Legislature(1995 - 1996)
04/03/1996 02:23 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HCR 30 - STUDENT RIGHTS Number 077 KRISTY TIBBLES, Legislative Aide, Representative Joe Green read the sponsor statement regarding HCR 30 into the record. "House Concurrent Resolution 30 was introduced to send a strong message to students, parents and schools that education and school safety are top priorities with the 19th Legislature. Education should be the key concern of a parent sending a child to school, yet the issue of safety has surpassed this concern. In 1940, the major problems in public schools identified by teachers were talking out of turn, chewing gum, making noise in the classroom, running in the halls, cutting in line, littering, and disobeying the dress code. Educators now consider the top problems to be assaults by students on teachers and other students, weapons in school, racial or ethnic attacks, gang disruptions, shootings and knifings. While these problems do not occur as often as they do in schools in other states, violence in Alaska schools is increasing. For example, at Bartlett High School in Anchorage a trial policy was enacted to prevent weapons from being brought to school. The policy states that all backpacks, book bags, and large purses must remain in the student's hall lockers from 7:30 a.m. until 2:00 p.m. School should be a safe haven for learning and our students should not be burdened with intimidation and fear of violence. Children are one of the state's most valuable resources for the future economic and social well-being of the state. This resolution declares that our children have a right to be provided with a safe, orderly, and drug free environment in which they can learn, and that they have a right to high academic standards in order to prepare them to meet the challenges they will encounter in the future. The conditions that allow students to become disenfranchised need to be identified and reworked. Parents, teachers, and administrators are taking positive action throughout the state to address these issues and the passage of HCR 30 would demonstrate the full support of the Legislature towards these efforts. With the cooperation of parents, educators, and elected officials, we can all work together to provide our children the quality education they need and deserve." Number 298 THOMAS H. DAHL, Assistant Attorney General, Department of Law testified that they have reviewed HCR 30 and have been in conversation with Representative Green's staff about some of their concerns. Even though this is only a resolution and as such does not have the force of law, the courts have construed resolutions from legislatures as a demonstration of the intent of the state. Their concern is that this catalogue of "rights" which are asserted by the legislature in this resolution and availed to students implies that if these rights are made available to them, a remedy is also available. It's a maxim in the law that every right implies a remedy. The remedy which the Department of Law is concerned about is that the state is setting itself up as a target defendant for students which may have some grievance against a school that might be enumerated in the catalogue of "rights" included in HCR 30. MR. DAHL stated that there is a regulation which exists now under 4 AAC 07.010 through .090 and this regulation deals with the rights and responsibilities of students. It's not nearly as specific as this resolution. Their preference would be to take some of the language included in this existing regulation and if the legislature wants to express it's will to school districts and that they take responsibility to search for ways by which students might attain the goals as set forth quite well in the resolution, they could still do so. He pointed out that there were some clear objectives and goals in the resolution that were noble and need to be honored. The department did not want to denigrate the importance of these goals. Their concern was that the objectives are couched in terms of "rights" that the state confers, albeit obliquely through a resolution, upon students and that this "sets" the state up and possibly school districts up as defendants. Number 536 REPRESENTATIVE JOE GREEN asked if Mr. Dahl had been in contact with the attorney which helped his office draft the bill. The reason he asked this was that it is this attorney's opinion that the resolution doesn't set the state up as a target for litigation, but they are sending a strong message of what they would like to see for schools and their students. Alaska is one of many states that will enact student rights resolutions and to his knowledge none of these states have been taken to court thus far. MR. DAHL said he had not been in contact with their counsel and he has also not seen the written opinion drafted by this same attorney. Number 618 REPRESENTATIVE CYNTHIA TOOHEY thought that a simple solution to this "rights" problem would be to substitute the word "wish" instead of "right." REPRESENTATIVE GREEN felt as though this change would make the resolution so weak that it wouldn't be of any value. He added that if they could resolve the issue of liability exposure, the Department of Law has submitted a recommended alternative to this resolution with very minor alterations. He said he would prefer the resolution as written, but if this resolution does expose the state, he said he'd like to see what the Department suggests. Number 729 MIKE FORD, Attorney, Legislative Legal Counsel stated that he had prepared a written opinion regarding this resolution and the department's position is that liability doesn't flow from the passage of a resolution. He said he couldn't tell them that it isn't possible that a court in the future would use this resolution as some part of it's decision process, certainly this could happen, but to say that there is exposure as a result of this resolution is stretching this point. Liability flows from a number of things, it flows from statute, court decisions which expand the common law, but usually it is based on a reasoned analysis of a number of complex factors. MR. FORD noted that one question which this resolution raises is what rights exactly do students have. Do they have the right to a certain environment? He felt a resolution such as this one did not expose the legislature or the state to any liability. He felt that there was a distinct difference of the process between a resolution being adopted and the adoption of a law. There are reasons for this difference. There is not the three readings requirement for a resolution, it doesn't have to be referred to a committee and it doesn't have to go to the governor. The governor can't veto it. There are another number of formal steps which someone has to go through to adopt a law which does not have to be preformed for a resolution. The legislature passes hundreds of resolutions every year. To say that these are going to trigger an expansion of the law in some direction, while at least in this particular case, it is their opinion that it does not. He understood the concern of the Department of Law and again he couldn't tell them for certain that this resolution wouldn't be a part of some expansion of the law in this direction. Number 865 CHAIRMAN PORTER stated that his first reading of the bill set off a "siren" in his head that while they have passed hundreds of resolutions, this was the first one that he has seen which says, "you citizen have a right," a right which he felt doesn't exist currently. He said he had concerns about the word "right." REPRESENTATIVE GREEN offered that Chairman Porter had read this resolution as imparting a right to a student, rather than a resolution which says the student "should" have this right. This is all resolutions ever do is suggest this is the desire of the legislature to do whatever the resolution says, yet no where in any of the resolutions passed thus far has it imparted or suggested that the legislature is granting this right. A resolution is just a position statement and they have no force in law. Number 965 CHAIRMAN PORTER noted that he agreed with Mr. Ford that this resolution doesn't establish a right as if it were in the constitution, but what they have in the constitution are state obligations now for education and if the legislature passes a resolution it certainly could be used as an indication of legislative intent on how they think the existing constitutional rights should be interpreted. Quite frankly, the right to a drug- free school is an impossible goal in a free society. As much as he would love this to be true, it is an unreachable goal and he didn't want to see a school district or the Department of Education in court trying to defend this position. REPRESENTATIVE GREEN said that this is exactly what this resolution will do, it says that "you as part of this legislation would love to have a drug-free school and to the best of our ability we should try and encourage that. We may never get there, but that doesn't make it not a resolution saying that this is the feeling of the people that are right now manning the Senate and the House of this state." CHAIRMAN PORTER said he wouldn't have any objection saying it that way, but what's written in the resolution is the "right" to these goals. He said he would be relieved if the word "right" was completely taken out of the resolution, but in terms of goals, objectives, etc. that's another thing. Number 1124 REPRESENTATIVE CYNTHIA TOOHEY mentioned an example of a "patient rights" document posted in nursing homes. CHAIRMAN PORTER noted that if they grant the right to a drug-free school this might be interpreted to mean unannounced locker searchers. MR. FORD said that they could speak in terms of goals, say for example, a drug-free school, rather than a right. Number 1200 REPRESENTATIVE GREEN noted that this suggestion ran parallel to the draft of legislation submitted by the Department of Law, which addresses "desires", doing away with the word "right." REPRESENTATIVE CON BUNDE said he favored the insertion of the word responsibilities after the word student on line 2 of the Department of Law's version, since the student's are responsible for a drug free school environment as well. A lengthy discussion regarding changes to this legislation followed. Number 1284 REPRESENTATIVE GREEN proposed changes to the Department of Law's version in the first paragraph as noted in the following amendment as outlined. He said that this language would turn the whole concept of the intent around which refers to student rights by deleting the phrase, "with specific attention to standards of" from the first paragraph and adding the word "including." He suggested also as part of amendment number 1, the adoption of the Department of Law's version of this legislation. Number 1560 REPRESENTATIVE TOOHEY made a motion to adopt amendment number 1 based on Representative Green's suggested change as follows: BE IT RESOLVED that the Alaska State Legislature encourages all school districts in Alaska to develop and adopt operating guidelines and procedures relating to student rights and responsibilities, including student behavior, treatment, and discipline. In developing these operating guidelines and procedures, the school district should consider: (1) ways to maintain schools that are safe, orderly and drug free; (2) ways to develop clear discipline codes with fair and consistently enforced consequences for misbehavior; (3) ways to make resources available to encourage and maintain a physically and mentally healthy lifestyle; (4) ways to create and maintain a learning environment that is free of violent and chronically disruptive behavior; (5) ways to develop and encourage courtesy and mutual respect among students, teachers and staff; (6) ways to create and maintain classrooms with clearly stated and rigorous academic standards; (7) ways to equip and maintain classrooms with all instructional materials needed to carry out a rigorous academic program; (8) ways to employ, nurture, and keep teachers who know their subject matter and how to teach it; (9) ways to create a learning environment in schools and classrooms where high grades stand for high achievement and promotion is earned; (10) ways to create and maintain schools where the award of a high school diploma communicates the perception that the student has the knowledge and skills essential for college or a good job; and (11) ways to generate and maintain the support of parents, the community, public officials, and business in a mutual effort to uphold high standards of conduct and achievement. There being no objection, amendment number 1 was so moved. Number 1615 REPRESENTATIVE BUNDE made a motion to move amendment number 2 which entailed deleting the words "the perception" from clause 10 as noted above and add "and responsibilities" to the title of the resolution after the word "rights." There being no objection, it was so moved. Number 1719 REPRESENTATIVE TOOHEY made a motion to move House Concurrent Resolution 30 from committee with individual recommendations and a zero fiscal note. There being no objection, it was so moved.
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