By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

I am an assistant principal and, earlier this week, two students reported to me that another student, “Joe Blow” (not his real name), had threatened to “mess them up” if they didn’t share their lunch with him. For added measure, they reported that Joe pointedly slipped some metal knuckles on his hand while he was talking to them. These students were clearly scared, and they asked me to do something about Joe and his threats. However, they asked me not to let Joe know that they were the ones who told on him.

Naturally, I called Joe down to the office and I asked him if he had any contraband items in his possession. He looked me dead in the eye and told me that he knows his Miranda rights and that he has the right to remain silent and to talk with a lawyer before he says anything. I wasn’t having any of it, and I told him to empty his pockets. Joe refused to comply with my directive, claiming it was an invasion of his privacy rights under the Fourth Amendment. Undeterred, I took his backpack, which was lying on the table next to him, and in short order I found the metal knuckles. I asked Joe what he had to say for himself, but he just pulled his fingers across his mouth in a pantomime zipping it shut.

I informed Joe that he was suspended pending the superintendent’s decision on whether to recommend expulsion. I called Joe’s father to come pick Joe up, and he arrived shortly thereafter. I was hoping for some cooperation, but it didn’t take me long to realize that this acorn did not fall far from the tree. The father was confrontational, and he accused me of violating Joe’s rights. He demanded to know who “ratted” Joe out, claiming that Joe has the right to confront his accusers and that my questioning Joe without both the father and their lawyer present was an illegal “seizure” of Joe.

At this point, I was sick of all the legalese, and I told them to go home and that we would be in touch about expulsion. But their repeated claims have gotten me thinking. Does Legal Mailbag think I did anything wrong?

Signed,
A Constitutional Question
 

Dear Constitutional:

To quote Alexander Pope, “A little learning is a dangerous thing,” and Joe and his father are wrong in their various assertions. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself,” and it has no application in an administrative interview in the school setting. Similarly, the well-known Miranda warning is also a concept of criminal law, and its protections first apply only when a person is in police custody. You had every right to question Joe in these circumstances.

Sometimes parents and their children demand to have a lawyer present whenever an administrator wants to question a student. They do not have that right. The United States Supreme Court addressed this point in the seminal case of Goss v. Lopez (U.S. 1975), where the Court ruled that students have a right to due process before they can be excluded from school. The Court drew a bright line in that case between exclusions of ten days or fewer and those of more than ten days. Connecticut law reflects that distinction, defining an exclusion of up to ten days as a “suspension” and an exclusion of more than ten days (and up to one calendar year) as an “expulsion.”

In describing the rights of students and the obligations of school administrators before they may suspend students, the Court held that the Due Process clause of the Fourteenth Amendment simply requires that an administrator give the student an informal hearing by providing notice of the charges against the student and an opportunity to respond. The Court commented further:

We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless.

Given that an exclusion of a student for up to one calendar year is a very serious matter, expulsion proceedings, of course, are very different. Only the board of education (or a committee or a designated hearing officer) can expel, and then only after a hearing that must comply with various statutory requirements. But a pre-suspension hearing may be just as informal as was your questioning of Joe before you suspended him.

Legal Mailbag also notes that the search you conducted was legal. In T.L.O. v. New Jersey (U.S. 1985), the Court ruled that school administrators do not need a warrant to search a student or a student’s personal effects. Rather, school administrators simply need reasonable cause at the inception of the search, and the scope of the search must be reasonably related to the object of the search and not excessively intrusive. Your search certainly met those requirements. Moreover, Joe’s demands notwithstanding, you are not required to share the identity of the students who reported Joe. At this point, the question is whether Joe was in possession of metal knuckles, not how you learned of that fact. Since Joe was in possession of metal knuckles in school, which state law defines as a “deadly weapon,” he is now subject to mandatory expulsion.

Finally, in considering these constitutional claims, Legal Mailbag recalls a decision of the Fourth Circuit Court of Appeals, where the court looked at these matters in a practical way. In Wofford v. Evans, 390 F.3d 318 (4th Cir. 2004), school officials briefly detained and questioned a student in the principal’s office over allegations that she had brought a gun to school. School officials also permitted detectives to question the student. Despite the student’s repeated requests, her mother was not contacted before or during the questioning. The parent brought suit, claiming violation of the student’s due process rights and the right to be free of unreasonable search and seizure in violation of the Fourth Amendment. The court ruled that the school district’s actions were permissible, stating:

School officials must have the leeway to maintain order on school premises and secure a safe environment in which learning can flourish. Over-constitutionalizing disciplinary procedures can undermine educators’ ability to best attain these goals. Imposing a rigid duty of parental notification or a per se rule against detentions of a specified duration would eviscerate the ability of administrators to meet the remedial exigencies of the moment. The Constitution does not require such a result.

Keep these words in mind as you do your important work to keep students safe.