Interviewing Students at School

INTERVIEWING STUDENTS AT SCHOOL : NEW RULES AHEAD? Steve Williams Harding & Shultz ((402)) 434-3000 swilliams@hslegalfirm.com H & S School Law

The Issue HHS caseworker or law enforcement show up at school unannounced and want to interview the student “right g now!”  What do you do?  Pressure to cooperate – you don’t don t support child abuse, do you?  HHS Memorandum

What’s the Bigg Deal? Students have Fourth and Fifth Amendment rights Statistics Investigations affect privacy, dignity, and personal security interests that may be protected by the Fourth Amendment. Investigation process can cause emotional and psychological damage ranging from temporary and minor to long-term and significant.

What’s the Bigg Deal? In Loco Parentis One bad apple . . . Hernandez v. Foster, 1009 U.S. Dist.

LEXIS 3815 ((N.D. Ill. Jan. 15,, 2010))

Litigation Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009)

Camreta v. Greene U S Supreme Court to review U.S.  Issue: Was in-school interview of suspected child hild sexuall abuse b victim/student i i / d unconstitutional in the absence of a warrant, court order, parental consent, or exigent circumstances?  Court: Yes.

Camreta v. Greene  Facts  Searches and seizures: school officials v. law enforcement and social workers  School has “special needs” = reasonable suspicion i i  Law enforcement and case worker need warrant, court order, parental permission, i i or exigent circumstances.

Camreta v. Greene  Oregon Oregon’ss mandatory reporter statute – more expansive than Nebraska’s but still did not trump Fourth Amendment  NOT decided – potential school district li bilit for liability f allowing ll i search h and d seizure i by b caseworker and law enforcement. However, insulation from liability in future not guaranteed.

What do yyou do now?  Schools have used various approaches  Conservative Approach – require parental consent, t courtt order, d warrant, t or exigent i t circumstances.  Middle Ground - Interviews allowed with caseworker without law enforcement.  Others develop MOU with local law enforcement HHS enforcement, HHS, county attorney

What do yyou do now?  Greene does NOT change:  School official’s ability to interview or search a student  School official’s duty to notify law enforcement/HHS of law violations, violations child abuse and neglect  Expect political fallout if limit access to students

Balancing Act Balance the interests, rights, and goals of:  School  Students  Parents  Government Agencies – Law Enforcement, HHS, ICE  School has a great deal of discretion

Access to Student ďƒ˜ If law enforcement officers seek only y to interview a student, they are subject to school policy. p y ďƒ˜ Officers seeking to arrest, arrest take physical custody, serve a subpoena, or present a search warrant get immediate access.

In Loco Parentis School officials stand in loco parentis in all matters relating to the disciplinary and non-disciplinary matters and all activities connected with the school program.

In Loco Parentis “A p person standing g in loco p parentis to a child i is i one who has put himself i f or herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship, without g going g through g the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent.� Weinand v. Weinand, 260 Neb.

146 (2000) ( )

In Loco Parentis School children do not shed their constitutional rights at the schoolhouse gates. t Tinker v. Des Moines, 393 U.S. 503 (1969) Whose jjob is it to protect p rights g from third parties while student is at school? Whi h type Which t off parentt will ill the th school h l be?

In Loco Parentis Q QUESTION: Does in loco p parentis status give school officials the authority to consent in p place of the p parents to interviews of the students at school by police, HHS, or anyone else? NO. Even if it did, knowing the statistics and potential consequences, which “type� yp of p parent will the school be?

Contactingg Parents ďƒ˜Nebraska law does not require q and generally does not prohibit schools from notifying y g parents p before p police interviews. ďƒ˜As a result,, yyou are often balancing g the interests of informing parents against g the needs of law enforcement.

Contactingg Parents Schools g generallyy mayy notifyy parents p of interview requests. Exceptions:  Law enforcement order (maybe)  Child abuse/neglect or criminal activity by parent – hindering prosecution  Delay is a public safety risk

Contactingg Parents Police directive to not contact parents  Must M comply l if child hild abuse/neglect b / l or criminal activity by parent – hi d i prosecution hindering ti  Delay is a public safety risk  Otherwise, not legally required to comply, p y, but risk arrest and ultimately unsuccessful prosecution. 

Wisconsin AG Opinion. p

Contactingg Parents Section 79-294: 79 294: The school is required to contact parents when student is released to a p peace officer “except p when a minor has been taken into custody as a victim of suspected p child abuse.” Release Form QUESTION: What if the suspected abuse has not been inflicted by a parent?

Parental Demands Parent demands notice before child is interviewed or that school prohibit interview until p parent is p present.

Schools are not required to comply but are allowed to unless:  Child abuse/neglect  Criminal activity by parent  Public safety risk

Student Interviews Parent as suspect Student as suspect Student as witness

Student Interviews School is not required q to tell student he can contact his parents before an interview. School may y do so unless:  Child abuse/neglect  Criminal activity by parent  Public safety risk

Parent as Suspect p Parents’ rights g are limited.  Not entitled to notice.  Courts rule in favor of schools and law enforcement.  Police – concerns about flight, flight destruction of evidence, and cover up.

Student as Suspect p Fifth Amendment right against selfincrimination may apply  In re Interest of C.H.,, 277 Neb. 565 (2009). Other Other states – whether parent consents or is present for interview is factor in determination of voluntariness.  Right to remain silent – school has discretion to advise.

Student as Suspect p Policy Considerations School related purpose v.

Non-school related matters.

HHS/CFS Absent a court order, case workers are not legally entitled to access to students. ďƒ˜Interviews ďƒ˜Examinations and Photographs

Immigration g Officials Pre 9/11 - Immigration and Naturalization Service (INS) ( ) Post 9/11 - Immigration and Custom Enforcement (ICE)

Considerations Watch for Greene decision Decide which “parent” your district will be When adopting a student interview policy consider and address all policy, potential scenarios N tif ALL staff Notify t ff off policy li School has authority to regulate time of i t i interview

Considerations School may prohibit interviews on school grounds Determine whether school official will be present for interview Will school official disclose information from interview to parent or leave it to the police?

Considerations Will school advise student of right to remain silent? Consider meeting with local law enforcement and HHS to develop a memorandum of understanding Different policy for elementary and high school students?

Considerations Consider including g your y interview policy in the student handbook Consider a handbook provision informing parents it is their responsibility p y to educate child about rights when questioned by police/HHS. In Loco Parentis – What policy would you want applied to you and your child?

School Officials Miranda not required q Parental notice not required Parental permission not required Parental presence not required

INTERVIEWING STUDENTS AT SCHOOL : NEW RULES AHEAD? Steve Williams Harding & Shultz ((402)) 434-3000 swilliams@hslegalfirm.com H & S School Law