband, wife, parent, child, brother, sister, grandparent, grandchild, or other person related by consanguinity or affinity.
(2) A person who fails to report based on a reasonable mistake of fact.
(3) A person who fails to report based on a reasonable fear for his or her own safety or for the safety of his or her family.
Although this is a Penal Code section not directly applicable to student discipline, it does demonstrate a strong public policy that knowledge of certain crimes must be reported. The proposal set forth above extends this concept into the student discipline arena. It is our opinion that doing so is legal and would be sustained if challenged.
[1] Section 48915(c) provides as follows: The principal or superintendent of schools shall immediately suspend, pursuant to Section 48911, and shall recommend expulsion of a pupil that he or she determines has committed any of the following acts at school or at a school activity off school grounds:
(1) Possessing, selling, or otherwise furnishing a firearm. This subdivision does not apply to an act of possessing a firearm if the pupil had obtained prior written permission to possess the firearm from a certificated school employee, which is concurred in by the principal or the designee of the principal. This subdivision applies to an act of possessing a firearm only if the possession is verified by an employee of a school district.
(2) Brandishing a knife at another person.
(3) Unlawfully selling a controlled substance listed in Chapter 2 (commencing with Section 11053) of Division 10 of the Health and Safety Code.
(4) Committing or attempting to commit a sexual assault as defined in subdivision (n) of Section 48900 or committing a sexual battery as defined in subdivision (n) of Section 48900.
[2] Penal Code section 288(b)(1) provides as follows: Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
Subdivision (a) of Section 288 provides as follows: Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
Generously provided by: Robert J. Henry, general counsel, School and College Legal Services.
