SCHOOL SAFETY AND
THE COURTS
TOP CASES
2013-2014
Focus: Policymaking
Safe Schools – After Newtown
Safe Schools - 2014
June 2014:

74 school shootings since the infamous
assault on Sandy Hook Elementary School
in Newtown, Connecticut

37 Shootings …… so far in 2014.

13 school shootings recorded in first six
weeks of 2014 alone.
.
.
.
Policymakers Challenge

Understand current legal standards
 What the law permits
 What the law requires

Confront the reality of the difficulty of
making “good policy”.
Why Look at
Court Decisions?

A shift is occurring in judicial appetite for
overturning school policy.

Judicial activism* is no longer a surprise
when students assert their rights.

Liability is returning to lawsuits as a
more frequent outcome.
EQUATION OF AUTHORITY

ACTIONS TAKEN IN GOOD FAITH

POLICIES THAT FURTHER THE
EDUCATIONAL MISSION
 PROCEDURES
THAT ARE FAIR
= LEGAL SYSTEM DEFERS!!!
NEW ELEMENT…

ACTIONS TAKEN IN GOOD FAITH

POLICIES THAT FURTHER THE
EDUCATIONAL MISSION

PROCEDURES THAT ARE FAIR
JUDICIAL
IMPATIENCE
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.
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)
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)
NEW ELEMENT…

ACTIONS TAKEN IN GOOD FAITH

POLICIES THAT FURTHER THE
EDUCATIONAL MISSION

PROCEDURES THAT ARE FAIR
JUDICIAL
IMPATIENCE
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.
Court Decisions:
Cannot be Too Careful
State Power is Permissive!
Presumption of Authority = “Police Power”
• Health
• Safety
• Welfare • Values
• Morals
• Appropriate behavior
• Education mission

You do not need statutory or judicial
permission to modify agency policy.
State Power is Permissive!

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…
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
Where are the
Limits in 2014?
.
CATEGORIES OF INTEREST
TO THE COURTS
DUE PROCESS
 LIABILITY
 INTERROGATIONS
 FREE SPEECH
 ANONYMOUS TIPS
 USE OF FORCE
 SEARCH AND SEIZURE

DUE PROCESS
FULTON COUNTY v. D.R.H.
Court of Appeals of Georgia
November 20, 2013
 325 Ga.App. 53
 752 S.E.2d 103
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.
FULTON COUNTY v. D.R.H.
FACTS:
 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 combative with Principal.
 Shoves SRO.
 Taken to Youth Detention Facility.
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.

Due process under the State Education
Code is not
required.
FULTON COUNTY v. D.R.H.
RULING:
 School officials did nothing more than
perform the duty under the law to
Report alleged criminal
misconduct by students.
 Yield when laws are being enforced on on
campus.
FULTON COUNTY v. D.R.H.
Why CASE is Important:

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.
FULTON COUNTY v. D.R.H.
Why CASE is Important:



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.
School Rules are not a defense for
obstruction of justice.
LIABILITY

Christopher Smith v. State of Indiana

Smith v. Snohomish School Dist. No. 201

M.S.D. of Martinsville v. Jackson

Duval County School Bd. v. Buchanan
LIABILITY
CHRISTOPHER SMITH v.
STATE OF INDIANA
Court of Appeals of Georgia
March 27, 2014
 8 N.E.3d 668
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.

Misconduct was in a bathroom at the school.

Principal waited 4 hours before making report.
SMITH v.
STATE OF INDIANA
Ruling:

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:


The Department of Child Services (DCS) or
A law enforcement agency.
SMITH v.
STATE OF INDIANA
Ruling:

Principal’s eventual phone call to DCS hotline
four (4) hours later was not
sufficiently immediate.
SMITH v.
STATE OF INDIANA
Why CASE is Important:

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.
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.
SMITH v.
STATE OF INDIANA
Why CASE is Important:

School Rules are not a defense for
obstruction of justice.

Education Due Process procedures do
not affect the enforcement of criminal
laws.
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.
Educators and Reluctance to
Report to Other Agencies
 Misunderstanding
of Law
 An
“abused” child is one who has
been either
 sexually
abused,
 physically injured, or
 psychologically injured.
Educators and Reluctance to
Report to Other Agencies
 Misunderstanding
A
of Law
“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.
Educators and Reluctance to
Report to Other Agencies
 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.
Educators and Reluctance to
Report to Other Agencies
 Misunderstanding
 All
of Law
persons are mandated
reporters.
 teachers,
 school
officials
 school nurses
 school counselors
 any other person with school duties.
Educators and Reluctance to
Report to Other Agencies
 Misunderstanding

of Law
Regardless of any policies within the
school district, the educator is
not
relieved of the responsibility to
report.
LIABILITY
SMITH v. SNOHOMISH SCHOOL DISTRICT
Superior Court of Washington

APRIL 11, 2014
2014 WL 1641050
Note: WL means ‘WestLaw‘
SMITH v. SNOHOMISH
SCHOOL DISTRICT
Facts:

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.
SMITH v. SNOHOMISH
SCHOOL DISTRICT
Facts:

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.
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.
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.
SMITH v. SNOHOMISH
SCHOOL DISTRICT
Why CASE is Important:

Jury refusal to accept one popular form of
alternative discipline policy.
 “Restorative
Justice”
Restorative Justice

Philosophy of Reforming School Discipline

Focus:
 Diminishing Zero Tolerance in School
Discipline
 Fewer
Out-of-School Suspensions
 Expulsions as a “Last Resort”
Restorative Justice

Philosophy of Reforming School Discipline

Focus:
 Reduction of Referrals to Juvenile
Justice
 Not
Reporting Campus Misconduct that
is not Necessarily Violent or Dangerous.
Restorative Justice

Philosophy of Reforming School Discipline

Focus:
 Reduction of Referrals to Juvenile
Justice
 Not
Reporting Campus Misconduct that
is not Necessarily Violent or Dangerous.
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?”
Snohomish School District Trial Documents
Snohomish School District

Confused by its own School Policies:




Schools have a duty to keep a child in
school.
But, School districts are encouraged to find
alternatives to suspension.
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.
Snohomish School District

Confused by its own School Policies:

Prior to excluding a student from class:
--- “the teacher must first attempt one or
more alternative forms of corrective action.”
Snohomish School District

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.”
Snohomish School District

Confused by its own School Policies:

“Students 13 years and older have
confidentiality rights in records
regarding drug, alcohol and mental health
treatment.”
Snohomish School District

Confused by its own School Policies:

“A school district cannot
search a
student unless it has a “reasonable,
individualized suspicion” justifying the
search.”
LIABILITY
M.S.D. of Martinsville v. Jackson
Court of Appeals of Indiana

May 19, 2014
 9 N.E.3d 230
2014 WL 2039857
M.S.D. of Martinsville v. Jackson
Facts:

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.
M.S.D. of Martinsville v. Jackson
Facts:

The shooter was never expelled, although
his disciplinary record was the following:

Fifty (50) discipline referrals:


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.
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.”
The school barred from entering school
property except to take the ISTEP test.
His mother withdrew him from school as
expulsion proceedings finally began.
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.
M.S.D. of Martinsville v. Jackson
RULING:
 The Indiana Court of Appeals ruled that
educators have a “special duty,” to
supervise students.
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.

Immunity from suit for educators is being
taken away in the area of school safety.
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.”
“Reasonable Forseeability”
with Bite:

“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;
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.
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.
LIABILITY
Duval County School Bd. v. Buchanan
Court of Appeals of Florida

February 7, 2014
 131 So.3d 821
301 Ed. Law Rep. 1154
Duval Cty Schools v. Buchanan
Facts:

A sixth grade middle school student
physically attacked another student,
breaking the victim’s leg.
Duval Cty Schools v. Buchanan
Facts:

The attacker—had an extensive
disciplinary history:




Bullying
Fighting
Disruption of classes
Bringing a weapon to school (knife)

punished by an in-school suspension (ISS) set
to begin on the day of the attack.
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.
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.

Victim’s rights are being given more
weight in the assessment of reasonable
forseeability.
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.”
School Interrogations
.
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.




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.”
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."
Interrogations





J.D.B. v. N. Carolina, 131 S. Ct. 2394 (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. Antonio T. 300 P.3d 1181 (N.M. 2013)
N.C. v. KY., 396 S.W.3d 852 (Ky. 2013)
School Interrogations
Adam Lewental
Adam.Lewental@pepperdine.edu
SG v State
Indiana Court of Appeals
2011






Teacher left iPhone in school bathroom.
Security cameras caught student who stole it.
SG [17-years-old] received stolen property,
got rid of it.
SRO brought SG to Principal’s office.
Principal questioned, SRO said nothing, SG
confessed.
SG suspended and charged with receiving
stolen goods.
SG v State
Why is this Case Important?


Mere presence of SRO not coercive.
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.”
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)




“presumptively brief and not so inherently coercive
that the detainee feels compelled to speak”
Student (age not given) accused of being
intoxicated in school
Vice Principal questioned student in front of SRO,
SRO said nothing.
Student confessed, SRO gave Miranda rights after
State v Antonio T
Importance




Administrator was acting only for safety of
student and school
SRO worked at direction of educator
SRO did not engage in questioning
Miranda not necessary, confession stands
State v Oligney
Wisconsin Court of Appeals
2013



Allegations that 16-year-old student raped
another student off campus
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
State v Oligney
Importance

No custody because:



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
Judge felt that 16-year-old teenager
generally has less respect for authority
than the reasonable adult
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."
NC v Kentucky
Supreme Court of Kentucky
2013





17-year-old high school student
Teacher found empty bottle of prescription
meds in school bathroom
Asst. principal and SRO questioned
student together, as per routine
No miranda warnings
SRO filed criminal charges after
confession
NC v Kentucky
Importance
“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




Questioning by educator alone does not
need Miranda
Mere presence of SRO requires Miranda
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
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
Where Does This Leave Us?


“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
Where Does This Leave Us?


5th 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.


off campus
on campus
Where Does This Leave Us?

Presumption against law enforcement and
school resource officers


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
Miranda
 “Oligney” warning


In Kentucky, mere presence of SRO requires
Miranda
Adam Lewental
Adam.Lewental@pepperdine.ed
u
Indiana Law on Interrogations


20-33-11-3:
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;

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.
Indiana Law on Interrogations
20-33-11-3
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
Colorado:
22-33-106.3 (2008)


“[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.
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.”
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.”
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.
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.
FREE SPEECH

Nixon v. Hardin County Bd. of Education.

Wynar v. Douglas County School Dist

People v. Marquan M.

S.N.B. v. Pearland Independent School
District
FREE SPEECH
Nixon v. Hardin County Bd. of Education.
United States District Court,
W.D. Tennessee,

DECEMBER 27, 2013
013 WL 6843087 (2013)
Note: WL means ‘WestLaw‘
Nixon v. Hardin County Bd.



A dispute between two female students
who, while attending the middle school.
Competing for the attention of the same
male student.
A series of tweets:



-- “[I will help you] shoot [her] in the face.”
-- “Good Luck. Shoot her in the face.”
-- “I hate her. That was my whole point. … I’ll
kill her.”
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.
School gave Nixon


a forty-five-day suspension and
a transfer to the alternative school for the
duration of the suspension period.
Emerging Rule on
Cyberbullying

Student cyber- speech speech may be
punished when



it originates on 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.
Rule on Threats

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.

The speech must have something to do
with the school to justify school discipline.
Nixon v. Hardin County Bd.

Court Decision


School discipline invalid.
Facts do not satisfy the geography test
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.”
FREE SPEECH
Wynar v. Douglas County School Dist
United States District Court,
District of Nevada

AUGUST 29, 2013
728 F.3d 1062 (9th Cir.2013)
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.
Rule on Threats

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.

The speech must have something to do
with the school to justify school discipline.
Wynar v. Douglas County Sch
 Court
Decision:
 School discipline Valid
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,
FREE SPEECH
People v. Marquan M.
New York Court of Appeals

JULY 1, 2014
2014 NY Slip Op 04881
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.


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.
People v. Marquan M.

Juvenile was charged with cyberbullying
under Albany County's local law.
 "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,
 …with the intent to harass, annoy, threaten,
abuse, taunt, intimidate, torment, humiliate, or
otherwise inflict significant emotional harm on
another person"
People v. Marquan M.

Court Decision:

Albany County’s cyberbullying law was
overbroad and facially invalid under the Free
Amendment.

The text of the law covered too much.

The law criminalized a variety of constitutionallyprotected modes of expression - a
deal more than acts of
cyberbullying.
great
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.
FREE SPEECH
S.N.B. v. Pearland Independent School
District
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
DECMEBER 22, 2013
 2014 WL 2207864

Note: WL means ‘WestLaw‘
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.

Student, who was transferred to
disciplinary alternative education program
People v. Marquan M.

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,
Including
cyber-bulling
 ‘sexting’


….either on or off school property, if the
conduct causes a substantial disruption to the
educational environment.”
People v. Marquan M.


Court Decision:
School officials did not violate student's
constitutional rights by punishing her for
lewd photograph.



School policy was not overbroad.
School policy did not cover too much
protected speech.
Transfer to the alternative school did not
deprive student of any right to an education.
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:



Transfers
In-school suspension
Deprivation of Participation School sponsored
programs
ANONYMOUS TIPS
 K.P.
v. State of Florida
ANONYMOUS TIPS
K.P. v. State of Florida
Florida Court of Appeals
DECEMBER 26, 2014
 2013 WL 6800973

Note: WL means ‘WestLaw‘

K.P. v. State of Florida




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.
A loaded, semi-automatic handgun was
found.
K.P. was arrested and adjudicated.
K.P. v. State
__ So.3d __; 2013 WL 6800973 (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…
K.P. v. State
__ So.3d __; 2013 WL 6800973 (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.”
K.P. v. State
__ So.3d __; 2013 WL 6800973 (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.
…
K.P. v. State
__ So.3d __; 2013 WL 6800973 (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.”
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.
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].
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].
Riley v. California
4th 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.”
Riley v. California
Rules
 “The ultimate touchstone of the Fourth
Amendment is ‘reasonableness.’
 “Reasonableness = obtaining of a judicial
warrant.”
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.
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.”
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.
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.
Riley v. California
Search incident to arrest exception:
3. Cell Phones ?
 NO
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.]”
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
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.”
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.
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.
Riley v. California

5. Other Exceptions to the warrant
requirement are in play:
-- Exigent circumstances
-- Plain View
-- Consent
Facts and Data
Trends:
Over the past two decades, America's
public schools have become safer and
safer.
 All indicators of school crime continue
on the downward trend.





school-associated deaths,
violence
nonfatal victimizations
theft
Facts and Data
Trends:

This trend mirrors that of juvenile
arrests:


Fell nearly 50% between 1994 and 2009.
Fell 17% between 2000 and 2009 alone.
2011 National Center for Education Statistics & Bureau of Justice
Statistics,
Indicators of School Crime and Safety
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
Facts and Data
Trends:

This trend mirrors that of increased
graduation rates:


Rose to 75.5% between 2009 and 2010.
Number of “failing schools” dropped from 2,007
to 1,550.
Johns Hopkins University, The Everyone Graduates Center.
“Building a Grad Nation” (2012)
Facts and Data
Trends:

This trend mirrors that of increased
graduation rates:

40 States reported record increases in the
graduation rate.
• Maryland
• Florida
• Texas
• Missouri
• New York
• Alabama
• Georgia
• Massachusetts
• Virginia
• Tennessee
• North Carolina
• Wisconsin
Johns Hopkins University, The Everyone Graduates Center.
“Building a Grad Nation” (2012)
Letting the Facts and Data
Speak for itself:

This period of time:

Coincides with the creation and expansion of
School Resource Officer programs.

Overlaps with statutory and judicial acceptance
and authorizations of SROs as part of the school
safety team in all 50 states.
Explains changes in federal and state recordsprivacy laws that authorize and promote more
effective communication between educators and
SROs.

Legitimate Child
Welfare Issue:

Research Shows:


Poor Exercise of discretion by Educators in
responses to:
“DISRODERLY CONDUCT” Incidents.
Poor Response
• Citation
• Arrest
• Zero Tolerance
Better Outcomes
• Risk Factors Assessment
• Protective Factors “ “
• Treat the Behavior
• Serious Offenses Excepted*
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”

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).
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).
Bernard James
Phone (310) 506-4689
Fax
(310) 506-4063
bjames@pepperdine.edu
.
- Questions
-Comments
-Workshops