Legal Update MAKING THE RIGHT MOVES IN STUDENT DISCIPLINE – DUE PROCESS, SEARCH & SEIZURE, AND DOCUMENTATION MASSP Asst. Principals & Deans Mid-Winter Summit Monday, February 3, 2014 / 4:30 p.m. Presenter: Kevin T. Sutton, Lusk & Albertson Download presentation at:

Properly Enforcing Student Discipline

The Michigan Legislature has given school districts the authority to discipline students, including the power to order suspension or expulsion (MCL ) Courts have stated that the power to maintain order and discipline in a school is subject only to the restriction of reasonableness Davis v. Ann Arbor Schools (1970) Arbitrary and Capricious Standard: Disparate Treatment – treating similarly situated students differently Must have rational basis for difference School District’s Right to Discipline

Student Discipline Considerations Two Primary Types of Issues to Consider with Student Discipline: Legal Issues Constitutional Issues Statutory Issues District Policy Issues Constitutional Issues Procedural Due Process - 5th Amendment Search & Seizure - 4th Amendment Also …. Freedom of Speech/Religion - 1st Amendment

Goss v Lopez, U.S. Supreme Court (1975) A student has a “property interest” in a public education. Due process is required before that right may be taken away. Basic Tenants of Due Process Notice of “charges” Opportunity to be heard Due Process

Due Process – Central Question: How Much Due Process is Enough?

Due Process (cont.) Suspensions of 10 days or less REQUIRE: Oral or written notice of charges Explanation of evidence Opportunity to present student side of story Suspensions of 10 days or less DO NOT REQUIRE: A student to secure legal counsel Allowing the confrontation of witnesses Allowing the calling of witnesses on the student’s behalf

Due Process (cont.) Suspensions of more than 10 days and expulsions REQUIRE: More formal procedures (Goss) Notification of charges in writing Right to secure counsel, confront witnesses/evidence and to call witnesses on the student’s behalf

Due Process (cont.) Student statements (disciplinary hearing) Prior to disciplinary hearing No need to give statements to student or allow student to confront students who submitted statements At time of disciplinary hearing Student should be provided with redacted copies of all statements used to determine discipline

Student Code of Conduct USE IT! Apply the levels and types of discipline stated in the Code of Conduct to eliminate potential arguments of disparate treatment, favoritism, or arbitrary and capricious actions Easy to justify decision to parents, administrators or others

Investigation Reminders A formal (or informal) complaint Reports of questionable conduct (even if not wanting to become involved or reported anonymously) Observed or reported student misconduct including violation of student code of conduct Parent or student complaints Anonymous complaints

Why Investigate? Gather facts and evidence Informed decision-making Adhere to due process requirements; adhere to district policy Create a record of activity Occurrence / Response Establish expectations for behavior Show misconduct will be taken seriously Be your attorney’s best friend! Document for future proceedings Avoid liability!

Effective Investigations/Interviews Minimize Concerns Helpful tips … Obtain story; use caution in how Qs asked Have student write statement Include salient details in written narrative Make student amend as appropriate Don’t have to contact parents in advance of interviewing Call if discipline will be issued Don’t interview or “detain” the student too long Administrator summary at end

Effective Investigating: Search & Seizure Standard for Police Warrant for search Standard for School Administrators Two-Step Inquiry [TLO v. New Jersey] Reason to suspect student violated Student Code of Conduct/District Policy? Reason to suspect evidence of violation of Student Code of Conduct/District Policy exists in the area you want to investigate/look?

Search & Seizure (cont.) Practical Examples: Search for Stolen Laptop Search for a Weapon Search for Drugs Special Circumstances Police and School Searches Strip Searches Hot Topics Random Drug Testing Social Media Cell Phones Consent Issues - can be addressed via policy

Exceeding Your Authority – “Enough is Enough” R.S. v. Minnewaska Area School District Investigation = Good Violation of Privacy = Bad G.C. v. Owensboro Public Schools Take Cell Phone = OK Search Cell Phone = Not OK Why? Important Distinction

Interactions with Police Agencies Dangerous Situations Police Interviews with Students Don’t have to call parents to advise of interactions with police (check District policy) J.D.B. v. North Carolina – Lesson for the police

Statutory Issues/Considerations Mandatory Discipline Mandatory Discipline Categories Dangerous Weapons Criminal Sexual Conduct Felony Arson Assaults - Adults and Students Verbal Assaults and Bomb Threats

Real World Examples “Sexting” Scandal Photo Sharing Backpack Search Facebook Harassment

Kevin T. Sutton Woodward, Suite 350 Bloomfield Hills, MI Direct: (248) Cell: (734) Other Resources: