Definition of Terroristic Threat

In the past two months, our office has received an astounding number of calls related to threats by students against the school or other students. Several of these threats have been characterized as “terroristic threats.” A terroristic threat is defined in section 22.07 of the Texas Penal Code and occurs when:

A person threatens to commit any offense involving violence to any person or property with intent to:

  1. Cause a reaction of any type to his/her threat by an official or volunteer agency organized to deal with emergencies;
  2. Place any person in fear of imminent serious bodily injury;
  3. Prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place;
  4. Cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;
  5. Place the public or a substantial group of the public in fear or serious bodily injury; or
  6. Influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

The criminal penalties for engaging in conduct that constitutes a terroristic threat range from a Class B misdemeanor to a third-degree felony. The definition provided in the Texas Penal Code is a lengthy and often difficult for school administrators to interpret and apply within the context of the school environment. The interpretation of the definition is made easier when the police department is notified and the student is charged with the criminal offense of terroristic threat. Please note, in the event of a terroristic threat, the principal or the principal’s designee is required by law to notify law enforcement of the threat. Tex. Educ. Code § 37.015. However, a school district may not have the ability to wait for charges to be issued or an arrest to be made by the police department

Therefore, when an administrator is reviewing a threat to determine if it constitutes a threat, the key analysis bears on the effect the threat had on the school environment. In order to assist in the analysis, the principal or his/her designee should consider the following questions:

  1. Did the threat by the student cause any person or groups of persons to be in fear of serious bodily injury?
  2. Was the school district required to change plans for the school day, issue a lockdown, cancel activities, evacuate a building, or refrain from using a certain portion of a building due to the threat?

If the District can answer yes to one of the two questions above, then the student’s conduct likely constitutes a terroristic threat. Be cautious, these answers should not be speculative, but supported by statements by those placed in fear, documentation of the change in schedule, or other disruption.

Consequences for terroristic threat – No zero tolerance

The other complication with the determination that a student has engaged in conduct that constitutes a terroristic threat is that there are two different options for consequences pursuant to the Texas Education Code (“TEC”):

  1. Mandatory placement in the disciplinary alternative education program (“DAEP”); or
  2. Discretionary expulsion. Tex. Educ. Code § 37.006, .007.

While the placement in the DAEP setting is classified as “mandatory,” the classification of a mandatory offense is misleading. The Texas legislature has done away with the old zero tolerance model of discipline and now requires a school district to consider the following mitigating factors:

  1. Whether the student acted in self-defense;
  2. The intent or lack of intent at the time the student engaged in the conduct;
  3. The student’s disciplinary history; and
  4. Whether the student has a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct. Tex. Educ. Code § 37.009.

Even if a student has engaged in the conduct, a disciplinary removal may not go forward if the mitigating factors dictate that the discipline should not occur or may affect the length of the placement. Another consideration in the disciplinary placement of a student is to be consistent with your practices to the extent it is possible.

Also, keep in mind that DAEP placements are final and not appealable when affirmed by the Board of Trustees or designee, but an expulsion can be appealed to a court. Tex. Educ. Code § 37.009(a).

Disclosure of Confidential Student Information

One of the most difficult issues in dealing with a threat against students or the school is that a school district is limited in the amount of information a district can disclose in accordance with the Family Educational Rights and Privacy Act (“FERPA”). 20 U.S.C. §1232g. A school district cannot release personally identifiable student information in the absence of an applicable exception under FERPA.

While there is a health or safety emergency exception to FERPA, the exception is only applicable in limited circumstances, when a school district determines that there is an articulable and significant threat to the health or safety of a student or other individuals and the information is required to protect the health or safety of other individuals. 34 C.F.R. § 99.36.  In the aftermath of a threat, barring extraordinary circumstances, the health or safety exception likely is not applicable because there is no articulable, ongoing threat.

Therefore, be cautious, after a threat, that no personally identifiable information of the student that engaged in the threatening conduct is released unless an exception under FERPA is applicable.

Special Education and Section 504

The Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act of 1973 also require procedural safeguards be provided to students with a disability, including but not limited to a Manifestation, Determination, Review. In Part III of the School Safety Series, special education, section 504, and threat assessments will be explored in more detail.

Read Part 1 Here

Prepared by the offices of Richard Abernathy, this article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s institution. For circumstance-specific legal advice, please directly contact a licensed attorney.