Colorado's Claire Davis Act waives governmental immunity in school violence

Credible as well as unfounded threats at schools have increased nationwide since the Feb. 14 shooting at a high school in Parkland, Fla.

Awareness is particularly heightened in Colorado, one of a few states that waives governmental immunity on acts of school violence and allows civil lawsuits to be filed.

State lawmakers in 2015 passed the Claire Davis School Safety Act, named for a girl who was killed by a fellow student at Arapahoe High School in 2013.

The law took full effect on July 1, 2017, and permits victims to sue districts for liability if they fail to ensure the safety of students and staff on school property or at district-sponsored events.

School districts are required to prove they used “reasonable care” to prevent “reasonably foreseeable” murders, first-degree assaults or felony sexual assaults.

Penalties of up to $350,000 per victim, or a maximum of $990,000 for multiple incidents can be assessed in the event of serious injuries or deaths from violence and the school is found negligent.

Some say the law is confusing; others think it’s helpful in ensuring school districts are doing all they can to keep kids safe on their property.

“It is not really clear, and it’s somewhat contradictory with other laws,” said Elaine Naleski, who’s been a member of the Colorado Springs School District 11 board of education for six years.

The law has the potential to violate privacy acts, she believes.

“There are all kinds of things you have to look at, including privacy, and we as a board have talked about it being contradictory to privacy laws,” Naleski said.

One issue is schools red flagging students in their personal files as possible problems.

Peter Hilts, chief education officer of Falcon School District 49, said his district is “working to balance new expectations for notifications to parents while still respecting due process and the privacy rights of students.”

Districts have worked to make sure they are in compliance with the new regulations.

“We’ve gone over our discipline and notification policies and how the district reacts to make sure they are up-to-date and adhere to the law,” Naleksi said.

It likely will take a lawsuit before the act becomes more defined, said Grant Schmidt, superintendent of Hanover School District 28, whose board voted in December 2016 to let trained teachers and other staff be armed on school grounds.

“There is some ambiguity, which will only be made clearer as lawsuits start to hit districts, leaving the courts to begin to define through their interpretations in the court rulings,” he said.

Schmidt said his district, in a rural area southeast of Colorado Springs, already had a detailed emergency plan in place, which was honed with trainings and feedback from the Colorado Department of Education.

Dennis Coates, chief of safety and security in Lewis-Palmer School District 38 in Monument, sees the law as broad, with the word “reasonable” open to interpretation.

“Most school districts probably want their roles and responsibilities more clearly defined,” he said.

Allison Cortez, spokeswoman for Academy School District 20, agreed that “reasonably foreseeable” and “preventable” will be defined by case law.

“In some cases, this can create some worry and confusion,” she said.

The good part of the Claire Davis Act, Coates said, is that it made school districts reevaluate their policies and procedures.

For the most part, D-38 already was in compliance, he said and “just added a few additions to existing policies here and there.”

Coates believes the law has good intentions to keep school security a priority.

“With state funding going down and down, it forces districts not to neglect security,” he said.

It’s too early to know if the Claire Davis Act has improved school safety, said Pedro Almeida, chief operations officer for Falcon District 49.

“But we are complying with the law and with our existing commitments to secure our students, staff, and visitors from all kinds of threats,” he said.

The district continually discusses safety and security, said D-49 spokesman David Nancarrow.

“Both are top priorities,” he said. “The board reviews policies regularly to make sure we stay compliant and follow best practices.”

An interim legislative committee on safety in schools that formed out of the Claire Davis Act issued five recommendations for schools. They are: Schools should do climate surveys, have written agreements between districts and local law enforcement agencies about sharing information, staff should know federal privacy laws do not prevent reporting on students about whom staff have safety concerns, districts should use U.S. Secret Service questions in assessing a threat and schools should encourage the use of Safe2Tell, a statewide hotline that fields tips anonymously about problems including threats.