Two federal laws govern firearms in schools: the Guns Free School Zone Act (GFSZA), which prohibits the possession of a gun within a school, on school property or within 1,000 feet of the school grounds; and the Guns Free School Act (GFSA), which requires that school districts take a zero-tolerance policy and expel students for a minimum of one year if they are found to have possessed a gun on school property.
Are there some specific exceptions to the federal prohibitions on guns?
Yes, as follows:
- State law allows possession of the firearm;
- The firearm is unloaded and locked in a container, firearms rack or motor vehicle;
- The firearm is possessed for use in a program approved by the school;
- The firearm is possessed by an individual pursuant to a contract between the school and the individual; or
- The firearm is possessed by a law enforcement officer acting in his/her official capacity.
What does Oregon law say about permitting concealed weapons in K-12 schools?
Under ORS 166.370, when certain conditions exist (such as obtaining a concealed weapons permit), an individual is allowed to carry and conceal a firearm, including in public facilities such as schools.
Are there exceptions?
Yes. Oregon courts have upheld the right of employers to set reasonable work rules, including those surrounding the carrying of weapons in the workplace, regardless of possession of a concealed handgun license (Doe v. Medford School District 549C, 232 Or. App. 38 (2009)).
How do laws apply to students and guns?
State law (ORS 339.250) says that students are prohibited from bringing a firearm to school. If a student is found to have brought a firearm to school, he/she is subject to a one-year expulsion. The superintendent is allowed to review each situation on a case-by-case basis and make an exception to the mandatory expulsion requirement. A student may seek enrollment in another K-12 program, but admission is at the district’s discretion.
How do schools sort out the various state and federal laws?
Keep the following in mind:
- Students are prohibited from carrying and/or possessing firearms while on school property, and face at least a one-year suspension if found to have a firearm while at school.
- Members of the general public who are legally authorized to carry a concealed weapon are allowed to carry their firearm while on school property.
- School districts and education service districts (ESDs) can establish work rules and/or policies prohibiting the carrying of firearms while employees and volunteers are at work.
In light of recent tragedies, what are the policy implications for schools to keep students and staff safe?
Thus far, Oregon courts have upheld school districts’ right to prohibit employees’ possession of firearms while on school property, regardless of them possessing a concealed handgun license. In Doe v. Medford School District 549C, the court upheld the following policy:
"Employees, district contractors and/or their employees and district volunteers shall not possess a dangerous or deadly weapon or firearm on district property or at school- sponsored events. This prohibition includes those who may otherwise be permitted by law to carry such weapons.
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"Employees in violation of this policy will be subject to discipline up to and including dismissal. Individuals contracting with the district and volunteers will be subject to appropriate sanctions. A referral to law enforcement may be made."
The court’s decision rested on the fact that the policy only applied to district employees and did not attempt to restrict the otherwise lawful possession of weapons by school visitors. Policies that attempt to further restrict firearms on school grounds could be subject to court challenges.
What should districts weigh in considering whether to arm staff or otherwise increase the presence of weapons in schools in attempting to protect students?
This conversation includes a number of considerations school boards and administrators should consider to make an informed decision that both maximizes student safety and minimizes district risk and liability.
For members of the Property and Casualty Coverage for Education (PACE) insurance pool, a school district’s employees, board members and volunteers are all covered when acting within the course and scope of their duties. In the event a district’s armed security staff uses a firearm against a student or other party, resulting in a lawsuit, district coverage will be provided based on the following language:
Additional Coverage H:
Corporal Punishment - This coverage document will provide bodily injury coverage for damages arising out of corporal punishment. Corporal punishment means the use of reasonable force to protect persons or property or, with respect to the named participant’s law enforcement activities or the named participant’s departmentally-approved law enforcement activities of others, to an act of the participant (unless deemed to be a criminal act) within the arrest or incarceration process.
Some key coverage terms are important to recognize. First is “course and scope of their duties.” For coverage to apply, the act must be within the job duties of the person committing the act. For example, if a school security guard uses a weapon in self-defense, according to established district policies, then there will most likely be coverage. But if the individual uses a weapon for something that is clearly not authorized, or part of his or her job duties, then coverage may not apply. Another key term is “reasonable force.” If a firearm is intentionally discharged by a security officer, when it is clear that other less lethal options are obviously available and reasonable, then it is possible coverage would not apply. The determination of whether the use of force is reasonable would be decided during legal proceedings.
In determining whether there was negligence on the part of the administration and board, some questions to be addressed are: How well are the security officers screened, trained and supervised? What policies and procedures are in place to guide their activities? If the district does not have the administrative staff necessary to adequately supervise and ensure that its security officer employees are kept current on required training and other legal duties, there is a likelihood the administration and/or board members bear some of the responsibility.
One of the best ways to reduce risk is to transfer that risk to another party, either through the purchase of insurance or contractually. Most districts have transferred much of their financial risk to PACE through the purchase of insurance. In addition, districts can contractually transfer their risk related to law enforcement liability to either a city or county law enforcement agency, by contracting for security services. But financial risk is not the only consideration. When there is an allegation of negligence involving school security, the media are often involved, and a great deal of community conflict can develop. A good example is an alleged sexual abuse incident at McMinnville School District several years ago. The school resource officer (SRO), who was a contracted city of McMinnville police officer, arrested two middle school students for alleged acts of sexual abuse. The incident quickly escalated in the media. Attorneys for the arrested students filed suit against the city and county but not against the school district. If the security officer had been a district employee, then it would likely have faced further media exposure and costly litigation.
As far as arming staff, what should districts consider in terms of managing risks?
Before making a final decision to allow identified staff members to carry weapons in schools, instead of contracting with a law enforcement agency for security, these issues and questions should be weighed:
Identify the applicable Oregon Occupational Safety and Health Administration (OR-OSHA) requirements such as hearing conservation and training obligations.
Talk with the district’s workers’ compensation carrier to determine whether there will be a resulting change in the district’s insurance rating for staff being assigned to carry weapons. Discuss what would be a covered claim – injury during cleaning, storing or during training with the weapon? What would be considered course and scope of employment?
Where and how would the guns be stored? Safes? Drawers?
Who will be responsible for providing the weapon and/or ammunition? Who will be responsible for cleaning and maintaining the weapon?
What training (e.g., annual, quarterly, etc.) will be required? Should practice simulations with local law enforcement be included in the district’s training program?
What professional services (e.g., counseling, etc.) are available to staff following an event, including a discussion of possible leave?
How many staff will be required to carry a firearm?
What will be the criteria for determining who will be identified firearm carriers, including qualifications, background checks and certification requirements?
Who will be responsible for making the final decision as to who will be allowed to carry a weapon in school?
Who will be responsible for supervising the staff who are carrying firearms?
Update job descriptions to reflect the change in job duties for positions identified as those required to carry firearms.
Identify alternative staff who will be responsible for supervising students if a supervising staff member has been called away to protect the school.
Potential bargaining impacts for represented employees: Will there be additional pay to compensate for the hazard of being a responder? When would the necessary training occur (during work day or after)? If outside the work day, would there be compensation for the time spent training? Who pays for the cost of the firearm and ammunition? This is not intended to be an all-inclusive list of potential bargaining issues, but rather to provide some examples.
Update policy to address the district’s position on firearms in schools.
Review and update procedures related to facility lock in/lock out/lock down to incorporate any changes to the district’s position on firearms in the school.
Why is it important for the governing board to weigh all these issues before making a decision?
Arming staff is a big step for any district. It’s vital that the board have a discussion about the options related to firearms and student safety, evaluate those choices and make an informed decision on how to proceed. Going through this process will provide some protection if the district is ever challenged legally. Why? Because the district can show that it went through a thoughtful and deliberate process before making its decision.