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Andrew T. Phillips aphillips@vonbriesen.com

Christine V. Hamiel chamiel@vonbriesen.com

Law Enforcement in Schools and Education Under Arrest

Why Are We Talking About This?

• Influx in school districts utilizing SROs – 19,000 schools use SROs across the country• 43,000 SROs and sworn officers working in the nation’s public schools

• School districts have begun questioning the level of access of SROs• i.e., Madison Metro School District

• Public has pressured the district to end the ERO program• Opponents say the presence of police officers feeds the “school-to-prison pipeline”

by criminalizing behavior that should be dealt with through school disciplinary procedures

• Proponents claim officers make the schools safer and de-escalate situations that otherwise could lead to criminal charges

• Why have a police officer in schools?• Influx in violence at schools across the country

• Many do not even make the national news due to the violent location of some of the schools

• Sooner or later your school may be the one. It’s impossible to predict.

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Why Are We Talking About This? (con’t.)• September 8, 2016 – DOJ “Dear Colleague” Letter

• Notes the positive impact of properly implemented SRO programs• Intent is to foster relationships of mutual respect and understanding among SROs and

students • Addresses the negative impact SROs can have on schools and students

• Unnecessary arrests and improper involvement in routine school discipline matters

• Emphasizes the need for proper training and education of SROs• September 8, 2016 – DOE “Dear Colleague” Letter

• Emphasizes concerns with the “school to prison” pipeline issue• Encourages education leaders to make thoughtful decisions about whether and when

to use SROs• Encourages staff training on behavioral issues and interventions to avoid overuse of

SROs• DOJ/DOE partnership on the development of the Safe School-Based Enforcement through

Collaboration, Understanding, and Respect (SECURe) program• Offers guidance for implementing SRO programs

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What Would You Do?

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What is a Presentation Without Statistics?

• Schools with SROs have 5 times as many arrests for disorderly conduct as schools without SROs (Justice Policy Institute, 2011).

• Office for Civil Rights (2014) found over the course of a recent academic school year: • 260,000 students were referred to law enforcement • 92,000 students were arrested • 70,000 were physically restrained • 37,000 students were placed in seclusion

• Only 11 states (AR, CA, CO, IN, MD, MS, MO, NJ, SC, TN, TX) have established specific training/certification requirements for SROs (U.S. Dep’t. of Education, 2015).

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What is an SRO?

• A career law enforcement officer, with sworn authority, deployed in community oriented policing, and assigned by the employing police department to local educational agency to work in collaboration with schools and community based organizations to:

• Educate students in crime and illegal drug use prevention and safety:

• Develop or expand community justice initiatives for students; and

• Train students in conflict resolution, restorative justice, and crime and illegal drug use awareness.

– See Safe and Drug Free Schools and Communities Act (20 U.S.C. § 7161)

• NSBA’s Council of Urban Boards of Education: “The role of the SRO is to keep schools safe and engage in students, not to involve themselves in school disciplinary matters.”

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What is an SRO? (con’t.)

• A career law enforcement officer, with sworn authority, deployed in community-oriented policing, and assigned by the employing police department or agency to work in collaboration with schools and community based organizations to:

– Address crime and disorder problems, gangs, and drug activities occurring in or around an elementary or secondary school;

– Develop or expand crime prevention efforts for students;

– Educate likely school-age victims or expand crime prevention efforts for students;

– Train students in conflict resolution, restorative justice, and crime awareness;

– Assist in the identification of physical changes in the environment that may reduce crime in or around the school; and

– Assist in developing school policy that addresses crime and to recommend procedural changes.

• See 42 U.S.C. § 3796dd-8 Community Oriented Policing Services (COPS) program.

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What is an SRO/ERO/ELA/etc?

• SROs are sworn law enforcement officers responsible for providing security and crime prevention services in schools.

• Serve as a law enforcement liaison between:• Students• Parents• Teachers• Administrators• Staff (including aides, parapros, secretaries, custodians, coaches, etc.)• General public (i.e.: postal delivery services, service providers, etc.)

• SRO Responsibilities• Triad concept: To act as an armed law enforcement officer, a counselor, and educator

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History of Use of SROs

• Permanent placement of law enforcement within schools originated during 1950s in Flint, Michigan to decrease school violence, particularly gun-related incidences.

• Changing mission of SROs is often reactionary to public outcry of a perceived threat to our nation’s youth.

• 1960s-70s, SROs placed in schools in Southern states to address safety issues related to racial tensions.

• 1980s SROs tasked with deterring drug related problems across the nation• Recent surge in SROs due to school shootings (e.g., Columbine, Sandy Hook)

• Recent expansion of SRO roles/responsibilities due in part to a lack of clear policy guidelines defining their roles.

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SRO – Law Enforcement Responsibilities

• Acting as a law enforcement officer is a reactive role• Serve as the security figurehead that ensures every student and staff member is safe • Develop and implement comprehensive safety plans with administration

• i.e., active shooters.• Deter and respond to crimes

• The same crimes that occur on the street, occur in our schools• SROs Investigate and Interview (Interrogate):

• Drugs; thefts; accidents; assault/battery; gang activity; weapons; alcohol; vandalism; sexting; text and social media threats and altercations; no contact orders by students, parents and teachers; burglaries and robberies; etc.

• The list is endless.• Serve as liaison between the school and outside agencies

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SRO – Counselor/Educator Responsibilities

• Acting as counselor/educator is a proactive role

• Visual deterrent to crime

• Counsel students and staff on law related issues

• Build relationships, reinforce positive behaviors, and connect students with related services

• Conflict mediation, which oftentimes leads to an SRO switching from the counselor function into the law enforcement officer role

• SROs could conduct student presentations on: individual rights and laws, drug and alcohol awareness, sexual assault, internet safety, abuse, gang identifiers, choices and consequences, expectations during lock downs, etc.

• Parent education

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Records – School Officials Exception

• Disclosure to School Officials Exception – 34 C.F.R. § 99.31(a)(1)• Districts may disclose personally identifiable information (“PII”) concerning a

student to “school officials” who have a “legitimate educational interest”

• FERPA allows the school to determine who possesses such an interest.

• Outside parties can qualify as school officials – 34 C.F.R. § 99.31(a)(1)(i)(B), if:

• Performs an institutional service or function for which the agency or institution would otherwise use employees;

• Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and

• Is subject to the requirements of 34 § C.F.R. § 99.33(a) governing the use and re-disclosure of PII from education records.

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Records – SROs as School Officials

• The school’s law enforcement unit may qualify as “school officials”• Federal Register – 73 Fed. Reg. 74,814 (2008)

• Applies to SRO only if an SRO contract or board policy is in place• SROs acting as school officials may only use PII from education records for the

purposes for which the disclosure was made, e.g., to promote school safety and the physical security of the students.

• 34 C.F.R. §§ 99.31(a)(1)(i)(B)(3) and 99.33(a)(2).

• Note that education records do not include records created and maintained by a district’s SRO if created for law enforcement purposes.

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On the Flip Side – Law Enforcement Records• Law enforcement agency records pertaining to juveniles are confidential

• Confidential exchange of information between law enforcement and the school where the child attends is permissible.

– Wis. Stat. § 938.396(1)(b)(2).

• Schools can request information about a juvenile’s: (1) use, possession, or distribution of alcohol/controlled substance by enrolled student; (2) illegal possession of a dangerous weapon; (3) violation of state or federal law; or (4) an act for which the student was adjudged delinquent.

• Wis. Stat. § 938.396(1)(c)(3)

• Schools must maintain the confidentiality of law enforcement records, and can only disclose to: (1) school employees who are required to hold a license; (2) teachers; (3) other schools with a legitimate educational interest (including safety interest); and (4) employees providing treatment programs to the student.

– Wis. Stat. § 118.127

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Records – Significant Health or Safety Threat

• A district is permitted to disclose PII if it determines that there is “an articulable and significant threat to the health or safety of a student or other individuals.”

• Must be an emergency – not merely the threat of a possible or eventual disaster• Based on the totality of the circumstances• Disclosure may be made to anyone “whose knowledge of the information is

necessary to protect the health or safety of the student or other individuals.”

• Letter to Anonymous, 18 FAB 50 (FPCO 2015)

• District conducted a threat assessment and described student as a “high level of risk”.

• District disclosed the student’s education records, including the threat assessment, to the police and area schools.

• FPCO – as long as the district had a “rational basis” for its determination that the student posed an “articulable and significant” threat to his own safety or that of others, FPCO would not substitute its judgment for that of the district.

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Student Interrogation

• 5th Amendment forbids the compulsion of incriminating statements.

• An appropriate Fifth Amendment analysis considers the nature of the setting during questioning and the likelihood for coercion.

• Mere presence of a law enforcement figure at an interrogation is likely to create apprehension and even fear, and the effects can be even greater if the officer participates in the questioning.

• J.D.B. v. North Carolina, 564 U.S. 261 (2011)• U.S. Supreme Court held that a juvenile suspect’s age, when known or objectively

apparent, is a factor to be considered in the Miranda custody analysis.• Instead of the “one-size-fits-all reasonable person test” that had been used

previously, the Court held that the test is whether, based on the totality of the circumstances, a reasonable child in the suspect’s position would have felt free to terminate the encounter and leave.

• Restored the risk of coercion as the most important factor in the Miranda analysis

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Student Interrogation, con’t.

• Must a school district “Mirandize” a student?• No – only required to give Miranda warnings when student is “in custody”• “In Custody” applies when a reasonable person in the suspect’s position

would believe he or she had been formally arrested or restrained to the same degree as a formal arrest

• Thus, school district employees are generally not required to give Miranda warnings

• Important when SROs or law enforcement are involved to remember JDB• Reasonable child standard• Consider environment

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Student Interrogation – Parent Notice

• Concept of in loco parentis = “in place of a parent.”

• The legal right schools have to act as substitute parents when students are at school and under school supervision.

• Once a student is on campus, the school becomes their parent and is responsible.

• School officials are indeed able to question students without first informing parents.

• District can interview students and bring in law enforcement and not have to notify parents.

• But consider whether this is good practice.• If the student is arrested on school grounds, best practices would dictate that

a school official try to call parents/guardians and let them know the situation.

• CAUTION: In loco parentis does not extend to violations of civil liberties

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School Searches – The Relaxed 4thAmendment Standard

•The Standard Bearer – New Jersey v. TLO, 469 U.S. 325 (1985)

• Under traditional principles of the Fourth Amendment – Probable Cause• Probable Cause: “A reasonable basis for believing that a crime may have

been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search)”

• Under the less stringent “reasonable suspicion” standard• Particularized and objective basis for the search

• Test – Simply Stated:• Was the search justified at its inception? [A good reason to search?]• Was it permissible in its scope? [Was the search limited?]

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Searches by SROs

• How does the analysis change if the search is carried out by an SRO?

• Key question: Whether the SRO is conducting the search at the direction of school officials, in which case TLO should apply (‘reasonable suspicion”), or whether the SRO is acting as a police officer at the behest of the police department, in which case the traditional Fourth amendment protections should apply (“probable cause”)?

• Answer: Reasonableness standard applies to SRO when furthering educationally related goals (student safety and maintaining order; discipline in schools).

• What About Outside Officers? Probable cause standard is applicable.• In Interest of Angelia D.B., 211 Wis.2d 140, 564 N.W.2d 682 (1997)

• Search for weapons done by school liaison officer. • Court Says: SLO held to reasonable suspicion standard where officer became

involved in the investigation at the request of school officials, and continued to act in conjunction with school officials, on school grounds. Search was reasonable.

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Search Considerations – State Law

• SRO may participate in a warrantless search if acting in conjunction with school officials and as necessary to help school maintain safe environment. – New Jersey v. TLO, 469 U.S. 325 (1985)

• If SRO is designated as an agent of the school district for purposes of (random) locker searches, the SRO may conduct locker searches as any other school district official. – Wis. Stat. § 118.325

• School may adopt a policy allowing a law enforcement officer to conduct a breath test of student where student is on school grounds and there is a reasonable suspicion. – Wis. Stat. § 118.45

• School officials may not conduct strip searches. SRO may only do so if the SRO independently concludes it is warranted under policy agency guidelines. – Wis. Stat. § 118.45

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Use of Force by SROs

• What is the level of permissible force that can be used?

• What level of force does a school want to give its SRO the ability to use?

• Graham v. Connor, 490 U.S. 386 (1989)

• Established the level of permissible force by law enforcement• Applies equally to SROs• 3-prong test:

• The severity of crime committed

• The level of threat to the safety of the public or officer

• The level of resistance by the individual

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A Note on Surveillance Videos

• FPCO has consistently taken the position that surveillance records are different than written records

• Video surveillance that captures everything and is not directly related to any student, is not an education record

• If video catches a student committing an act, that portion of the video is that student’s education record

• If multiple students are involved, the video is the record of each student involved (but not of mere bystanders), and thus, the video may be viewed by any parent whose child was involved (though each parent must provide written consent before a copy of the video may be provided)

• If the video is used to find witnesses and the student is named as a witness, the video is the witnessing student’s education record (treat it as you would a witness statement)

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Body Cameras Are the New Black

• Body cameras have been trending in law enforcement due to the increasing publicity of officer involved shootings

• The same rationale for cops on the street to be equipped with body cameras has now made its way to the school house.

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Considerations on SRO use of Body Cams

• Balance district needs with that of law enforcement

• Balance privacy versus accountability/evidence

• Include language in your SRO Agreements

• Include language in staff and student handbooks

• Educate parents, students, and staff

• Address record retention and disclosure issues

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Body Cameras – The Records Conundrum

• Records kept by school police are not subject to FERPA or Wis. Stat. §118.125(1)(d).

– Does having SRO change that?

– Whose record is it?

• Do you want access to records or have records shared with school?

• How are you going to handle requests for records? Redaction?

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Body Cameras in Action

• Body cameras are the norm in law enforcement

• Schools are following suit – even schools here in Wisconsin

• Burlington, Iowa – Equips principals and assistant principals with body cameras to provide accountability

– Cost was minimal – approximately $1,100 to purchase 13 cameras

– Opponents argue it is a substantial overreach, risks relationship building opportunities, and raises privacy questions

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IDEA and Law Enforcement

• Under the IDEA, districts may summon law enforcement authorities in response to any criminal activity of IDEA-eligible students.

– 20 U.S.C. § 1415(k)(6); 34 C.F.R. § 300.535(a).

• District does not have to notify the parents or otherwise comply with the IDEA’s procedural safeguards prior to reporting a crime.

– 64 Fed. Reg. 12,631 (1999).

• Notice to the parents and an IEP team meeting are not required before reporting the criminal activity committed by a student with a disability.

• District may call the police without conducting a manifestation determination or otherwise complying with procedural safeguards.

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Authority for SRO Agreements

• School boards have the authority to enforce policies which mandate the manner, conditions, and content of police interviews with students on school premises during school hours.

– Although they should exercise considerable restraint in doing so.

• The preferable course is for school boards and local law enforcement to work together to jointly develop policies that will best serve the legitimate needs of each government arm without intruding on those of the other.

– See Op. Att’y Gen. 5-94.

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Policy Considerations of SRO Agreements

• Instituting an SRO program is a policy decision for local school boards.

– Schools focus on educating children, and teachers and school administrators may oppose an SRO program if they believe that the presence of an SRO will disrupt the learning environment, portray the school as being unsafe, or upset students.

– Law enforcement agencies focus on public safety and their initial response to the issue of crime in school might focus on increasing law enforcement’s presence in schools as a means of deterring criminal behavior.

• Establish clear goals so there is a mutual understanding of the purpose of the program between the school and law enforcement.

– Clearly state the roles and responsibilities of the actors involved in the program;

– Establish clear goals for the program; and

– Collect data and monitor the effectiveness of the program on an ongoing basis.

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Policy Considerations of SRO Agreements

• Identify qualifications prior to hiring • School district involvement in the hiring/removal • Law enforcement agency is the employer per Wis. Stat. § 165.85• Process for providing feedback/evaluation of SRO • Required trainings – school culture/philosophy, working with students, special

education laws, NVCI• Who pays for the program? Enter into a Shared Services Agreement• Duty hours• Coverage when absent • Equipment/Weapons allowed on school grounds • Allowed to work for school while off duty?• Job expectations and duties • Liability issues: workers’ comp, liability insurance, etc.

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SRO Agreements – Drafting Caution

• Drafting an MOU that states, “the SRO is at the school as a law enforcement presence and is not responsible for discipline at the school,” has been held to prevent the SRO from being considered a “school official” and assisting educators under the lower standards of reasonableness under the Fourth Amendment.

• However, generally speaking, courts extend deference to SROs in the performance of day-to-day duties, even decisions based in the initiative of the SRO without the presence of educators.

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Compare and Contrast – SROs and Regular Law Enforcement Officers

• What makes SROs so special?

– SROs are generally carefully selected law enforcement officers who have received specialized SRO training in the use of police powers and authority in a school environment.

– Roles of the SRO include:

• Law enforcement officer

• Teacher

• Counselor

– SROs should receive specialized training in the education of special needs children

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Records – SROs vs. Outside Law Enforcement

• SROs:

• May be deemed school officials, and thus, may be provided access to records based on a legitimate educational interest.

• Wis. Stat. § 118.125(2)(d) – LEO individually designated by the board and assigned to the district, if the officer has legitimate educational interests, including safety interests, may be granted access to the pupil records

Outside Law Enforcement:

FERPA allows a school to disclose education records to the juvenile justice system when the disclosure concerns the system’s “ability to effectively serve the student whose records are released.”

34 C.F.R. § 99.31(a)(5)(i) FERPA allows the disclosure of disciplinary action taken against a student for

behavior that posed a significant risk to the student or to other individuals.

34 C.F.R. § 99.36(b)

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Records Disclosure to Outside Law Enforcement

• Disclosure to Outside Law Enforcement Who Certify in Writing

• Wis. Stat. § 118.125(2)(n)2 allows for disclosure as follows:• For any purpose concerning the juvenile justice system and the

system's ability to effectively serve a pupil, prior to adjudication:

• A school board shall disclose pertinent pupil records to an investigating law enforcement agency or district attorney if the person to whom the records are disclosed certifies in writing that the records concern the juvenile justice system and the system's ability to effectively serve the pupil, relate to an ongoing investigation or pending delinquency petition, and will not be disclosed to any other person except as otherwise authorized by law.

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Constitutional Considerations – SROs and Outside Law Enforcement

• Fourth Amendment – Search • SROs: Reasonableness standard applies• Outside Law Enforcement: Probable cause standard applies

• Fifth Amendment – Interrogation • SROs: Generally may interview students without obtaining permission from

parents for school related incidents or incidents impacting the safety of students or school staff

• Outside Law Enforcement for School Purposes: Best practices dictate that parents are notified

• Outside Law Enforcement for Law Enforcement Purposes: Department policy.• Best practices dictate these interrogations should not be conducted on

school property, absent evidence of flight risk, serious criminal activity, etc.

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