1. CONSTITUTIONAL ISSUES IN PUBLIC EDUCATION A LEGAL AND PRACTICAL PRIMER Joseph B. Urban Clark Hill PLC 151 S. Old Woodward Ave., Suite 200 Birmingham, Michigan 48009 248.988.1829 jurban@clarkhill.com © 2015

2. 2  The legal content of this presentation is copyrighted by Clark Hill PLC.  As with all legal issues, this presentation provides general principles only, and the Academy’s attorney should be consulted for specific questions related to any and all principles contained herein.  Student discipline issues are complex, fact specific and always involve a balancing of interests, when in doubt, consult with counsel!

3. 3 What we will cover today  We have three hours together – and several topics that flow from one basic concept: students’ property interest in their free public education and our responsibilities as agents of the state in delivering that education.  Our agenda: — Right to a free public education — Federal Concepts of Due Process — Review of the First Amendment — Review of the Fourth Amendment — Have some FUN

4. 4 First Things First Let’s learn a little bit about each other!

5. 5 Constitution is silent regarding free public education

6. 6 Right to a Free, Public Education  State Governments possess plenary power over public education — State Constitution — State Statutes  Federal involvement in public education has, however, historically run quite deep

7. 7  The best summary of the consequences of adopting a system of free public education at the state level is found in Goss v. Lopez: Although Ohio may not be constitutionally obligated to establish and maintain a public school system, it has nevertheless done so and has required its children to attend. The authority possessed by the State to prescribe and enforce standards of conduct in its schools although concededly very broad, must be exercised consistently with constitutional safeguards…the State is constrained to recognize a student’s legitimate right to a public education as a property interest which is protected by the Due Process Clause… — More on this later. The important point is that state-created right to a free public education has Constitutional implications.

8. 8 Student Discipline and Due Process

9. 9 Let’s start with the Constitution  Amendment XIV [1868] — No State...[shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.  At its core, “due process” is best understood, as legal scholar Michael LaMorte says, by keeping in mind that concepts of due process and equal protection require government officials, including educators, to be fair as they conduct governmental business.

10. 10 How does this relate to discipline?  Procedural due process is to ensure that state-initiated adjudications are valid, fair and impartial.  Basic concepts of procedural due process — some kind of notice (notice) — some kind of hearing (opportunity to be heard)  “Timing and content of notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved.”  This has implications in suspensions of 10 days or less, more than 10 days and expulsions.

11. 11 Basic concepts of due process in schools  Schools are a special environment, and the courts recognize that school officials have numerous responsibilities that they shoulder, and so the processes and procedures related to discipline must be structured accordingly.

12. 12  Basic rights of due process for expulsions: — An unbiased tribunal (no prejudgment). — Notice of the proposed action and the grounds asserted for it (a letter home with the infraction and possible consequence). — Opportunity to present reasons why the proposed action should not be taken (notice, through a letter home, of the date and time of the hearing, along with notice of rights at the hearing):  The right to present evidence, including the right to call witnesses.  The right to know opposing evidence.  A decision based exclusively on the evidence presented.  Opportunity to be represented by counsel (at family’s expense).  Requirement that the tribunal prepare written findings of fact and reasons for its decision (letter home with result or resolution of board action).

13. 13 Schools should provide written notice that includes: Specific charge(s) against the student, including the specific provisions (Attach copies of the relevant portions of the Student Code of Conduct and Board policy). Brief statement of facts as determined by the school’s investigation. Proposed punishment, including length of proposed disciplinary removal. Date, time, and location of hearing. Description of the hearing procedures including any rights to appeal the decision (Attach Board policy or relevant portion of the Student Code of Conduct describing the hearing procedures). Notice of student and parent right to review education records. Name and contact information of appropriate school staff member, should the parent or student have any questions.

14. 14  Significantly, students do NOT possess: — the right to cross-examine school officials (though good practice allows for clarifying questions) — the right to know the name of other student witnesses (particularly anonymous ones) — the right to be present during closed session deliberations about the evidence presented at the hearing  However, schools may not: — disclose “secret evidence” about the student

15. 15 First Amendment in Schools

16. 16 The First Amendment is Part of the Bill of Rights 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.  First Amendment covers — Freedom of speech — Free exercise of religion — Prohibition on establishing “official” religion or religious practices

17. 17 Speech in Schools – Tinker v. Des Moines

18. 18  Schools are special places in which there is a need to protect good order and discipline, however, students do not shed their Constitutional Rights at the schoolhouse gate.  What is “speech”?  What kind of speech may schools regulate? — Obscene speech — School publications/imprimatur  Open Forum vs. Closed Forum vs. Limited Open Forum  Prior restraint

19. 19  Religious exercises in schools — Free Exercise Clause of First Amendment: government cannot interfere with expression of religious beliefs — Establishment Clause of First Amendment: government cannot create an official church or support religious activities or give preference to one religion  Engle v. Vitale: “Regents Prayer” adopted by school board unconstitutional  Lemon v. Kurtzman (first test) — Policy’s primary purpose must be secular; — Primary effect must neither advance nor inhibit religion — Cannot foster “excessive entanglement.”  Lee v. Wiseman — “Compulsion” test

20. 20 Equal Access Act - Religion It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or to discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of religious, political, philosophical, or other content of speech at such meetings. — 20 USC Section 4071  “Limited open forum” is when a school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time

21. 21 Equal Access, fair opportunity: (1)the meeting is voluntary and student-initiated; (2) there is no sponsorship of the meeting by the school, the government, or its agents or employees; (3)employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity; (4) the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and (5) nonschool persons may not direct, conduct, control, or regularly attend activities of student groups. Nothing in the Act is intended to limit the authority of the school, its agents or employees, to maintain order and discipline on school premises, to protect the well-being of students and faculty, and to assure that attendance of students at meetings is voluntary.

22. 22 Student Searches in the Electronic Age – the Nuts and Bolts

23. 23 Some Circumstances that Prompt Student Searches  Suspected or Reported Violations of Student Code of Conduct.  Improper use of electronic equipment (cell phone, computers, internet, iPad, etc.).  Improper behavior toward fellow students or staff.  General Parent/Student Complaint.  Theft or Suspected Theft.  Anonymous Complaint.  Information obtained from school video surveillance equipment. Note: Schools should investigate any incident that is related to the school regardless of whether the matter has been reported to police or other authorities. Schools may make their own decision and need not await the outcome of criminal charges or other investigations.

24. 24 Hypothetical Fact Pattern 1 Johnny: Johnny is standing by his locker in the hallway putting books and supplies in this backpack. Teacher Smith is walking down the hall and stops to congratulate Johnny on his recent test score. Teacher Smith can easily see into Johnny’s wide open backpack on the floor and sees what she believes to be a bag of marijuana. Teacher Smith takes Johnny to the assistant principal, who proceeds to search Johnny’s backpack. During said search, no marijuana is found, but a personal iPad that has a “pot leaf” sticker on cover is found in Johnny’s backpack. The AP, who has been dealing with Johnny off and on all year for suspected drug offenses, requires Johnny to enter his PIN number to unlock his personal iPad, and then looks at emails on the iPad. The emails show that Johnny sold marijuana on school property the day before. Was this search of the backpack appropriate? The iPad? Can the emails be used for disciplinary purposes?

25. 25 Hypothetical Fact Pattern 2 Susie: Principal Bob suspects that Susie has been carrying out drug deals during school. Principal Bob was told by Billy that Susie had sold Tonja marijuana on school property a couple hours earlier so Tonja could get “high” at lunch. Billy says the basis of his information is that he saw Susie Facebook messaging Tonja during class about the drug deal and both were bragging about how easy it is to sell drugs and get “high” at school. May Principal Bob ask Susie and/or Tonja for their Facebook account information to retrieve these messages?

26. 26 Student Searches – The 4 th Amendment The 4 th Amendment protects against unreasonable searches and seizures. For Students:  General Rule: Any government (school) action that intrudes upon and invades a student’s justifiable expectation of privacy constitutes a search under the 4 th Amendment.  A “request to search” is not a search so long as student recognizes they are free to refuse consent.  If the object searched is school property or school-provided user account, consent from the student and/or parent is not required under the 4 th Amendment, but consider electronic communication and privacy laws. District policies should cover the right to search and should state that students have no legitimate expectation of privacy in electronic communications from school equipment. This includes school computers, school-issued laptops, e-Readers, or tablet devices signed out to individual students.  If object searched is the student’s personal property/account, reasonable suspicion or consent from parent and/or student will be required under 4 th Amendment, but other laws on electronic communication and privacy may prohibit search.

27. 27 The 4 th Amendment – What is Reasonable? New Jersey v. T.L.O (468 U.S. 325 (1985)  Must review all relevant facts and circumstances and balance student’s rights (expectation of privacy) in light of the unique circumstances of the incident.  Must analyze the context in which the search occurred (view from perspective of “searcher”).  Not all circumstances carry the same weight under the law. One fact/circumstance can quickly change the outcome of the case.  No search warrant or “probable cause” required so long as no police involvement in search (SRO does not necessarily mean police involved). Two Prong Test  Was search justified at inception? It is if at the inception of the search, there is reasonable suspicion that the search will reveal evidence that the student has violated or is violating the law or the rules of the school (code of conduct). Reasonable suspicion has been taken to mean “fair probability” or a “moderate chance”. Safford v. Redding, 129 S. S. CT 2633 (2009)  Is search permissible in its scope? It is when the measures adopted are 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.

28. 28 Safford Unified v. Redding – New Questions about Reasonableness of Scope  Safford v. Redding — Student suspected of carrying ibuprofen in her day planner — Search of student did not show any contraband in her clothing — When contraband was not found, she was asked to remove her outer clothing, pull her bra away from her body, as well as her underwear. — Supreme Court reviewed the matter, and found the search to be unreasonable  Citing T.L.O., the Supreme Court said: the scope will be permissible… when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”  Seems to leave the door open to invasive search in the event that there is a severe threat to safety and welfare.  In the oral arguments, justices were concerned with hiding dangerous drugs, such as methamphetamine.

29. 29 “Reasonableness” – a complex standard  As much as the courts defer to schools related to reasonableness, the circuits remain split, and Redding is the latest standard to apply.  For example: — Random, suspicionless searches were held unconstitutional by a Federal Court in Little Rock. Doe. v. Little Rock, 380 F.3d 349 (2004). — A random search for a weapon involving patting down students was found reasonable in the Eighth Circuit. Thompson v. Carthage School District 87 F.Ed 979 (8 th Cir 1996).  The guidelines are very fact specific, and generally school officials who engage in suspicionless searches will have a very steep constitutional challenge.  Dog sniff searches are likewise problematic. — Sniffs of students have cultural implications, and can be deemed invasive. — There is authority that dog searches of students’ classrooms may be permissible under some circumstances.

30. 30 Questioning & Consent to Search – Rule of Thumb Questioning of Student  May detain student for questioning provided it is reasonable in nature and scope.  Seizure/detention of student may be violation of 4 th Amendment.  School officials have no obligation to notify parent before detaining and questioning student; HOWEVER, if about serious misconduct, it is best to have parent involved to protect interests of student. Also, if student demands parent be present, may be in school’s best interest, especially if student upset or distraught. Consent to Search  General Rule: A search authorized by consent of the searched individual is constitutional provided the consent was given both freely and voluntarily.  Seizure of contraband voluntarily relinquished by student does not violate 4 th Amendment.  Voluntariness is judged based upon totality of circumstances (age, intelligence, etc.).  Important to a have witness that can show consent was voluntarily provided or information was voluntarily given.  If contraband or information voluntarily provided, get a copy of it at that time.

31. 31 A Word About Liability  The Academy’s Charter requires that all aspects of its operation occur under applicable law.  42 USC 1983 Every person who, under the color of any statute, ordinance, regulation, custom or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress…

32. 32 THANK YOU! Any Questions? ****This document is not intended to give legal advice and does not establish any attorney- client relationship. It is comprised of general information. A School facing specific issues should consult with its attorney.