Saturday, July 8, 2017

GateHouse: The Constitution and students’ rights

Matthew T. Mangino
GateHouse Media
July 7, 2017
As students spend the summer out of class, now is the time to reflect on a growing problem across the country. School districts have relinquished discipline, in large measure, to law enforcement agencies.
There was a time when disruptive students were sent to see the principal. Today, in some school districts the disruptive student is handcuffed and ushered off to court. The “school-to-prison pipeline” is overflowing with students.
As schools continue to rely on law enforcement for discipline, it is imperative that students’ constitutional due process rights are protected on school grounds. Even the United States Supreme Court has said that “students do not shed their constitutional rights at the schoolhouse gate.”
The courts have not clearly defined when protections, that many adults take for granted on the street, are applicable within the confines of a school building. When a school allows a police officer to arrest a student -- or refer a student to law enforcement or juvenile court as a form of discipline -- the school is turning that student over to the juvenile justice system. Parents believe their children are safe and being protected from harm. Yet, with the ever expanding relationship between school and law enforcement a student is much more likely to get a criminal record in school than to get a black eye.
Schools with police resource officers tout the increased safety, but leave out the increased arrest of students. A report by the Justice Policy Institute found that, even controlling for a school district’s poverty level, schools with officers had five times as many arrests for “disorderly conduct” as schools without them.
The fundamental rights provided by the Fourth, Fifth and Sixth Amendment -- although more limited in school -- are available to students suspected of criminal activity.
It is hornbook law that the Fourth Amendment requires a warrant be obtained based on probable cause before a search or seizure of evidence. There are exceptions that have been carved out by the U.S. Supreme Court. Those exceptions have expanded over time but have not, to this point, relieved law enforcement from getting the court’s approval to search or arrest an individual.
In 1985, the U.S. Supreme Court ruled that although the Fourth Amendment prohibition against unreasonable searches and seizures applied to searches of students, neither a warrant nor probable cause was necessary.
The Court reasoned that although students do have rights in school those rights have to be balanced with the school’s interest in maintaining discipline.
A valid search of a student requires a school show only that an administrator had reasonable suspicion -- less than probable cause but more than a hunch. Reasonable suspicion was first introduced by the Supreme Court in 1968.
The Supreme Court has never directly addressed how the Fifth and Sixth Amendment protections against self-incrimination and the right to counsel are applicable to students in school.
In a 2011 case out of North Carolina, the Supreme Court addressed whether rights warnings were necessary due to the age of the suspect.
A seventh grade student was pulled out of class by a police officer to talk about some break-ins in the neighborhood. The officer did not inform the student of his right to remain silent or his right to legal counsel, the rights made famous by the landmark Supreme Court decision in Miranda v. Arizona.
Miranda requires that a suspect in custody, not free to leave, and subject to interrogation, questions that might elicit an incriminating response, be informed of the right to remain silent and the right to counsel.
The Court ruled that age is a factor to be considered for purposes of Miranda. The Court also noted that a student’s presence at school is compulsory and disobedience at school is a cause for discipline, therefore a student would likely not feel free to leave while being questioned in school.
Parents need to pay attention to this issue. As police presence expands in schools so should the rights of students.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
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