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Legal Update. Making the Right Moves in student discipline – Due process, search & seizure, and documentation. MASSP Asst. Principals & Deans Mid-Winter Summit Monday, February 3, 2014 / 4:30 p.m. Presenter: Kevin T. Sutton, Lusk & Albertson.

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Legal update

Legal Update

Making the Right Moves in student discipline –

Due process, search & seizure, and documentation

MASSP Asst. Principals & Deans Mid-Winter Summit

Monday, February 3, 2014 / 4:30 p.m.

Presenter:

Kevin T. Sutton, Lusk & Albertson

Download presentation at: www.LuskAlbertson.com/massp2014



School district s right to discipline
School District’s Right to Discipline

  • The Michigan Legislature has given school districts the authority to discipline students, including the power to order suspension or expulsion (MCL 380.1311)

  • Courts have stated that the power to maintain order and discipline in a school is subject only to the restriction of reasonableness

    Davis v. Ann Arbor Schools (1970)

    • Arbitrary and Capricious Standard:

      • Disparate Treatment – treating similarly situated students differently

      • Must have rational basis for difference


Student discipline considerations
Student Discipline Considerations

  • Two Primary Types of Issues to Consider with Student Discipline:

    • Legal Issues

      • Constitutional Issues

      • Statutory Issues

    • District Policy Issues

  • Constitutional Issues

    • Procedural Due Process - 5th Amendment

    • Search & Seizure - 4th Amendment

  • Also ….

    • Freedom of Speech/Religion - 1st Amendment


Due process
Due Process

  • Goss v Lopez, U.S. Supreme Court (1975)

    • A student has a “property interest” in a public education.

    • Due process is required before that right may be taken away.

  • Basic Tenants of Due Process

    • Notice of “charges”

    • Opportunity to be heard


Due process central question
Due Process – Central Question:

How Much

Due Process

is Enough?


Due process cont
Due Process (cont.)

  • Suspensions of 10 days or lessREQUIRE:

    • Oral or written notice of charges

    • Explanation of evidence

    • Opportunity to present student side of story

  • Suspensions of 10 days or lessDO NOT REQUIRE:

    • A student to secure legal counsel

    • Allowing the confrontation of witnesses

    • Allowing the calling of witnesses on the student’s behalf


Due process cont1
Due Process (cont.)

  • Suspensions of more than 10 days and expulsions REQUIRE:

    • More formal procedures (Goss)

    • Notification of charges in writing

    • Right to secure counsel, confront witnesses/evidence and

      to call witnesses on the student’s behalf


Due process cont2
Due Process (cont.)

  • Student statements (disciplinary hearing)

    • Prior to disciplinary hearing

      • No need to give statements to student or allow student to confront students who submitted statements

    • At time of disciplinary hearing

      • Student should be provided with redacted copies of all statements used to determine discipline


Student code of conduct
Student Code of Conduct

USE IT!

Apply the levels and types of discipline stated in the Code of Conduct to eliminate potential arguments of disparate treatment, favoritism, or arbitrary and capricious actions

Easy to justify decision to parents, administrators or others


Investigation reminders
Investigation Reminders

A formal (or informal) complaint

Reports of questionable conduct (even if not wanting to become involved or reported anonymously)

Observed or reported student misconduct including violation of student code of conduct

Parent or student complaints

Anonymous complaints


Why investigate
Why Investigate?

  • Gather facts and evidence

  • Informed decision-making

  • Adhere to due process requirements; adhere to district policy

  • Create a record of activity

    • Occurrence / Response

    • Establish expectations for behavior

    • Show misconduct will be taken seriously

  • Be your attorney’s best friend!

    • Document for future proceedings

    • Avoid liability!


Effective investigations interviews minimize concerns
Effective Investigations/Interviews Minimize Concerns

  • Helpful tips …

    • Obtain story; use caution in how Qs asked

    • Have student write statement

    • Include salient details in written narrative

      • Make student amend as appropriate

    • Don’t have to contact parents in advance of interviewing

    • Call if discipline will be issued

    • Don’t interview or “detain” the student too long

    • Administrator summary at end


Effective investigating search seizure
Effective Investigating: Search & Seizure

  • Standard for Police

    • Warrant for search

  • Standard for School Administrators

    • Two-Step Inquiry [TLO v. New Jersey]

      • Reason to suspect student violated Student Code of Conduct/District Policy?

      • Reason to suspect evidence of violation of Student Code of Conduct/District Policy exists in the area you want to investigate/look?


Search seizure cont
Search & Seizure (cont.)

  • Practical Examples:

    • Search for Stolen Laptop

    • Search for a Weapon

    • Search for Drugs

  • Special Circumstances

    • Police and School Searches

    • Strip Searches

  • Hot Topics

    • Random Drug Testing

    • Social Media

    • Cell Phones

      • Consent Issues - can be addressed via policy


Exceeding your authority enough is enough
Exceeding Your Authority – “Enough is Enough”

  • R.S. v. Minnewaska Area School District

    • Investigation = Good

    • Violation of Privacy = Bad

  • G.C. v. Owensboro Public Schools

    • Take Cell Phone = OK

    • Search Cell Phone = Not OK

      • Why?

      • Important Distinction


Interactions with police agencies
Interactions with Police Agencies

  • Dangerous Situations

  • Police Interviews with Students

    • Don’t have to call parents to advise of interactions with police (check District policy)

    • J.D.B. v. North Carolina – Lesson for the police


Statutory issues considerations
Statutory Issues/Considerations

  • Mandatory Discipline

  • Mandatory Discipline Categories

    • Dangerous Weapons

    • Criminal Sexual Conduct

    • Felony Arson

    • Assaults - Adults and Students

    • Verbal Assaults and Bomb Threats


Real world examples
Real World Examples

  • “Sexting” Scandal

  • Photo Sharing

  • Backpack Search

  • Facebook Harassment


Other Resources:

www.LuskAlbertson.com

@LuskAlbertson

www.LuskAlbertson.com/massp2014

Kevin T. Sutton

40950 Woodward, Suite 350

Bloomfield Hills, MI 48304-5129

Direct: (248) 988-5695

Cell: (734) 377-7400

Email: [email protected]


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