Jessica Lunsford Act for NC & Board Policy Regarding Sex Offenders

This summer, the General Assembly passed the Jessica Lunsford Act for North Carolina. This lengthy and complex statute, which deals generally with sex offenses and Registered Sex Offenders, has several provisions that directly impact school systems. Most importantly, the statute makes it a crime for sexually violent offenders or other offenders whose victim was under 16 to be present on any school property, except in three specific circumstances discussed below. Unless one of the exceptions applies, if the sex offender is knowingly present on school system property for any reason, he/she is guilty of a Class H felony. The law identifies three categories of sex offenders who may, under limited circumstances, be present on school system property without committing a felony: 1) parents/guardians of students, 2) students, and 3) voters.

Parent/Guardian Sex Offenders.

The law provides that the parent/ guardian sex offender may be on school property only for one of the following purposes:

  • to attend a conference at the school with school personnel to discuss the academic or social progress of the parent/guardian’s child; or
  • when the parent/guardian’s presence has been requested by the principal or his/her designee for any other reason relating to the welfare or transportation of the parent/guardian’s child.

In addition, the following conditions must be met for any visit to school system property:

  • the parent/guardian must notify the principal of the nature of the visit and the hours when the visit will occurbefore he/she enters school system property;
  • the parent/guardian must notify the principal’s office upon arrival to and departure from school property; and
  • the parent/guardian must remain under the direct supervision of school personnel at all times.

Finally, If no school personnel are reasonably available to supervise the parent/guardian on a particular occasion, he/she is not be permitted on school property at that time even for one of the permitted purposes.

A sex offender parent might argue that the law gives that person therightto be on school property if all of the above conditions are met. We do not believe this is correct. The overriding purpose of the Jessica Lunsford Act is to protect children from sex offenders. This portion of the law strictly limits a sex offender’s access to children by making it illegal for the offender to be in certain areas where children congregate, including schools. If the offender violates these limits, he/she is guilty of a felony. Rather than creating a right for sex offender parents to be on school grounds, in our opinion, the statute prescribes the narrow conditions under which a sex offender parentmaybe on school grounds without violating the law. Based upon this interpretation, we also believe that a school system may ban a sex offender from school property, even if the conditions listed above could be met.

Student Sex Offenders

The Jessica Lunsford Act allows the Board to expel a student who is a Registered Sex Offender, provided there is clear and convincing evidence that the student’s continued presence in school constitutes a clear threat to the safety of other students or employees. Prior to ordering the expulsion of a student who is a registered sex offender, the Board must also consider whether there is an alternative program that may be offered by the school system to provide educational services. In general, a student may not be expelled unless he/she is 14 years of age or older. This age limit does not apply to sex offenders covered by the Act. Note, however, that because federal law preempts state law in this area, a student with a disability may not be expelled if the IEP team finds the student’s conduct was a manifestation of his/her disability.

Sex Offender Voters

Sex offenders who are voters may be present on school property as follows:

  • The voter is present for the sole purpose of voting and the school property is being used as a voting place;
  • The voter must notify the principal of the school that he or she is registered on the Sex Offender and Public Protection Registry before coming onto school system property to vote;
  • The voter must remain at all times in the portion of the school being used as the polling place; and
  • The voter must leave school grounds immediately after voting.

Contractual Personnel

If the district contracts with an outside person or entity to perform a job that involves direct interaction with students, such as before- or after-school care workers, the contract must require the provider to conduct annual checks of contract personnel on the State Sex Offender and Public Protection Registry, the State Sexually Violent Predator Registry, and the National Sex Offender Registry. As a term of any contract, the district must prohibit any contractual personnel listed on any of the registries from having direct interaction with students. This provision does not apply to individuals who are carrying out duties that are customarily performed by school personnel, such as custodians, bus drivers or substitute teachers. Existing law, G.S. 115C-332, already requires that criminal background checks be done of these individuals.

Notification to Principals

The law requires all school principals to sign-up with the Sex Offender and Public Protection Registry to receive email notifications when a Registered Sex Offender moves within a one-mile radius of their school.

Effective Date

The Act becomes effective December 1, 2008.

Changes to Board Policy

Please contact our office if you would like assistance drafting a Board Policy to address these issues.

The information contained in this article and throughout the Tharrington Smith website is correct and accurate as of the date of publication of the content. This general information should not be relied on as legal advice. While accurate and informative, the content is provided to help you make a qualified decision in choosing a law firm to guide you through your legal matter. To schedule a consultation, call our Raleigh office at (919) 821-4711.

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