Request By:
Hon. John C. Fogle, III
121 Bridge Street
Frankfort, KY 40601
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Lynne Schroering, Assistant Attorney General, (502) 564-7600
As legal counsel for the Lee County Board of Education, you have asked our office two questions regarding school officials' responsibility upon discovery of a student possessing alcohol or drugs on school property.
1. Must a local school district, through its officials, report all incidents of student possession of alcohol or drugs to appropriate local law enforcement officials (e.g., the County Attorney) every time such local school officials become aware of the student possession of contraband in the course of implementing and enforcing school disciplinary policies?
There is no Kentucky statute requiring that school officials report a student's possession of alcohol or drugs to law enforcement agencies. However, school officials may report the incident to law authorities. Additionally, parents may refer their child to the county attorney for appropriate juvenile sanctions irrespective of how the matter is handled by the local school officials.
Kentucky case law indicates that the General Assembly has not designated any special duty on behalf of school officials to report incidents of alcohol or drug possession on school property. In Rone v. Daviess County Board of Education, Ky. App., 655 S.W.2d 28, 31 (1983), the court held that school officials had reasonable suspicion to search a student who admitted he had marijuana which he passed to another student. The school officials conducted their investigation on school property and the incident was not reported to the local authorities. The court stated that the school officials "are to be commended in their attempt to prevent the appellant from entering the criminal justice system." Id. p. 31. The court favorably cited the trial court's opinion that "[t]he matter could have been turned over to the legal authorities for investigation and appropriate action. Surely neither Brad nor his mother would have wanted that. Once caught up in the criminal justice system, too many youngsters seem never to escape it." Id.
In summary, school officials are not mandatorily required under Kentucky Law to report a student's possession of drugs or alcohol on school property to a law enforcement agency.
2. How may local school officials properly dispose of contraband coming into their possession through enforcement of student disciplinary policies when no juvenile prosecution or outside law enforcement agency action is contemplated?
We have been unable to locate any statutes or regulations governing how school officials may dispose of drugs or alcohol coming into their possession through enforcement of their student disciplinary policies. Obviously, if law enforcement action or juvenile prosecution is contemplated the alcohol or drugs must be tendered to the appropriate law enforcement authority.
As the discovery of a student possessing drugs or alcohol on school property is a concern for school officials, we believe that a school district should address the following issues regarding destruction of drugs or alcohol.
1. There should be a system or manner to determine that an alleged substance or drug is in fact that which it is alleged to be. This could be accomplished through or by a school official or employee, by the parent or guardian, or by an independent source such as a local pharmacist.
2. There should be some manner of marking identification and "chain of evidence" in order to assure that the parents or guardians actually see the substance or drug.
3. Any destruction of a substance or drug should be specifically ordered by the school superintendent or some accountable school official to whom such authority is delegated by the superintendent.
4. Any destruction should be carried out by specific methods in the presence of no less than three accountable school personnel. Destruction may be by disposal in a commode, incinerator, or other appropriate method.
As an alternative, school officials may contact the Department of Health Services, Cabinet for Human Resources, Drug Control Unit, Frankfort, Kentucky regarding destruction of the substance.
5. The school may want to retain any drugs confiscated for a reasonable and specific period of time in case the parents or guardian opt to involve the criminal justice system. If the drugs are retained for a specific length of time, the drugs should be kept at the central administrative offices in a safe or other tamper resistant location. At the expiration of the time period, the school may destroy the contraband using the procedures described above.