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SCHOOL SAFETY AND THE COURTS TOP CASES TOP CASES2013-2014 Focus: Policymaking.

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Presentation on theme: "SCHOOL SAFETY AND THE COURTS TOP CASES TOP CASES2013-2014 Focus: Policymaking."— Presentation transcript:

1 SCHOOL SAFETY AND THE COURTS TOP CASES TOP CASES Focus: Policymaking

2 Safe Schools – After Newtown

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

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

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

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

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

11 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.

12 Traditional Judicial Deference “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)

13 Traditional Judicial Deference “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)

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

15 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.

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

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

18 Proper Use of Case Law: 1. Examine Federal statutes and Federal court cases looking for prohibitions. 1. Examine State statutes and State court cases looking for prohibitions. 1. Examine local policies to eliminate self-imposed limits on authority

19 Where are the Limits in 2014?.

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

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

22 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.

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

24 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. 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. Due process under the State Education Code is not required.

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

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

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

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

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

30 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. 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. Misconduct was in a bathroom at the school. Principal waited 4 hours before making report. Principal waited 4 hours before making report.

31 SMITH v. STATE OF INDIANA Ruling: State Law’s use of word “immediately” was not vague. 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: 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 The Department of Child Services (DCS) or A law enforcement agency. A law enforcement agency.

32 SMITH v. STATE OF INDIANA Ruling: Principal’s eventual phone call to DCS hotline four (4) hours later was not sufficiently immediate. Principal’s eventual phone call to DCS hotline four (4) hours later was not sufficiently immediate.

33 SMITH v. STATE OF INDIANA Why CASE is Important: Reporting of crime on campus is not a discretionary task for educators. 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.

34 SMITH v. STATE OF INDIANA Why CASE is Important: It is a violation of the law for an educator to prevent or discourage an employee from making a report.

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

36 SMITH v. STATE OF INDIANA Why CASE is Important: Every State and Territory has statutes that require educators to report suspected child victimization and abuse.

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

38 Educators and Reluctance to Report to Other Agencies Misunderstanding of Law 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.

39 Educators and Reluctance to Report to Other Agencies Misunderstanding of Law 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.

40 Educators and Reluctance to Report to Other Agencies Misunderstanding of Law Misunderstanding of Law All persons are mandated reporters. teachers, school officials school nurses school counselors any other person with school duties.

41 Educators and Reluctance to Report to Other Agencies Misunderstanding of Law Misunderstanding of Law Regardless of any policies within the school district, the educator is not relieved of the responsibility to report.

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

43 SMITH v. SNOHOMISH SCHOOL DISTRICT Facts: A stabbing occurred on-campus in a downstairs bathroom near the cafeteria in the morning before school started. 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. 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.

44 SMITH v. SNOHOMISH SCHOOL DISTRICT Facts: The girl told school officials in spring 2011 that she was having fantasies about killing others. 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. 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.

45 SMITH v. SNOHOMISH SCHOOL DISTRICT 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. a jury decided the Snohomish School District must pay $1.3 million for its negligence in failing to take proper steps to protect students.

46 SMITH v. SNOHOMISH SCHOOL DISTRICT 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.

47 SMITH v. SNOHOMISH SCHOOL DISTRICT Why CASE is Important: Jury refusal to accept one popular form of alternative discipline policy. “Restorative Justice”

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

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

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

51 SMITH v. SNOHOMISH SCHOOL DISTRICT 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?” “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

52 Snohomish School District Confused by its own School Policies: Confused by its own School Policies: Schools have a duty to keep a child in school. Schools have a duty to keep a child in school. But, School districts are encouraged to find alternatives to suspension. But, School districts are encouraged to find alternatives to suspension. Discipline should be be progressive in nature. 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. 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.

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

54 Snohomish School District Confused by its own School Policies: 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.” “ 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.”

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

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

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

58 M.S.D. of Martinsville v. Jackson Facts: Two Middle School students were shot at school by another student. 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. Each Victim filed lawsuits against the Metropolitan School District alleging that the School District breached its duty to keep them safe.

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

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

61 M.S.D. of Martinsville v. Jackson 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. 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.

62 M.S.D. of Martinsville v. Jackson RULING: The Indiana Court of Appeals ruled that educators have a “special duty,” to supervise students. The Indiana Court of Appeals ruled that educators have a “special duty,” to supervise students.

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

64 M.S.D. of Martinsville v. Jackson “ “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.”

65 “Reasonable Forseeability” with Bite: “Given these facts, a jury could conclude that it is foreseeable that a shooting would occur:” “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; [The shooter] had a lengthy history of serious misbehavior in school; Threatened to blow up the 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. 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. 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. The day before the shooting, another student had made a threat to shoot a teacher.

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

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

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

69 Duval Cty Schools v. Buchanan 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. 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.

70 Duval Cty Schools v. Buchanan 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. 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. Victim’s rights are being given more weight in the assessment of reasonable forseeability.

71 Duval Cty Schools v. Buchanan 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.”

72 School Interrogations.

73 J. D. B. v. North Carolina 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.

74 J. D. B. v. North Carolina J. D. B. v. North Carolina June 16, 2011, Decided 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. ”

75 J. D. B. v. North Carolina J. D. B. v. North Carolina June 16, 2011, Decided “ “ [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."

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

77 School Interrogations Adam Lewental

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

79 SG v State Why is this Case Important? Mere presence of SRO not coercive. Mere presence of SRO not coercive. Does not create custody 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.”

80 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) 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” “presumptively brief and not so inherently coercive that the detainee feels compelled to speak” Student (age not given) accused of being intoxicated in school Student (age not given) accused of being intoxicated in school Vice Principal questioned student in front of SRO, SRO said nothing. Vice Principal questioned student in front of SRO, SRO said nothing. Student confessed, SRO gave Miranda rights after Student confessed, SRO gave Miranda rights after

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

82 State v Oligney Wisconsin Court of Appeals 2013 Allegations that 16-year-old student raped another student off campus Allegations that 16-year-old student raped another student off campus Police officer came to school in plainclothes 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 SRO brought student to office where he and officer told student he was free to leave, interviewed for 2 hours

83 State v Oligney Importance No custody because: No custody because: Student told twice that didn't have to stay, clear that student was free to leave 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 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 Judge felt that 16-year-old teenager generally has less respect for authority than the reasonable adult

84 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."

85 NC v Kentucky Supreme Court of Kentucky year-old high school student 17-year-old high school student Teacher found empty bottle of prescription meds in school bathroom Teacher found empty bottle of prescription meds in school bathroom Asst. principal and SRO questioned student together, as per routine Asst. principal and SRO questioned student together, as per routine No miranda warnings No miranda warnings SRO filed criminal charges after confession SRO filed criminal charges after confession

86 “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.” NC v Kentucky Importance

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

88 NC v Kentucky Importance “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

89 “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 “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 "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 Where Does This Leave Us?

90 5 th Amendment does not apply to educators as long law enforcement not involved in questioning. 5 th 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. May question students without warnings. School safety is always present as primary concern. off campus off campus on campus on campus

91 Presumption against law enforcement and school resource officers Presumption against law enforcement and school resource officers The younger the student, the more likely custody will be found and Miranda necessary 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 If law enforcement is conducting questioning, some warning will be necessary Miranda Miranda “Oligney” warning “Oligney” warning In Kentucky, mere presence of SRO requires Miranda In Kentucky, mere presence of SRO requires Miranda Where Does This Leave Us?

92 Adam Lewental u

93 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 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; (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. 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.

94 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

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

96 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.”

97 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.”

98 New Mexico Statutes on Interrogations 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. 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.

99 New Mexico Statutes on Interrogations 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. 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.

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

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

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

103 Nixon v. Hardin County Bd. 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. 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 School gave Nixon a forty-five-day suspension and a forty-five-day suspension and a transfer to the alternative school for the duration of the suspension period. a transfer to the alternative school for the duration of the suspension period.

104 Emerging Rule on Cyberbullying Student cyber- speech speech may be punished when Student cyber- speech speech may be punished when it originates on campus, it originates on campus, or uses school equipment off-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. 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.

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

106 Nixon v. Hardin County Bd. Court Decision Court Decision School discipline invalid. School discipline invalid. Facts do not satisfy the geography test Facts do not satisfy the geography test

107 Nixon v. Hardin County Bd. Why CASE is Important: 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.”

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

109 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.

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

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

112 Wynar v. Douglas County Why CASE is Important: 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,

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

114 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. 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. 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. The descriptive captions, which were vulgar and offensive.

115 People v. Marquan M. Juvenile was charged with cyberbullying under Albany County's local law. Juvenile was charged with cyberbullying under Albany County's local law. " any act of communicating on…..on the internet. " 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, ….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" …with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person"

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

117 People v. Marquan M. Why CASE is Important: 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.

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

119 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. 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 Student, who was transferred to disciplinary alternative education program

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

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

122 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: School officials have a range of alternative punishments for cyberbullying and inappropriate speech that Court think are above judicial review: Transfers Transfers In-school suspension In-school suspension Deprivation of Participation School sponsored programs Deprivation of Participation School sponsored programs

123 ANONYMOUS TIPS K.P. v. State of Florida K.P. v. State of Florida

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

125 K.P. v. State of Florida Law enforcement from another jurisdiction received an anonymous tip that K.P. was carrying a firearm. 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. 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. A loaded, semi-automatic handgun was found. K.P. was arrested and adjudicated. K.P. was arrested and adjudicated.

126 K.P. v. State __ So.3d __; 2013 WL (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 …

127 K.P. v. State __ So.3d __; 2013 WL (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.”

128 K.P. v. State __ So.3d __; 2013 WL (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. …

129 K.P. v. State __ So.3d __; 2013 WL (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.”

130 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.

131 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]. Walker v. State

132 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].J.W. ex rel. Williams v. Roper

133 Riley v. California 4 th Amendment: “The right of the people to be secure in their per- sons, 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.”

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

135 Riley v. California Rules “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.

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

137 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.

138 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.

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

140 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.]”

141 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

142 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.”

143 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.

144 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.

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

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

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

148 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

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

150 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)

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

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

153 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”

154 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).

155 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).

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


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