Constitutional Issues in Public Education: A Legal and Practical Primer

CONSTITUTIONAL ISSUESIN PUBLIC EDUCATION

A LEGAL AND PRACTICAL PRIMER

FEBRUARY 26, 2015

JOSEPH B. URBAN

COLORADO CHARTER SCHOOLS CONFERENCE

WWW.CHARTERINSTITUTE.ORG

• The legal content of this presentation is copyrighted by Clark Hill

PLC.

• As with all legal issues, this presentation provides general principles

only, and the Academy’s attorney should be consulted for specific

questions related to any and all principles contained herein.

• Student discipline issues are complex, fact specific and always

involve a balancing of interests, when in doubt, consult with counsel!


What We Will Cover Today

We have three hours together – and several topics that flow from one basic

concept: students’ property interest in their free public education and our

responsibilities as agents of the state in delivering that education.

OUR AGENDA:

Right to a free public education

Federal Concepts of Due Process

Review of the First Amendment

Review of the Fourth Amendment

Have some FUN


First Things First

Let’s learn a little bit about each other!


Constitution Is Silent Regarding Free Public Education


Right To A Free, Public Education

• State Governments possess plenary power over public

education

State Constitution

State Statutes

• Federal involvement in public education has, however,

historically run quite deep


• The best summary of the consequences of adopting a system of

free public education at the state level is found in Goss v. Lopez:

“Although Ohio may not be constitutionally obligated to

establish and maintain a public school system, it has

nevertheless done so and has required its children to attend.

The authority possessed by the State to prescribe and enforce

standards of conduct in its schools although concededly very

broad, must be exercised consistently with constitutional

safeguards…the State is constrained to recognize a student’s

legitimate right to a public education as a property interest

which is protected by the Due Process Clause…”

More on this later. The important point is that state-created

right to a free public education has Constitutional implications.


Student Discipline and Due Process


Let’s Start With The Constitution

• Amendment XIV [1868]

No State. . .[shall] deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

• At its core, “due process” is best understood, as legal

scholar Michael LaMorte says, by keeping in mind that

concepts of due process and equal protection require

government officials, including educators, to be fair as they

conduct governmental business.


How Does This Relate To Discipline?

• Procedural due process is to ensure that state-initiated adjudications are valid, fair and impartial.

• Basic concepts of procedural due process

some kind of notice (notice)

some kind of hearing (opportunity to be heard)

• “Timing and content of notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved.”

• This has implications in suspensions of 10 days or less, more than 10 days and expulsions.


Basic Concepts of Due Process in Schools

Schools are a special environment, and the courts recognize

that school officials have numerous responsibilities that they

shoulder, and so the processes and procedures related to

discipline must be structured accordingly.


• An unbiased tribunal (no prejudgment).

• Notice of the proposed action and the grounds asserted for it (a

letter home with the infraction and possible consequence).

• Opportunity to present reasons why the proposed action should not

be taken (notice, through a letter home, of the date and time of the

hearing, along with notice of rights at the hearing):

The right to present evidence, including the right to call witnesses.

The right to know opposing evidence.

A decision based exclusively on the evidence presented.

Opportunity to be represented by counsel (at family’s expense).

Requirement that the tribunal prepare written findings of fact and

reasons for its decision (letter home with result or resolution of

board action).

Basic Rights Of Due Process For Expulsions


Schools Written Notice

Schools should provide written notice that includes:

• Specific charge(s) against the student, including the specific

provisions (Attach copies of the relevant portions of the Student Code

of Conduct and Board policy).

• Brief statement of facts as determined by the school’s investigation.

• Proposed punishment, including length of proposed disciplinary

removal.

• Date, time, and location of hearing.

• Description of the hearing procedures including any rights to appeal

the decision (Attach Board policy or relevant portion of the Student

Code of Conduct describing the hearing procedures).

• Notice of student and parent right to review education records.

• Name and contact information of appropriate school staff member,

should the parent or student have any questions.


• Significantly, students do NOT possess:

the right to cross-examine school officials (though good

practice allows for clarifying questions)

the right to know the name of other student witnesses

(particularly anonymous ones)

the right to be present during closed session deliberations

about the evidence presented at the hearing

• However, schools may not:

disclose “secret evidence” about the student


First Amendment in Schools


The First Amendment is Part of the Bill of Rights

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to assemble, and to petition the

government for a redress of grievances.

FIRST AMENDMENT COVERS

Freedom of speech

Free exercise of religion

Prohibition on establishing “official” religion

or religious practices


Speech in Schools – Tinker v. Des Moines


• Schools are special places in which there is a need to

protect good order and discipline, however, students do not

shed their Constitutional Rights at the schoolhouse gate.

• What is “speech”?

• What kind of speech may schools regulate?

Obscene speech

School publications/imprimatur

• Open Forum vs. Closed Forum vs. Limited Open Forum

• Prior restraint


• Religious exercises in schools

Free Exercise Clause of First Amendment: government cannot interfere with expression of religious beliefs

Establishment Clause of First Amendment: government cannot create an official church or support religious activities or give preference to one religion

• Engle v. Vitale: “Regents Prayer” adopted by school board unconstitutional

• Lemon v. Kurtzman (first test)

Policy’s primary purpose must be secular;

Primary effect must neither advance nor inhibit religion

Cannot foster “excessive entanglement.”

• Lee v. Wiseman

“Compulsion” test


Equal Access Act - Religion

It shall be unlawful for any public secondary school which receives

Federal financial assistance and which has a limited open forum to

deny equal access or a fair opportunity to, or to discriminate

against, any students who wish to conduct a meeting within that

limited open forum on the basis of religious, political, philosophical,

or other content of speech at such meetings.

20 USC Section 4071

• “Limited open forum” is when a school grants an offering to or

opportunity for one or more noncurriculum related student groups

to meet on school premises during noninstructional time


Equal Access, Fair Opportunity

Equal Access, fair opportunity:

(1) the meeting is voluntary and student-initiated;

(2) there is no sponsorship of the meeting by the school, the

government, or its agents or employees;

(3) employees or agents of the school or government are present at

religious meetings only in a nonparticipatory capacity;

(4) the meeting does not materially and substantially interfere with the

orderly conduct of educational activities within the school; and

(5) nonschool persons may not direct, conduct, control, or regularly

attend activities of student groups.

Nothing in the Act is intended to limit the authority of the school, its agents

or employees, to maintain order and discipline on school premises, to

protect the well-being of students and faculty, and to assure that

attendance of students at meetings is voluntary.


Student Searches in the Electronic Age – the Nuts and Bolts


Some Circumstances that Prompt Student Searches

• Suspected or Reported Violations of Student Code of Conduct.

• Improper use of electronic equipment (cell phone, computers,internet, iPad, etc.).

• Improper behavior toward fellow students or staff.

• General Parent/Student Complaint.

• Theft or Suspected Theft.

• Anonymous Complaint.

• Information obtained from school video surveillance equipment.

Note: Schools should investigate any incident that is related to theschool regardless of whether the matter has been reported topolice or other authorities. Schools may make their own decisionand need not await the outcome of criminal charges or otherinvestigations.


Hypothetical Fact Pattern 1

Johnny:

Johnny is standing by his locker in the hallway putting books and supplies in

this backpack. Teacher Smith is walking down the hall and stops to

congratulate Johnny on his recent test score. Teacher Smith can easily see

into Johnny’s wide open backpack on the floor and sees what she believes

to be a bag of marijuana. Teacher Smith takes Johnny to the assistant

principal, who proceeds to search Johnny’s backpack. During said search,

no marijuana is found, but a personal iPad that has a “pot leaf” sticker on

cover is found in Johnny’s backpack. The AP, who has been dealing with

Johnny off and on all year for suspected drug offenses, requires Johnny to

enter his PIN number to unlock his personal iPad, and then looks at emails

on the iPad. The emails show that Johnny sold marijuana on school property

the day before.

Was this search of the backpack appropriate? The iPad?

Can the emails be used for disciplinary purposes?


Hypothetical Fact Pattern 2

Susie:

Principal Bob suspects that Susie has been carrying out drug deals

during school. Principal Bob was told by Billy that Susie had sold

Tonja marijuana on school property a couple hours earlier so Tonja

could get “high” at lunch. Billy says the basis of his information is

that he saw Susie Facebook messaging Tonja during class about

the drug deal and both were bragging about how easy it is to sell

drugs and get “high” at school.

May Principal Bob ask Susie and/or Tonja for their Facebook

account information to retrieve these messages?


Student Searches – The 4th Amendment

The 4th Amendment protects against unreasonable searches and seizures.

For Students:

• General Rule: Any government (school) action that intrudes upon and invades a

student’s justifiable expectation of privacy constitutes a search under the 4th

Amendment.

• A “request to search” is not a search so long as student recognizes they are free to

refuse consent.

• If the object searched is school property or school-provided user account, consent from

the student and/or parent is not required under the 4th Amendment, but consider

electronic communication and privacy laws. District policies should cover the right to

search and should state that students have no legitimate expectation of privacy in

electronic communications from school equipment. This includes school computers,

school-issued laptops, e-Readers, or tablet devices signed out to individual students.

• If object searched is the student’s personal property/account, reasonable suspicion or

consent from parent and/or student will be required under 4th Amendment, but other

laws on electronic communication and privacy may prohibit search.


The 4th Amendment – What is Reasonable?

New Jersey v. T.L.O (468 U.S. 325 (1985)

• Must review all relevant facts and circumstances and balance student’s rights

(expectation of privacy) in light of the unique circumstances of the incident.

• Must analyze the context in which the search occurred (view from perspective of

“searcher”).

• Not all circumstances carry the same weight under the law. One fact/circumstance

can quickly change the outcome of the case.

• No search warrant or “probable cause” required so long as no police involvement in

search (SRO does not necessarily mean police involved).

Two Prong Test

• Was search justified at inception? It is if at the inception of the search, there is

reasonable suspicion that the search will reveal evidence that the student has

violated or is violating the law or the rules of the school (code of conduct).

Reasonable suspicion has been taken to mean “fair probability” or a “moderate

chance”. Safford v. Redding, 129 S. S. CT 2633 (2009)

• Is search permissible in its scope? It is when the measures adopted are reasonably

related to the objectives of the search and not excessively intrusive in light of the

age and sex of the student and the nature of the infraction.


Safford Unified v. Redding – New Questions about

Reasonableness of Scope

Safford v. Redding

• Student suspected of carrying ibuprofen in her day planner

• Search of student did not show any contraband in her clothing

• When contraband was not found, she was asked to remove her outer

clothing, pull her bra away from her body, as well as her underwear.

• Supreme Court reviewed the matter, and found the search to be

unreasonable

Citing T.L.O., the Supreme Court said: the scope will be

permissible… when it is “not excessively intrusive in light of the

age and sex of the student and the nature of the infraction.”

Seems to leave the door open to invasive search in the event that

there is a severe threat to safety and welfare.

In the oral arguments, justices were concerned with hiding

dangerous drugs, such as methamphetamine.


“Reasonableness” – A Complex Standard

• As much as the courts defer to schools related to reasonableness, the

circuits remain split, and Redding is the latest standard to apply.

• For example:

Random, suspicionless searches were held unconstitutional by a Federal

Court in Little Rock. Doe. v. Little Rock, 380 F.3d 349 (2004).

A random search for a weapon involving patting down students was found

reasonable in the Eighth Circuit. Thompson v. Carthage School District 87

F.Ed 979 (8th Cir 1996).

• The guidelines are very fact specific, and generally school officials who

engage in suspicionless searches will have a very steep constitutional

challenge.

• Dog sniff searches are likewise problematic.

Sniffs of students have cultural implications, and can be deemed invasive.

There is authority that dog searches of students’ classrooms may be

permissible under some circumstances.


Questioning & Consent to Search – Rule of Thumb

Questioning of Student

• May detain student for questioning provided it is reasonable in nature and scope.

• Seizure/detention of student may be violation of 4th Amendment.

• School officials have no obligation to notify parent before detaining and questioning

student; HOWEVER, if about serious misconduct, it is best to have parent involved to

protect interests of student. Also, if student demands parent be present, may be in

school’s best interest, especially if student upset or distraught.

Consent to Search

• General Rule: A search authorized by consent of the searched individual is

constitutional provided the consent was given both freely and voluntarily.

• Seizure of contraband voluntarily relinquished by student does not violate 4th

Amendment.

• Voluntariness is judged based upon totality of circumstances (age, intelligence, etc.).

• Important to a have witness that can show consent was voluntarily provided or

information was voluntarily given.

• If contraband or information voluntarily provided, get a copy of it at that time.


A Word About Liability

• The Academy’s Charter requires that all aspects of its operation

occur under applicable law.

• 42 USC 1983

Every person who, under the color of any statute, ordinance, regulation,

custom or usage, of any State or Territory of the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity or other proper

proceeding for redress…

THANK YOU!

NATIONAL CHARTER SCHOOLS INSTITUTE | 711 WEST PICKARD STREET | MOUNT PLEASANT, MICHIGAN 48858

VIEW THIS SLIDE DECK ONLINE AT


This document is not intended to give legal advice and does not establish any

attorney-client relationship. It is comprised of general information. A School

facing specific issues should consult with its attorney.

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