Investigating Student Code of Conduct Violations
Investigating Student Code of Conduct Violations
Instructors: Jim Cleary and Shannon Holden
Introduction
Courts in all 50 States of America and at the Federal level follow a procedure called the “TLO two-prong test” in school search cases that go to criminal court. The TLO test will help you do a better job of handling not just drug cases but all student discipline cases, even ones that result just in suspensions or expulsions.
Being effective in this area is all about three things:
- The facts of the case;
- The method of analysis used for developing the facts and decision-making based on those facts; and
- The vocabulary used to discuss the evidence gathering process.
You will learn all three by using the approach in this course. The approach presented here will help you see how your school district policies and procedures work (or don’t work) under the facts of cases you have to deal with in your school district.
The Importance of Establishing Reasonable Suspicion to Detain Students
Before questioning and searching them, the investigation process involves three legal steps:
- Detaining on reasonable suspicion that the student in question violated a school rule or the law. Most likely you will have to testify later at a school suspension/expulsion hearing, or possibly at a trial in juvenile court. This means being able to articulate the facts that add up to reasonable suspicion to justify the student’s detention is the key to a successful detention and search process.
- Asking the detained student questions about the possible violation before making a decision.
- Searching the student for evidence to prove the violation actually took place.
The Legal Cart and the Legal Horse
If you put the legal cart (the search) before the legal horse (the detention based on reasonable suspicion), a judge will throw the case out of criminal court because the evidence produced was the result of an illegal search and cannot be used at trial. This is true in all 50 States.
- Detaining the Student Based on Reasonable Suspicion—The Legal Horse
Reasonable suspicion to support detaining, questioning and searching a student cannot be based on speculation, conjecture or rumors. Instead, it must be based on facts, both observed and investigated facts. These facts are combined with a school official’s common sense to reach the reasonable conclusion that: a violation has taken place; and the next two steps of talking with and searching the student will produce evidence to prove the violation did in fact occur.
- Questioning the Student after the Detention, But Before Beginning the Search
As you will see, school officials do not have to give students a Miranda warning advising them of their Fifth Amendment right to remain silent. Accordingly, school officials should, after detaining students, ask them questions about the violation and do so before moving on to the actual search phase of the investigation process.
- Searching the Student for Evidence to Prove the Violation —The Legal Cart
The physical search is the third step and for a solid legal reason. Any invasion of a student’s privacy, (even if just a minimal invasion) can legally take place only after school officials have produced those facts that add up to reasonable or individualized suspicion that a violation took place. The courts will generally uphold the search that follows the detention. This is true unless the court finds the scope of the search is overly invasive, like a strip search, or the search is arbitrary and capricious (a witch hunt for evidence) or just plain harassing.
Outline of Course
Case One/Lesson One – The “TLO” case
We give novices an in-depth analysis of this case, because it is the most important case EVER in the area of school law. See the paragraphs above for more details.
We help teachers, administrators, School Resource Officers, and school board members determine how their actions relate with the “TLO Test” – every step of the way.
Case Two/Lesson Two – Anonymous telephone tip about drugs
Educators will understand how to use an anonymous telephone tip as the basis of information to detain and search a student for drugs.
Educators will see how a search for “only” drugs could lead to the discovery of other contraband – and that the contraband CAN be used to prosecute the student.
Case Three/Lesson Three – Tip that a student “saw baggie of marijuana” justified search of student’s backpack, shoes and socks
Administrators will learn what aspects of a student tip about another student’s drug use makes it “reliable” information.
Educators will learn why a school official does NOT have to give a student a Miranda Warning before asking questions about their use of drugs at school.
Case Four/Lesson Four – Student Crime-Watch group reported teen selling pot
This lesson outlines the criteria that must be met when a school “watchdog” group provides information about student drug use to school officials.
How to ask students if they have contraband on them and why this does NOT constitute a search in the eyes of the courts.
Case Five/Lesson Five – Anonymous hotline tip too vague
Educators will learn what characteristics of an anonymous tip make it too vague to support the conclusion that reasonable suspicion exists to detain and search a student.
Vagueness of a tip cannot be saved – even if the search reveals drugs.
Case Six/Lesson Six – School did not have to identify an informant after 43 pills were found in a Bic pen
Educators will learn why information provided by a drug dealer about another student who is also selling drugs is reliable.
Educators will discover the circumstances under which a search of a student’s home will be valid in court.
Case Seven/Lesson Seven – Tip that student had “pot in his pocket” was reliable
Tips from students who are not selling drugs can be reliable under the right circumstances, this lesson will reveal which circumstances have to be in place.
Students who have given inaccurate information in the past can be seen by the court as reliable in another situation.
Case Eight/Lesson Eight – Identities of two student informants not disclosed in expulsion for drugs hearing
Educators will learn that administrators do not have to tell the accused the names of informants.
Administrators will learn whether students accused of drug violations have the right to cross-examine their accuser(s).
Case Nine/Lesson Nine – Police informant tip used by school to search for ecstasy pills
Educators will learn if school officials can act on a tip about one of their students provided by a police informant.
Administrators will learn if their searches of physical education lockers based on anonymous tips are legal in the eyes of the courts.
