DANVERS — Now that Danvers High has banned smoking by students on streets and sidewalks around the school, some are wondering whether the move is legal.
"I do have a question about how far they can extend out their authority," said Sarah Wunsch, staff attorney for the American Civil Liberties Union of Massachusetts. "Are they going to push the problem one block away and move the problem to another street corner?"
Wunsch said the issue raises questions about the school's authority to regulate students smoking off school grounds.
Town tobacco control regulations are silent about controlling smoking off school property, Public Health Director Peter Mirandi said.
"We are in favor of any thoughtful measure to protect and promote wellness," Mirandi said.
However, he said he has reached out to the state Department of Public Health's Tobacco Control Program for an opinion. Mirandi expects further comment from the Board of Health at its meeting Thursday at the Senior Center.
"It's a legal product," School Committee member Bill Bates said of cigarettes. "I just think we overstepped our bounds."
He was the lone dissenter when the committee voted on the policy Monday.
Bates worried about what may happen if an 18-year-old student gets caught smoking on Cabot Road off school grounds, is fined and suspended, then challenges the legal basis for the punishment, resulting in a costly lawsuit.
"I'm always concerned going beyond our purview, if you will," Bates said, "going to expense to defend a policy we may not be able to defend."
School officials want to keep students from smoking on the corner of Cabot Road and Exeter Street, where many have congregated for years, within sight of the school's main entrance. They said they want students to kick the habit, and they want to cut down on neighborhood complaints about cigarette butts littering the corner and kids congregating near their homes.
The new policy prohibits smoking on "adjacent roads, access ways and sidewalks to the school." State law forbids tobacco use in school buildings, grounds, facilities and buses by students and school personnel, and calls for schools to issue handbooks with this policy in place.
Students face a $100 fine and a three-day suspension each time they are caught smoking. Students are being given the option of taking a smoking cessation program in lieu of the $100 fine. The policy does not apply to residents of the neighborhood.
"I'm behind it 100 percent," said police Sgt. Robert Bettencourt, head of the Police Department's community services division, which oversees school resource officers.
Bettencourt was not sure of the legality of the policy but said schools have some authority that extends before and after school as kids walk to and from school.
A DARE officer, he has received numerous complaints from neighbors about students being rowdy and littering the Exeter Street corner with cigarette butts.
"I understand their right to smoke, but when they bother the neighborhood, it is wrong," Bettencourt said.
Wunsch, the ACLU lawyer, said some cities and towns are moving to ban smoking on public property, but the question is what authority does the School Committee have to do so?
"Because it's adjacent to the school? That may be close enough," she said, though she did not know the answer. This may be something the town has to legislate.
"Many times, when they try to push further and further out, you are dealing with something in the authority of parents," Wunsch said.
When asked by e-mail about the School Committee's authority to regulate smoking beyond school property, Jonathan Considine, the director of board and media relations for the Massachusetts Department of Elementary and Secondary Education, said: "That is a local matter involving public property about which the School Committee should talk directly to the town and its counsel."
Staff writer Ethan Forman can be reached at 978-338-2673 or by e-mail at eforman@salemnews.com.
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