SCHOOL SAFETY AND THE COURTS

SCHOOL SAFETY AND THE COURTS
TOP CASES Focus: Policymaking

Safe Schools – After Newtown

Safe Schools June 2014: 74 school shootings since the infamous assault on Sandy Hook Elementary School in Newtown, Connecticut 37 Shootings …… so far in 2014. 13 school shootings recorded in first six weeks of 2014 alone.

Policymakers Challenge
Understand current legal standards What the law permits What the law requires Confront the reality of the difficulty of making “good policy”.

Why Look at Court Decisions?
A shift is occurring in judicial appetite for overturning school policy. Judicial activism* is no longer a surprise when students assert their rights. Liability is returning to lawsuits as a more frequent outcome.

EQUATION OF AUTHORITY = LEGAL SYSTEM DEFERS!!!
ACTIONS TAKEN IN GOOD FAITH POLICIES THAT FURTHER THE EDUCATIONAL MISSION PROCEDURES THAT ARE FAIR = LEGAL SYSTEM DEFERS!!!

JUDICIAL IMPATIENCE NEW ELEMENT… ACTIONS TAKEN IN GOOD FAITH
POLICIES THAT FURTHER THE EDUCATIONAL MISSION PROCEDURES THAT ARE FAIR JUDICIAL IMPATIENCE

Traditional Judicial Deference
Courts have traditionally demonstrated reluctance in exercising their judicial power in the area of school administration. Courts tend to defer to the school authorities wide discretionary authority in operating their schools.

“By and large, public education in our Nation is committed to the control of state and local authorities. Epperson v. Arkansas, 393 U.S. 97 at 104 (1968)

“Courts do not and can not intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.” Epperson v. Arkansas, 393 U.S. 97 at 104 (1968)

JUDICIAL IMPATIENCE NEW ELEMENT… ACTIONS TAKEN IN GOOD FAITH
POLICIES THAT FURTHER THE EDUCATIONAL MISSION PROCEDURES THAT ARE FAIR JUDICIAL IMPATIENCE

Safe Schools: President Obama
“Can we honestly say that we’re doing enough to keep our children, all of them, safe from harm? I’ve been reflecting on this the last few days, and if we’re honest with ourselves, the answer’s no.” We can’t tolerate this anymore. These tragedies must end. And to end them, we must change.” Remarks by President at Sandy Hook Interfaith Prayer Vigil.

Court Decisions: Cannot be Too Careful
State Power is Permissive! Presumption of Authority = “Police Power” • Health • Safety • Welfare • Values • Morals • Appropriate behavior • Education mission You do not need statutory or judicial permission to modify agency policy.

State Power is Permissive!
State and Local Power is not dependent on enumeration of public law. Look to Law for Prohibitions, otherwise act to resolve conflicts that endanger children…

Proper Use of Case Law: Examine Federal statutes and Federal court cases looking for prohibitions. Examine State statutes and State court cases looking for prohibitions. Examine local policies to eliminate self-imposed limits on authority

Where are the Limits in 2014? .

CATEGORIES OF INTEREST TO THE COURTS
DUE PROCESS LIABILITY INTERROGATIONS FREE SPEECH ANONYMOUS TIPS USE OF FORCE SEARCH AND SEIZURE

Court of Appeals of Georgia
DUE PROCESS FULTON COUNTY v. D.R.H. Court of Appeals of Georgia November 20, 2013 325 Ga.App. 53 752 S.E.2d 103

RULE: Due Process in Education
Give students appropriate notice of the charges BEFORE discipline: Tell you both that a disciplinary action is pending against you. Describe, at least briefly, the specific act or acts that allegedly violated the rule. Opportunity to be heard. NOTE: Most Disciplinary hearings held within 10 days of incident.

FULTON COUNTY v. D.R.H. FACTS:
Student was absent from class without permission – hanging out in the hallways of the school. Student failed to comply with SRO instructions to go the Administrative Office. Student combative with Principal. Shoves SRO. Taken to Youth Detention Facility.

FULTON COUNTY v. D.R.H. RULING:
A high school student's detention at a juvenile youth detention center does not constitute a disciplinary suspension. Due process under the State Education Code is not required.

Report alleged criminal misconduct by students.
FULTON COUNTY v. D.R.H. RULING: School officials did nothing more than perform the duty under the law to Report alleged criminal misconduct by students. Yield when laws are being enforced on on campus.

FULTON COUNTY v. D.R.H. Why CASE is Important:
Education Due Process procedures do not affect the enforcement of criminal laws. The Juvenile Justice System and the school code of conduct are two separate systems.

FULTON COUNTY v. D.R.H. Why CASE is Important:
Allowing enforcement of the law on campus is a mandatory task for educators. Reporting of crime on campus is not a discretionary task for educators. School Rules are not a defense for obstruction of justice.

LIABILITY Christopher Smith v. State of Indiana
Smith v. Snohomish School Dist. No. 201 M.S.D. of Martinsville v. Jackson Duval County School Bd. v. Buchanan

Court of Appeals of Georgia
LIABILITY CHRISTOPHER SMITH v. STATE OF INDIANA Court of Appeals of Georgia March 27, 2014 8 N.E.3d 668

SMITH v. STATE OF INDIANA
Facts: A high school principal, was convicted of failing to immediately report crime after being informed that a 16-year-old student reported that she had been raped by another student of the same age. Misconduct was in a bathroom at the school. Principal waited 4 hours before making report.

Ruling: State Law’s use of word “immediately” was not vague. Principal’s phone call to a private youth center did not satisfy his responsibility to immediately notify either: The Department of Child Services (DCS) or A law enforcement agency.

Ruling: Principal’s eventual phone call to DCS hotline four (4) hours later was not sufficiently immediate.

Why CASE is Important: Reporting of crime on campus is not a discretionary task for educators. Regardless of any policies within the school district, the educator is not relieved of the responsibility to report.

Why CASE is Important: It is a violation of the law for an educator to prevent or discourage an employee from making a report.

Why CASE is Important: School Rules are not a defense for obstruction of justice. Education Due Process procedures do not affect the enforcement of criminal laws.

Why CASE is Important: Every State and Territory has statutes that require educators to report suspected child victimization and abuse.

Educators and Reluctance to Report to Other Agencies
Misunderstanding of Law An “abused” child is one who has been either sexually abused, physically injured, or psychologically injured.

Misunderstanding of Law A “neglected” child is one: Who has been abandoned by his or her parents, Who is without the level of control or subsistence as required by the child’s needs, or Whose parents are unable to properly provide care as a result of their incapacity.

Misunderstanding of Law Teachers and school officials have no obligation to investigate suspected neglect or abuse. They should simply report any suspicions of abuse. Immunity protects all reporters.

Misunderstanding of Law All persons are mandated reporters. teachers, school officials school nurses school counselors any other person with school duties.

Misunderstanding of Law Regardless of any policies within the school district, the educator is not relieved of the responsibility to report.

SMITH v. SNOHOMISH SCHOOL DISTRICT
LIABILITY SMITH v. SNOHOMISH SCHOOL DISTRICT Superior Court of Washington APRIL 11, 2014 2014 WL Note: WL means ‘WestLaw‘

Facts: A stabbing occurred on-campus in a downstairs bathroom near the cafeteria in the morning before school started. The girl behind the attack came to school that day with knives in her backpack. She waited in a bathroom stall and apparently picked her victims at random. Two students were attacked.

Facts: The girl told school officials in spring 2011 that she was having fantasies about killing others. She was expelled from school in April 2011 after she threatened to stab another student, court papers said. School officials allowed her to return to school after eight (8) days of out-patient professional counseling.

RULING: a jury decided the Snohomish School District must pay $1.3 million for its negligence in failing to take proper steps to protect students.

Why CASE is Important: Jury gives priority to the duty to respond to dangers that are reasonably forseeable rather than an emerging form of alternative discipline policy.

Why CASE is Important: Jury refusal to accept one popular form of alternative discipline policy. “Restorative Justice”

Restorative Justice Philosophy of Reforming School Discipline Focus:
Diminishing Zero Tolerance in School Discipline Fewer Out-of-School Suspensions Expulsions as a “Last Resort”

Restorative Justice Philosophy of Reforming School Discipline Focus:
Reduction of Referrals to Juvenile Justice Not Reporting Campus Misconduct that is not Necessarily Violent or Dangerous.

Why CASE is Important: The School district defended by saying it was confused about how to implement its own policies. “The question in this case is how does a [school] district strike a balance between safety and the rights of all children to an education?” Snohomish School District Trial Documents

Snohomish School District
Confused by its own School Policies: Schools have a duty to keep a child in school. But, School districts are encouraged to find alternatives to suspension. Discipline should be be progressive in nature. But, expulsion should be used in an emergency only – when there is an immediate and continuing danger to the students and then only until the emergency subsides.

Confused by its own School Policies: Prior to excluding a student from class: --- “the teacher must first attempt one or more alternative forms of corrective action.”

Confused by its own School Policies: “No student shall be expelled unless other forms of discipline (corrective action, exclusion, detention), short term and long term suspension reasonably calculated to modify his or her conduct have failed unless there is good reason to believe that other forms of corrective action or consequence would fail if employed.”

Confused by its own School Policies: “Students 13 years and older have confidentiality rights in records regarding drug, alcohol and mental health treatment.”

Confused by its own School Policies: “A school district cannot search a student unless it has a “reasonable, individualized suspicion” justifying the search.”

M.S.D. of Martinsville v. Jackson
LIABILITY M.S.D. of Martinsville v. Jackson Court of Appeals of Indiana May 19, 2014 9 N.E.3d 230 2014 WL

Facts: Two Middle School students were shot at school by another student. Each Victim filed lawsuits against the Metropolitan School District alleging that the School District breached its duty to keep them safe.

Facts: The shooter was never expelled, although his disciplinary record was the following: Fifty (50) discipline referrals: Forty-three (43) of which were for disrespect toward school personnel or failure to follow school rules. Seven (7) discipline referrals for harassing, threatening, and physically assaulting other students.

Facts: Five (5) weeks before the shooting, the shooter commented to some of his classmates that he wanted to “just blow up the school.” The school barred from entering school property except to take the ISTEP test. His mother withdrew him from school as expulsion proceedings finally began.

RULING: The Indiana Court of Appeals ruled that a school district is not entitled to immunity for injuries to a student that are reasonably foreseeable. Indiana educators have a “special duty,” to supervise students.

RULING: The Indiana Court of Appeals ruled that educators have a “special duty,” to supervise students.

Why CASE is Important: Implementing a school safety plan on campus is not a discretionary task for educators. Immunity from suit for educators is being taken away in the area of school safety.

“Principal Lipps's development of the safety plan …is not the type of policy-making that our supreme court has since determined should be exempt from liability.” ”The student’s complaint does not allege that the …safety plan was negligently formulated. Rather, it claims that [their injuries] resulted from negligent implementation of the plan.”

“Reasonable Forseeability” with Bite:
“Given these facts, a jury could conclude that it is foreseeable that a shooting would occur:” [The shooter] had a lengthy history of serious misbehavior in school; Threatened to blow up the school; Was on school grounds, presumably in close proximity to the personnel monitors, for thirty minutes prior to the shooting. He had made threats against C.J., of which at least one teacher was aware. The day before the shooting, another student had made a threat to shoot a teacher.

Duval County School Bd. v. Buchanan
LIABILITY Duval County School Bd. v. Buchanan Court of Appeals of Florida February 7, 2014 131 So.3d 821 301 Ed. Law Rep. 1154

Duval Cty Schools v. Buchanan
Facts: A sixth grade middle school student physically attacked another student, breaking the victim’s leg.

Facts: The attacker—had an extensive disciplinary history: Bullying Fighting Disruption of classes Bringing a weapon to school (knife) punished by an in-school suspension (ISS) set to begin on the day of the attack.

RULING: School district liable for failing to place the attacker in in-school suspension (ISS) on the day of the attack, where she was scheduled to be due to bringing a knife to school.

Why CASE is Important: Both the jury and the appellate court rejected the defense of the school district that its forms of discipline are discretionary decisions that are immune from liability. Victim’s rights are being given more weight in the assessment of reasonable forseeability.

School District Defense: “On appeal, the School Board argues that it owed no duty to Buchanan to: Discipline Terry in a particular manner. Discipline Terry on any particular day.”

School Interrogations
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J. D. B. v. North Carolina June 16, 2011, Decided
"[T]he age of a child subjected to police questioning is relevant to the custody analysis of Miranda." 13-year-old, seventh-grade student removed from his classroom. Questioned by outside police, SRO, and questioned 2 administrators for 30 minutes. Crimes unrelated to school. No Miranda was given. Student was not told that he was free to leave. Student confessed.

Trial court and appellate court refused to suppress the confession. U.S. Supreme Court reverses. “In some circumstances, a child's age would have affected how a reasonable person in the suspect's position would perceive his or her freedom to leave.”

“[A] reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go.” “We think it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis."

Interrogations J.D.B. v. N. Carolina, 131 S. Ct. 2394 (2011)
S.G. v. State, 956 N.E.2d 668 (Ind. Ct. App. 2011) State v. Oligney, 841 N.W.2d 581 (2013) State v. Antonio T. 300 P.3d 1181 (N.M. 2013) N.C. v. KY., 396 S.W.3d 852 (Ky. 2013)

School Interrogations
Adam Lewental

SG v State Indiana Court of Appeals 2011
Teacher left iPhone in school bathroom. Security cameras caught student who stole it. SG [17-years-old] received stolen property, got rid of it. SRO brought SG to Principal’s office. Principal questioned, SRO said nothing, SG confessed. SG suspended and charged with receiving stolen goods.

SG v State Why is this Case Important?
Mere presence of SRO not coercive. Does not create custody SRO: “[Responsible for] the safety and security of the students and staff. Also, dealing with any type of law enforcement issues that could arise from within the school or on the property from outside.”

State v Antonio T New Mexico Court of Appeals 2012
Juveniles need Miranda warning when subject to investigatory detention, rather than custodial interrogation (only in New Mexico) “presumptively brief and not so inherently coercive that the detainee feels compelled to speak” Student (age not given) accused of being intoxicated in school Vice Principal questioned student in front of SRO, SRO said nothing. Student confessed, SRO gave Miranda rights after Vice Principal Vanessa Sarna typically dealt with disciplinary issues within her high school. When two teachers suspected that a student had been drinking in school, it was natural for them to bring the student, Antonio, to Vice Principal Sarna’s office. Sarna noticed that Antonio was slurring his speech, and so she called Deputy Emerson Charley to her office as a precaution in the case that Antonio should become violent. Charley served as the school’s SRO, but still wore his full police uniform with all its accoutrements. Sarna questioned Antonio briefly about his alcohol consumption. Antonio revealed that he had been drinking, and disposed of the bottle in the student bathroom. Sarna then had Charley administer a Breathalyzer test to Antonio, which revealed that Antonio was fairly intoxicated. Nervous about the possibility of having a bottle of alcohol in the student bathroom, Sarna dispatched Charley to investigate. When Charley returned, he read Antonio his Miranda rights and proceeded to question him about his actions in Charley’s capacity as a law enforcement officer. When the case went to trial, the defense argued that Antonio’s confession regarding his alcohol consumption had been an improper case of self-incrimination, and that he should have been read his Miranda rights prior to questioning. The court reasoned that Sarna’s two primary concerns were the safety of Antonio and the safety of other student’s that may be affected by his actions. Educators are necessarily given wide latitude in their methods for ensuring school safety, and questioning students on safety violations fall within them. Sarna was conducting an investigation on a school policy violation. To accomplish this, she directed the actions of the SRO to expedite the resolution of the issue. During questioning, the SRO maintained a presence merely to ensure safety. He did not question the student, nor take any action to advance an independent criminal investigation while under the direction of Sarna. Generally, Miranda warnings are not required when the SRO is working at the direction of an educator to investigate a school safety issue and the SRO minimizes his presence as much as possible. However, this rule leaves a lot of room for error.

State v Antonio T Importance
Administrator was acting only for safety of student and school SRO worked at direction of educator SRO did not engage in questioning Miranda not necessary, confession stands

State v Oligney Wisconsin Court of Appeals 2013
Allegations that 16-year-old student raped another student off campus Police officer came to school in plainclothes SRO brought student to office where he and officer told student he was free to leave, interviewed for 2 hours Detective James Drootsan was dispatched to the local high school after the station received reports that 16-year-old student Cory Oligney had sexually assaulted a female student. Drootsan went in plainclothes but carried his gun in plain view. SRO Rodney DuBois met Drootsan when he arrived. DuBois coordinated with the school’s main office to have Oligney removed from class, and then he intercepted Oligney in the hallway. DuBois brought Oligney to the school resource office, where Drootsan was already waiting. Drootsan made it very clear that Oligney was not under arrest, not obligated to speak, or to even stay. In fact, the office was designed so that students could come and go as they pleased; there were unlocked doors leading into the main hallway and main office. Drootsan and DuBois each sat at a desk, while Oligney sat in a chair next to the hallway door. Drootsan informed Oligney that he was not under arrest; the interview was recorded nonetheless. The officers spoke calmly and coolly with Oligney. The interview lasted two hours, well past the last school bell. When the conversation seemed to naturally come to an end, Officer Drootsan once again let Oligney know that he was free to leave at any time. Oligney argued in court that without Miranda warnings, he was forced to involuntarily incriminate himself

State v Oligney Importance
No custody because: Student told twice that didn't have to stay, clear that student was free to leave He was not restrained in any manner while seated next to the unlocked door Judge felt that 16-year-old teenager generally has less respect for authority than the reasonable adult

State v Oligney Importance
"A reasonable person of Oligney's age [16 years-old] would not ordinarily have felt obligated to participate against his or her wishes; teenagers are often recalcitrant."

NC v Kentucky Supreme Court of Kentucky 2013
17-year-old high school student Teacher found empty bottle of prescription meds in school bathroom Asst. principal and SRO questioned student together, as per routine No miranda warnings SRO filed criminal charges after confession Detective Sheriff Stephen Campbell and Assistant Principal Michael Glass knew exactly what to do when they received an empty pill bottle that a teacher had found in the student bathroom. After all, Asst. Principal Glass and SRO Campbell had worked together extensively on disciplinary actions within the school for several years, and had established a “loose routine.” Using information from the bottle, as well as reports that a student had been distributing painkillers, the pair went to the classroom of NC. NC was brought to Glass’s office. NC sat down across from Glass. Campbell closed the door and sat down next to NC. NC nervously eyed Campbell’s gun, the butt jutting out from Campbell’s police uniform. “Do you know why you are here?” Glass asked sternly. NC seemed apprehensive. Glass produced the pill bottle, and NC immediately confessed, “I did something stupid.” NC explained that he had been prescribed the pills after a recent dental procedure. A fellow student had approached him and demanded that he share his supply. The student was very insistent, and since he was nearly done with the bottle anyway, NC had acquiesced. Glass and Campbell continued to question NC until they were satisfied that they had a thorough understanding of the events. Glass listened thoughtfully to the NC’s story, considering the consequences. NC’s actions had certainly violated school policy, and Glass informed him that he would likely be facing expulsion. He was aware from working with Campbell that distributing prescription painkillers was a “criminal activity” that may have legal consequences. Glass left the room to find the student who had received the pills, leaving the Detective Sheriff Campbell alone with NC. At this point, Campbell informed NC that he would be charged with a crime in juvenile court, based on the evidence and his confession. The court found that this case violated all four points for determining Miranda violations. First, NC was led to believe that he had to remain in the resource office until the questioning was complete, effectively creating a custodial interrogation. NC was not told that he had the freedom to refrain from answering or that he could leave the questioning. In fact, Assistant Principal Glass expected NC to fully cooperate, and conveyed as much. Since Glass and Campbell worked together so consistently on investigations and had such an established routine, the court found that Glass became a state agent for law enforcement. NC knew that he had violated school rules. All prescription medication had to be kept with the school nurse. However, his prescription was legally and rightfully his, so facially the investigation seemed to be a school disciplinary proceeding. Glass knew from prior experience that Campbell often used confessions drawn during their investigation to press criminal charges, and so every time they worked together was potentially a criminal investigation. Yet, NC was not informed of this circumstance. NC’s confession was the sole basis for finding any criminal action. The court also considered NC’s age when determining that his confession could not be voluntary. They felt that the vast majority of 17-year-olds would not feel free to refrain from answering the assistant principal and officer’s questions, especially since he was not aware that he was possibly facing criminal charges.

NC v Kentucky Importance
“Consequently, a proper balance is struck if school officials may question freely for school discipline and safety purposes, but any statement obtained may not be used against a student as a basis for a criminal charge when law enforcement is involved or if the principal is working in concert with law enforcement in obtaining incriminating statements, unless the student is given the Miranda warnings and makes a knowing, voluntary statement after the warnings have been given.”

Questioning by educator alone does not need Miranda Mere presence of SRO requires Miranda Because SRO/AP worked in concert, Miranda warning must be given Reasonable student (even 17-year-old) would not feel free to leave questioning from principal/SRO

“No reasonable student, even the vast majority of seventeen year olds, would have believed that he was at liberty to remain silent, or to leave, or that he was even admitting to criminal responsibility under these circumstances.” –NC v Kentucky

Where Does This Leave Us?
“No reasonable student, even the vast majority of seventeen year olds, would have believed that he was at liberty to remain silent, or to leave, or that he was even admitting to criminal responsibility under these circumstances.” –NC v Kentucky "A reasonable person of Oligney's age [16 years-old] would not ordinarily have felt obligated to participate against his or her wishes; teenagers are often recalcitrant." –State v Oligney

5th Amendment does not apply to educators as long law enforcement not involved in questioning. May question students without warnings. School safety is always present as primary concern. off campus on campus

Presumption against law enforcement and school resource officers The younger the student, the more likely custody will be found and Miranda necessary If law enforcement is conducting questioning, some warning will be necessary Miranda “Oligney” warning In Kentucky, mere presence of SRO requires Miranda If law enforcement is conducting questioning, a warning will be necessary - reference

Adam Lewental Adam.Lewental@pepperdine.edu

Indiana Law on Interrogations
: If a student who is under eighteen (18) years of age is interrogated by a law enforcement officer: (1) on school property; and (2) regarding an investigation in which the student may be a suspect; the school principal must make an effort to immediately notify the student's parent of the interrogation, or … notify the student's parent not later than twelve (12) hours after the interrogation occurs.

Indiana Law on Interrogations
Optional School Policies: 1. A policy that requires student's parent to be notified if the student is interrogated on school property by a law enforcement officer AT ANY AGE. 503

Colorado: (2008) “[S]hall not use a statement….unless the statement is signed by the student and a parent….” Exception: Signed by student only after phone calls are made to parent at the number(s) provided.

Oklahoma Statutes on Interrogations
Okla. Stat. tit. 10, § 1109(a): No information gained by questioning a child nor any evidence subsequently obtained as a result of such information shall be admissible …unless the questioning … by any law enforcement officer or investigative agency, or employee of the court, or the Department of Human Services is done in the presence of the parents.”

New Mexico Statutes on Interrogations
N.M. Stat. Section 32A-2-14(C) : “A child subject to the provisions of the Delinquency Act is entitled to the same basic rights as an adult.”

N.M. Stat. Section 32A-2-14(C) : Notwithstanding any other provision to the contrary, no confessions, statements or admissions may be introduced against a child under the age of thirteen years on the allegations of the petition.

N.M. Stat. Section 32A-2-14(C) : There is a rebuttable presumption that any confessions, statements or admissions made by a child thirteen or fourteen years old to a person in a position of authority are inadmissible.

FREE SPEECH Nixon v. Hardin County Bd. of Education.
Wynar v. Douglas County School Dist People v. Marquan M. S.N.B. v. Pearland Independent School District

Nixon v. Hardin County Bd. of Education.
FREE SPEECH Nixon v. Hardin County Bd. of Education. United States District Court, W.D. Tennessee, DECEMBER 27, 2013 013 WL (2013) Note: WL means ‘WestLaw‘

Nixon v. Hardin County Bd.
A dispute between two female students who, while attending the middle school. Competing for the attention of the same male student. A series of tweets: -- “[I will help you] shoot [her] in the face.” -- “Good Luck. Shoot her in the face.” -- “I hate her. That was my whole point. … I’ll kill her.”

The mother of the THREATENED student called the assistant principal at home to advise him of her concerns about sending her daughter to school the next day. School gave Nixon a forty-five-day suspension and a transfer to the alternative school for the duration of the suspension period.

Emerging Rule on Cyberbullying
Student cyber- speech speech may be punished when it originates on campus, or uses school equipment off-campus or originates off campus but is directed at the school in such a way as to pose a reasonable foreseeable risk that it will disrupt the work and discipline of the school.

Rule on Threats In the school context, threats of violence and harassment are not protected speech. But there must be a connection between the cyberbullying and the school to justify school discipline. The speech must have something to do with the school to justify school discipline.

Court Decision School discipline invalid. Facts do not satisfy the geography test

Nixon v. Hardin County Bd. Why CASE is Important:
“Here, the speech had no connection to [the school] whatever other than the fact that both the speaker and the target of the speech studied there.” No disruption of school activities. “The speech was not made at school, directed at the school, or involved the use of school time or equipment.”

Wynar v. Douglas County School Dist
FREE SPEECH Wynar v. Douglas County School Dist United States District Court, District of Nevada AUGUST 29, 2013 728 F.3d 1062 (9th Cir.2013)

Wynar v. Douglas County Sch
A high school student who sent several threatening instant messages from home via MySpace to his friends bragging about his guns and promising to shoot persons at the school on a certain date. The student’s instant message conversation was forwarded to school officials by others.

Rule on Threats In the school context, threats of violence and harassment are not protected speech. But there must be a connection between the cyberbullying and the school to justify school discipline. The speech must have something to do with the school to justify school discipline.

Wynar v. Douglas County Sch
Court Decision: School discipline Valid

Wynar v. Douglas County Why CASE is Important:
School Officials did not violate the Free Speech Rights of the Student: The student stated that he had access to guns and ammunition and picked out a particular date to carry out his threats. The school district had a reasonable basis to forecast a disruption of school activities, and thus the school did not improperly suppress the student’s speech,

New York Court of Appeals
FREE SPEECH People v. Marquan M. New York Court of Appeals JULY 1, 2014 2014 NY Slip Op 04881

People v. Marquan M. A high school student, anonymously posted sexual information and photographs of fellow classmates and other adolescents on Facebook, a social networking website. Detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information. The descriptive captions, which were vulgar and offensive.

People v. Marquan M. Juvenile was charged with cyberbullying under Albany County's local law. "any act of communicating on…..on the internet. ….disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, …with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person"

People v. Marquan M. Court Decision:
Albany County’s cyberbullying law was overbroad and facially invalid under the Free Amendment. The text of the law covered too much. The law criminalized a variety of constitutionally-protected modes of expression - a great deal more than acts of cyberbullying.

People v. Marquan M. Why CASE is Important:
Cyberbullying can by criminalized. The laws must be written with greater precision. School rules should be precise.

FREE SPEECH S.N.B. v. Pearland Independent School District
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS DECMEBER 22, 2013 2014 WL Note: WL means ‘WestLaw‘

People v. Marquan M. 12-year old middle school student began sending inappropriate pictures of herself and her friend to other students off school grounds. Student, who was transferred to disciplinary alternative education program

People v. Marquan M. School Policy:
“[You cannot] send, post or possess electronic messages that are abusive, obscene, sexually oriented, threatening, harassing, damaging to another's reputation or illegal, Including cyber-bulling ‘sexting’ ….either on or off school property, if the conduct causes a substantial disruption to the educational environment.”

People v. Marquan M. Court Decision:
School officials did not violate student's constitutional rights by punishing her for lewd photograph. School policy was not overbroad. School policy did not cover too much protected speech. Transfer to the alternative school did not deprive student of any right to an education.

People v. Marquan M. Why Case is Important
School officials have a range of alternative punishments for cyberbullying and inappropriate speech that Court think are above judicial review: Transfers In-school suspension Deprivation of Participation School sponsored programs

ANONYMOUS TIPS K.P. v. State of Florida

Florida Court of Appeals
ANONYMOUS TIPS K.P. v. State of Florida Florida Court of Appeals DECEMBER 26, 2014 2013 WL Note: WL means ‘WestLaw‘

K.P. v. State of Florida Law enforcement from another jurisdiction received an anonymous tip that K.P. was carrying a firearm. An assistant principal of a public high school took possession of a student’s book bag after receiving information. A loaded, semi-automatic handgun was found. K.P. was arrested and adjudicated.

K.P. v. State __ So.3d __; 2013 WL 6800973 (FLA 2013)
“An anonymous tip like the one at issue may not constitute a sufficiently reliable indicator that a crime was occurring to justify a search of K.P. by police officers on a public street…

K.P. v. State __ So.3d __; 2013 WL 6800973 (2013)
“…However, the level of reliability required to justify a search is lower when the tip concerns possession by a student of a firearm in a public school classroom.”

K.P. v. State __ So.3d __; 2013 WL 6800973 (2013)
“An anonymous tip that a named student has a gun in school is not something that school administrators may lightly ignore. It is not a matter that warrants no response. …

K.P. v. State __ So.3d __; 2013 WL 6800973 (2013)
“…[T]he conclusion appears inescapable that a reasonable guardian and tutor of a group of school children might well conduct a search of the student’s book bag to address such a substantial threat to the children assembled at school.”

K.P. v. State Why Case is Important
In School where the expectation of privacy is diminished, such as in airports or schools, an anonymous tip about a dangerous event might be so great as to justify a search without corroborating the reliability of the tip.

Use of Force - Tasers • Indiana Supreme Court upholds use of Taser by school resource officer against student whose conviction for resisting law enforcement, as a class A misdemeanor, and disorderly conduct, a class B misdemeanor were upheld. [Walker v. State].

Use of Force - Tasers • A federal court panel rules that a school resource officer who used chemical spray on a high school student a second time, when she was allegedly incapacitated, non-resistant, and writhing in pain on the ground, was not entitled to qualified immunity against a claim of unreasonable force, even if the first use of chemical spray was reasonable due to the student's resistance. [J.W. ex rel. Williams v. Roper].

Riley v. California 4th Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Riley v. California Rules
“The ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ “Reasonableness = obtaining of a judicial warrant.”

“Any privacy interests retained by an individual after arrest [is] significantly diminished by the fact of the arrest itself.” “[But], the fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.

“In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”

Riley v. California Balancing Test:
The degree to which it intrudes upon an individual’s privacy The degree to which it is needed for legitimate governmental interests.

Riley v. California Search incident to arrest exception:
Officer safety To preserve evidence 1. Personal property immediately associated with the person of the arrestee. 2. Vehicle Greater power for relevant evidence because circumstances unique to the vehicle.

Riley v. California NO Search incident to arrest exception:
3. Cell Phones ? NO

Riley v. California Search incident to arrest exception:
“We therefore decline to extend [it] to searches of data on cell phones.” “[We] hold instead that officers must generally secure a warrant before [searching a cell phone.]”

Riley v. California 1. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. Modern cell phones are …hold for many Americans “the privacies of life.” Data Applications Documents Remote Access to Cloud

Riley v. California 2. “Cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of: a cigarette pack, a wallet, a purse.”

Riley v. California 3. Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.

Riley v. California 4. After seizure of a cell phone, there is no longer any risk of potential loss of evidence that cannot be dealt with other current exceptions or creative methods.

Riley v. California 5. Other Exceptions to the warrant requirement are in play: -- Exigent circumstances -- Plain View -- Consent

Facts and Data Trends: Over the past two decades, America's public schools have become safer and safer. All indicators of school crime continue on the downward trend. school-associated deaths, violence nonfatal victimizations theft

Facts and Data Trends: This trend mirrors that of juvenile arrests:
Fell nearly 50% between 1994 and 2009. Fell 17% between 2000 and 2009 alone. 2011 National Center for Education Statistics & Bureau of Justice Statistics, Indicators of School Crime and Safety

Facts and Data Trends: This trend mirrors that of juvenile arrests:
All States Texas Maryland Florida Many Big Cities Baltimore Houston 2011 National Center for Education Statistics & Bureau of Justice Statistics, Indicators of School Crime and Safety

Facts and Data Trends: This trend mirrors that of increased graduation rates: Rose to 75.5% between 2009 and 2010. Number of “failing schools” dropped from 2,007 to 1,550. Johns Hopkins University, The Everyone Graduates Center. “Building a Grad Nation” (2012)

Facts and Data Trends: This trend mirrors that of increased graduation rates: 40 States reported record increases in the graduation rate. • Maryland • New York • Virginia • Florida • Alabama • Tennessee • Texas • Georgia • North Carolina • Missouri • Massachusetts • Wisconsin Johns Hopkins University, The Everyone Graduates Center. “Building a Grad Nation” (2012)

Letting the Facts and Data Speak for itself:
This period of time: Coincides with the creation and expansion of School Resource Officer programs. Overlaps with statutory and judicial acceptance and authorizations of SROs as part of the school safety team in all 50 states. Explains changes in federal and state records-privacy laws that authorize and promote more effective communication between educators and SROs.

Legitimate Child Welfare Issue:
Research Shows: Poor Exercise of discretion by Educators in responses to: “DISRODERLY CONDUCT” Incidents. Poor Response Better Outcomes • Citation • Risk Factors Assessment • Arrest • Protective Factors “ “ • Zero Tolerance • Treat the Behavior • Serious Offenses Excepted*

Legitimate Child Welfare Issue:
Educational Decisionmaking : Misuses Juvenile Justice System Ignores Child Welfare System Interrupts and Delays Student Learning Student: Harassed by interruptions to learning. Misses opportunity to thrive. May graduate, but is not “ready to contribute”

Restorative-Justice and the SRO
Emerging Research Shows: “Restorative-Justice” techniques are compatible with SRO programs that incorporate the triad approach to campus safety.” Cheryl Swanson & Michelle Owen, “Building Bridges: Integrating Restorative Justice With the School Resource Officer Model,” (2007).

Restorative-Justice and the SRO
Emerging Research Shows: Restorative conferencing with police officers can reduce recidivism and play a key role in restorative justice models. Cheryl Swanson & Michelle Owen, “Building Bridges: Integrating Restorative Justice With the School Resource Officer Model,” (2007).

Bernard James Phone (310) Fax (310) Questions -Comments -Workshops .

SCHOOL SAFETY AND THE COURTS

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