Request By:
Honorable John J. Slattery, Jr.
General Counsel
Kentucky Education Association
101 W. Walnut Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Assistant Attorney General
This is in response to your letter requesting this office to consider several matters concerning bomb threats received by telephone at public schools in the state. You provided us with a typical factual situation on this matter as follows: "A call is received at the office of a school. The caller warns that a bomb is hidden in the school and that it is set to go off at a specific time. Following established procedures, the principal or other school official orders the school to be evacuated and local fire or law enforcement officials are notified." You further state that it has come to your attention that although the school building has not been duly searched and declared to be safe after the school has received a threat that a bomb has been hidden in the school, the teachers and children are ordered back into the school building. You further noted that there have been cases where teachers have been ordered to search for bombs, explosive devices or any unusual objects. You submitted the following questions for our opinion.
1. Must a teacher obey an order to search his or her room or other area of the school for a bomb or explosive device?
2. Would a teacher be "insubordinate" and subject to dismissal because he or she refused to obey an order to search for a bomb or other explosive device?
3. May a teacher properly refuse to enter a school building or to take her students back into the building if it has not been inspected and declared to be safe by appropriate officials?
Before directly responding to your questions we acknowledge the seriousness of the situation you have described. Unfortunately in recent years there has been a significant increase in the number of telephone calls to various schools with the caller warning a bomb has been placed in the school. The acts associated with a bomb threat constitute a criminal misdemeanor. KRS 508.080. Terroristic threatening is a Class A misdemeanor and in part provides:
"(1) A person is guilty of terroristic threatening when:
(b) He intentionally makes false statements for the purpose of causing evacuation of a building, place of assembly, or facility of public transportation."
The commentary to this section states:
"Threats which are in the form of false statements made for the purpose of causing general alarm and the evacuation of public facilities are the subject matter of the second part of this provision. An example of the type of conduct which it seeks to control is a false report of a bomb in a school or airplane."
Prosecution to the zenith of the law of those charged with this offense is encouraged by this office.
Several sections of our school law should be considered in regard to your questions. KRS 160.290 spells out the general powers and duties of a local board of education. Each board of education has the power to adopt rules and regulations and by specific language in this statute is to prescribe the duties of the employees of the board. KRS 160.290(1). This same responsibility is provided for in KRS 161.140, which states:
"Each board of education shall prescribe the duties to be performed by all persons in public school service in the district."
In previous opinions of this office we have concluded that a teacher may be assigned certain noninstructional duties but that said duties are not to be unreasonable. For example, in OAG 74-241, copy attached, we stated that "teachers should only be ordered by their superiors to perform such duties as may reasonably be defined as 'teaching duties.'" In that opinion we stated that a teacher or teacher's aide may not be required by her supervisor to give a first grader a daily or weekly bath. In OAG 74-835, copy attached, we commented that "activities which revolve around the operation of the usual school day, such as loading school buses, may be required of a teacher. "
We have also noted that one of the very basic duties of a teacher is the supervision of pupils. This responsibility is addressed in KRS 161.180(1) as follows:
"Each teacher in the public schools shall hold pupils to a strict account for their conduct in school, on the way to and from school, on the playgrounds, in the lunchrooms and cafeterias, and during intermission or recess."
We wrote in OAG 75-656, copy attached, that rules and regulations of school administrators cannot be such as to affect the legal responsibility of the teacher for the supervision of the children in the teacher's classroom. We stated:
"It is the duty of a teacher in the public schools to exercise proper supervision over pupils in his charge and to exercise reasonable care to prevent injury to them. 78 C.J.S. Schools and School Districts § 237(b). A teacher in the public schools is liable for injury to pupils in his charge caused by his negligence or failure to exercise reasonable care. Id. § 238(c). See also OAG 74-883 attached hereto for your convenience. The teacher stands in loco parentis, i.e., in the place of the parent, to the pupils who are in his care. A teacher is required to exercise the same degree of care for the pupils in his charge that a reasonable and prudent person would exercise in like circumstances. The standard of care owed to pupils by a teacher is that standard of care which a parent of ordinary prudence would observe in comparable circumstances. L. Peterson, R. Rossmiller and M. Volz, The Law and Public School Operation, p. 316 (1969)."
In summary in that opinion we stated that "a teacher may be held liable for the failure to exercise reasonable care to prevent injury to a student and this legal responsibility of a teacher for his students cannot be diminished by a written statement or policy that is against common sense and the accepted standard for the safety of the student."
In response to your first question, then, we do not believe that a teacher must obey an order to search his or her room or other area of the school for a bomb or explosive device. While a teacher may properly be assigned certain duties prompted by a bomb threat, such as instructing the pupils regarding their behavior, we are of the opinion that an order by a superior directing a teacher to search for a bomb or other life-threatening device is not supported by any authority under the law and would therefore be an invalid assignment.
Our position on your second question may be sensed from our response to the question first answered above. An act of insubordination justifying dismissal contemplates an act of unjustified refusal to carry out an assignment or rules promulgated by school authorities. Dismissal charges against a teacher could not, we believe, be successfully based on refusal of a teacher to comply with unreasonable or dangerous assignments.
The Supreme Court of California, in Abraham v. Sims, 42 P.2d 1029, 1036 (1935), said in its opinion, quoting from another case:
"For the refusal on the part of the teacher to comply with . . . unreasonable or dangerous assignments, the board would have no legal authority to prefer charges against the teacher and deprive her of her lawful status as a permanent teacher. "
We believe unquestionably that an order requesting a teacher to search for a bomb or other such device is both unreasonable and dangerous and to refuse to obey such an order is not insubordination. See KRS 161.790(1)(a).
As to your third question, we can only say that a teacher must exercise sound judgment at all times. Again note our discussion of the legal liability of a teacher in OAG 75-656, supra. For the safety and well-being of all persons affected by a bomb threat at a school we believe every effort should be expended so as to assure the safety of a building before a continuation of normal activity in the building is commenced. Advice from law enforcement officials or other public officials that normal activities may be resumed would seem to be the very least required.