Principal Leadership Workshop Student Discipline and the...

Principal Leadership WorkshopStudent Discipline and the ConstitutionF E B R U A R Y 2 0 , 2 0 1 8

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J O C E LY N P. K R A M E R , E S Q . V I C T O R K U S T R A , E S Q .

Search and Seizure

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Search and Seizure

Searches of individually targeted students must meet the “reasonable suspicion” standard and must be reasonable in scope.

◦ New Jersey v. T.L.O. (U.S. 1985) – The Supreme Court held that the 4th Amendment applies to searches by school officials, but the requirements are less restrictive than they are for police.

◦ Shuman v. Penn Manor (3d Cir. 2005) – The detaining of a student must be analyzed under the reasonableness standard. In this case, the Court held that the confinement of a student to a conference room for four hours was reasonable in light of the seriousness of the allegations of sexual misconduct.

© WBK LEGAL 2018 THIS PRESENTATION IS INFORMATIONAL ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. 3

School Authority vs. Police AuthorityPolice must generally have probable cause and a search warrant (unless one of the exceptions to the warrant requirement applies).

School personnel including security guards (and sometimes school police) need only reasonable suspicion to initiate a search.

◦ Although the Pennsylvania Superior Court has ruled that the reasonable suspicion standard also applies to school police officers, it appears to only apply on school property and in limited circumstances.

◦ School police officers must have probable cause to arrest and must give Miranda warnings.


School Authority: Reasonable SuspicionNew Jersey v. T.L.O (U.S. 1985) – The T.L.O. Court concluded that the probable cause standard that appliesto searches conducted by law enforcement does not apply to searches conducted by school officials.

Safford United School District #1 v. Redding (U.S. 2009) – The court describes the lesser ‘reasonablesuspicion’ standard for justifying the initiation of a school search as “a moderate chance of findingevidence of wrongdoing.” However, a search justified at its inception must also be reasonable in scope; asearch is permissible when it is “not excessively intrusive in light of the age and sex of the student and thenature of the infraction.” The Court in Safford that the content of the suspicion in this case failed to matchthe degree of intrusion.


School Authority: Reasonable in ScopeSafford United (U.S. 2009) –The Safford Court concluded that the content of the suspicion in this case failedto match the degree of intrusion where there no reason to suspect the student was hiding more commonanti-inflammatory pills in her underwear.

Rinker v. Sipler (M.D. Pa. 2003) – Student was suspected to be under the influence of marijuana andrumored to be in possession of marijuana. Court determined that search of student’s person, includingremoval of all clothes, but boxers, feeling around waistband and having student give monitored urinesample was reasonable in scope.

Hedges v. Musco (3d. Cir. 2000) - Requiring student to obtain blood test for drugs after being suspected ofbeing under the influence and in possession of pills was deemed a search that was reasonable in scope.


School Authority: School PoliceIn re J.B. (Pa. Super. Ct. 1998) – Juvenile was adjudicated a delinquent for possession ofweapon on school property and possession of controlled substance and challenged thesearch underlying his conviction. The Superior Court held that individualized searchesof public school students conducted by school officials, including school police officers,are subject to reasonable suspicion standard under State Constitution.

Com. v. Williams (Pa. Super. Ct. 2000) – Defendant was convicted in the Court ofCommon Pleas of weapons offenses, and he appealed. The Superior Court held thatschool police officers acted without authority when they opened defendant's vehiclewhich was parked on city street, off of school property, and searched its interior, seizingweapons and turning them over to city police. Court found that In re J.B. did not applyin Williams because the search in J.B. occurred on school property.


DOE EX REL. DOE v. LITTLE ROCK SCHOOL DISTRICT (8th Cir. 2004)Policy permitting random bag searches is unconstitutional

◦ Little Rock School District (LRSD) adopted a policy that, “[b]ook bags, backpacks, purses and similarcontainers are permitted on school property as a convenience for students,” and that “[i]f brought ontoschool property, such containers and their contents are at all times subject to random and periodic“inspections by school officials.”

◦ The 8th Circuit Court of Appeals held that the search practice is unconstitutional. Because subjectingstudents to full-scale, suspicionless searches eliminates virtually all of their privacy in their belongings,and there was no evidence in the record of special circumstances that would justify so considerable anintrusion.


Athlete Drug TestingGeneralized searches not targeting a particular student must be reasonable in light of the privacy interests at stake.

U.S. Constitution◦ Vernonia Sch. Dist. v. Acton (U.S. 1995) – random urinalysis of students participating in athletics upheld

◦ Earls (US 2002) – policy of drug testing for extra curricular activities upheld

PA Constitution◦ Theodore v. Delaware Valley S. D. (Pa. 2003) – drug testing for extra curricular activities is NOT permissible under the

Pennsylvania Constitution unless the concerns are substantial and specifically articulated in the policy


Other Generalized Searches

Locker SearchesCom. v. Cass (Pa. 1998) – Locker searches are permissible because expectation of privacy in school-owned lockers is minimal.

Canine SearchesCom. v. Cass (Pa. 1998) – A canine sniff is not a search under the Fourth Amendment, but is a search pursuant to the Pennsylvania Constitution. The Cass Court concluded that a warrant is not required prior to a sniff search so long as reasonable grounds exist for believing that drugs may be present in the place subjected to the sniff search. Cass is limited to a search of lockers, and cannot be depended on to support actions taken by schools to subject students’ personal belongings to canine searches.


Other Generalized Searches

Point of Entry (metal detectors)

In re F.B. (Pa. 1999) – Weapons search, which was conducted as a pre-condition to entry for allstudents at high school, met minimum requirements for constitutionality under both the FourthAmendment and the State Constitution. Point of entry searches affect a limited privacy interestand are minimally intrusive. The court acknowledged that notice of the purpose and manner ofsearch was provided to the student population and agreed that the purpose for the search wascompelling. Furthermore, individualized reasonable suspicion was not a necessary pre-condition to these types of searches.


Use of Force

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Use of Reasonable Force – Regulation Use of corporal punishment is prohibited.

Corporal punishment is defined as physically punishing a student for an infraction of the discipline policy.

HOWEVER,

Teachers and school authorities may use reasonable force under the following circumstances:

(1) To quell a disturbance.

(2) To obtain possession of weapons or other dangerous objects.

(3) For the purpose of self-defense.

(4) For the protection of persons or property.

22 Pa. Code § 12.5.

13© WBK LEGAL 2018 THIS PRESENTATION IS INFORMATIONAL ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE.

Reasonable Force: Is it Abuse?Use of force for supervision, control and safety purposes.--The use of reasonable force on or against a child by a person responsible for the child's welfare shall not be considered child abuse if any of the following conditions apply:

(1) The use of reasonable force constitutes incidental, minor or reasonable physical contact with the child or other actions that are designed to maintain order and control.

(2) The use of reasonable force is necessary:◦ (i) to quell a disturbance or remove the child from the scene of a disturbance that threatens physical injury

to persons or damage to property;

◦ (ii) to prevent the child from self-inflicted physical harm;

◦ (iii) for self-defense or the defense of another individual; or

◦ (iv) to obtain possession of weapons or other dangerous objects or controlled substances or paraphernalia that are on the child or within the control of the child.

24 Pa.C.S. § 6304(c).


Reasonable Force: What is Reasonable?In determining the appropriate amount of force to use in a student disruption, the courtlooks to “such factors as the need for the application of force, the relationship betweenthe need and the amount of force that was used, the extent of injury inflicted, andwhether force was applied in a good faith effort to maintain or restore discipline ormaliciously and sadistically for the very purpose of causing harm. - Metzer v. Osbeck,841 F.2d 518 (3rd Cir. 1988), citing Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973).


Reasonable Force: What is Reasonable?1. Force must be capable of being construed as an attempt to serve a pedagogical

objective.Grabbing a student to break up a fight is a situation in which the reason for the force is evident and serves a legitimate objective.

2. Force must not be excessive to accomplish the legitimate objective.

3. Force must be applied in a good faith effort to maintain or restore discipline.


Reasonable Force: What is Reasonable?A New Jersey District Court discussed excessive force in M.G. ex rel. L.G. v. Caldwell-West Caldwell Bd. of Educ. in the context of a special education classroom where ateacher had to use different holds and other techniques to calm a student with autism.804 F.Supp.2d. 305, 318 (D. N.J. 2011).


Reasonable Force: What isn’t Reasonable?

Allen v. Sch. Dist. of Phila. (E.D. Pa. 2006) – Plaintiff was permitted to proceed againstthe Defendant teacher in an individual capacity after the teacher permitted the studentto leave the classroom, but then followed the student to stop her from going down thehallway, grabbed the student from behind and slammed her against the wall, causinglacerations and contusions to her head and three chipped and cracked teeth. ThePlaintiff was also permitted to attempt to recover punitive damages against theindividual Defendant.


Reasonable Force: What isn’t Reasonable? A Michigan District Court discussed excessive force in Williams v. Detroit Public Schools in thecontext of a hallway incident that included an Assistant Principal grabbing a 7th grade studentand holding her to make her get off of her cell phone. 2015 WL 4633874 (E.D. Mich. 2015).

The Court concluded that although the student was on her cell phone when the AP grabbed her,there is no indication that she was being significantly disruptive or that she interfered with the“orderly exercise and performance of [school] functions.” Further, it is not clear that the APasked her to refrain from using her cell phone before resorting to physical force.


Free Speech

“The First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket.”

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Student Speech / ExpressionSchool officials can limit expression that threatens immediate harm to the welfare of the schoolor community, encourages unlawful activity, advocates illegal drug use, uses profanity or swearwords, or is vulgar.

School officials can limit your expression to prevent major disruptions to classes and schoolactivities. Students cannot “substantially and materially” interfere with school activities.

Source: ACLU PA Know Your Rights Student Handbook


Student Speech: School SettingTinker v. Des Moines (U.S. 1969) – School prohibited students from wearing black armbands atschool to protest the Vietnam war. The Court overturned the prohibition and reasoned thatstudents are entitled to freedom of expression of their views unless the school can demonstrateany facts which might reasonably have led school authorities to forecast substantial disruptionof, or material interference with, school activities or any showing that disturbances or disorderson school premises in fact occurred

Bethel Sch. Dist. V. Fraser (U.S. 1986) - Student filed civil rights action after he was disciplined forlanguage used in nominating speech at student assembly. The lower court ruled in favor of thestudent, but the Supreme Court overturned the decision and held that the school district actedentirely within its permissible authority in imposing sanctions upon the student in response tohis offensively lewd and indecent speech, which had no claim to First Amendment protection.


Morse v. Frederick (U.S. 2007)

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Student Speech: School SettingMorse v. Frederick (U.S. 2007) - High school student brought § 1983 action against principal and school board, alleging that his First Amendment rights had been violated by ten day suspension for waving banner at off-campus, school-approved, activity. High school principal did not violate student's right to free speech by confiscating the student’s banner bearing phrase “BONG HiTS 4 JESUS” and suspending him at off-campus, school-approved, activity; principal reasonably viewed banner as promoting illegal drug use.


Student Speech: Outside of School

Layshock v. Hermitage Sch. Dist. (3rd Cir. 2011) - Parents of high school student brought § 1983action against school district, superintendent, principal, and co-principal, alleging that theyviolated student's First Amendment rights by disciplining him for creating fake internet profile ofprincipal on popular social networking Internet website, and violated and parents' FourteenthAmendment substantive due process rights in care and nurturing of their son. Student's“entering” district's website to “take” district's photo of principal was not sufficient to forgenexus between school and profile and school district did not have authority to punish studentfor expressive conduct outside of school that district considered lewd and offensive.


Student Speech: Outside of SchoolJ.S. v. Blue Mountain Sch. Dist. (3rd Cir. 2011) – Parents, on behalf of student, filed a § 1983action against school district, claiming violation of free speech rights, due process rights, andstate law by suspending student from middle school for creating an Internet profile for theschool principal from her home computer. The MySpace profile contained the principal’sphotograph misappropriated from school district website and profanity-laced statementsinsinuating that he was sex addict and pedophile. The Court held that the school district couldnot have reasonably forecasted substantial disruption of, or material interference with, schooldue to the profile, could not punish student for use of profane language outside the school,during non-school hours, and student's lewd, vulgar, and offensive speech that had been madeoff-campus had not been turned into on-campus speech when another student brought printedcopy of that speech to school at express request of school principal.


Student Speech: Outside of SchoolBut, compare:

Niziolek v. Upper Perkiomen Sch. Dist. (E.D. Pa. 2017) - High school student brought action under§§ 1983 and 1988 against school district, superintendent, assistant superintendent, andprincipal, alleging violation of free speech in violation of the First and Fourteenth Amendmentfor discipline in suspending student and pursuing expulsion. Student made an out-of-schoolsocial media post that led to a perceived threat of a school shooting and which resulted in thesuperintendent canceling school for the safety and well-being of students. Social media postactually caused a disruption, such that student was unlikely to prevail on merits of his freespeech claim and social media post reasonably led school officials to forecast a substantialdisruption of, or a material interference with, school activities.


Social Media

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What Attracts Students to Social Media?

Easy way to communicate with friends that only

requires a computer or cell phone

Constant connectivity with the rest of the

worldComfortable Setting


Overview: What is Social Media?“[F]orms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos) .”

Merriam-Webster Dictionary Definition

“Websites where people socialize”

Commonly accessed through apps


Frequently Used Apps “The Big 4”


SnapchatWhat is it?

• The app allows users to take and send photos with their device, or, create a snap story that can be seen by friends

Why is it so popular? • Photos and messages disappear after they are sent• The user chooses how long he or she wants the recipient to view the photo (1-10

seconds) • User friendly• Discrete

• Hard to tell when users are on the app• Very easy to keep up with celebrities’ personal lives


InstagramWhat is it?

• Instagram is a social media app where users can take pictures and post them for their friends to view

• Unlike snapchat, photos on Instagram are viewable 24/7 – 365, unless they are deleted by the user

Why is it so popular? • Users can receive “likes” and comments on their photos • Over time, users accumulate hundreds or thousands of photos (almost like a virtual

photo album) • Instagram is an easy way to keep up with friends, family, celebrities, organizations,

sports teams, etc. • Instagram has become a very popular marketing tool


TwitterWhat is it?

• Twitter is a social media app where users can post short comments, or “tweet,” about anything they desire

• Over time, users will gain “followers” who are able to see their posts on their personalized home page

• Individual “tweets” are limited to 140 characters, and can include images, links, etc.

Why is it so popular? • Fast and easy way to get information that is straight to the point • Wide range of posts: Comments from your next door neighbor and world

leaders • Similar to Instagram, followers can like and respond to tweets• interactive social media app, and is also a popular marketing tool


FacebookWhat is it?

◦ Users create a profile, including a “Wall” where they can post anything such as comments, photos, news articles, links, etc.

◦ Facebook Friends can “like,” comment, or have a “reaction” to posts

◦ Expected Gross Revenue of 9.32 Billion in 2017 according to CNBC; 8 Billion in advertising space

◦ https://www.cnbc.com/2017/07/26/facebook-earnings-q2-2017.html

Why is it so popular?

◦ Recognizable brand

◦ Necessity for students; especially those at large universities

◦ Marketing staple; everyone and everything has a Facebook page


Reddit What is it?◦ Online forum/blog where users can submit content such as articles, photos, links, etc.◦ The most viewed content is displayed on the “home page,” with the most popular

content shown at the top ◦ Users can view and post content generally, or, in a “subreddit” related to a specific

topic (i.e. r/gameofthrones; r/animalswithoutnecks) https://www.reddit.com/r/gameofthrones/; https://www.reddit.com/r/steelers/

◦ Users can comment on photos and respond to posts made by others in a “thread”

Why is it so popular? ◦ Vast amount of information on a single website◦ There is a subreddit for everyone


https://www.reddit.com/r/gameofthrones/

WhatsappWhat is it?

◦ App that allows users to send text messages over the internet at no cost

◦ Very similar to text messaging and imessage, but with added features such as group chats, location sharing and voice messages

◦ Purchased by Facebook in 2014 for $19 Billion (http://money.cnn.com/2014/02/19/technology/social/facebook-whatsapp/)

Why is it so popular?◦ Users can send messages for free

◦ Allows international communication at no extra cost

◦ Users can send message, videos, images, and share their location in a much more interactive format


Thank you!

Presented by:

Jocelyn P. Kramer, [email protected]

Victor Kustra, [email protected]

www.wbklegal.com

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mailto:[email protected]

mailto:[email protected]

http://www.wbklegal.com/

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