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