The recent monograph, Juvenile Offenders and Victims: 1996
Update on Violence, published by the Office of Juvenile Justice and Delinquency
Prevention of the U.S. Department of Justice, reports some dramatic statistics
about violent crime and weapons in schools. These data, and earlier, similar
statistics, have given rise to a number of legislative initiatives to
address the real or perceived threats in school.
In the name of school safety, some states have pierced the traditional
veil of confidentiality that once shrouded juvenile court proceedings
and records. Many states now require that juvenile courts report the
adjudications of youths for certain offenses to the local school system,
and recent legislative trends have even led to statutes that require
reporting juvenile arrests or the petitions filed against youngsters
to the schools, at least for offenses against persons or those involving
drugs and weapons. Some of these statutes limit the dissemination of
this information to the superintendent or principal of the school attended
by the youth, but other states have no such protections. In addition,
many juveniles are suspended from school or placed in alternative programs
prior to any final adjudication of the charge in court.
What has led to this new attitude? According to the DOJ report, in
1993, fully 12 percent of sixth through twelfth grade students surveyed
reported that they were victims of physical attack, robbery, or bullying
in school, while more than half of such students witnessed such incidents
and 25 percent were worried about becoming the victims of such incidents.
This awareness was even higher among students in large schools than
those attending schools with a population of 300 or less, although students
seem to be equally worried about crime regardless of the size of the
institution. The same survey reported that about 3 percent of students
ages 12 through 19 carried weapons to school in 1993, as compared with
2 percent in 1989. Significantly, 3 percent of females reported carrying
a weapon in 1993 in contrast with only 1 percent four years earlier.
Also, in 1993, 42 percent of students in grades six through twelve reported
knowing of weapons in school, with a higher percentage of African-American
students having knowledge of weapons compared to white or Hispanic students.
In 1989 scarcely 15 percent of students claimed there were "street gangs"
in school, however, by 1993 35 percent of the students said that there
were "fighting" gangs in those schools.
With public concerns about drugs, weapons, or violence in the school
setting, legislatures and schools have quickly adopted "zero tolerance"
policies, resulting in automatic expulsion for an offending student,
or at least a significant suspension. What began at the local school
district level, has now resulted in statewide regulations or legislation.
A notable example of these legislative enactments, and one that led
to early challenges in the courts, is a section of the Massachusetts
"Education Reform Act," Chapter 71, 37H, enacted in 1993. One of the
provisions of that Act provides for the mandatory expulsion, after a
hearing, of a student found in possession of a weapon or drugs at school,
or during a school-sponsored or school-related event. The school principal
is given discretion to utilize suspension, instead of expulsion, where
the official determines that the student is not a threat to the safety,
security, and welfare of the staff and other students. The enactment
in Massachusetts has led to a number of expulsions, with principals
rarely exercising their discretion to suspend, rather than expel, the
students found in possession of the proscribed items.
Similar enactments across the country resulted ultimately in federal
legislation incorporating the same "zero tolerance" approach to weapons
possession--legislation or regulations that restrict principal discretion
in declining to expel an individual student based on the particular
circumstances of a case. Two years ago Congress enacted the Gun-Free
Schools Act of 1994 that provides that no federal financial assistance
under the Elementary and Secondary Education Act of 1965 would be available
to school districts that do not provide for the mandatory expulsion
for at least one year of students who bring firearms to school. (Public
Law 103-227, codified at 20 U.S.C. 3351) President Clinton has reinforced
this legislative policy through the promulgation of what is sometimes
referred to as an Executive Order, but which officially has been characterized
as a Presidential Memorandum, issued October 22, 1994, directing that
federal agencies assist in ensuring "vigorous enforcement" of the Act.
Needless to say, states, faced with the possible loss of federal funds,
have rushed to comply through the widespread enactment of legislation
comparable to the Massachusetts law, or at least by the adoption of
state or local regulations. Preliminary numbers seem to indicate that
relatively large numbers of students across the country are being caught
in the nets cast by these legislative and administrative enactments.
Since most states have criminal laws prohibiting juvenile possession
of certain weapons and drugs, as well as mandating school expulsion,
a youth caught with either drugs or weapons is also likely to be facing
charges in the juvenile or adult court systems. Because possession of
weapons or drugs in close proximity to a school is an aggravated offense
in many jurisdictions, such a charge may result in adult handling or
exposure to a mandatory minimum period of incarceration in a juvenile
institution. Massachusetts has compounded the "zero tolerance" school
weapon and drug legislation with a more recent 1995 enactment requiring
a minimum six-month commitment to the Department of Youth Services and
further required placement in a secure facility for a minimum of six
months. Thus, a lawyer may become involved in representing a youth facing
criminal or juvenile charges arising out of a school setting, who has
concurrent expulsion proceedings going on as well. There are several
issues present in such cases.
The first issue is school searches. The discovery of the weapon or
drugs usually follows a search of the youth's person, possessions, or
locker. If such a search is conducted by law enforcement officers, it
is governed by much the same limitations as any other police search,
and it is subject to the requirements of the Fourth Amendment. (See
Shepherd, Searches and Seizures Involving Juveniles, 5(1) Crim. Just.
27 (Spring 1990).) However, if the critical search is conducted by a
school official, the applicable law is outlined in New Jersey v. T.L.O.,
469 U.S. 325 (1985), and the search may be predicated on "reasonable
suspicion" rather than probable cause and may be for items that violate
school rules as well as the law. The more recent case of Acton v. Vernonia
School District, 115 S. Ct. 2386 (1995), may even allow more leeway
to school officials in investigating perceived threats to student and
staff safety. (See generally Jason Marks, Mission Impossible? Rescuing
the Fourth Amendment from the War on Drugs, 11(1) Crim. Just. 16 (Spring
1996).) Locker searches, the use of drug-sniffing dogs, and strip searches
of students present more complex problems if the offending items or
substances turn up in such a search. Many school systems are now using
metal detectors, and courts generally uphold their use for safety purposes
rather than on the grounds that they are present for crime detection
purposes.
Another issue is student statements. Courts universally hold that
school authorities may question a student without giving a Miranda warning,
although much of that case law is predicated on the recognition that
school personnel are not law enforcement personnel or even agents of
the police. Arguments that the principal or assistant principal fully
intended to turn a youth over to the police have usually been unsuccessful
in invoking the "agent" predicate, unless it can be shown that the actions
are solely for the purpose of criminal or juvenile prosecution. (See,
e.g., Commonwealth v. Snyder, 413 Mass. 521, 597 N.E.2d 1363 (1992);
Betts v. Board of Education, 466 F.2d 629 (7th Cir. 1972); Boyton v.
Casey, 543 F. Supp. 995 (D.Me. 1982).) There may be some due process
issues connected with the use of a statement obtained involuntarily,
as that issue is separate and distinct from the Miranda issue. (See
State v. Bowe, 881 P.2d 538 (Haw. 1994).) A few cases do hold that a
student may invoke the protection of the Fifth Amendment in a school
disciplinary hearing, either because the misconduct might result in
a criminal prosecution or because the administrative sanction may be
severe (certainly an expulsion for a minimum of one year is a severe
sanction in light of Goss v. Lopez, 419 U.S. 565 (1975)). (See Gonzalez
v. McEuen, 435 F. Supp. 460 (C.D.Cal. 1977); Caldwell v. Cannady, 340
F. Supp. 835 (N.D.Tex. 1972).) However, at least one court has held
that a student's silence in an administrative hearing may be considered
as one element in a finding of guilt. (Morale v. Grigel, 422 F. Supp.
988 (D.N.H. 1976).)
One argument recently made without success in Massachusetts was that
the delineation of a student's "right to education" under a state constitution
might serve to foreclose expulsion without the provision of any meaningful
alternative program. In Doe v. Superintendent of Schools of Worcester,
421 Mass. 117, 653 N.E.2d 1088 (1995), it was argued that the expulsion
of a young woman for a minimum of one year for possession of a lipstick
case containing a one-and-one-quarter inch blade constituted a denial
of her constitutional right to education under McDuffy v. Secretary
of the Executive Office of Education, 415 Mass. 545, 615 N.E.2d 516
(1993). (See Sharon Rubinstein, Lipstick Case Shades Education Question,
11(1) Crim. Just. 29 (Spring 1996).) The Supreme Judicial Court of Massachusetts
concluded that the right to education defined in the latter case applied
to the children of the Commonwealth generally, and did not constitute
a fundamental right for an individual student. Thus, strict scrutiny
was not required in determining the sanction in an expulsion case. Similar
holdings seem likely in other jurisdictions.
In Honig v. Doe, 484 U.S. 305 (1988), the Supreme Court of the United
States concluded that disabled students retained the right to a "free
appropriate public education" under the Education of the Handicapped
Act (now the Individuals with Disabilities Education Act (IDEA) 20 U.S.C.
1401 et seq.)), even when faced with disciplinary proceedings that could
result in suspension or expulsion. Consequently, where a disabled youth's
misconduct relates to his or her disability, any effort to discipline
the youth must be treated as a "change in placement" under the IDEA,
and must be addressed in a meeting to develop a new "individualized
education plan" (IEP). Although this holding is currently under consideration
by Congress in connection with the reauthorization of the IDEA, a partial
retreat from Honig was sounded in the passage of the "Jeffords Amendment"
by Congress in 1995 to provide a compromise between the Gun-Free Schools
Act and Honig by allowing for the placement of a child with a disability
who brings a weapon to school in an "interim alternative educational
setting" for up to 45 days while the new IEP is being developed.
Unfortunately, the special protections given to disabled children
under court decisions or legislation do not generally apply to other
youths facing charges, no matter how educationally or personally vulnerable
they may be. Efforts to develop an innovative concept called "constructive
special education" in order to secure needed educational services during
a period of mandated expulsion or suspension thus far have been unsuccessful.
Lawyers representing students facing expulsion or long-term suspension
for weapons or drug offenses in a school setting need to be aware of
the relationship between criminal or delinquency charges and school
administrative proceedings. Not only are due process and other constitutional
rights implicated, but the school's actions may impact significantly
on what may happen in the courts. The expulsion of the youth may influence
the imposition of a more severe sanction in court and, conversely, the
decision to utilize an alternative to expulsion may influence the exercise
of leniency by a judge. The long-term interests of the youth, and the
community, are also served by utilizing the least restrictive alternative
when a decision is made to remove the juvenile from the regular school
setting. To put a child engaged in misconduct out on the streets without
schooling is counter-productive. However, alternative schools and programs
are often woefully inadequate, although strong options do exist in a
minority of localities. A lawyer needs to be sensitive to all these
issues, and prepare for practice in the different forums in which decisions
may be made.
Robert E. Shepherd, Jr. is a professor of law at the University of
Richmond Law School and former chair of the Section's Juvenile Justice
Committee. Anthony J. DeMarco is managing attorney at the Children's
Law Center of Massachusetts in Lynn, and a member of the Section's Juvenile
Justice Committee.
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