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Presented by: Catherine Hardison, PhD, JD and Charles Wheaton, PhD Ch 3 Stndt & Law Hardison/Wheaton 11-12 1.

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Presentation on theme: "Presented by: Catherine Hardison, PhD, JD and Charles Wheaton, PhD Ch 3 Stndt & Law Hardison/Wheaton 11-12 1."— Presentation transcript:

1 Presented by: Catherine Hardison, PhD, JD and Charles Wheaton, PhD Ch 3 Stndt & Law Hardison/Wheaton

2 School District Powers Broad, but not absolute Standard is reasonableness Meaning: Rules will be found reasonable if necessary to: Maintain orderly and peaceful school environment Advance the educational process Cannot be too broad or nebulous to allow Arbitrary and inconsistent interpretation Why important terms??? Ch 3 Stndt & Law Hardison/Wheaton

3 School District Powers FUNDAMENTAL FAIRNESS Students must know what behavior is expected of them, therefore: Cannot be vague or ambiguous in Meaning Application Must be sufficiently definite to provide Adequate information regarding Expected behavior Students of AVERAGE intelligence must understand and not be required to GUESS at the meaning Creates a problem for Sped students Ch 3 Stndt & Law Hardison/Wheaton

4 School District Powers In loco parentis means? In place of the parent Allows school officials to exercise Reasonable degree of control over students under their supervision. Has limits b/c do not fully replace parents Limited to school functions and activities Prudence dictates actions be consistent with average parent under same or similar circumstances. Ch 3 Stndt & Law Hardison/Wheaton

5 Who is the Parent? Question: What will be your response to a parent who comes into your classroom demanding something for her child and says, “I am her parent and I have a right to determine how your handled her when she broke that school rule (running down the hall way, pushing other students out of the way) Ch 3 Stndt & Law Hardison/Wheaton

6 School District Powers “Average parent (teacher, principal, counselor) under same or similar circumstances” Concept...why important to know? Ch 3 Stndt & Law Hardison/Wheaton

7 Student Rights Two Key points to remember: 1) ALL student have certain basic rights Students do not lose their constitutional rights when they come onto school property However, these rights may be more limited than in the public sector (outside of school) SIX of most important 1st Amendment rights are? Ch 3 Stndt & Law Hardison/Wheaton

8 Student 1st Am Rights First Amendment “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (1791) Ch 3 Stndt & Law Hardison/Wheaton

9 Student 1st Am Rights Educ opportunity without discrimination Freedom of speech and press Freedom to peacefully assemble Freedom to petition government for redress of grievances Free exercise of religion (covered) Free from sectarian control or influence (covered) Ch 3 Stndt & Law Hardison/Wheaton

10 Student 1st Am Rights 2) The second concept is that: TPM School districts can regulate Time Place and Manner Of assertion of 1st amendment rights Ch 3 Stndt & Law Hardison/Wheaton

11 Student 1st Am Rights 1) Education opportunity without Discrimination due to: National origin Marital status Race Previous arrest Religion Previous incarceration Economic status Physical handicap Sex Mental handicap Pregnancy Sensory handicap MEANING WHAT TO YOU? Any bothersome? Ch 3 Stndt & Law Hardison/Wheaton

12 Student 1st Am Rights 2) Freedom of speech and press Meaning? Can students speak and write about anything they choose? Scenario: Several students begin to wear black armbands in protest of war in Iraq. The principal tells you to take the arm bands from the students. What do you do? The principal and you need to know about the next two cases Ch 3 Stndt & Law Hardison/Wheaton

13 Student 1st Am Rights Tinker v Des Moines Independent Community School District (1969) Leading case on right to freedom of expression. Students refused to remove armbands, were suspended until removed them Parents sued to enjoin* board from enforcing policy USSC invalidated the policy (Board only made policy after rumor of future protest reached them) *enjoin??? Ch 3 Stndt & Law Hardison/Wheaton

14 Student 1st Am Rights “School officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of the petitioners. Famous quote: Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” VERY IMPORTANT LANGUAGE!! Ch 3 Stndt & Law Hardison/Wheaton

15 Student 1st Am Rights Washington State has its own case Bethel School District v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 93 L.Ed. 2nd 549 (1986) Scenario: A student claims he has the constitutional right to say what he wants in a nominating speech for another classmate. The principal asks you to explain why he cannot use the speech. You read the speech and find that it contains a elaborate, sexual metaphor. How do you respond ? Ch 3 Stndt & Law Hardison/Wheaton

16 The Language-It is 1986 "I know a man who is firm - he's firm in his pants, he's firm in his shirt, his character is firm - but most [of] all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts - he drives hard, pushing and pushing until finally - he succeeds. Jeff is a man who will go to the very end - even the climax, for each and every one of you. So please vote for Jeff Kuhlman, as he'll never come between us and the best our school can be. He is firm enough to give it everything." [Long pause after the word "come" on oral delivery, but no comma in the written version, according to Matthew N Fraser] Ch 3 Stndt & Law Hardison/Wheaton

17 Student 1st Am Rights First, continue working with school admin Check the school district policy Bethel School District had a rule, “Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures USSC agreed school could limit the language of the speech and could suspend the student after he was warned not to give it Ch 3 Stndt & Law Hardison/Wheaton

18 Student 1st Am Rights 3) To peacefully assemble Meaning? Can students protest/demonstrate at all? Scenario: During school hours and in protest to a recent school policy change hours, students are milling around the principal’s office, some are yelling out obscenities. The principal asks you to disperse the crowd. You move toward the group and its leader shouts, “You cannot make us move, we have a constitutional right to assembly.” The class bell has rung and the students have crowded the corridor and other students cannot get by to go to their classes. What is your response? Ch 3 Stndt & Law Hardison/Wheaton

19 Student 1st Am Rights Your response should be: School can disallow demonstrations that deprive other students of the right to pursue their studies in an orderly and peaceful environment Students engaged in demos cannot obstruct corridors or prevent free movement among students not involved, then Disperse the crowd Ch 3 Stndt & Law Hardison/Wheaton

20 Student 1st Am Rights Any activities associated with demo that result in disrespect for authority, destruction of property, violation of school rules, or other activities can be banned HOWEVER An activity involving students’ right to freedom of expression cannot be banned simply because it creates discomfort or conflicts with the views of the school Ch 3 Stndt & Law Hardison/Wheaton

21 Student 1st Am Rights 4) To petition government and its representatives for redress of grievances Meaning? Scenario: Students have come to you because they do not like the way the pep assemblies are being held. They tell you the students in charge of the assemblies are using racial slurs. They claim the principal will not listen to them and want to write a petition for students to sign. They want you to tell them if they have the constitutional right to petition. What is your response? Ch 3 Stndt & Law Hardison/Wheaton

22 Student 1st Am Rights Is a school a government representative? Yes, called a state actor in some cases Their petition is written in response to indecent or offensive speech, which is vulgar, obscene, or mocks others based on race, origin, color, sex, or religion. They should be allowed to petition if, in turn, the petition does not substantially disrupt the educational process. BUT, You are in an untenable position, caught between school administration and students. What is your best approach? Ch 3 Stndt & Law Hardison/Wheaton

23 Now Onto to Law Violations (Beyond School Polices, Procedures, Rules) At some point, law enforcement will become a VERY necessary part of an issue at school How you partner with officers will mean the difference between a safe and secure school environment and one of insecurity and even dangerousness Best Practice: Partner with local law enforcement: city, county, state. Invite officers into classrooms. Ch 3 Stndt & Law Hardison/Wheaton

24 Every Law Violation Presents a Challenge to School Safety: FIRST, Current incident Must be resolved SECOND, Future incidents Must be prevented Ch 3 Stndt & Law Hardison/Wheaton

25 Safety Balance in Schools School Safety is a Balance Necessarily Involving Interaction Between Educational/Security Systems and Law Enforcement Ch 3 Stndt & Law Hardison/Wheaton

26 POLICY AND PROCEDURES Basic Questions, as a LEADER YOU Need to Ask or have answers for: Does School Have Policies and Procedures in Place? If so, Does School Have Policies and Procedures in Place? If so, Ch 3 Stndt & Law Hardison/Wheaton

27 POLICY AND PROCEDURES l When will law enforcement or school security be notified of an incident? l Who is in charge at the school? l Usually, SRO is in charge with a law violation, while the school is in charge of school rule violations l How will school handle: l Assaults on other students? l Assaults on Staff? l Threats or harassment? l Weapons? l Drugs? Ch 3 Stndt & Law Hardison/Wheaton

28 Basic Questions To Ask Who will take the lead in different types of cases? Who will perform searches? Who will interrogate? Who decides when an arrest is needed? Or is it a collaborative decision? Any policy on display, carrying, or use of non-lethal weapons, e.g., pepper spray, tasers, etc.? Ch 3 Stndt & Law Hardison/Wheaton

29 Why Important to Ask the ?s Kent School District was sued for 46.4 million dollars ($46,400,000)- Case dropped BUT $ More than many districts’ entire budgets Claim: Handcuffed, twisted arms, grabbed hair Violated student’s civil rights-why? Corporal punishment--why a problem? by the NAACP (Carl Mack, was local pres) Why important to know about who is suing? Ch 3 Stndt & Law Hardison/Wheaton

30 Why Would the NAACP Care? Patterns of behavior are partly established while students are in school You are instrumental in providing an atmosphere for growth and development of these patterns Ch 3 Stndt & Law Hardison/Wheaton

31 Shocking Statistics/Trends One in four prisoners world wide is in an American prison In 1970, we held 200,000 people in prison, now it is more than 1.5 million. Adding in local jails it is 2.3 million or 1 in 100 American adults Why important to school leaders? Ch 3 Stndt & Law Hardison/Wheaton

32 Shocking Statistics (Con’t) Black males in 20s, 30% under control of justice system--prison, jail, probation or parole In some cities, 50% under control of justice system Drug sentences throughout the system make up % of all sentences Ch 3 Stndt & Law Hardison/Wheaton

33 Contributing Factors to Disparities Individual acts of discrimination Policies that have differential racial effects Racial differences in participation in the crimes that lead to involvement with the criminal justice system Source: America Becoming: Racial Trends and Their Consequences, Volume II (2001). Books.nap.edu/ /html/22.html What is your role to change the future? Ch 3 Stndt & Law Hardison/Wheaton

34 Some Reasons NOT to Handle Cases “In house” l Schools not designed to impose legal sanctions l Schools have legal restrictions on what they can/cannot do l Schools may not have victim-oriented provisions l School attempts to handle criminal cases may jeopardize later prosecution l Schools may violate the law by not reporting l School may not have knowledge of student’s other problems and potential danger to the community Ch 3 Stndt & Law Hardison/Wheaton

35 More Reasons NOT to Handle cases “in house” l School risks liability for not reporting criminal behavior l While the school may have multiple incidents they have never reported, the law will treat a juvenile as a “first offender” if it is the first referral l Parents and other members of the public expect that criminal behavior (e.g., drugs, assaults, weapons) will be handled by law enforcement and the courts Ch 3 Stndt & Law Hardison/Wheaton

36 Relevant Juvenile Ages Age at which a youth can be charged with a crime: 8 years old (RCW 9A ) Age during which a youth is presumed not to be able to commit crime, the presumption of which can be overcome during a capacity hearing: 8-11 years old (RCW 9A ) Age at which a youth can waive his/her own Miranda rights: 12 years old (RCW (10) Ch 3 Stndt & Law Hardison/Wheaton

37 More juvenile ages. Age at which a youth who commits an infraction or driving offense is treated as an adult: 16 years old Age at which a youth must face a decline hearing for a Class A felony: 15 years old Age at which a youth must face a decline hearing for extortion in the first degree, indecent liberties, or second degree assault, child molestation, kidnapping, or robbery: 17 years old Ch 3 Stndt & Law Hardison/Wheaton

38 More juvenile ages. Age at which a youth is tried in Superior Court for a violent offense with a firearm, any serious violent offense, a first degree robbery, a first degree rape of a child, burglary in the first degree (with criminal history) or a drive-by shooting: 16 years old Ch 3 Stndt & Law Hardison/Wheaton

39 Student 4th Am Rights 4th Amendment reads: “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.” Ch 3 Stndt & Law Hardison/Wheaton

40 Student 4th Am Rights Levels of Seizure: Ch 3 Stndt & Law Hardison/Wheaton

41 Reasonable Suspicion & Probable Cause (4th Am) RS is a level of knowledge sufficient to induce a prudent and cautious person under the circumstances to believe criminal activity is at hand. (People v. Johnson) It must be based on specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant intrusion. (Curry v. State) PC is a requisite element of valid search and seizure. consists of existence of facts and circumstances within one’s knowledge AND of which one has reasonably trustworthy information, sufficient in themselves to warrant an officer of reasonable caution AND experience to believe that a crime has been committed or that property subject to seizure is at a designated location. (267 US 132) WILL LIKELY REQUIRE A WARRANT SO WHAT DOES THIS MEAN? Ch 3 Stndt & Law Hardison/Wheaton

42 Student 4th Am Rights TERRY v. OHIO Regardless of the existence of probable cause, where a police officer “reasonably concludes” in the light of his experience that criminal activity may be afoot and the person with whom he is dealing may be armed and dangerous, he may “stop” such persons, and if after identifying himself and making reasonable inquiries, his fears are not dispelled, he may conduct a carefully limited search of the outer clothing of such persons for weapons (“hards and sharps”). (USSC, 1968) “Terry Stops” Ch 3 Stndt & Law Hardison/Wheaton

43 School Search Exception The “nexus” requirement: There must be a nexus (or logical connection) between the infraction under investigation and the item sought. State v. B.A.S. Student who violated high school’s closed-campus policy was searched after being caught coming back to school. Marijuana found during the search. HELD: No nexus between violation of closed-campus policy and search. Nothing articulated about student’s history of problems at school, whether he “habitually broke the law or school rules,” whether he had brought contraband in the past, whether he was having academic problems. Ch 3 Stndt & Law Hardison/Wheaton

44 Lesson of B.A.S.: Lesson of B.A.S.: Lesson of B.A.S.: IN CLEAR DETAIL (In your documentation/report) EXPLAIN THE NEXUS IN CLEAR DETAIL (In your documentation/report) Example: Do NOT say: “I saw the student returning from off campus in violation of school rules and searched him in the school office, where I recovered suspected marijuana….” DO say: “I saw the student returning from a field [or woods or apartment building] next to the the campus. This field is a known place for drug use and we have caught many students using drugs or cigarettes in this field throughout the school year. We have repeatedly warned students to stay out of this field because of the drug activity that has taken place there. Moreover, this student has been confronted before for suspected drug usage on campus, Therefore, I suspected that he might be involved in taking school equipment.” Ch 3 Stndt & Law Hardison/Wheaton

45 Search Warrants in General Two Things to Remember: Both Law Enforcement AND School Officials are considered “government actors” and are subject to constitutional controls, although differing levels of control The law presumes that ANY warrantless search is UNREASONABLE. If you don’t have a search warrant, the search must fit in a recognized exception to the warrant requirement Ch 3 Stndt & Law Hardison/Wheaton

46 Two Constitutions Washington State Constitution Article 1, Section 7 “No person shall be disturbed in his private affairs, or his home invaded without authority of law.” “A HIGHER WALL…” US Constitution Fourth 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.” Ch 3 Stndt & Law Hardison/Wheaton

47 Two Constitutions Washington State Constitution Article 1, Section 7, Test is (1)traditionally a privacy interest free from government intrusion and (2) what Washington citizens should be entitled to hold safe from government intrusion… The “notice-and-consent” concept under the Fourth Amendment analysis has been rejected US Constitution Fourth Amendment Test is “expectation of privacy,” meaning that “no privacy warnings” coupled with a person’s decision to proceed with an activity can be interpreted as consent to a search. Ch 3 Stndt & Law Hardison/Wheaton

48 Constitutional Standards Law Enforcement Probable Cause is the standard for arrests and searches REM: Slide # 41? School Officials* Reasonable Suspicion for Searches * Principals * Teachers * School Security Ch 3 Stndt & Law Hardison/Wheaton

49 School Search Exception School teachers and administrators have a substantial interest in maintaining discipline in the classroom and on school grounds, which weighs against a child’s interest in privacy (T.L.O. v. New Jersey, State v. Brooks) Ch 3 Stndt & Law Hardison/Wheaton

50 School Search Exception School Search Exception (TLO) General Rule: (1) Search must be “justified at its inception:” i.e., it must be based on “reasonable grounds” that it will produce evidence of a violation of the law or school rules; (2) Search must be “reasonably related in scope to the circumstances which justified the interference in the first place.” “[T]he measures adopted must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Male staff searches male, female staff searches female. Do not search alone. Never full body search Ch 3 Stndt & Law Hardison/Wheaton

51 TLO v. New Jersey Court: Veep made a common sense conclusion about human behavior. Practical suspicion, not a requirement of absolute certainty School rule against smoking Teacher report TLO had been smoking TLO denial she had been smoking Created nexus for (next slide...) Ch 3 Stndt & Law Hardison/Wheaton

52 TLO v. New Jersey (con’t) Further search for cigarettes (found) and Discovery of cigarette rolling papers lead to suspicion of possession of marijuana justified further exploration of TLO’s purse and School official (Mr. Choplick) discovered A pipe, baggies of type usually used to store marijuana, a small quantity of marijuana, and a fairly substantial amount of money. Evidence was admitted because discovery of evidence of marijuana dealing was reasonable Ch 3 Stndt & Law Hardison/Wheaton

53 Police Searches in Schools Police searches at school have been put in 3 categories: (1) where search is initiated by school officials and SRO involvement is minimal, the search falls under the exception; (2) where search is initiated by the SRO during school hours on school grounds in furtherance of the school’s education-related goals, the search falls under the exception (3) BUT “outside” police officers who initiate a search for non-school- related goals are under the probable cause standard. Ch 3 Stndt & Law Hardison/Wheaton

54 Weapons in School Weapons at School Weapons at School RCW prohibits on public or private school premises, school- provided transportation or areas of facilities being used exclusively by public or private schools: Ch 3 Stndt & Law Hardison/Wheaton Any firearm Nun-chu-ka sticks Throwing Stars Air Gun Stun gun Dirk Dagger Any device, object, or instrument which is used or intended to be used as a weapon with the intent to injure a person by an electric shock, charge, or impulse.

55 Weapons in School State v. J.R. (2005) and State v. C.Q. In an effort to clarify the circular reasoning, the Washington Court of Appeals has noted that “dangerous weapon” is similar to the term “deadly weapon,” as defined in RCW 9.94A.602 (former RCW 9.94A.125): Ch 3 Stndt & Law Hardison/Wheaton

56 Weapons in School “For purposes of this section, a deadly weapon is an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. T he following instruments are included in the term deadly weapon: Blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas.” Ch 3 Stndt & Law Hardison/Wheaton

57 Guns in Schools Scenario (Rifle in car) A student reports that John is in shop class and bragging about his rifle that he has in his truck. The school principal and the school security officer confront John, who admits that he has a gun in his truck from hunting last weekend and he never removed it. They call the police. A patrol officer arrives, opens the door, and secures the rifle. Will the rifle be admissible at court or any other legal proceeding? Ch 3 Stndt & Law Hardison/Wheaton

58 Guns in Schools Scenario (Rifle in Car) Due to school search exception and the community care exception (school safety) the rifle will likely be allowed into evidence Ch 3 Stndt & Law Hardison/Wheaton

59 Guns in Schools Scenario (Rifle in car) Student in violation of Gun Free Schools Act? (GFSA does not apply to firearm stored inside a locked vehicle on school property, provided LEA has adopted proper safeguards to ensure school safety) BUT RCW (3)(f) allows a nonstudent, at least 18, legally in possession of a firearm or dangerous weapon that is secured within an attended vehicle or concealed within a locked unattended vehicle to have them on campus while conducting legitimate business at the school. RCW (3)(g) allows the same person to have an unloaded firearm that is secured within the vehicle. Ch 3 Stndt & Law Hardison/Wheaton

60 Guns in Schools Scenario (9mm in Backpack) The school discovers that Carl has a 9mm handgun in his backpack at school. He is turned over to law enforcement, who take him to the precinct for booking and fingerprints. Mom and Dad, who are both doctors in the community and trusted members of the PTA, show up. Carl is released to them while the investigation is conducted. Any problem with that? Ch 3 Stndt & Law Hardison/Wheaton

61 Guns in Schools RCW (2) states that ANY student (12-21) who carries onto school premises, buses, areas, facilities, a dangerous weapon who is arrested shall be detained or confined in a juvenile or adult facility for up to 72 hours. The person cannot be released until he/she is examined and evaluated by the county designated mental health professional UNLESS the court, in its discretion releases the person sooner after a determination regarding probable cause or on probation bond or bail. Here, the facts are not clear, but Carl was probably released too soon. Ch 3 Stndt & Law Hardison/Wheaton

62 Weapons in Schools in Wash. Scenario (Butterfly Knife) The principal is gone from school and you are his/her designee while he/she is away from campus. You are called to the office, where a teacher is taking a butterfly knife from a student that he was searching. The teacher tells you since this is the student’s first offense, they are going to handle it “in house” as a 3-day suspension and tell you not to worry about calling the police. Anything wrong with this? Ch 3 Stndt & Law Hardison/Wheaton

63 Weapons in Schools in Wash. Scenario (Butterfly knife) Here, the student is carrying what will likely be designated as a dangerous weapon. You do not have a choice. You have to recommend expulsion and must turn over the student to law enforcement. In addition, the teacher may not know of multiple offenses and law enforcement will be aware of those offenses Ch 3 Stndt & Law Hardison/Wheaton

64 Weapons in Schools in Wash. Scenario (Butterfly knife) REMEMBER: The law requires that EVERY weapon case be reported to law enforcement--simply handling it “in house” is a violation of the statute: RCW (2) Any violation of subsection (1) [i.e. weapon at school] of this section elementary or secondary school students constitutes grounds for expulsion.... “An appropriate school authority shall promptly notify law enforcement and the student’s parent or guardian regarding any allegation or indication of such violation.” Ch 3 Stndt & Law Hardison/Wheaton

65 Weapons apparently capable… (1) …unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons. (Gross Misdemeanor) Ch 3 Stndt & Law Hardison/Wheaton

66 Drugs in Schools in Wash. Scenario (Marijuana in Backpack) A concerned student tells the SRO that Brittany has marijuana in her backpack. Brittany has been in trouble with the school before for drug offenses. Rather than confront her himself, the SRO tells the principal about the report. The principal goes to Brittany and searches the backpack. He finds marijuana. Is the principal’s search valid? Ch 3 Stndt & Law Hardison/Wheaton

67 Drugs in Schools in Wash. Scenario (Marijuana in Backpack) Remember the principal has a lower standard to meet in search and seizure. The question is whether the principal can articulate reasonable suspicion before he searches. BUT, the principal should search the backpack, even if the search is later found invalid. School security is more important. Ch 3 Stndt & Law Hardison/Wheaton

68 Drugs in Schools in Wash Scenario-Drug Sniff The school asks local law enforcement to run a drug dog through the parking lot sniffing at cars. The dog hits on the trunk of a vehicle. The student is removed from class and asked to open his trunk. Inside are two baggies of marijuana. The student is expelled from school and charges are filed. Is this permissible? Ch 3 Stndt & Law Hardison/Wheaton

69 Drugs in Schools in Wash. State v. Slattery allows automobile searches if reasonable. Reasonable means the search: Has to be justified at its inception, AND Must be reasonably related in scope to the circumstances that justified the interference in the first place Ch 3 Stndt & Law Hardison/Wheaton

70 Drugs in Schools in Wash. Dogs at School B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir.1999) “While students have a lesser expectation of privacy than members of the population generally....they nonetheless retain an expectation of privacy they enter the school grounds.” “There can be no dispute that deterring drug use by students is an important--if not compelling--governmental interest... But the record here does not disclose that there was any drug crisis or even a drug problem at Quincy High in May, In the absence of a drug problem or crisis at Quincy High, the government’s important interest in deterring student drug use would not have been placed in jeopardy by a requirement of individualized suspicion.... We therefore conclude that the random and suspicionless dog sniff search of B.C. was unreasonable in the circumstances.” Ch 3 Stndt & Law Hardison/Wheaton

71 Drugs in Schools in Wash. Dogs at School Best Practice: If your school wants to to random searches of schools in your parking lots…. Notify parents and make students consent to this procedure as a condition of the PRIVILEGE of parking on school campus. Make student initial and sign the consent form as part of the procedure of obtaining the parking permit AND have parent sign also Ch 3 Stndt & Law Hardison/Wheaton

72 Locker Searches in Wash Schools Scenario: You are asked to participate in search of a particular student’s locker. The reason given is that the student is a trouble maker and the office wants to find something “on her.” Is there anything wrong with the search? Ch 3 Stndt & Law Hardison/Wheaton

73 Locker Searches in Wash Schools Do Washington Students have an Expectation of Privacy in School Lockers ? You decide: RCW 28A : “No right nor expectation of privacy exists for any student as to the use of any locker issued or assigned…and subject to search for illegal drugs, weapons, and contraband as provided in RCW 28A through ” RCW 28A : School official may search the locker if he has “reasonable grounds to suspect that the search will yield evidence of the student’s violation of the law or school rules. A search is mandatory if there are reasonable grounds to suspect a student has illegally possessed a firearm in violation of RCW ” Note: strip searches or body cavity search-terms defined in RCW Ch 3 Stndt & Law Hardison/Wheaton

74 Locker Searches in Wash Schools Do Washington Students have an Expectation of Privacy in School Lockers ? RCW 28A : Principal, Vice-Principal or Principal’s designee may search “all student lockers at any time without prior notice and without a reasonable suspicion that the search will yield evidence of any particular student’s violation of the law or school rule.” (i.e., a General Search) Remember: the locker search section applies to School Officials…even if the statutes are held to be constitutional, nothing extends the authority to search lockers to law enforcement. Ch 3 Stndt & Law Hardison/Wheaton

75 Harassment in Wash Schools RCW 9A : “A person is guilty of harassment if without lawful authority the person knowingly threatens to: cause bodily injury immediately or in the future to the person threatened or to any other person; or cause physical damage to the property of a person other than the actor; or to subject the person threatened or any other person to physical confinement or restraint; or Ch 3 Stndt & Law Hardison/Wheaton

76 Harassment in Wash Schools maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety AND (KEY) the person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.  “Words or conduct” is defined as including, in addition to any other form of communication or conduct, the sending of an electronic communication. Ch 3 Stndt & Law Hardison/Wheaton

77 Harassment in Wash Schools Scenario 1: Adam threatens to kill Barbara by saying he’s going to slit her throat. Barbara has a reasonable fear that the threat will be carried out. Scenario 2: Adam threatens to kill Barbara by saying he’s going to slit her throat. Barbara thinks Adam is an idiot, always says stupid things, and probably won’t do it. Ch 3 Stndt & Law Hardison/Wheaton

78 Harassment in Wash Schools Scenario 3: Adam threatens to kill Barbara by saying he’s going to slit her throat. Barbara has a reasonable fear that the threat will be carried out. Adam and all his friends and family admit that he never really intended to do it. Ch 3 Stndt & Law Hardison/Wheaton

79 Harassment in Wash Schools Scenario 4: Adam threatens to kill Barbara by saying he’s going to slit her throat. Barbara thinks Adam will, in fact, hurt her, but doesn’t think he would actually kill her. Scenario 5: Adam tells Carla that he is going to kill Barbara, and Carla tells Barbara about the threat. Barbara has a reasonable fear that the threat will be carried out. Ch 3 Stndt & Law Hardison/Wheaton

80 Harassment in Wash Schools Scenario 6: Adam tells Carla that he is going to kill Barbara, but Carla doesn’t tell Barbara. Carla has a reasonable fear that Adam will, in fact, kill Barbara and she reports to school officials. Scenario 7: Adam tells Barbara if she tells anyone what he said, he is going to kill her friend Carla Ch 3 Stndt & Law Hardison/Wheaton

81 Harassment in Wash Schools “True threat”  A statement made in a context or under such circumstances that would cause a reasonable person to foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm or to take the life of another person. State v. J.M.  Victim and the investigating officer should articulate the circumstances and context that caused the victim to believe that the respondent might carry out his threat.  Victim does not have to believe that the suspect will carry out the precise threat made, but the victim DOES have to believe that they will be killed if, in fact, the threat is to kill the victim and the prosecutor has filed FELONY harassment based on that theory Ch 3 Stndt & Law Hardison/Wheaton

82 Harassment in Schools 9th grader in office, suspended and waiting for ride home... In room, “gang” graffiti on dry-erase board Had beaten up another student on the bus Had gang affiliations with two older gang members who had murdered someone Threatened veep, “You had better get on your knees and pray to your god” Ch 3 Stndt & Law Hardison/Wheaton

83 School Harassment 9th grader How did I defend the student?? Gang graffiti? Bus incident? Gang affiliations with murderers? Threat to Veep? Ch 3 Stndt & Law Hardison/Wheaton

84 Harassment in Schools In State v. C.G., (December 2003)-Female student threatened to kill her vice-principal, "I'll kill you Mr. Haney, I'll kill you.” He had been called to a classroom b/c CG was student at Blaine High School, became disruptive in class when asked about a missing pencil. She claimed that she was falsely accused of taking the pencil. She became angry, used profanity, and, when ordered to sit in a study carrel for a "time out," kicked the carrel, moved her chair, and made other noise.  Is this harassment? Ch 3 Stndt & Law Hardison/Wheaton

85 Harassment in Schools The State charged C.G. with two counts of felony harassment. The second was based upon her threats to kill a police officer who responded to the incident. At the adjudicatory hearing, Haney testified that C.G.'s threat caused him concern. He testified that based on what he knew about C.G., she might try to harm him or someone else in the future. The trial court found C.G. guilty on both counts. C.G. has not challenged her conviction for threatening the officer. BUT… SHE CHALLENGED HER CONVICTION FOR THREATENING HER VEEP. What do you think happened? Ch 3 Stndt & Law Hardison/Wheaton

86 Harassment in Schools MADSEN, J. - Petitioner C.G. maintains that her juvenile conviction must be reversed because the State did not prove that the victim of her threat was placed in reasonable fear that she would carry out her threat to kill. We agree that a conviction of felony harassment based upon a threat to kill requires proof that the person threatened was placed in reasonable fear that the threat to kill would be carried out. Accordingly, we reverse C.G.'s conviction for felony harassment. WHAT IS THE LESSON FOR School Staff? Ch 3 Stndt & Law Hardison/Wheaton

87 Harassment in Schools Conclusion in State v. C.G.  In order to convict an individual of felony harassment based upon a threat to kill, RCW 9A requires that the State prove that the person threatened was placed in reasonable fear that the threat to kill would be carried out as an element of the offense.  REPORT A HIGH LEVEL OF FEAR WILL BE KILLED  We reverse the Court of Appeals, reverse C.G.'s conviction for felony harassment based on her threat to kill Mr. Haney, and remand for further proceedings in accord with this decision.  REVERSALS = WHO WINS? DO YOU THINK EVERY KID HEARS ABOUT THE REVERSAL?? Ch 3 Stndt & Law Hardison/Wheaton

88 Summary What control do school officials have over Constitutional Rights? If rules: Are reasonable Follow steps of fundamental fairness (requires that students actually know what behavior is expected of them) Are not vague in that students of average intelligence should be able to understand them (Can be a problem for Sped students) Then school can control students without violating their constitutional rights Ch 3 Stndt & Law Hardison/Wheaton

89 For More Information Cathy Hardison, PhD, JD, Attorney-at-Law Associate Dean Phone: (509) (please be clear to indicate subject of , I do not open what appears to be junk mail) Fourth Amendment: Randy Town EDS 105 and Deputy Sheriff for Yakima County Ch 3 Stndt & Law Hardison/Wheaton


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