Posts tagged with "education law matter"

Searches by School Resource Officers

On Searches by School Resource Officers: Are They School Officials or Police Officers?
It Depends.

In light of school safety concerns that have plagued the nation since the 1990s, resource officers have become commonplace our public schools. They are the collaborative effort of local police departments and boards of education, serving a myriad of roles as educator, investigator, advisor, and a source of interaction and resource for students. However, what are the constitutional burdens imposed on a resource officer when he or she conducts a search of a student or the student’s property?

Limitations of the Fourth Amendment

First, let’s rewind to 1985, when the U.S. Supreme Court held that while the Fourth Amendment in general applies to searches conducted by teachers or school officials, they are not held to the stringent warrant requirements that constrain police action. As further elaborated:

[T]he accommodation of the privacy interests of schoolchildren with the substantial need of teacher and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.

Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the … action was justified at its inception, second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.[1]

Cases of School Searches by Resource Officers

In other words, school personnel are permitted to search student property (which includes purses, backpacks, and automobiles on school property) so long as the search is “justified at its inception” and permissible in scope. The search cannot be excessively intrusive. However, what the Court in T.L.O. declined to produce was “the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question.”[2]

Thus, we return to our original inquiry: because a resource officer serves functions both on behalf of the school and of the local police agency, what is the standard that applies? It does not appear that this question has been put to the test here in Connecticut, though other jurisdictions have progressively contemplated this scenario, and it boils down to three hypotheticals:

  1. School official initiates search/police involvement is minimal: reasonableness test applies.
  2. School resource officer initiates search on own initiative or at direction of a school official so as to “further educationally related goals”: reasonableness test applies.
  3. “Outside” police officer initiates search: warrant and probable cause requirements implicated.[3]
How to Determine the Level of Police Involvement

In determining the level of police involvement, various factors are considered:

[W]hether the officer was in uniform, whether the officer has an office on the school campus, how much time the officer is at the school each day, whether the officer is employed by the school system or an independent law enforcement agency, what the officer’s duties are at the school, who initiated the investigation, who conducted the search, whether other school officials were involved, and the officer’s purpose in conducting the search.[4]

Because of the lack of a uniform standard as promulgated by a Supreme Court decision, different courts have come to wholly divergent conclusions purely based on application of the above factors. In Alaniz, the North Dakota Supreme Court determined that the school resource officer involved was “more like a school official,” thus implicating the less stringent reasonableness standard.[5] Conversely, this past August the Washington Supreme Court ruled that “the school resource officer was not a school official and thus the more lenient standard of ‘reasonable suspicion’ applied to searches by school personnel did not apply.”[6]

Every instance of school searches conducted by resource officers is unique, and as such determining whether it was reasonable or implicated greater Fourth Amendment protections may be difficult without the assistance of an experienced school law practitioner.

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding school discipline, searches, or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).

[2] Id. at 342 n.7.

[3] State v. Alaniz, 2012 N.D. 76, ¶ 10. See, e.g., T.S. v. State, 863 N.E.2d 362, 367-68 (Ind. Ct. App. 2007); Myers v. State, 839 N.E.2d 1154, 1160 (Ind. 2005); State v. Burdette, 225 P.3d 736, 750 (Kan. Ct. App. 2010); In re D.L.D., 694 S.E.2d 395, 400 (N.C. Ct. App. 2010); State v. J.M., 255 P.3d 828, 832 (Wash. Ct. App. 2011). Accessed October 4, 2012: http://www.ndcourts.gov/_court/opinions/20110259.htm

[4] Id. at ¶ 11. See T.S., at 369-71; Burdette, at 740; R.D.S. v. State, 245 S.W.3d 356, 368 (Tenn. 2008).

[5] Id. at ¶ 12.

[6] “Court Invalidates Backpack Search by School Resource Officer,” by Mark Walsh. Accessed October 4, 2012: http://blogs.edweek.org/edweek/school_law/2012/08/court_invalidates_backpack_sea.html

What is “Gifted and Talented” and What If My Child Is Identified as Such?

While reading a parent’s education law guide written by attorneys here at Maya Murphy, I was initially surprised to read the following: “A child requiring special education in Connecticut includes not only children with disabilities but also those who are found to be especially gifted and talented.”[1] Indeed, “a child requiring special education” is not limited to those deemed eligible pursuant to the Individuals with Disabilities Education Act (IDEA; see my previous post), but a child that:

[H]as extraordinary learning ability or outstanding talent in the creative arts, the development of which requires programs or services beyond the level of those ordinarily provided in regular school programs but which may be provided through special education as part of the public school program.[2]

The Regulations Concerning State Agencies go into greater depth as to what constitutes “gifted and talented,” “extraordinary learning ability,” and “outstanding talent in the creative arts.”[3]

You may be asking yourself, “But how do I know my child is gifted and talented?” The State Department of Education produced a very informative list of FAQs, one of which directly addresses this question:

Some children are able to concentrate for long periods of time at a very young age or demonstrate their gifts and talents by using a large vocabulary, constant questioning, demonstrating unusual creativity, performing advanced math calculations, and/or exhibiting exceptional ability in specific subject areas.

Not all children, however, demonstrate their potential abilities and talents in the traditional manners mentioned above. Thus, concerned parents should consult with child development specialists, such as their local school officials, pediatricians, or higher education personnel for more information.[4]

Gifted and Talented (GaT) Programs

The rules governing gifted and talented (GaT) are somewhat similar to the mandates stemming from special education classifications under IDEA (and associated state law codifying its requirements). Schools districts must “provide identification, referral and evaluation for gifted and talented children.”[5] However, offering GaT programming is optional: “(c) Each local or regional board of education may provide special education for children requiring it who are described by subparagraph (B) of subdivision (5) of section 10-76a and for other exceptional children for whom special education is not required by law.[6] 

Thus, if you are the parent of a child identified as GaT and your school elects not to offer special programs or services, they are not denying your child the free appropriate public education, or FAPE, as is required under federal law.

Written by Lindsay E. Raber, Esq.

However, if your school district refuses to identify, refer, or evaluate your child for GaT status pursuant to Connecticut law, it is imperative that you seek the counsel of an experienced and knowledgeable school law practitioner. Should you have any questions regarding gifted education, special education, or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at pp.10.

[2] Connecticut General Statutes § 10-76a(5)(B).

[3] Regulations of Connecticut State Agencies § 10-76a-2.

[4] “Gifted and Talented – QA,” by the State Department of Education. Accessed October 5, 2012: http://www.sde.ct.gov/sde/cwp/view.asp?a=2618&q=320948

[5] Id. at § 10-76d-1.

[6] Connecticut General Statutes § 10-76d(c).

Student’s Negligence Action Against School

Student’s Negligence Action Against School, City of Stamford Survives Motion for Summary Judgment
Case Background

Jesse was a twenty-year-old special education student attending high school in Stamford. She repeatedly informed teachers and school officials about the unwanted romantic advances made by her classmate, Jonathan, but no action was ever taken. On February 28, 2005, Jesse asked to use the restroom located in the special education classroom; she was then sexually assaulted by Jonathan. Both students were sent to the office of the special education coordinator, and Jesse explained what occurred. Despite this knowledge, school officials permitted the two to ride on the same school bus home, during which Jesse was teased and called a liar by Jonathan.

Various teachers and staff, the Board of Education, and even the City of Stamford were later sued in a negligence action filed by Jesse. She contended that “the defendants were aware of [Jonathan’s behavior], but they failed to take appropriate measures to protect [her] from the sexual assault.”[1] However, in their motion for summary judgment, the defendants claimed protection through governmental immunity.

Governmental Immunity

Municipal employees are “liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts…”[2] Basically, governmental acts are supervisory and discretionary, while ministerial acts must “be performed in a prescribed manner without the exercise of judgment or discretion.”[3] However, even if a defendant successfully claims, as they did in this case, that the acts in question were discretionary, thus invoking governmental immunity, a plaintiff may still defeat a motion for summary judgment by asserting one of three exceptions (discussed in greater detail here): in this case, the identifiable person-imminent harm exception.

The identifiable person-imminent harm exception requires a showing of three things: “(1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.”[4] A person will be deemed “identifiable… if the harm occurs within a limited temporal and geographical zone, involving a temporary condition;”[5] a harm is imminent if it is “ready to take place within the immediate future.”[6]

The Court’s Decision

In discussing the motion to dismiss, the Court agreed that Jesse was an identifiable victim of the assault, but she failed to meet the imminent harm requirement. There was no evidence on the record as to when the previous sexual advances were made, nor did she show that the defendants should have known the sexual assault would take place on or about February 28, 2005.[7] However, the Court agreed that the exception was satisfied as to the school officials’ conduct in allowing the two to ride home together:

[Two school officials] admit in their affidavits that they knew some sort of sexual conduct had occurred between [Jesse] and [Jonathan]. Despite this fact, they did not stop [Jesse] from taking the bus with [Jonathan]. At that time, [Jesse] was an identifiable victim of harassment by [Jonathan], and the risk was limited in geographic and temporal scope because [Jesse] and [Jonathan] were riding the bus together and the risk only lasted the duration of the bus ride home. Moreover, the risk of harm was arguably imminent because the dismissal bell had just sounded to release the students early because of a snowstorm, and the bus would presumably be leaving soon thereafter.

Thus, the Court denied the motion for summary judgment as to most of the counts in the complaint (it granted the motion as to one negligence per se count). Although the lawsuit was later withdrawn[8] by Jesse, this case nonetheless serves as another example of a student and/or parent surviving a motion for summary judgment in the face of defendants asserting governmental immunity protection.

Written by Lindsay E. Raber, Esq.

Should you have any questions about any education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] Estrada v. Stamford Board of Education et al., Superior Court, judicial district of Stamford, Docket No. CT 06 5002313. 2010 Conn. Super. LEXIS 3022 (November 19, 2010, Tobin, J.).

[2] Bonington v. Westport, 297 Conn. 297, 306, 999 A.2d 700 (2010).

[3] Id.

[4] Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009).

[5] Id. at 275-76.

[6] Stavrakis v. Price, Superior Court, judicial district of Litchfield, Docket No. CV 10 6001285, 2010 Conn. Super. LEXIS 2257 (September 7, 2010, Roche, J.).

[7] See Footnote 1.

[8] http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=FSTCV065002313S

“Do Not Let Your Self-Worth Be Defined By Bullies”

“Jumping off the gw bridge sorry.” This was the “farewell message” of Tyler Clementi, an eighteen-year-old Rutgers University student, posted on Facebook after he discovered his roommate was spying on his sexual encounters with another man.

The Prevalence of Bullying

It almost goes without saying that bullying (and its technological brother, cyberbullying) is one of the most important topics of school law today. National surveys and studies conducted over the past several decades, along with the high-profile suicides of Clementi, Phoebe Prince, and Megan Meier, have provided startling information on the prevalence of bullying tactics both in person and through Internet channels of communication.

Indeed, “70 percent of middle and high school students have experienced bullying at some point,” with approximately 5 to 15 percent described as “chronic victims.”[1] Unfortunately, less than half actually report such incidents, and the short- and long-term effects on victims can be particularly devastating, such as depression, anxiety, poor health, and decreased academic performance and school participation.

How the nation has reacted has been as diverse as its population.[2] Efforts in Connecticut have been particularly extensive and comprehensive (as discussed here), though many States still find themselves unwilling, for whatever reason, to extend protections to particularly vulnerable groups of students, such as LGBT. Particularly shocking is the prevalence of laws specifically written to stigmatize LGBT students, mandating negative portrayal by the very faculty and staff we’d expect would protect students regardless of their differences.[3]

Liability in Cases of Harassment and Bullying

Courts appear more and more willing to subject school administrators, Boards of Education, and even towns to liability for the harms brought upon students at the hands of their peers. (See, for example, my two previous posts from today, here and here.) In the case of Tyler Clementi, however, the parents elected not to pursue litigation against the school or Tyler’s roommate because “[t]he family got to a place where they really felt an obligation and desire to use the publicity for positive purposes.”[4] Tyler’s roommate, Dharun Ravi, was convicted earlier this year of crimes related to the spying incidents,[5] though the seemingly lenient sentence has been widely called into question.[6]

If you personally or, if a parent, your child has been subject to bullying in school or on the Internet, it is imperative that you take to heart the message of Jennifer Livingston, a TV journalist thrust into the spotlight this past week regarding a viewer’s bullying of her weight:

To all the children out there who feel lost, who are struggling with your weight, with the color of your skin, your sexual preference, your disability, even the acne on your face. Listen to me right now. Do not let your self-worth be defined by bullies. Learn from my experience that the cruel words of one are nothing compared to the shouts of many.[7]

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding school bullying or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1]“Bullying: A Module for Teachers,” by Sandra Graham, PhD, of the American Psychological Association. Accessed September 24, 2012: www.apa.org/education/k12/bullying.aspx

[2] See, for example, the following info-graphic: http://en.wikipedia.org/w/index.php?title=File:School_bullying_laws_in_the_United_States.svg&page=1

[3] See, for example, “States with Safe School Laws,” by GLSEN. Accessed October 8, 2012: http://www.glsen.org/cgi-bin/iowa/all/library/record/2344.html

[4] “Tyler Clementi’s family decides not to sue,” by Dominique Debucquoy-Dodley. Published October 6, 2012. Accessed October 8, 2012: http://www.cnn.com/2012/10/05/justice/new-jersey-tyler-clementi-lawsuit/index.html

[5] “Dharun Ravi apologizes for ‘childish choices,’ plans to head to jail,” by Logan Burruss. Published May 30, 2012. Accessed October 8, 2012: http://www.cnn.com/2012/05/29/justice/new-jersey-ravi-sentence/index.html

[6] See, for example, “Is 30-day sentence fair for student who bullied gay roommate?” by the CNN “This Just In” blog. Published May 21, 2012. Accessed October 8, 2012: http://news.blogs.cnn.com/2012/05/21/is-30-day-sentence-fair-for-student-who-bullied-gay-roommate/

[7] “Star brother Ron Livingston defends ‘fat’ anchor sister, Jennifer,” by News Limited Network. Published October 5, 2012. Accessed October 8, 2012: http://www.news.com.au/entertainment/celebrity/tv-anchor-jennifer-livingston-takes-on-bully-who-criticised-her-weight/story-e6frfmqi-1226488835303

Material Issues Surrounding Circumstances of Student’s Suicide

On November 4, 2003, Terence Leary, a Wesleyan University (Wesleyan) student and pitcher on the school’s baseball team,[1] called the campus public safety officers complaining about a panic attack he was experiencing. Although Terence was transported by the officers to a nearby hospital, they simply dropped him off and departed “without further investigating or securing medical attention for him.” Soon thereafter, Terence left the hospital because he “couldn’t take it”[2] and committed suicide by drowning in a nearby creek. His death “sent ripples across the campus.”[3]

Allegations Against the School

Terence’s family elected to sue Wesleyan under a negligence theory, arguing that the school “(1) hired and retained inadequate safety personnel; (2) failed to properly train its security personnel; and (3) did not follow appropriate measures for handling distressed students.”[4] It further alleged:

[T]he security personnel (1) knew or should have known that Terence Leary was in a distressed condition, had suicidal tendencies and was a threat to himself, and they failed to investigate or provide Leary with adequate care; (2) failed to make sure Terence Leary received adequate treatment at the hospital; and (3) the university failed to conduct a proper investigation into Leary’s mental history.[5]

Wesleyan filed a motion for summary judgment, seeking dismissal of the lawsuit. It countered that Terence’s death was caused by his own negligent actions; thus, they were not liable. It further contended that it owed no duty to Terence because the law does not recognize a special relationship between a university and its students.

Connecticut law does not recognize a general duty to protect others from harming themselves, unless there is a special relationship between the two parties. A “duty arises particularly in special relationships where the plaintiff is typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiff’s welfare.”[6] Thus, a threshold inquiry is whether one party had custody or control of the other party.

The Court’s Decision

In this case, the Court found that the public safety officers, as agents of Wesleyan, had custody or control of Terence, because their “status as police officers created the perception that they controlled the situation.”[7] As such, they had the ability to prevent Terence from leaving the hospital prior to receiving medical attention.

The Court went to great length describing liability for “gratuitously undertaking to render services to another… [which is] based on the control that the individual has in the circumstances, and the power he assumes over the plaintiff’s welfare.”[8] A person will be liable for negligent performance of this undertaking[9] because “one [who] takes charge and control of [a] situation… is regarded as entering into a relation which is attenuated with responsibility.”[10] The Court further noted the great extent to which Wesleyan provided emergency services and information to its student body, and found that the officer’s actions actually increased the risk of harm to Terence.[11]

A Foreseeable Tragedy

Finally, the Court determined that Terence’s suicide was foreseeable, even though he had not previously made any threats on the night of his death or beforehand. Based on the transcript of Terence’s emergency phone call, a security expert for the plaintiff testified that “[Wesleyan’s] public safety officials should have recognized that [Terence] was in a mental crisis and could have been harmful to himself,” but failed to follow the provisions of Wesleyan’s own public policy manual that specifically addresses how to handle student mental health crises.[12]

As the Court further noted, these policies “provided evidence that the defendant was aware that suicide was a general risk, when dealing with an individual who was in mental distress.”[13] Thus, the motion for summary judgment was denied as to the negligence claim because of genuine issues of material fact related to control and custody of Terence and his mental distress when he placed the emergency call.

Conclusions

Increasingly, we are seeing Connecticut courts willing to hold elementary and secondary schools as well as colleges and universities responsible for tortious or negligent acts committed against students. If you personally or, if a parent, your child was the victim of an assault or other occurrence while under the supervision of school personnel, it is important that you seek an experienced school law practitioner to understand your rights and courses of action. Should you have any questions regarding negligence liability or any education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

Written by Lindsay E. Raber, Esq


 

[1] “Friends, family unite to share memories of Leary,” by Miriam Gottfried. Published November 14, 2003. Accessed October 8, 2012: http://wesleyanargus.com/2003/11/14/friends-family-unite-to-share-memories-of-leary/

[2] “Student’s death stuns Wesleyan community,” by Miriam Gottfried. Published November 7, 2003. Accessed October 8, 2012: http://wesleyanargus.com/2003/11/07/student%E2%80%99s-death-stuns-wesleyan-community/

[3] Id.

[4] Douglas Leary v. Wesleyan University, 2009 Conn. Super. LEXIS 621 at 2.

[5] Id.

[6] Coville v. Liberty Mutual Insurance Company, 57 Conn. App. 275, 281 (2000).

[7] Leary, supra at 12-13.

[8] Id. at 17-18, citing McClure v. Fairfield University, Superior Court, judicial district of Waterbury, Docket No. CV 000159028 (June 19, 2003, Gallagher, J.) (35 Conn. L. Rptr. 169, 2003 Conn. Super. LEXIS 1778)

[9] Coville, supra 57 Conn. App. 281.

[10] McClure, supra, 35 Conn. L. Rptr. 169, 2003 Conn. Super. LEXIS 1778.

[11] Leary, supra, at 22-23.

[12] Id. at 27.

[13] Id. at 33.

“Sniff Away Fido!” Assessing the Extent of Allowing Canine Searches of Students in Our Schools

The past few articles I’ve composed have highlighted various contexts in the realm of school searches of students and their possessions. Connecticut has codified the landmark decision of New Jersey v. T.L.O., incorporating the parameters of permissible school searches into § 54-33n: “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.”[1] Though it provides important definitions of terms in the applicable two-part reasonableness test, it does not specifically limit who or what may be searched and the manner of the search itself (thus the test).

Dog-Sniffing Tactics to Combat Drug Abuse

Switching gears without the clutch, in the United States, households nationwide own approximately 78.2 million pet dogs.[2] They have been near and dear to our hearts as “Man’s Best Friend,” and became increasingly loved every time Lassie saved Timmy – yet again – from that well. However… fast-forward to the twenty-first century, and they’ve become a vital tool utilized by local and federal law enforcement at shipping facilities, airports, security checkpoints, and… well, basically everywhere.

The use of dog-sniffing tactics is on the rise as schools attempt to combat drug abuse within its student body. “The National Center on Addiction and Substance Abuse at Columbia University completed a 2005 study concluding that [at that time] 2.4 million, or 28% of middle school students, and 10.6 million, or 62% of high school students, will attend schools where drugs are used, kept, or sold.”[3] These students are “three times likelier to have tried marijuana, three times likelier to get drunk in a typical month, and twice as likely to have tried alcohol, compared to teens who attend drug-free schools.”[4]

The Supreme Court in New Jersey v. T.L.O. clarified that teachers are subject to constitutional restrictions on their searches of students, though not as stringent as those applied to law enforcement (see above, as codified in § 54-33n). Thus, the use of canines in conducting drug searches hinges on the reasonableness of the search. In practice, however, federal jurisdictions are producing conflicting (and irreconcilable) results about whether dog-sniffing constitutes a search at all[5] – a conflict which inevitably will find its way once more in front of the Supreme Court.

Providing Safety to Students

Nonetheless, school districts are choosing to retain dogs in their arsenal of search weaponry to combat drug use and abuse – not without controversy amongst residents, either. Earlier this year, canine sweeps became routine at Simsbury High School: “the dogs will be brought through the hallways, bathrooms, common areas, lockers, locker rooms and parking lots while students remain in their classrooms,” according to Principal Neil Sullivan and Superintendent Diane Ullman.[6] 

This is but the latest measure employed by the school district as it faced increases in arrest rates related to marijuana possession and sales. However, it has received its seal of approval from the Connecticut Association of Boards of Education (CABE): “It’s a policy available because a prime mission of a school is to provide safety to its students. This is just one of a number of ways to [do so],” says CABE senior staff associate Vincent Mustaro.[7]

Metal Detectors or Dogs?

The Amity Regional Board of Education, however, has decided to up the ante. As of early summer, it was “considering approving a policy that would allow police canines to sniff an individual student in cases where there is reasonable suspicion that individual is in violation of the law or school rules.”[8] If passed, Amity would become the first school district to implement such measures, though it has already become the target of sharp criticism from parents, the ACLU of Connecticut, and even CABE itself.

“CABE’s position is not to sniff the person. I would not have a dog go up to a youngster. Our position is to use dogs to sniff inanimate objects, not persons,” explained Mustaro.[9] However, the State Department of Education declined to comment on the matter, noting it was a local issue. Some parents have supported the proposed action, with one notably writing on his Facebook wall, “Metal Detectors or Dogs. If they’re bringing in drugs into a school, it could be just as dangerous as a gun or a knife. Sniff away Fido!”[10]

Because the U.S. Supreme Court has yet to address the extent to which dog searches in schools are permissible, it is imperative, as a parent, that you understand your child’s rights by consulting an experienced and knowledgeable school law practitioner.

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding school searches or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] Connecticut General Statutes § 54-33n.

[2] “Pet Statistics,” by the American Society for the Prevention of Cruelty to Animals. Accessed October 4, 2012: http://www.aspca.org/about-us/faq/pet-statistics.aspx

[3] “Suspicionless Canine Sniffs: Does the Fourth Amendment Prohibit Public Schools From Using Dogs to Search Without Individualized Suspicion?” by Todd Feinberg, UC Davis Journal of Juvenile Law & Policy, Vol. 11:2, pp.273. Summer 2007. Accessed October 4, 2012: http://jjlp.law.ucdavis.edu/archives/vol-11-no-2/08%20Feinberg%2011.2.pdf

[4] The National Center on Addiction and Substance Abuse at Columbia University, National Survey of American Attitudes on Substance Abuse X: Teens and Parents (2005). Accessed October 4, 2012: http://www.casacolumbia.org/Absolutenm/articlefiles/Teen_Survey_Report_2005.pdf

[5] Compare Doe v. Renfrow, 631 F.2d 91, 92 (7th Cir. 1980) (per curiam) (holding that canine sniffing ordered by school officials does not constitute a search) with B.C. v. Plumas Unified School District, No. 97-17287, 1999 U.S. App. LEXIS 38863 (9th Cir. Sept. 20, 1999) and Horton v. Goose Creek Independent School District, 690 F.2d 470 (5th Cir. 1982) (holding that canine sniffing constitutes a search, thus implicating the Fourth Amendment).

[6] “Drug-Sniffing Dogs To Be Used In Drug Sweeps At Simsbury High School,” by Hillary Federico. Published February 16, 2012. Accessed October 4, 2012: http://articles.courant.com/2012-02-16/community/hc-simsbury-drug-dogs-20120214_1_dog-searches-drugs-on-school-grounds-illegal-drug

[7] Id.

[8] “Amity considers allowing drug-sniffing dogs to check students,” by Bridget Albert. Published June 2, 2012. Accessed October 4, 2012: http://nhregister.com/articles/2012/06/02/news/metro/doc4fcadb8e5d32f364581634.txt

[9] Id.

[10] Id.

Extremely Intrusive Strip Searches of Students Are Unconstitutional…Mostly?

On December 2, 2008, a teacher at Pine Academy in Shelton discovered that $70 was taken from her pocketbook. Upon this finding, the school principal “ordered [two teachers] to bring [four male] teens… accused of stealing [the money] individually into a room to be strip-searched. The teens were reported being told to remove their shirts and pull their pants down.”[1] This was in direct contravention of publicized district policy explicitly prohibiting strip searches.[2]

After the teens sued the school district, the U.S. Supreme Court rendered its decision in the case of a thirteen-year-old girl who, following unsubstantiated claims that she was dealing drugs, was “pulled out of class, ordered to strip to her underwear [and bra] and further expose herself as school officials searched for prescription-strength ibuprofen. No drugs were found.”[3] 

Suspicision vs. Degree of Intrusion

This case, Safford Unified School District v. Redding, 557 U.S. (2009), first summarized Fourth Amendment jurisprudence relating to searches conducted by police officers and the relaxed standards applied to those conducted by teachers and school administrators. Applying these principles, the Court explained that “the content of the suspicion failed to match the degree of intrusion” because of “the categorically extreme intrusiveness of a search down to the body of an adolescent [for] non-dangerous school contraband.”[4] Justice Souter concluded in his majority opinion:

[T]he T.L.O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.[5]

After the Pine Academy incident, administration placed the principal and one of the teachers involved on administrative leave for the remainder of the school year, at which point they resigned from their positions.[6] In early August 2010, the four teens each received $27,500 as part of their settlement of the lawsuit.[7]

Written by Lindsay E. Raber, Esq.

The language used by Justice Souter leaves open the ability of school officials, should they so choose, to strip search a student if they possess an equally compelling reasonable suspicion to do so, such as to locate dangerous contraband. Therefore, if your child is subject to a strip search at his or her school, it is imperative that you contact an experienced and knowledgeable school law practitioner to understand your rights and courses of action.

Should you have any questions regarding strip searches or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] “2 lose jobs in Ansonia strip-search incident,” by Lauren Garrison. Published February 12, 2009. Accessed October 4, 2012: http://www.nhregister.com/articles/2009/02/12/news/valley/a1-anpineacademy.txt

[2] “Supreme Court Decision Could Affect Ansonia Strip Search Case,” by Diane Orson. Published July 7, 2009. Accessed October 4, 2012: http://www.cpbn.org/article/ansonia-school-strip-search-case

[3] Id.

[4] Safford Unified School District v. Redding, 557 U.S. ___, 8-9 (2009). Accessed October 4, 2012: http://www.law.cornell.edu/supct/pdf/08-479P.ZO

[5] Id. at 11.

[6] See Footnote 1.

[7] “Ex-students settle Ansonia strip search lawsuit,” by the Associated Press. Published August 12, 2010. Accessed October 4, 2012: http://www.wtnh.com/dpp/news/education/ex-students-settle-ansonia-strip-search-lawsuit

Is Warrantless Drug Testing in Our Schools Constitutional?

In a previous post, I discussed the lessened requirements of searches conducted by school officials, that of reasonableness under all of the circumstances surrounding the search. This is because the Supreme Court has recognized the need to balance a student’s privacy interests against the need for teachers and administration to maintain order and control over the classroom environment.[1] This framework works particularly well in the traditional sense of searching a student’s belongings, automobile, and even their school desks and lockers.[2]

What happens, however, if your school seeks to subject its students to random drug testing, without having reasonable suspicion to do so? This qualifies as a search, subject to the reasonableness standard, but “certain exceptions to the reasonable standard [exist], whereby your child may be subject to drug testing regardless of whether or not they are suspected of taking illicit drugs.”[3]

Does Random Drug Testing Violate the Fourth Amendment?

In 1995, the U.S. Supreme Court determined that random drug testing of student-athletes via urinalysis did not run afoul of the Fourth Amendment.[4] The Court articulated a three-part balancing test that must be used in determining whether a constitutional violation occurs in this context: the nature of the privacy interest upon which the search intrudes,[5] the character of intrusion,[6] and the nature and immediacy of the governmental concern and the efficacy of the means to meet it.[7] A school’s interest in combating student drug use has long been recognized. The Court reasoned that student-athletes have a further diminished expectation of privacy compared to regular students (consider communal showers and shared locker rooms) and noted the voluntary nature of participation.

Seven years later, the U.S. Supreme Court extended these principles to allow random drug testing of students who participate in any extracurricular school activities.[8] This includes chess clubs, band and choral ensembles, or even teams that participate in academic competitions. As my colleagues explained, “The circumstances surrounding a urinalysis test are no different than going to the restroom in a public facility, and a monitor is present only to make sure that your child does not tamper with the urine specimen,” a process that has been constitutionally upheld.[9]

Final Take-Away

So as a parent, what’s the take-away from this discussion? When your child wishes to participate in an extracurricular activity and the school intends to implement a suspicionless drug testing program, they may do so, but are required to adhere to the principles of Vernonia and Earls. In addition, it is comforting that the Court in Earls specifically articulated that access to the results is on a strict “need to know” basis;[10] in addition, schools are not permitted to either punish your child or hand over the results to the police.

Of course, the balancing test applied to drug testing renders a subjective analysis, and as such it is important to seek the advice of an experienced school law practitioner if your child is subject to one at his or her school.

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding school discipline, searches, or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).

[2] Connecticut General Statutes § 54-33n.

[3] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at 60.

[4] Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).

[5] Id. at 654.

[6] Id. 658.

[7] Id. 660.

[8] Board of Education Independent School District No. 92 v. Earls, 536 U.S. 822 (2002).

[9] Id. at 833.

[10] Id.