School Safety & Students Rights: What School Administrators - - PowerPoint PPT Presentation

School Safety & Students’ Rights: What School Administrators Need to Know

June 27, 2018

21st Annual Dr. Samuel Francis School Law Symposium

I. Police in Schools

A. What the research shows B. Memoranda of understanding C. Potential for school district liability D. Collateral consequences of student arrests

II. Sharing Student Information with Police

A. FERPA B. Disability Law C. Retaliation D. Tort Liability

AGENDA

Police in Schools

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What the Research Shows:  Little evidence that presence of police in schools reduces student crime.  No empirical evidence that school police officers may or may not prevent mass shootings in schools.

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Police in Schools

Consequences of Police in Schools:  Criminalization of routine discipline issues  Abusive treatment of students  Expensive  Make schools less inclusive  Expose school districts to increased liability

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Police in Schools

Memoranda of Understanding  All Pennsylvania schools are required to have a Memoranda of Understanding (MOU) between the school district and the local law enforcement agency. Safe Schools Act, 24 Pa. Cons. Stat. Sec. 13-1301 et seq.  Model MOU developed by state board of education

 School districts not required to adopt the precise language of the model MOU and are permitted to amend or supplement it as long as the adopted MOU is consistent with state law.  MOU must include protocol for notifying police when school-related incident requires mandatory notice to police

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Police in Schools

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School District Liability for Actions of School Resource Officers

Hawkins v. Detroit Public Schools, No. 16-10316, 2017 WL 2951627 (E.D. Mich. May 5, 2017): Court denied school district’s motion for summary judgment in case involving student who was arrested by school resource officers following after-school event on campus; held

• fficers were not entitled to qualified immunity and school district could be municipally

liable for officers’ actions. J.W. v. Birmingham Bd. of Education, 143 F. Supp. 3d 1118 (N.D. Ala. 2015): Court denied summary judgment motion of school district that was sued by students after school police

• fficers used pepper spray on them and failed to decontaminate them afterward. Eleventh

Circuit affirmed court’s denial of qualified immunity to the officers. Curran v. Aleshire, 67 F. Supp. 3d 741 (E.D. La. 2014): Student filed lawsuit against school district and school police officer after officer slammed her into a wall and handcuffed her when she was caught using a cell phone in violation of school rules. Although Section 1983 claim against school district was dismissed at summary judgment, state vicarious liability claim against district survived.

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Police in Schools

School District Liability for Actions of School Resource Officers Pending cases:  School resource officer who broke student’s elbow during altercation  School resource officer who broke student’s wrist while handcuffing him  School resource officer who placed a student in a chokehold until student lost consciousness  School resource officer who arrested student for falling asleep during in-school suspension

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Police in Schools

School District Liability for Actions of School Resource Officers Recent Settlements  San Antonio school district paid mother $925,000 after her son was shot and killed by school-affiliated officer off-campus  Austin school district paid $775,000 after school police officer used Taser on high school student who was trying to break up a fight; student had to be placed in medically induced coma

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Police in Schools

Collateral Consequences:  Arrest and juvenile adjudication  Summary citations

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Police in Schools

Questions?

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Police in Schools

Family Educational Rights and Privacy Act (FERPA)  Student records and information in them are confidential.  Only the parent or adult student has a right of access to the records.

Sharing Student Information with Police

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FERPA Exceptions: Emergency Exception: If a school perceives an “articulable and significant threat” under the “totality

• f the circumstances” and documents this in a student’s

records access log, it can share records as appropriate without parent or student consent.  Examples from ED of actual, impending or imminent emergency: natural disaster, terrorist attack, campus shooting, outbreak of epidemic disease

Sharing Student Information with Police

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FERPA Exceptions: Law Enforcement Unit Records: Applies to schools that have a law enforcement unit (such as campus police at a university). Records created or maintained by members

• f the law enforcement unit that at least in part concern

possible illegal activity (not mere violations of school rules) are excluded from FERPA protection.

Sharing Student Information with Police

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FERPA Exceptions: When Police Are Agents of the School: FERPA permits nonconsensual internal sharing for legitimate educational purposes. But police cannot use information they learn about students in their capacity as police officers. Example: when police serve on team with teachers or

• ther school employees to discuss at-risk students.

Sharing Student Information with Police

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FERPA Exceptions: When Police Are Outsourced Security Services: FERPA allows schools to share student information with persons performing outsourced services on behalf of a

• school. But police who receive information in that

capacity cannot use the information in their capacity as police officers.

Sharing Student Information with Police

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FERPA Exceptions:

Sharing Information Directly with Police: FERPA provides that a school’s FERPA policy may designate certain information, such as addresses and phone numbers, as directory information. Students must be given opportunity to opt out. Schools can release directory information of any non-objecting student to anyone, including police.  If requestor uses nondirectory information, such as a SS # or date of birth to identify the student, the school must obtain written consent from the student or parent before releasing the information if the school uses the private information to locate, release, or confirm the information.  If school reasonably believes that requestor knows the identity of the student about whom records are requested, the records are protected by FERPA.

Sharing Student Information with Police

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FERPA Exceptions: Sharing that does not involve personally identifying information: FERPA allows the disclosure of non- personally identifying information. Example: disclosure of campus crime data under Clery Act.

Sharing Student Information with Police

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FERPA Exceptions: Sharing information in response to a subpoena: FERPA establishes procedural requirements for schools served with subpoenas for student records.

 Records cannot be destroyed while request is pending  School must make reasonable effort to provide advance notice to parent/adult student before complying  BUT schools may be directed to keep law enforcement subpoenas confidential  Schools or parent/adult student may ask court to quash subpoena

Sharing Student Information with Police

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FERPA Exceptions: Sharing with juvenile justice authorities: Schools can share student information in accordance with state law if the state law was in existence before 1974 (when FERPA was enacted)

Sharing Student Information with Police

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FERPA Exceptions: Sharing observed behavior with personal knowledge: FERPA does not bar individuals from sharing their personal observations of student behavior as long as the information is not derived from student records.

Sharing Student Information with Police

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FERPA Enforcement  No private right of action: FERPA violations are generally not enforceable through private lawsuits  Student information obtained or shared in violation of FERPA is likely admissible in criminal proceedings

Sharing Student Information with Police

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Disability Law  IDEA specifically permits criminal referrals of special education students; disclosure of any related school records limited by FERPA  IDEA incorporates FERPA’s confidentiality

• requirements. Note that violations of incorporated

FERPA requirements may be actionable through IDEA.

Sharing Student Information with Police

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Disability Law Continued…  Criminal referrals and substantive IDEA obligations: Sharing information about a special education student with police may violate IDEA if the report is made with the intention of violating a student’s IDEA rights (e.g., motivated by school’s desire to avoid its special education obligations to student)

Sharing Student Information with Police

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Disability Law Continued…  Criminal referrals and disability discrimination: Making criminal referrals for students with disabilities can amount to illegal discrimination if such referrals are made because of the student’s disability or have a disparate impact on students with disabilities.

Sharing Student Information with Police

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Retaliation Schools cannot interfere with decisions by school employees to report crimes committed against them by students. See Gschwind v. Heiden, 692 F.3d 844 (7th Cir. 2012) (holding that school employees who report criminal activity against them to police engaged in constitutionally protected speech and cannot be retaliated against for doing so).

Sharing Student Information with Police

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Tort Liability: School may have obligation to warn or take other steps if a student poses a threat to herself or others.  Reasonable steps may involve notifying police

Sharing Student Information with Police

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Questions?

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Sharing Student Information with Police

Contact Info

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Sara Rose ACLU of Pennsylvania srose@aclupa.org 412-681-7864