Concealed Carry and Weapons on School Grounds


School districts across the state continue to have questions about an individual’s ability to bring a firearm onto school district property. Below, we outline the most recent guidance and provide some policy considerations that you may find helpful as you navigate this issue in your district.

The Law

Generally, it is unlawful for anyone to knowingly possess a firearm within 1,000 feet of school grounds. This does not apply to private property adjacent to school grounds such as a commercial store, driveway, or residence. However, there are two main exceptions to this general prohibition. First, an individual who possesses a state-issued concealed weapons permit (CWP) may carry an unloaded firearm onto school grounds if the weapon is stored in a locked container or firearms rack. Second, a law enforcement officer acting in his/her official capacity may bring a weapon on school grounds.

Additionally, South Carolina law states it is unlawful for a person to possess a firearm of any kind on any premises or property owned, operated, or controlled by a private or public school without the express permission of the authorities in charge of the premises or property. “Premises” and “property” do not include state or locally owned or maintained roads, streets, or rights-of-way running through or adjacent to premises or property owned, operated, or controlled by a private or public school, college, university, technical college, or other post-secondary institution, which are open full-time to public vehicular traffic.

South Carolina law also states it is unlawful for any person except state, county, or municipal law enforcement officers or personnel authorized by school officials, to carry firearms while on any elementary or secondary school property.

These rules prohibiting the possession of a firearm on school property do not apply to a CWP holder so long as the weapon remains inside an attended or locked motor vehicle and is secured in a locked box in the trunk or a glove compartment.

Attorney General Opinions

Several South Carolina Attorney General (“SCAG”) Opinions provide guidance on this issue.

The SCAG most recently opined that school districts are not permitted to implement a policy prohibiting CWP holders (including staff) from parking on school grounds with a firearm locked securely in their trunk or glove box pursuant to state law. However, this opinion appears to run afoul with a State law granting certain rights to public and private employers. The SCAG also released an opinion in 2009, concluding that a county could adopt an ordinance prohibiting the possession of firearms within its parks. This opinion is significant to school districts because, as political subdivisions, districts also likely have the statutory authority to prohibit the possession of firearms on its grounds.

Deciding on a Weapons Policy

Most districts utilize their Staff Conduct policies to outline their position on weapons on school grounds. It is our position districts have some discretion in how they address this issue. As discussed above, the law and SCAG opinions on this issue are unclear, and there presently are no court decisions providing clarification. Boards should decide whether to follow the most recent SCAG Opinion and allow those district staff possessing a CWP to have a firearm in their locked cars parked on district property. If the board adopts that position, the district’s Staff Conduct Policy should state “possession of weapons on school grounds by employees is prohibited, unless possession is authorized by South Carolina law.”

If the board is going to allow CWP holders the right to possess firearms in their cars, the board also should consider whether it wants to provide a process by which a CWP holder can be given permission to bring a firearm into the building (e.g., the board secretary who is required to leave the building late at night).

Alternatively, it is our opinion a board has the right, as a public employer and as the owner of district property under South Carolina law, to adopt a policy prohibiting staff, regardless of CWP possession, from possessing a firearm on school grounds. In this case, the district’s Staff Conduct Policy should state “possession of weapons on school grounds by employees is prohibited, regardless of state-issued concealed weapons permit.” The district must then post the required “No Concealable Weapons” signage on school property—State law specifies how those signs must be worded, placed, etc.

Final Thoughts

What is clear about the limitations placed on CWP holders with respect to firearm possession on school premises? CWP holders may not bring weapons into a school building without permission from the district. The weapon must remain in a locked car, either in a closed glove box/console or in a locked container in the luggage compartment. Additionally, CWP holders may not bring weapons into the district office or to a school board meeting without permission from the district. Most importantly, the district has the sole discretion whether to grant that permission and may revoke it at any time.

If your district has questions about the options related to firearm possession on school grounds by employees, please feel free to contact our office.

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Questions related to employee leave for reasons of personal illness or injury are some of the more confusing legal issues that school districts regularly face.  Set forth below is a summary of the legal principles governing such employee leave to assist school officials in navigating through the maze of state and federal rules and regulations related to leave. 

Depending on the circumstances of a particular situation, employees who become injured or ill may be entitled to four kinds of leave.   First, under S.C. Code § 59-1-400, all full-time employees of a school district accrue one and one-fourth days of sick leave for each month of active service, or 12 days for each nine months of active service.  Sick leave which is accrued but not used may be accumulated up to 90 days pursuant to State law.  

Second, an employee who is injured in the course of employment may be eligible for leave under the Workers’ Compensation laws.  An employee who is injured on the job has the option of electing to use either all or a specified portion of their accrued leave time or Workers’ Compensation benefits.  The election of the employee is irrevocable as to each incident.  If an employee elects to use accrued leave time, and that time is exhausted, the employee then is entitled to Workers’ Compensation benefits.  As a practical matter, there generally is no limit on the amount of time that an employee may remain on leave related to an approved Workers’ Compensation claim.

Third, under the federal Family Medical Leave Act (FMLA), an eligible employee qualifies for 12 weeks of unpaid leave during any 12-month period.  While the FMLA provides that such leave may be unpaid, if the employee has any accrued paid leave available, the employee may elect, or the employer may require, that such paid leave be used during the FMLA leave period.  An employee who is on Worker’ Compensation leave also may be eligible for FMLA leave, if the work-related injury also constitutes a “serious health condition” under the FMLA.  An employer is permitted to count time that an employee is on Workers’ Compensation leave toward that employee’s 12-week entitlement under the FMLA, provided that the employer timely designates the leave as FMLA leave. 

Finally, pursuant to the Americans with Disabilities Act (ADA), an employee who has become “disabled” under the ADA may request an extension of unpaid leave after their FMLA leave expires as a reasonable accommodation.  Whether and to what extent such additional leave time is a “reasonable” accommodation must be determined on a case-by-case basis taking into consideration the employee’s job duties and the amount of additional leave being requested.  

These various laws stipulate only the minimum leave to which public school employees may be entitled; school districts are not prohibited from adopting policies granting more liberal leave benefits to employees.  However, such policies should be developed with caution, because they may create legal conflicts and potential liability.  For example, sick leave bank policies may be problematic because although school officials may view the granting of leave days from the bank as discretionary, employees may argue that they have a contractual right to the bank’s benefits.  Moreover, such policies may be difficult to administer consistently, given the challenge of defining and implementing terms like “catastrophic illness.”

To shield districts from liability for leave claims, school officials must keep in mind both the beginning and end of an employee’s leave.  In other words, the leave must be properly designated when it commences, and must be properly terminated when it expires.  On the front end, districts may choose to limit employees’ use of leave days granted under S.C. Code § 59-1-400 for reasons other than personal illness or injury. Board policy should specifically delineate the circumstances under which an employee’s use of such leave days will be approved. 

Employees requesting FMLA leave should be required to submit medical certification of the relevant serious health condition necessitating the leave, and should be timely informed in writing whenever a leave period is designated as FMLA leave.  A district’s failure to timely designate leave as being pursuant to the FMLA may result in an employee having access to additional days of FMLA leave that they otherwise would not have available.  To prevent potential abuses of FMLA leave, districts should provide a list of an employee’s primary job responsibilities when requesting medical certification of a serious health condition, and ask the certifying physician to designate whether the employee is capable of performing those responsibilities in light of the employee’s current medical condition.  Employees requesting leave beyond their FMLA leave entitlement should be required to submit medical documentation of their disability, and an explanation why additional leave is a reasonable accommodation. 

Concerning issues which can surface when an employee’s leave ends, state law provides that an employee using accrued sick leave may not be terminated from employment during a continuing sick leave of less than 91 days.  In the same vein, while it is permissible to dock an employee a leave day for improper use of leave, or for not following school policy when taking leave, docking an employee’s salary for such violations is discouraged, as doing so could subject a district to liability under the South Carolina Payment of Wages Act.  On the other hand, if a public school employee with a long-term illness has been out for 91 days, and the employee is not approved for additional leave at the end of that period, the employee in most cases may be terminated.

Ultimately, the key to preventing liability for decisions related to employee leave is to remember that numerous state and federal laws may intersect; to thoroughly review and follow the requirements of these various laws and school board policy; and to communicate clearly to employees the district’s rules and expectations regarding leave.



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A Refresher on Student Discipline for the New Year


It is hard to believe that half of the 2018-19 school year has already passed!  As students begin the second semester, we thought a refresher for school administrators and board members on the state and federal laws governing student discipline would be helpful.

District Student Discipline Policies/Code of Conduct

A district’s policies should clearly define when student conduct rises to the level of a disciplinary offense. The available disciplinary sanctions should be realistic and proportional to the nature of the misconduct. Policies specific to a particular type of misconduct, i.e. bullying or drug possession, should be consistent with and reference the district’s general student code of conduct.   Also, individual school handbooks addressing expectations for student conduct should be consistent with the district’s code.

Once a student has violated the code of conduct, the district must follow its policy when imposing punishment and ensure that the same punishment is applied to all students in similar circumstances. For example, if the district’s discipline policy states that a student may be suspended for up to five days for fighting, all of the students involved in a fight generally should receive the same punishment. Also, administrators should avoid charging students with a general offense such as “disturbing school.” Instead, the student and his/her parent/guardian should be given written notice of the specific conduct that violates district policy.

Discipline for Regular Education Students

Teachers should make students aware of their classroom rules and reinforce the district’s code of conduct when it becomes necessary.  Likewise, administrators should work with teachers and students to provide support. Discipline does not end in the classroom. Administrators should work with district transportation supervisors to make sure that bus drivers and assistants are properly trained to handle misconduct on school buses and to complete the necessary disciplinary referrals.

State law allows school administrators to suspend a student for up to ten school days for any one offense and for a total of no more than 30 days in a school year. The 30 day maximum includes both in-school and out-of-school suspensions.  Within three days after a student is suspended, the administration must schedule a conference to discuss the matter with the student’s parent/guardian. While the conference may actually occur after that three-day window if the parent/guardian informs the administration that they are unavailable to meet on the scheduled date, the administration must initially schedule the conference within that time period.

When expulsion is recommended, a hearing must be held within 15 days of written notice of the recommendation.  In many districts, a hearing officer, usually a current or retired district administrator, conducts that hearing.  A student’s parent/guardian must be given written notice of the reason for the expulsion recommendation as well as the opportunity to review the documentation that the administration has collected during its investigation. It is the administration’s responsibility to prove that the student violated district policy and that expulsion is warranted. In that regard, the administrator who attends the expulsion hearing should be familiar with the evidence supporting the expulsion recommendation. Evidence may include written statements as well as live witnesses. Live witnesses may be necessary where the student denies committing the misconduct and the administration thus must prove that the misconduct occurred. At the hearing, the student may be represented by legal counsel and present witnesses.  The student also has the right to question any witnesses presented by the administration. Following the hearing, a written decision must be issued within ten days. An expulsion decision may be appealed to the board of trustees and ultimately to the circuit court.

Discipline for Special Education Students

When a special education student violates the student code of conduct, the Individuals with Disabilities Education Act (IDEA) impacts the discipline process.  Under the IDEA, a district may suspend a special education student for a maximum of ten cumulative school days without providing the student with educational services. These ten days are often referred to as “free days.”  If a special education student is suspended or otherwise removed from school for more than ten cumulative days, the district must begin providing the student with educational services beginning on the 11th day of removal.

Disciplinary action that results in removal for more than ten consecutive days, such as a recommendation for expulsion, is considered a change of placement, requiring that the student’s IEP team conduct a manifestation determination to determine the relationship between the student’s misconduct and his/her disability before the school moves forward with the expulsion. Suspensions of more than ten cumulative days also may be a change in placement necessitating a manifestation determination.  As such, administrators should avoid suspending special education students when possible and consider implementing other disciplinary measures such as in-school suspensions. An in-school suspension generally does not count toward the ten day maximum, provided that the student continues to receive his/her special education and regular education services.

During a manifestation determination, the IEP team must consider the student’s IEP (including any existing Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP)), as well as teacher observations, and information shared by the parent, including any outside evaluations and/or medical diagnoses.  After reviewing that information, the IEP team must determine if the conduct was (1) caused by or had a direct and substantial relationship to the child’s disability, or (2) was the direct result of the district’s failure to implement the IEP.

If the team determines that either (1) or (2) is true, then the conduct is a manifestation of the student’s disability, and the student must be returned to the placement from which she/he was removed, unless the parent and the district agree to a change of placement.  If a FBA/BIP was not already in place, the IEP team also must conduct a FBA and develop a BIP designed to address the conduct that led to the suspension/expulsion.


Documentation is key in proving student misconduct.  Documentation may include student statements, suspension/expulsion notices, information posted on social media, and teacher notes. As it relates to student statements, administrators should instruct student witnesses and/or the victim to write down exactly what they saw and heard.  Also, the administration should ask the student who is suspected of the misconduct to write a statement before the student is sent home from school. If a student is young or otherwise incapable of writing a detailed statement, the administrator may interview the student and write a statement based on the information provided by the student.  The student should then read the statement or have it read to them and sign to verify that it is accurate.

Should you have any questions about the topics discussed above or wish to have a presentation on these and other topics at an upcoming professional development, please do not hesitate to contact us.

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The First Steps in School Construction Procurement: A Primer


Capital construction projects are both challenging and exciting for school districts. The process is long and arduous—often years pass before the first brick is ever laid. Financing options, bond referendums, community input meetings, architect drawings, more community input meetings—these are all aspects of a process that can derail even the most well-thought out capital construction campaign.   

The Basics

All South Carolina school districts are “political subdivisions” as defined in the State’s Consolidated Procurement Code (“State Code”). S.C. Code Ann. § 11-35-310(23).  However, unlike state agencies, school districts may implement their own procurement code. School districts are only subject to the general rule imposed by S.C. Code Ann. § 11-35-50, which requires that procurement procedures “embody sound principles of appropriately competitive procurement.”

School districts with annual expenditures exceeding $75 million must submit to minor constraints in their procurement code. In these larger districts, there are two options: (1) the district may adopt the State Code in its entirety; or (2) the district may implement its own code that requires approval and review every three years by the South Carolina Office of Procurement.

The governmental procurement process in South Carolina provides much autonomy to local school boards to spend their money as they deem appropriate. The South Carolina Supreme Court in Sloan v. Greenville Hosp. Sys., 388 S.C. 152, 694 S.E.2d 532 (2010), ruled that “local procurement codes need not mirror the State Code, Local Model Code, or any other code.”  

Since school districts are not bound by the particulars of the State Code, the South Carolina Office of Procurement has published a Model Code for school districts which should be referenced if a board decides to draft its own procurement code. The Model Code also may be consulted as a reference where a district’s own procurement code does not address a specific issue.

For major capital construction projects, the absence of an updated and technically correct procurement code can shackle the procurement process.  Simply put, if a district does not have a procurement code that addresses current trends in the construction industry, outdated construction practices can seep into the building phase, costing districts time and money.   

(1) Model School District Procurement Code,

Types of Project Delivery Methods

The first step in procurement for a major construction project is to determine the project delivery method. Careful consideration should be given to how much or how little control the district wants to retain, the stringencies of budget caps, the complexity of the project, and the types of professionals needed or wanted to complete the project. Below is a summary of the common types of delivery methods found in the Model Code.


This is the most traditional project delivery method. Here, the district selects an architect to design the project. After the design documents are complete, the district issues invitations to bid and lump sum bids are submitted to the district by general contractors.  Generally, under this method, the general contractor with the lowest responsive bid is awarded the contract. This approach provides the district with a defined project scope and single point of responsibility for construction while allowing for aggressive bidding. However, this method generally is longer in duration and does not take contractor quality into account.  This method is favored where the district wants to maintain control over each phase of the construction process and where price is the leading factor driving the project to completion.

Construction Management at Risk (CMAR)

Under this method, the Construction Manager (“CM”) serves as the General Contractor (“GC”) while assuming the risk for construction at the contracted or guaranteed maximum price (“GMP”). The CM is responsible for the project cost and schedule as well as for providing design phase services in evaluating cost, constructability, and services. Selection of the CM is based on criteria including qualifications, experience, and price. The CM then chooses the architects and subcontractors to work on the project without significant input from the district. While this approach provides flexibility and a faster schedule delivery, this method may limit competitive bidding. Most notably, this can be an expensive process because the district is paying a premium for the CM to take on the risk of the project.  

Design Build

Here, the district contracts with a single entity to provide both design and construction services. The architect and GC generally work for the same development firm. This approach allows the district to be heavily involved throughout the process. Generally, the selection of the entity is based on a proposal that the district determines offers the best overall value. The district is required to hire an independent architect to serve as its representative for the duration of the project in an oversight capacity. This independent architect is an added expense not seen in the other delivery methods. Like CMAR, this approach allows for selection flexibility and a faster delivery schedule. However, there is a potential for the loss of checks and balances because the architect and GC work for the same firm.

Source Selection

After the delivery method has been determined, a district must decide how it wishes to secure proposals from interested vendors.  Source selection is the process the district uses to take its project to market.

Competitive Sealed Bids

Under the Competitive Sealed Bid (CSB) approach, price is the sole determining factor at every phase.  This source selection method is often associated with design-bid-build. This type of source selection is good for small or voluminous procurement items.  Quality of the bidder is not heavily considered, and the lowest bidder is awarded the project without much scrutiny of their experience and qualifications.

Competitive Sealed Proposal

Like CSBs, Competitive Sealed Proposals (CSP) look at price as a determining factor but also take other significant factors, such as qualifications, experience, and references, into consideration. A CSP requires the district to put out a Request for Proposal (RFP) to which interested bidders will respond. This method is most appropriate when the project requires special skills or experience, but price is still the number one factor in seeing the project to completion. This method allows the district to include additional qualifications, such as the credentials of those who will work on the project, as part of the bid. In that scenario, only those bidders who meet the additional qualifications will be considered.  After the prescreening of the qualified bidders, the lowest bidder must be awarded the contract.

Qualifications (RFQ)

The least utilized type of source selection is the Qualifications Only option, where the district is procuring professional services, such as auditors, attorneys or engineers. Using this type of selection, the district sends out a Request for Qualifications (RFQ) to which interested bidders may respond. The RFQ solicits the scope of work and does not involve fees. The district then ranks the bidders based solely on their qualifications.  Differences in cost are not considered until the district has ranked each bidder. Once the highest ranked bidder is selected, negotiations of fees and terms commence. If the highest ranked bidder and district do not agree on cost, the district goes on to the next highest ranked bidder until there is consensus on cost. Generally, after three unsuccessful bidders walk away from negotiations, the district starts the process over.

Careful examination of your district’s procurement code can save a great deal of time and money throughout the procurement process. By strategically using the flexibility of statutes and district procurement codes, a major construction project can be tailored in a way to meet the specific needs of your community.  If you have any questions about your district’s procurement code or process, please do not hesitate to contact our firm.

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Teacher Resignations and Terminations: What is a District’s Duty to Report?


Whenever a certified employee is terminated or resigns in the face of misconduct allegations, districts should understand their responsibilities to report the employee’s separation to the South Carolina Board of Education (“BOE”). Also, where a teacher breaches his/her contract by resigning in the middle of the school year, state law provides the procedure for a district to report the matter to the BOE.

a. Reporting Misconduct

Under BOE Regulation 43-58.1, the superintendent, on behalf of the board of trustees, must report to the Chair of the BOE and the State Superintendent the name and certificate number of any certified employee who is dismissed, resigns, or otherwise separates from employment based on allegations of misconduct. Misconduct includes, but is not limited to, actions involving drugs, sexual misconduct, the commission of a crime, immorality, and dishonesty, where the misconduct is reasonably believed by the superintendent to constitute grounds for revocation or suspension of the teacher’s certificate.

A teacher does not have to be convicted of a crime before the reporting obligation is triggered. If a teacher is arrested for any crime indicating misconduct as specified in Regulation 43-58.1, the superintendent must make the report.

The duty to report is mandatory, and the intentional failure of a school board or superintendent to report can lead to serious consequences, such as accreditation and certification deficiencies. Further, the intentional failure of a superintendent to report the termination of a certified employee as required by the regulation may be sufficient cause to revoke the superintendent’s certificate. Given the consequences for failing to make a report, districts should err on the side of reporting, even if there are reservations about whether the misconduct is serious enough to warrant possible action by the BOE.

Often, districts will provide a teacher with the option to resign in lieu of termination. However, if the teacher’s resignation relates to alleged misconduct, the superintendent must still make a report.

Reports to the BOE are made by the superintendent rather than the board of trustees. A superintendent may report by sending an email to or by sending a letter to the Office of General Counsel at the State Department of Education (“SCDOE”). The notice should include the teacher’s name, certificate number, and a summary of the reasons for the teacher’s separation from the district. SCDOE will investigate the allegations and likely request additional information from the district. State law provides that, until the BOE issues a final order, reports are confidential.

b. Reporting a Breach of Contract

Districts are often faced with teachers submitting resignations in the middle of the school year or during the summer before school starts. When a teacher resigns from a district without being released from his/her contract, the resignation is considered unprofessional conduct, leading to a possible revocation or suspension by the BOE of the teacher’s certificate for up to one calendar year. See S.C. Code Ann. § 59-25-530.

Districts should ensure that their policy provisions regarding contract releases are included in teaching contracts and staff handbooks. We recommend policies state that a resignation should be in writing instead of requiring that it must be in writing. This gives districts more flexibility when dealing with teachers who verbally resign and later seek to rescind the resignation. This option allows the superintendent to promptly accept the verbal resignation on behalf of the district in writing, without having to be concerned that the teacher will change his/her mind and seek to withdraw the oral resignation.

When a teacher seeks to resign, the superintendent or his/her designee should promptly respond in writing, notifying the teacher of the district’s receipt of the resignation and the superintendent’s decision whether to accept the resignation. If the superintendent decides not to release the teacher, the letter should reference the policy on contract releases; state that the teacher is expected to report to work until being formally released; and note that, if the teacher fails to report as directed, it will be considered a breach of contract and reported to SCDOE. This communication should be provided as soon as practicable to avoid complications if the teacher later seeks to withdraw the resignation. Additionally, superintendents should decide whether to accept or reject a resignation in a non-arbitrary manner. As many districts have policies that allow contract releases when certain criteria are met, the district should ensure those criteria are consistently applied to all teachers who seek to resign.

If a teacher is not released from his/her contract and fails to report to work, the board of trustees may vote to report the breach of contract to the BOE. Please note that, unlike a report of misconduct, a breach of contract report requires formal action by the board. After the board votes to report the breach of contract, the superintendent or his/her designee should submit a written complaint to SCDOE. The complaint should include the teacher’s name, certificate number, and state whether the district wishes to pursue suspension and/or revocation of the teacher’s certificate. It is good practice to include a copy of the teacher’s contract, the board of trustees’ meeting minutes noting its vote to report the breach, the teacher’s resignation letter, and any other correspondence exchanged between the district and the teacher regarding the resignation.

Please keep in mind that, if the district accepts a teacher’s resignation, SCDOE will not pursue the teacher for breach of contract. Consequently, if a teacher submits a resignation that does not comply with the district’s policy on contract releases, the district should send a letter notifying the teacher that the resignation is not being accepted and directing the teacher to continue to report to work. If the district decides to accept the teacher’s resignation because the resignation is being submitted in lieu of termination for misconduct, that should be reported under the provisions of Regulation 43-58.1, rather than as a breach.

c. Special Considerations

When an employee resigns under circumstances indicating a suit against the district is likely, the district should consider accepting the resignation and entering into a settlement agreement with the employee in which the employee releases the district from any liability relating to or arising from his/her employment. In some cases, the district may want to consider allowing the employee to remain on paid administrative leave for some period of time in exchange for the employee’s resignation. This is particularly true in cases where, if the employee decides not to resign and instead to legally challenge his/her termination, the associated costs will be significantly more than the cost of a period of paid leave.

Districts should be aware that the BOE may suspend a certified employee’s certificate while she/he is still employed. For example, SCDOE may learn that a teacher has been arrested for criminal domestic violence and summarily suspend the teacher’s certificate before the district takes employment action. South Carolina Code Section 59-25-190 addresses this and provides that, when the BOE revokes or suspends a teacher’s certificate, the teacher’s employment is terminated until a final decision is made. That statute continues to provide, however, that the teacher shall continue to be paid until the BOE makes its final decision. Based on this statute, teachers and their legal counsel will argue that the district must continue to pay the teacher even if though the teacher has been “terminated.” To avoid such a result, districts faced with this situation should carefully consider whether there are sufficient grounds to move forward with terminating the teacher based not solely on the fact of the arrest, but on the underlying facts and circumstances.

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