By Marsha Sutton
Several weeks ago, I presented the first of two recent policy changes at the San Dieguito Union High School District, on “Discipline” – and promised a discussion the following week of the second policy change, “Questioning by Law Enforcement.” That scheduled column was pre-empted after I discovered an error on San Dieguito tax bills, which became the subject of several, more pressing columns.
To now return to the policy change issue, the new policy on Questioning by Law Enforcement (#5145.11) was updated to reflect a new court decision (Camreta v. Greene) “which vacated the Ninth Circuit Court of Appeals decision that required law enforcement to have parental consent, warrant, or other court order to interview a student in school absent exigent circumstances,” according to the board report.
This got my attention because I recently wrote about a case in Kentucky where the rights of a high school student were judged violated by the Kentucky Supreme Court after his school expelled him for possession and sale of a controlled substance.
In this case, according to the story in Education Week, “A high school student’s statements to an assistant principal about giving prescription pills to other students had to be suppressed in a criminal proceeding because the student had not been given a Miranda warning.”
The ruling stated that students must be read their Miranda rights before school district administrators can question them about possible illegal activity. But apparently Kentucky law does not travel past state boundaries.
Although the offense may be expellable, should students be routinely denied their basic Miranda rights when questioned by school authorities? And with only their accusers in the room, are they further denied fundamental rights when parents or attorneys are prohibited from being with them during questioning?
Miranda rights for students run head-on against the concept of in loco parentis, the Latin term for “in place of a parent.” In this application of the term, this refers to the legal right schools have to act as substitute parents when students are at school and under school supervision.
“Once a kid’s on campus, we become their parent and we become responsible for them,” said Rick Ayala, SDUHSD’s director of pupil services and alternative programs. This policy gives schools the right to interrogate students and “to allow a police officer to come in and question a kid,” he said.
After we discussed the issue, Ayala said he checked with school district lawyers who told him that school officials are indeed able to question kids without first informing their parents.
“According to counsel, it is legal and there are no court decisions that have changed that,” he said. “We can interview kids and bring in law enforcement and not have to notify parents.”
If the student is arrested, however, “we try to call the parents and let them know where they’re at and what the situation is,” he said.
But in loco parentis does not extend to violations of civil liberties, so gray areas exist, as evidenced by the afore-mentioned phrase in the San Dieguito policy which states “… absent exigent circumstances.”
“I understand the rights part of it, but if we had to get a parent in there any time we had to question a kid about anything, whether it was serious or very simple, it would tie up our jobs and we’d be doing that all day long and not do the rest of our jobs,” Ayala said.
It’s this line in the board policy that’s particularly troubling: “… the principal or designee shall attempt to notify student’s parent/guardian as soon as practicable after the law enforcement officer has interviewed the student on school premises.”
In an email, Ayala wrote: “School officials do not need to notify a student’s parent/guardian of an interview by a law enforcement official on school grounds until it is practical after the interview has been conducted. School officials will immediately notify a parent/guardian if the student is removed from school in the custody of law enforcement.”
Note that, before the change, the policy read: “Except in cases of child abuse or neglect, the principal or designee shall attempt to notify the student’s parent/guardian when [a] law enforcement officer requests an interview on school premises.”
This was changed to: “Except in cases of child abuse or neglect, the principal or designee shall attempt to notify the student’s parent/guardian as soon as practicable after the law enforcement officer has interviewed the student on school premises.”
Removed from SDUHSD policy is the following: “At the law officer’s discretion and with the student’s approval, the principal or designee may be present during the interview. The law officer should advise the student that he/she has the right to remain silent, but that he/she is encouraged to cooperate with law enforcement … If in the course of the interview the law officer finds it necessary to remove the student from school so as to better aid the investigation, the principal or designee shall first ascertain the reason for such action.”
So to be clear, many protections of student rights have been removed from board policy.
“I can see both sides,” Ayala said. “As a parent I can see that I would want to know. But I do see for the purposes of conducting an investigation how if I’m considered the parent while the kid’s with me at school then I have the right to give law enforcement the opportunity to interview the kid.”
Ayala said that police have fewer rights than school officials because police need probable cause and school officials only need reasonable suspicion. And there is a distinction between the two.
“As school officials we have more search rights than cops,” he said, citing, for example, the confiscation of cell phones on demand, the use of breathalyzers, or asking students to empty their pockets.
And even though 18-year-old students are considered adults under the law, the authority of in loco parentis still applies when they are at school, Ayala said.
The case cited in the new board policy on Questioning by Law Enforcement, Camreta v. Greene, is an odd basis by which to alter policy.
The case involves a then 9-year-old girl from Oregon who was questioned, some say badgered, at school for hours, without a warrant or parental consent, after officials from Child Protective Services heard of possible sexual abuse.
The girl’s mother claimed her daughter was denied Fourth Amendment protection which states in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …”
Many child-advocacy groups supported the mother, citing the potential for an abuse of power by state authorities who, upon little more than hearsay evidence and with minimal accountability, can interrogate young children for hours until “the right answers” are provided. This, some claim, denies innocent children the rights given even to alleged criminals.
According to written reports, the District Court sided with the officials, and the Ninth Circuit affirmed the decision. The Court of Appeals first ruled that seizing the girl “absent a warrant, court order, parental consent, or exigent circumstances” violated the Constitution but noted that the officials were entitled to immunity because no clearly established law had warned them that their conduct was illegal.
In March 2011, when the girl was nearly 18, the case went to the Supreme Court which vacated the lower court’s decision.
It’s complicated, because children can easily become victims of an over-zealous state that browbeats the scared and young, who are alone in a room with strangers, into saying things not true. On the other hand, parents who abuse their children cannot be contacted for permission to allow authorities who, out of genuine concern for the child’s welfare, need to question the child and work to remove them from negligent parents and harmful home environments.
Child sexual abuse falls into a different category than other kinds of cases more frequently occurring in high schools: for example, the possession, sale or use of illegal drugs or alcohol; weapons violations; and violent threats against teachers, students or property.
To be clear, San Dieguito is likely not alone with this policy change. Ayala said the California School Boards Association reviews policies and makes recommendations to school districts throughout the state on a quarterly basis, after CSBA lawyers analyze legalities and establish guidelines based on any new developments.
Interested readers can Google the case to learn more details. But for the purposes of the new San Dieguito board policy, the district appears to be relying upon the ruling that search and seizure to interrogate children without notifying parents or obtaining a warrant is not judged unlawful.
It’s difficult to understand how the Camreta v. Greene judgment should be broadly applied across the board, but one can easily see how the over-application of this ruling can allow school authorities to detain and interrogate children in ways we would never tolerate for adults.
Marsha Sutton can be reached at SuttComm@san.rr.com.
Marsha Sutton can be reached at SuttComm@san.rr.com.