Guest blogger Barbara Fedders is a clinical assistant professor of law at the University of North Carolina School of Law, where she teaches in the juvenile justice clinic.
Educators’ reliance on police and courts to handle minor infractions of school rules is a disturbing trend affecting the work of public defenders and the lives of children across the state. Recently released statistics from the North Carolina Department of Public Instruction reveal an increase in the percentage of minor school-based incidents reported to the police-even while the overall rate of crime and violence in schools has remained unchanged.
Schools are required by state law and State Board of Education policy to report to the police 17 separate serious crimes, ranging from possession of a weapon to rape. They are not required to involve the police in more minor crimes like trespass or larceny. Yet, increasingly, they do. This reliance on law enforcement and courts to handle school-based problems is part of a national trend that has drawn attention from civil rights organizations around the country. (You can find more information about what the NAACP Legal Defense and Educational Fund has characterized as the “school to prison pipeline,” here.) The reasons for the increased use of courts to handle low-level misdemeanors are many, but likely include that more and more schools employ police officers, known as School Resource Officers, to handle in-school disciplinary problems. SROs are trained not in adolescent development but in investigating and solving crimes, so it should come as no surprise that they gravitate toward law enforcement techniques rather than educational ones to handle disciplinary infractions.
In April, the North Carolina Court of Appeals politely but unmistakably expressed its displeasure at this trend. In re S.M.S. is a case that considered a fifteen-year-old Pitt County boy’s appeal from a trespass adjudication. The boy had been found delinquent based on evidence that he had run through the girls’ locker room at his school, encountered girls in the process of changing clothes, and immediately run back out when a coach blew his whistle. Because the locker room had been posted with a sign that read “Girls’ Locker Room,” the Court upheld the adjudication of second-degree trespass, which criminalizes “enter [ing]or remain[ing] on the premises of another … posted … with notice not to enter the premise.” The panel commented, tersely, that they did not understand “why our Courts were involved in this matter when the school, in its administrative capacity, was fully capable of dealing with [SMS's] conduct and disciplining him appropriately.”
As juvenile defenders, we have little impact on trends in education. Yet we should develop creative ways to defend against allegations of school-based crimes. For a client being interrogated or searched in school, that means being aware of the relevant case law. Safford v. Redding, 557 U.S. ____(June 25, 2009) (using Fourth Amendment reasonableness standard, facts did not warrant school administrator’s extension of otherwise reasonable search to juvenile’s underclothing) ; In re W.R., 363 N.C. 244 (2009) (no plain error review where juvenile failed to move to suppress or object to juvenile’s admission); In re J.D.B., ___ N.C. App. ___(April 7, 2009) (interrogation of 14 year old special education student by uniformed school resource officer and school administrators was not custodial). It also means knowing how to argue that evidence seized or confessions obtained are subject to the provisions of the Fourth Amendment. School can be a custodial environment; creative defenders can argue, for example, that a student would not feel “free to leave” a principal’s office if doing so meant ignoring a direct order from an SRO or other school official. Most schools have codes of conduct requiring that students follow all orders of school officials. As an example, the Smith Middle School Code of Conduct can be found here. Defenders can use them in cross-examination during hearings on motions to suppress to argue that their clients wouldn’t have felt free to leave when being questioned or searched. Additionally, many of our clients have cognitive and emotional disabilities. Confessions obtained from such students may in certain circumstances not be voluntary under the 14th Amendment. In order to be able to make such arguments effectively, we should always obtain school and mental health records of our clients, and also consider obtaining funds to hire independent experts to show that our clients are particularly vulnerable to authority figures.
While we may not be able to reverse the trend of using the courts for allegations of school-based crime, we should do all we can to defend our clients once those allegations become cases in court.
Great post, Barb. I did want to mention that when arguing these cases, it’s important to note the different standards (and sometimes results) for confessions versus seizures. It’s interesting that the court has ruled in both directions for seizures (In re S.W., 614 S.E.2d 424 (2005) (school related), In the Matter of I.R.T., 647 S.E.2d 129 (2007) (outside of schools)), but that the same analysis for “free to leave” standard could be applied in both contexts. For confessions, I think as you stated, I believe the COA is moving in the direction of a “reasonable juvenile” standard, but in the context of whether or not there has been “a formal arrest or restraint on the freedom of movement to the degree associated with a formal arrest.” I’m wondering if this is a harder burden to overcome than “free to leave” for seizures?
While we may not be able to reverse the trend of using the courts for allegations of school-based crime, we should do all we can to defend our clients once those allegations become cases in court. I would tend to agree with this conclusion and assessment. good article!