The Barrington School District is suing the state’s highest educational authority, as well as one of its own families, in a third attempt to prove that it properly suspended four middle school students in the winter of 2018. The district already lost this case twice but is refusing to abide by rulings of the Rhode Island Department of Education and the Council on Elementary and Secondary Education.
The Barrington School District is suing the state’s highest educational authority, as well as one of its own families, in a third attempt to prove that it properly suspended four middle school students in the winter of 2018. The district already lost this case twice but is refusing to abide by rulings of the Rhode Island Department of Education and the Council on Elementary and Secondary Education. Both of those agencies agreed with the family of one boy, who contend their son was unfairly disciplined for taking part in a lunchroom conversation about school shootings.
A month ago, the school district filed suit in Rhode Island Superior Court, claiming that the Council on Elementary and Secondary Education (the Council), the board which oversees the department of education and all educational programming, K-20, in Rhode Island, exceeded its authority and unlawfully sided with the student and with the Rhode Island Commissioner of Education. The suit brought statewide media attention and invited talk show speculation last week, after the American Civil Liberties Union (ACLU), which has represented the aggrieved family, issued a scathing rebuke of the district’s aggressive tactics and decision to sue one of its own students.
Earlier this year, a hearing officer with the commissioner’s office reviewed the entire case and determined the school district was unequivocally wrong, in violation of state law, when handing out discipline to the one student who fought back — and the others who were equally punished but did not fight back; that the district could not demonstrate that the student had violated any part of its student handbook; that the district broke the law when questioning the students in the presence of a police officer without the parents’ knowledge or consent; and that there was no reason for the district to conduct a risk assessment of the student, nor to leave that assessment in the student’s file.
Aubrey Lombardo, the attorney representing the Barrington student, was shocked by the school committee’s decision to continue pursuing this case.
“I have never, in all my time, had a disciplinary case, a three-day suspension, go to court,” said Ms. Lombardo, who works for the Henneous, Carroll, Lombardo law firm — a firm which usually represents school committees on legal cases. Ms. Lombardo said she took on this case because she thought it was “so egregious.”
The ACLU of Rhode Island represented the Barrington student during his appeal to the commissioner’s office last year and reacted strongly to the latest legal challenge.
“The school committee’s actions against this student are outrageous and shameful,” said ACLU Executive Director Steven Brown. “It must be seen as nothing less than an attempt to intimidate children and their families who dare to challenge school disciplinary decisions. The school committee is not only wasting taxpayer money, it is undermining the legislature’s efforts to reduce the harmful effect of suspensions on students.”
The school committee contends it is trying to protect its authority to discipline students and ensure a safe school environment. It believes the state has undermined the safety and welfare of the school community.
How it started
On Feb. 28, 2018, “Student E. Doe” — then a Barrington Middle School eighth-grader — had lunch at a table in the school cafeteria with six of his friends.
Just two weeks earlier, a lone gunman at Marjory Stoneman Douglas High School in Parkland, Fla., killed 17 people and stunned the nation, once again bringing widespread attention to the horrors of school shootings. On the morning of Feb. 28, according to E. Doe, a teacher assistant in math class told students there would be a lockdown drill later that day.
As the seven boys sat at the lunch table, a discussion began about how they would defend themselves if a gunman stormed the school. In the beginning, they talked about how they would defend themselves against a shooter, relying on tips given to them by their sixth-grade science teacher at the middle school.
Then four of the students shifted perspective, wondering what they would do if they were the active shooter themselves. The four students were all regular participants in the wildly popular video game, Fortnite, which is seemingly played by a majority of the boys in Barrington, starting in their elementary years. Fortnite players use pistols and machine guns, as well as grenades, and according to E. Doe, one of the four students said he would use Fortnite-like grenades if he was the shooter.
“E. Doe” didn’t particularly enjoy this new topic and contributed minimally to the conversation, without offering any of his own tactical ideas, before turning to a different friend to discuss the basketball season. As far as he knew, that was the end of that conversation.
Later, when asked about that discussion between students, E. Doe said: “I don’t know. It was not to be taken literally. It was just a conversation they brought up, and it probably wasn’t the best thing to have been talking about considering the events; but it wasn’t as though they were planning a literal shooting to come into the school and hurt people.”
Talking about school shootings
E. Doe and the other students sitting at the same lunch table that day were not the only people in the school district talking about school shootings. At that time, students at Barrington High School were planning to participate in a nationwide student walk-out in protest of the school shootings. And at the middle school and high school, officials planned alternative events inside the building that focused on school shootings.
Middle school students — sixth-, seventh-, and eighth-graders — were invited to attend a school-sanctioned event that focused on the Parkland shootings.
“Today, students were provided with an opportunity to have their voices heard either through writing to elected officials, creating peace and kindness posters which now are being displayed throughout our building, an opportunity to sit quietly with their thoughts, or simply not participate at all and work on their academics,” stated an email from middle school Principal Dr. Andrew Anderson that was sent to parents on March 14, 2018. “Teacher and student representatives also devised a plan for students to meet together in unity to remember those lives that were lost at Marjory Stoneman Douglas High School in Parkland, Fla. due to the tragic school shooting.”
A girl hears them
But details of the lunchroom conversation on Feb. 28 left one student concerned. After school that day, the girl told her parents that “a group of boys” had been talking about “bombs and shooting up the school.” Her parents called the Barrington Police Department’s anonymous tip line, and an investigation swiftly began.
Detectives contacted Superintendent of Schools Michael Messore, and at 10 p.m., officers visited the home of the only boy who had been identified by name. That boy identified the six other students involved in the lunchroom conversation, and police began visiting more homes.
At 10:45 p.m., they knocked on the door of E. Doe’s home. They questioned the boy and his parents inside their home.
At the conclusion of their interviews, Barrington police officers said all the boys had similar versions of the conversation, and they felt there was no imminent threat. Nonetheless, the investigation continued the next morning.
The investigation continues
On Feb. 29, Dr. Anderson was delayed getting to school because of a family situation, so he briefed then-Assistant Principal Erika Bulk. One of the first things Ms. Bulk did that morning was talk to E. Doe’s mother, who had called to find out more about the investigation and situation at school.
Ms. Bulk told the mother that the boys’ lockers and backpacks would be searched and the students would be called in and questioned by school officials. In her testimony before the commissioner’s office, Ms. Doe said that the assistant principal specifically told her “there would be some police officers there but they were not allowed to talk to the children,” and that “it would be quick” and Ms. Doe “should really have no concerns.”
With several police cars at the school and people wondering what was going on, the principal eventually issued a statement to the middle school community. In an email, Dr. Anderson wrote: “It was quickly determined that there was no threat to our learning community or environment. Out of precaution, we did have a police presence this morning during morning arrival.”
Throughout that morning, all seven students who had been at the lunch table were called into the middle school principal’s office and interviewed individually for 20 to 30 minutes each. Notably, E. Doe testified that the students were called over the intercom system. The adults testified that the students were brought to the office individually.
In the interview room were Dr. Anderson, Ms. Bulk, and then-Barrington Police School Resource Officer Josh Melo. E. Doe testified that Officer Melo was stationed near the door, as if blocking it, which he found “intimidating,” during part of his interview. The adults in the room had a different version, stating that the officer was seated throughout the session.
Officer Melo did not participate in the questioning and told E. Doe he was there only in his capacity as only a resource officer, not a police officer. He also told the students that there were no criminal charges pending or even contemplated. He also emphasized to each student that “everybody makes mistakes” and they should learn from them.
All three adults concluded that the students’ stories were consistent, that E. Doe did not contribute substantially to the “if I were the shooter” conversation, and that the students represented no real threat to the school.
A risk assessment
Following the interviews, a licensed social worker at the school also interviewed E. Doe and completed a “risk screening documentation form.” E. Doe’s parents were not told about this, though the social worker indicated that she believed they had been informed. On the form, the social worker indicated the assessment was for “At Risk Behavior,” specifically “Homicidal Ideation/Behavior.” At the end, she concluded that E. Doe did not pose imminent danger to himself or others, but the assessment went into the student’s school file.
In his ruling last January, Department of Education hearing officer Anthony F. Cottone, Esq. noted that Ms. Bulk and Dr. Anderson both considered E. Doe a “good student with no disciplinary record.” In testimony, Dr. Anderson said that all four of the suspended students were “respectful boys,” adding that “they are really great. They are great boys … Students tend to look, you know, towards them.”
School officials and police investigators all came to the same conclusion: none of the four students posed a threat.
Suspensions and detention
Despite the conclusion that the boys did not pose any threat and that no criminal charges were even contemplated, Dr. Anderson still imposed a three-day, out of school suspension upon E. Doe and the three other boys who had briefly speculated in the school cafeteria about being a shooter. Following his meeting with the social worker, at about 1:30 p.m., E. Doe’s mother was called and told to come to school and take him home. The suspensions began the next day.
Ms. Doe asked the assistant principal if the suspension was related to a violation of school policy. She was told it was. She then asked for a copy of the policy that was violated. That was on Feb. 29.
Two and a half months later, the family received a letter from Ms. Bulk, dated May 16, stating that the March 1 suspension was because E. Doe was found to be in violation of the school policy, “Threat/Intimidation.” However, there is no such section in the middle school student handbook.
Eight months after the suspensions, when the hearing was held before Mr. Cottone and the Department of Education, the parents had still not received a copy of a policy that was violated.
Questioned during the Oct. 29 hearing about the reason for the suspension, Dr. Anderson said it was because E. Doe violated the “Safety” section of the handbook. This section prohibits students from “engaging in or threatening to engage in behavior which would cause physical or emotional harm; fighting, running, throwing articles, shoving, rowdyism and roughhousing.”
Appeal to the district
As soon as E. Doe’s parents had the official notification of their son’s suspension, as described in the May 16 letter from the assistant principal, they appealed to the commissioner’s office.
Ms. Lombardo, the attorney representing E. Doe, said the boy was an ideal student who did not deserve the punishment.
“He has never ever been in trouble,” said Ms. Lombardo. “He’s a straight A student. He plays sports. His family has long been in the community … He has never ever, ever been in trouble before.”
The family requested the suspension be expunged from E. Doe’s student record.
Their appeal was heard by Mr. Messore, Dr. Anderson, Ms. Bulk and an attorney. Their appeal was rejected.
E. Doe and his family then appealed directly to the Commissioner of Education’s office, which conducted a hearing Oct. 29.
The principal explains discipline
During that Oct. 29 hearing, Dr. Anderson was asked to explain the rationale behind the out-of-school suspension. He replied, in part: “…first and foremost, looking at what, what actually, what occurred. And then, you know, in this case, it was a conversation as if they were being active shooters and that, how it was brought to our attention was through the anonymous tip line, so someone in the community was pretty, you know, concern that a conversation such as this — so, we have to look at what was said and how does it impact our overall learning community, and we felt that those words and those actions, you know, did have an impact on our community. So, we felt that ... the consequences would be appropriate. So, we, you know, use our handbook as our first and foremost guide as typical consequences.”
Ms. Bulk also offered testimony. She explained: “I think what it came down to, when [the Principal] and I talked about it, is that someone in our school overheard them talking about that; and it was brought to the police matter because that person was not feeling safe at her school. And we kind of went with the thing like that’s our number one goal is to keep everyone safe at school; and if one student heard it in the cafeteria — we have up to 250 kids, 260 kids in the cafeteria, so maybe other kids heard it, and you know, I feel like you can never be too cautious with that, and that we really needed to look at that because, unfortunately, in today’s society, it’s not uncommon.”
In addition to suspending the four students who talked about being a Fortnite-like intruder, Dr. Anderson gave three days of detention to the other three students who were sitting at the lunch table during that part of the conversation.
The state decision
After considering the evidence, the state hearing officer, Mr. Cottone, ruled on three separate areas of the appeal in a decision dated Jan. 4, 2019. First was the decision to suspend the students.
The family argued that E. Doe “never threatened anyone, nor did he ever mention harming the school or anyone in it in any way.” In contrast, the school district argued that E. Doe’s speech was “violent” and “threatening” and that school officials should be afforded discretion when imposing discipline.
Mr. Cottone decided that the school suspension violated state law, specifically the Rhode Island “Safe Schools Act.” This law was written to discourage out of school suspensions, as research shows they are damaging to students, unless the student “represents a demonstrable threat to students, teachers or administrators.” The law goes on to describe a “disruptive student” as one who “exhibits persistent conduct which substantially impedes the ability of other students to learn” and … “has failed to respond to corrective and rehabilitative measures presented by staff, teachers or administrators.”
Wrote Mr. Cottone, “The facts make clear that E. Doe was neither a ‘disruptive student’ nor posed a demonstrable threat.” He ordered that any record of the three-day suspension be removed from his record.
No basis in the handbook
Secondly, Mr. Cottone ruled on the nature of the violation, as the district attempted to cite in its student handbook. He began by stating that the charges brought by the middle school administrators “were both inconsistent and bore slight resemblance to the actual facts.”
He further stated: “The fact that an unidentified parent of an unidentified BMS student decided, on the basis of unidentified hearsay report from his or her child, to make an anonymous report to the Barrington Police Department, is not evidence that E. Doe actually engaged, or threatened to engage, in either: (a) the defined ‘Disruptive Behavior’; or (b) other behavior which would cause ‘physical or emotional harm’ and thus constitute a Safety violation. In short, the prohibition of certain specific conduct described in the Student Handbook was converted by school officials into an open-ended prohibition against doing or saying anything that might make anyone in the school community — even someone who remained anonymous — feel unsafe, for whatever reason. And none of the factually dissimilar cases cited by Barrington — which all involved acts that were reasonably construed as precursors to violence — supports the disciplinary action taken here, where the school officials knew from the outset that there was no safety threat and stated as much in an e-mail.”
Finally, Mr. Cottone offered feedback on the nature of the investigation, where E. Doe was questioned in the presence of a police officer, and by the social worker.
Rhode Island law dictates that “before making an elementary school pupil [which includes middle school students] available to a law enforcement officer for the purpose of being questioned, the principal of the elementary school, or his or her designee, shall take immediate steps to obtain the oral consent of the parent or guardian of the pupil to permit the questioning.”
Mr. Cottone wrote: “Even if E. Doe was not actually questioned by the BHS Resource Officer, it is undisputed that the Officer was present and participated to some degree in the questioning.” He said the principal should have obtained consent from E. Doe’s parents (and presumably all of the students’ parents) before conducting interviews with Officer Melo.
Regarding the “risk screening,” Mr. Cottone decided that the school district did not violate the student’s rights, but “In any event, as a practical matter, there was no evidence suggesting that there was any need to have E. Doe engage in the risk screening process because there was no evidence that he posed ‘any potential risk of safety to a student or the school.’… And there certainly is no reason to maintain a document in E. Doe’s record suggesting that he was ‘At Risk’ for ‘Homicidal Ideation/Behavior.’ ”
Representing the commissioner’s office, Mr. Cottone ordered that the school suspension be expunged and that all documents relating to the suspension be removed from the student’s record. Further, in his decision, Mr. Cottone noted that “although the issue is not before the Commissioner and all the relevant facts may not have been presented, it at least appears that no discipline should have been imposed upon the other six (6) students. Hopefully, if there are no aggravating factors, the Superintendent will provide the same relief to these six (6) students as the Commissioner has ordered with respect to E. Doe.”
RIDE decision appealed
The commissioner’s ruling was issued in January. Shortly after, the Barrington School Committee challenged the decision to the Council on Elementary and Secondary Education. In her written brief before the appeal was heard on July 16 of this year, Ms. Lombardo, attorney for E. Doe and his family, stated: “The School Department could not produce a single piece of evidence during the lengthy disciplinary appeal hearing of [E. Doe], showing that he had made a threatening or intimidating statement. Likewise, they could not produce a single piece of evidence that anything he said, made anyone who overheard feel threatened or intimidated. In addition, every piece of information that was collected in the school’s investigation of [E. Doe] was acquired in violation of state or federal law.”
The Council, in a decision signed on Aug. 20 by Barbara Cottam, chairwoman of the Rhode Island Board of Education, and Amy Beretta, chairwoman of the Appeals Committee, ruled that the Commissioner of Education’s judgment was valid on all counts, adding “The Commissioner correctly held that the Barrington School Committee violated the basic tenants of due process.”
School committee’s response
Despite losing twice, the Barrington School Committee took the next step in the case by voting to file suit in Rhode Island Superior Court. The committee discussed the case in closed-door session before voting 4-1 to file the appeal. Patrick McCrann cast the dissenting vote.
In the suit filed on Oct. 10, the committee reiterates the facts of the case, before arguing that the Council’s decision should be reversed because it is in violation of constitutional or statutory provisions; it exceeds the authority of the Council; it was made upon unlawful procedure; it was affected by other error of law; it was clearly erroneous; and it was “arbitrary, capricious and characterized by an abuse of discretion, or a clearly unwarranted exercise of discretion.”
The school committee offered no further arguments and asked the court to overturn the education department’s ruling and award the school district its costs, including attorney fees, for this case.
Less than a day after news broke last week that the Barrington School Committee was suing one of its own students, the board responded with a lengthy written statement for the public.
In it, the school committee argues that: “The Commissioner held, in effect, that school districts may not impose an out of school suspension on any student for a threat made in school unless that threat amounts to a ‘true threat’ within the meaning of the criminal law … This is neither the law nor common sense.”
The school committee contends that there is well-established constitutional law that permits schools to impose consequences (including out-of-school suspensions) on students whose speech disrupts the school environment.
“Here, the conversation by E. Doe and friends so frightened another student in the cafeteria that it prompted late night interventions by Barrington Police Department officers at the students’ homes and a police presence to conduct a search of school property the following morning,” stated the committee’s release.
“At no time did the (School) Committee claim that E. Doe was a ‘disruptive student.’ Yet there can be no dispute that E. Doe’s conversation with the three others caused a powerful – and undeniably – material and substantial disruption to the school and collided with the right of at least one other student to feel safe.”
The Barrington School Committee’s statement challenged the RIDE Commissioner’s ruling that called for E. Doe’s record to be expunged.
“This part of the decision not only directly undermines public safety but runs contrary to the state mandate which requires that school committees adopt and implement written policies establishing threat assessment teams, comprised of persons with expertise, who shall be tasked with conducting assessments to ensure that students such as E. Doe are truly ‘just kidding,’ ” it stated.
Going after legal fees
As for the school committee’s decision to seek legal fees, the statement also offers an explanation:
“The request for legal fees is a standard request in court filings, and to the extent the reviewing court were to award such fees, the Committee would seek them from Council and not E. Doe or E. Doe’s parents,” stated the release. “In the Committee’s view, it is the Council, a state body, which has endorsed a mistaken decision that compromises school safety and security through the State.
“E. Doe is joined as a party under the state procedural law because the student has an interest in the litigation and a right to participate in it. The Committee’s purpose in filing the appeal, however, is in no way to discourage challenges to discipline but rather to advance a point of view and public interest different from that advanced by the ACLU. That is the nature of free and open discussion on controversial topics, a point made not without irony.”
Did the school committee know?
It is not clear whether members of the Barrington School Committee expected E. Doe to be named in the Superior Court lawsuit. When the Barrington Times reached out to Barrington School Committee Chairwoman Dr. Megan Douglas for comments on the situation, Dr. Douglas wrote in an email that the committee was not filing a lawsuit against a student. She wrote that the committee was instead appealing the decision by the RIDE Commissioner and the Council on Elementary and Secondary Education.
However, the lawsuit filed on Oct. 10 specifically lists “Barrington School Committee” as the plaintiff, and the “Council on Elementary and Secondary Education, and Student E. Doe by and through Parent” as the defendants.
The Barrington Times has submitted a formal request to the superintendent for the amount of money the school committee is suing for. As of Tuesday morning, Nov. 5, the superintendent had not provided the information.
Ms. Lombardo said E. Doe’s family was surprised when she told them about the school department’s latest maneuver. In the beginning, she initially told E. Doe and his family that she believed the two sides would be able to work it all out.
“They just wanted the three-day suspension expunged,” she said.
“I did not think this would turn out to be such a drawn out battle with the school committee.”
A weak case?
Ms. Lombardo said during her early meetings with the schools’ attorneys, she began wondering if the district had a different story about the events of Feb. 28, 2018, something that she was not aware of. But when the parties arrived for the hearing … “They had nothing. If you read the transcript, it’s shocking.”
When asked why she believed the school committee was continuing to pursue the case, Ms. Lombardo said she has no idea.
“I wish I could tell you,” she added.
Mr. Messore has said that the case could set a precedent, potentially hindering school districts from conducting risk assessments or imposing disciplinary actions for threatening behavior.
Ms. Lombardo’s response: “I don’t know anyone who is concerned that this could create any kind of a precedent … That’s ridiculous.”
Furthermore, the Council on Elementary and Secondary Education included language in its decision that would seem to support Barrington and other school districts from being hampered by a precedent. In their closing remarks, Ms. Cottam and Beretta wrote: “We do note the many fact specific findings required to reach this conclusion, and accordingly the limited precedential value of this decision in other matters.”
Sarah Rapport, an attorney with the firm Whelan, Corrente & Flanders, is representing the Barrington School Committee. The Barrington Times called Whelan, Corrente & Flanders and left a message for Ms. Rapport. She did not return the call.
When asked if she would speak about the case, Dr. Douglas said the committee had already released its statement.
— With reporting by Kristen Ray
DOCUMENTS RELATING TO THIS CASE: