Cops and Special Education Emerging Legal and Practical

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Cops and Special Education: Emerging Legal and Practical Issues Karen Haase KSB School Law

Cops and Special Education: Emerging Legal and Practical Issues Karen Haase KSB School Law @Karen. Haase

Criminal Code Violations are Generally Not an IDEA Issue § Criminal code usually a

Criminal Code Violations are Generally Not an IDEA Issue § Criminal code usually a function of state law § School staff need to know reporting obligations and issues for their state and position § E. g. Ala. Code § 16 -1 -24. 1 (2001): • The principal shall notify appropriate law enforcement officials when any person violates local board of education policies concerning drugs, alcohol, weapons, physical harm to a person, or threatened physical harm to a person.  If any criminal charge is warranted arising from the conduct, the principal is authorized to sign the appropriate warrant.  If that person is a student enrolled in any public school in the State of Alabama, the local school system shall immediately suspend that person from attending regular classes and schedule a hearing at the earliest possible date, which shall not be later than five school days.

IDEA’s Application to State Reporting Statutes "Nothing in [Part B] shall be construed to

IDEA’s Application to State Reporting Statutes "Nothing in [Part B] shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by a child with a disability. “ 20 USC 1415(k)(6), 34 CFR 300. 535 (a)

Cops and FERPA

Cops and FERPA

Cops and FERPA § So you can (or must) call the cops § What

Cops and FERPA § So you can (or must) call the cops § What can you tell them?

Letter Jene Watkins, Indian Creek Local School District (2/2108) § School disclosed information from

Letter Jene Watkins, Indian Creek Local School District (2/2108) § School disclosed information from a student's education records to a school resource officer who then re-disclosed the information to the student's parents and the county's prosecuting attorney. § Parent complained to FPCO § School: SRO was a "school official" or "law enforcement unit. "

Letter Jene Watkins, Indian Creek Local School District (2/2108) § Insufficient control over SRO

Letter Jene Watkins, Indian Creek Local School District (2/2108) § Insufficient control over SRO to establish as a “school official” § Even if the SRO had qualified as a school official or law enforcement unit, he would not have been entitled to re-disclose the education records he had received from the school

Letter to Montgomery County Public Schools (MD) (2/15/06) § School proposed designating EFOs (SROs)

Letter to Montgomery County Public Schools (MD) (2/15/06) § School proposed designating EFOs (SROs) "school officials" with a "legitimate educational interest. " § FCO: • What is the “legitimate educational interest? ” • SROs could not re-disclose unless the disclosure meets one of the exceptions to consent specified in § 99. 31 of FERPA

Cops as School Officials §Control §FERPA Notice §Can’t re-disclose

Cops as School Officials §Control §FERPA Notice §Can’t re-disclose

BUT WAIT! It gets trickier! § School may not treat SROs as school officials

BUT WAIT! It gets trickier! § School may not treat SROs as school officials if they are investigating crimes § But IDEA imposes affirmative obligation on schools to share records of disabled students if staff has contacted law enforcement § Wait, what?

34 CFR 300. 535 (b)(1) § An agency reporting a crime committed by a

34 CFR 300. 535 (b)(1) § An agency reporting a crime committed by a child with a disability must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime. § However, an agency reporting a crime may transmit copies of the child's special education and disciplinary records only to the extent that FERPA permits the transmission. 34 CFR 300. 535 (b).

34 CFR 300. 535 (b)(1) § An agency reporting a crime committed by a

34 CFR 300. 535 (b)(1) § An agency reporting a crime committed by a child with a disability must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime. § However, an agency reporting a crime may transmit copies of the child's special education and disciplinary records only to the extent that FERPA permits the transmission. 34 CFR 300. 535 (b).

Menominee Area Pub. Schs. , 114 LRP 34039 (SEA MI 2014) § Student with

Menominee Area Pub. Schs. , 114 LRP 34039 (SEA MI 2014) § Student with undisclosed disability admitted to writing a bomb threat on a desk § Principal reported the threat to police, who arrested the student § Parents filed a complaint with SEA ED charging that the district violated the IDEA by failing to explain the student's disabilities to the arresting officer

Menominee Area Pub. Schs. , 114 LRP 34039 (SEA MI 2014) § IDEA requires

Menominee Area Pub. Schs. , 114 LRP 34039 (SEA MI 2014) § IDEA requires a district reporting a crime by a student with a disability to ensure that copies of the student's special education and disciplinary records are transmitted for consideration to the appropriate authorities. 34 CFR 300. 535 (b)(1). § SEA • school did not provide authorities with records • School did not seek the parents' consent do so • SEA did not address whether the incident involved a health or safety emergency, (which would have rendered consent unnecessary)

Pikes Peak BOCES, 66 LDELR 56 (SEA CO 2014) § Student with undisclosed disability

Pikes Peak BOCES, 66 LDELR 56 (SEA CO 2014) § Student with undisclosed disability with marijuana pipe, lighter and porn in backpack § School reported to SRO, who then reported to Sheriff’s office § School did not inform law enforcement of student’s disability, did not provide records, did not ask grandma for permission

Pikes Peak BOCES, 66 LDELR 56 (SEA CO 2014) § SEA found a violation

Pikes Peak BOCES, 66 LDELR 56 (SEA CO 2014) § SEA found a violation of IDEA § Ordered corrective action plan • revisions to policies • staff training

Brookwood Acad. , 114 LRP 53987 (SEA OH 11/28/14) § Student assaulted para §

Brookwood Acad. , 114 LRP 53987 (SEA OH 11/28/14) § Student assaulted para § School administrator told para she had "the option" to file a criminal complaint § Para filed charge with the juvenile court • Brought along a copy of her incident report • Attended the first court hearing § The school never supplied the court with the student's records and no other staff member filed a complaint or attended any hearings

Brookwood Acad. , 114 LRP 53987 (SEA OH 11/28/14) § SEA: Because the paraprofessional

Brookwood Acad. , 114 LRP 53987 (SEA OH 11/28/14) § SEA: Because the paraprofessional acted on her own in reporting the alleged crime, the report didn't trigger the school's duty to forward the student's records to appropriate authorities. § 34 CFR 300. 535 applies only when an agency, not an individual, reports a crime

Claims Against Schools and School Staff § Imposing Responsibility on Schools for Police Actions

Claims Against Schools and School Staff § Imposing Responsibility on Schools for Police Actions § Reporting to Avoid IDEA § Retaliatory Reporting

Claims Against Schools and School Staff

Claims Against Schools and School Staff

Claims Against Schools and School Staff § Imposing Responsibility on Schools for Police Actions

Claims Against Schools and School Staff § Imposing Responsibility on Schools for Police Actions § Reporting to Avoid IDEA § Retaliatory Reporting

Valentino C. v. School Dist. of Philadelphia, 203 U. S. Dist. LEXIS 1081 (E.

Valentino C. v. School Dist. of Philadelphia, 203 U. S. Dist. LEXIS 1081 (E. D. Pa. 2003) § Student with ADHD, ODD, placed in emotional support class § Menaced teacher with desk or chair § Teacher took student to office § School policy required contacting police after any alleged student assault with a weapon on a school official § Student arrested, detained in lock-up for 21 hours without access to his meds

Valentino C. v. School Dist. of Philadelphia, 203 U. S. Dist. LEXIS 1081 (E.

Valentino C. v. School Dist. of Philadelphia, 203 U. S. Dist. LEXIS 1081 (E. D. Pa. 2003) § 4 th Amendment • Claim is against school not cops • School did not handcuff, transport or detain • School cannot be held liable for actions taken by the policy after Valentino was in their custody • Seizure was removal from class: “all public school students know and expect that. . . They are subject to removal from class at any time for disciplinary reasons”

JS v. East End Sch. Dist. , 2007 U. S. Dist. LEXIS 24996 (E.

JS v. East End Sch. Dist. , 2007 U. S. Dist. LEXIS 24996 (E. D. Ark. 2007) § Student with autism threatened students and staff • “dotted line and ax incident” • Broke teacher’s nose with book § SRO called sheriff, sheriff arrested § School settled related IDEA due process claim § Parents sued to recover costs of program to which student was admitted after arrest

JS v. East End Sch. Dist. , 2007 U. S. Dist. LEXIS 24996 (E.

JS v. East End Sch. Dist. , 2007 U. S. Dist. LEXIS 24996 (E. D. Ark. 2007) § 4 th Amendment Claim • Handcuffed, locked inside police car, taken to locked facility • School cannot be held liable for SRO and sheriff’s decisions § Equal Protection Claim • No allegation of selective enforcement or that child was disciplined differently than non-disabled peers § ADA and 504 Claims • Survived summary judgement on alteration claim

Claims Against Schools and School Staff § Imposing Responsibility on Schools for Police Actions

Claims Against Schools and School Staff § Imposing Responsibility on Schools for Police Actions § Reporting to Avoid IDEA § Retaliatory Reporting

Cabot Sch. Dist. , 29 IDELR 300 (SEA AR 1998) • Parent filed d.

Cabot Sch. Dist. , 29 IDELR 300 (SEA AR 1998) • Parent filed d. p. alleging violation of child find after kid expelled and referred to juvenile court − Hearing officer found for school in November − Federal claim settled over the summer • October of following year, student has verbal altercation with coaches − SRO called, child threated with arrest − School suspended − Mom filed for d. p. , case settled with new IEP including BIP • November - Student throwing spit wads in art class − Teacher called main office, main office called SRO − School proposed alternative school − Mom filed for d. p.

Cabot Sch. Dist. , 29 IDELR 300 (SEA AR 1998) • Expedited Due Process

Cabot Sch. Dist. , 29 IDELR 300 (SEA AR 1998) • Expedited Due Process Hearing − School sought expedited hearing, lost on expedition − Day before expedited hearing, juvenile petitions were filed − School dropped pursuit of more restrictive placement • Superintendent testified school dropped placement claim because court could send to alternative school • H. O. − Facts surrounding law enforcement and spit wad incident − “the call to the police by agents of the school was not a call placed for the purpose of preserving the legitimate safety of students or the faculty, but was made for the purposes of avoiding compliance with the [BIP] and of causing a change in placement without following the procedures of IDEA”

Barnhardt v. Meridian Muni Sch. Dist. , No. 4: 65 -cv-01300 -HTW-LRA (S. D.

Barnhardt v. Meridian Muni Sch. Dist. , No. 4: 65 -cv-01300 -HTW-LRA (S. D. Miss. May 30, 2013) § School desegregation case filed in 1965 • 2010 government received complaints about student discipline policy disproportionately affecting minority students § Consent Order • Will involve law enforcement only when necessary to protect the physical safety of students or staff • Must get approval from superintendent before contacting law enforcement unless “emergency situation involving a serious and immediate threat to students, school personnel or public safety. ”

Hereford v. Huntsville Bd of Educ. , No. 5: 63 -cv-00109 -MHH (N. D.

Hereford v. Huntsville Bd of Educ. , No. 5: 63 -cv-00109 -MHH (N. D. Ala. April 24, 2015) § School desegregation case • Consent Order • School may not contact SROs unless student misconduct threats safety of others

Claims Against Schools and School Staff § Imposing Responsibility on Schools for Police Actions

Claims Against Schools and School Staff § Imposing Responsibility on Schools for Police Actions § Reporting to Avoid IDEA § Retaliatory Reporting

School Dist. of Philadelphia, 115 LRP 2743 (SEA PA 12/17/14) § Student with SLD

School Dist. of Philadelphia, 115 LRP 2743 (SEA PA 12/17/14) § Student with SLD § Public school paying for private placement as part of due process settlement § Student with SLD went AWOL twice § Student also assaulted teacher § School called the police after each incident § Parent alleged retaliation

School Dist. of Philadelphia, 115 LRP 2743 (SEA PA 12/17/14) § Hearing officer •

School Dist. of Philadelphia, 115 LRP 2743 (SEA PA 12/17/14) § Hearing officer • the school's actions were reasonable under the circumstances. • "I cannot imagine responsible school staff failing to act to locate a student when a parent admits that she does not know for sure where her child is" • School established it would have taken the same actions absent the parent's participation in the protected activity

S. A. S. v. Hibbing Pub. Sch. 2007 Min. App. Unpub. LEXIS 431 (Minn.

S. A. S. v. Hibbing Pub. Sch. 2007 Min. App. Unpub. LEXIS 431 (Minn. Ct. App. 2007) § Student with ADHD claimed school discriminated by involving law enforcement § Police officer testified • He regularly arrested other students for similar behavior • In one incident, police charged both plaintiff and the other student involved § State claim dismissed (after federal claim had already been dismissed)

Claims Against Police

Claims Against Police

Claims Against Police § 4 th Amendment Claims • Unlawful seizure • Excessive Force

Claims Against Police § 4 th Amendment Claims • Unlawful seizure • Excessive Force § 14 th Amendment Claims § ADA/Section 504 Claims

J. H. v. Bernalillo County, 806 F. 3 d 1255 (10 th Cir. 2015)

J. H. v. Bernalillo County, 806 F. 3 d 1255 (10 th Cir. 2015) § Behavior disordered 6 th grader attacking peer, then teacher § “Crisis team” summoned, SRO headed over to see what was going on § SRO saw child kicking, biting, scratching teacher § Student then fled to classroom, curled up on floor crying § SRO arrested, handcuffed, took to juvenile detention center § Student found incompetent to stand trial

J. H. v. Bernalillo County, 806 F. 3 d 1255 (10 th Cir. 2015)

J. H. v. Bernalillo County, 806 F. 3 d 1255 (10 th Cir. 2015) § 4 th Amendment • Probable cause to arrest because SRO witnessed law violation • Handcuffing not excessive force § ADA • Cop did not know and should not have known of disability or IEP • “It was that battery, rather than a disability that lead to the arrest. ” • No failure to accommodate once arrested

State v. Moses 390 S. C. 502 (Ct. App. S. C. 2010) § Incident

State v. Moses 390 S. C. 502 (Ct. App. S. C. 2010) § Incident escalated after special ed. student tried to cut in lunch line* • • SRO subdued, arrested, transported to police station Mirandized Student gave a statement Convicted, sentenced to six years § Claimed that since SRO knew student was sped, waiver of 5 th Amendment rights after being Mirandized was not knowing and voluntary

State v. Moses 390 S. C. 502 (Ct. App. S. C. 2010) § Statement

State v. Moses 390 S. C. 502 (Ct. App. S. C. 2010) § Statement knowing and voluntary § Although could only read and write at 3 rd grade level, earned a diploma

Hoskins v. Cumberland Cty Bd. of Educ. , 2014 U. S. Dist. LEXIS 174073

Hoskins v. Cumberland Cty Bd. of Educ. , 2014 U. S. Dist. LEXIS 174073 (M. D. Tenn. 2014) § 8 year-old second-grader • Separation anxiety • 504 plan, had been homebound at times • Swung fist at gym teacher, threatened to “beat the crap” out of her • Principal/SRO arrived, escorted student to office • Once if the office, SRO handcuffed • Parents called, 45 minutes later arrived, student released from cuffs and sent home

Hoskins v. Cumberland Cty Bd. of Educ. , 2014 U. S. Dist. LEXIS 174073

Hoskins v. Cumberland Cty Bd. of Educ. , 2014 U. S. Dist. LEXIS 174073 (M. D. Tenn. 2014) § 4 th Amendment Claim • “In light of the very young age of T. H. , the nature of the conduct T. H. had engaged in, the school setting, and the fact that T. H. did not swing his fist at either the officer or the principal, the Court concludes that Defendant Tollett’s initial handcuffing of T. H. was not objectively reasonable, and his leaving the child handcuffed forty-five minutes was even less reasonable. Defendant violated T. H. ’s Fourth Amendment Rights.

Hoskins v. Cumberland Cty Bd. of Educ. , 2014 U. S. Dist. LEXIS 174073

Hoskins v. Cumberland Cty Bd. of Educ. , 2014 U. S. Dist. LEXIS 174073 (M. D. Tenn. 2014) § Qualified Immunity • Record silent about fear for safety, student‘s demeanor while being taken to the office and demeanor while handcuffed • Burden is on plaintiffs to demonstrate defendant not entitled to qualified immunity • Qualified immunity granted

Gray ex rel. Alexander v. Bostic, 458 F. 3 d 1295 (11 th Cir.

Gray ex rel. Alexander v. Bostic, 458 F. 3 d 1295 (11 th Cir. 2006) § 4 th Grader threatened gym teacher § SRO witnessed, intervened § Took student to hallway, handcuffed her § detained and handcuffed student • "to impress upon her the serious nature of committing crimes that can lead to arrest, detention or incarceration" • "to help persuade her to rid herself of her disrespectful attitude" • "did not feel the need to apologize”

Gray ex rel. Alexander v. Bostic, 458 F. 3 d 1295 (11 th Cir.

Gray ex rel. Alexander v. Bostic, 458 F. 3 d 1295 (11 th Cir. 2006) § 4 th Amendment • No handcuffed incident to arrest because SRO had no intention of arresting • No threat of harm or flight • “handcuffing was excessively intrusive given Gray's young age and the fact that it was not done to protect anyone's safety. Therefore, the handcuffing of Gray violated Gray's Fourth Amendment rights.

Gray ex rel. Alexander v. Bostic, 458 F. 3 d 1295 (11 th Cir.

Gray ex rel. Alexander v. Bostic, 458 F. 3 d 1295 (11 th Cir. 2006) § Qualified immunity • “Every reasonable officer would have known that handcuffing a compliant nine-year-old child for purely punitive purposes is unreasonable. ” • “We emphasize that the Court is not saying that the use of handcuffs during an investigatory stop of a nine-year-old child is always unreasonable, but just unreasonable under the particular facts of this case. ”

C. B. v. City of Sonora, 769 F. 3 d 1005 (9 th Cir.

C. B. v. City of Sonora, 769 F. 3 d 1005 (9 th Cir. 2014) § 11 -year-old with ADHD, bad day without meds • • • On playground refusing to come in Had run before Staff contacted law enforcement Teacher whispered to cop, "[r]unner[, ] [n]o medicine, " Student didn’t respond Cop handcuffed, placed in squad car and drove home § Family sued § Case tried by a jury

C. B. v. City of Sonora, 769 F. 3 d 1005 (9 th Cir.

C. B. v. City of Sonora, 769 F. 3 d 1005 (9 th Cir. 2014) § Taking the child into custody was an unreasonable seizure in violation of the 4 th Amendment • But qualified immunity § Placing into handcuffs was excessive force • No qualified immunity § Evidence of prior handcuffing of students was properly admitted to show that the city maintained an unlawful custom or practice

S. R. v. Kenton County Sheriff’s Office, 115 LRP 58577 (E. D. Ky 2015)

S. R. v. Kenton County Sheriff’s Office, 115 LRP 58577 (E. D. Ky 2015) § SRO handcuffed 2 elementary students with ADHD in 3 separate incidents • 8 year old student "swung his arm and attempted to strike" a school resource officer, who then handcuffed the student until his mother arrived. • 9 year old student handcuffed when she attempted to leave the school's suspension room • Three weeks later, handcuffed again after attempted to assault SRO

S. R. v. Kenton County Sheriff’s Office, 115 LRP 58577 (E. D. Ky 2015)

S. R. v. Kenton County Sheriff’s Office, 115 LRP 58577 (E. D. Ky 2015) § First Incident: • “you can do what we ask you to do or you can suffer the consequences” • “Oh, God. Ow that hurts” § Second Incident • student transported by ambulance to hospital § Third Incident • Student handcuffed behind her back, kneeling on the floor for 30 minutes • “hyperextension position”

S. R. v. Kenton County Sheriff’s Office, 115 LRP 58577 (E. D. Ky 2015)

S. R. v. Kenton County Sheriff’s Office, 115 LRP 58577 (E. D. Ky 2015) § 4 th Amendment • • Technically assault, but really a severe temper tantrum Student had calmed and presented no danger No arrests made and no apparent intent to arrest Handcuffing was actually a disciplinary measure § Qualified Immunity • “it is highly questionable whether a reasonable officer would arrest an eight or nine-year old for relatively minor misconduct at school. • Denied without prejudice

S. R. v. Kenton County Sheriff’s Office, 115 LRP 58577 (E. D. Ky 2015)

S. R. v. Kenton County Sheriff’s Office, 115 LRP 58577 (E. D. Ky 2015) § ADA Claims Also Allowed to Proceed • Intentional discrimination • Failure to accommodate

School to Prison Pipeline §OCR study • 260, 000 students nationwide were referred to

School to Prison Pipeline §OCR study • 260, 000 students nationwide were referred to law enforcement, 65, 000 (25%) were students with disabilities • 92, 000 school-related arrests, 23, 000 (25%) were students with disabilities

Courts are Referencing the School to Prison Pipeline § N. C. v. Commonwealth, 396

Courts are Referencing the School to Prison Pipeline § N. C. v. Commonwealth, 396 S. W. 3 d 852 (Ky. 2013): The "shift away from traditional in-school discipline towards greater reliance on juvenile justice interventions, not just in drug cases, but also in common school misbehavior that ends up in the juvenile justice system. . . "[t]his comes at a significant cost to state agencies and takes the student out of the normal education process, in addition to putting these students in contact with students who committed violent offenses, gang members, or other bad influences. "

Courts are Referencing the School to Prison Pipeline § Hawker v. Sandy City Corp.

Courts are Referencing the School to Prison Pipeline § Hawker v. Sandy City Corp. , 774 F. 3 d 1243 (10 th Cir Dec. 5, 2014 (Lucero, J. , concurring): “The criminal punishment of young schoolchildren leaves permanent scars and unresolved anger, and its far-reaching impact on the abilities of these children to lead future prosperous and productive lives should be a matter of grave concern for us all. Focusing narrowly on the legal standards applicable in this case renders it too easy to overlook the obvious question: Why are we arresting nine-yearold schoolchildren? ”

September 8, 2016 DCLs § DOE DCL • “I am concerned about the potential

September 8, 2016 DCLs § DOE DCL • “I am concerned about the potential for violations of students’ civil rights and unnecessary citations or arrests of students in schools, all of which can lead to the unnecessary and harmful introduction of children and young adults into a school-to-prison pipeline. ” • “School districts that choose to use SROs should incorporate them responsibly into school learning environments and ensure that they have no role in administering school discipline. ” § DOJ DCL • “We have seen that there is the potential for SROs to have a negative impact on students through unnecessary arrest and improper involvement in routine school disciplinary matters. ”

My Suggestions

My Suggestions

Suggestions for SROs § Know the standard that applies to your role § Do

Suggestions for SROs § Know the standard that applies to your role § Do not handcuff or take into custody to “teach the kid a lesson” § Consider the age of the child § Consider whether the child is currently a threat or has he/she calmed down § Consider what you know about child’s possible disability § You may NOT want to know about disability…. § Contemporaneous documentation is vital

Suggestions for Educators § Honestly ask: is your use of SROs facially discriminatory against

Suggestions for Educators § Honestly ask: is your use of SROs facially discriminatory against students with disabilities § Know your state law • Mechanical restraints • Mandatory reporting § Ask: am I calling SRO for safety or discipline? • Don’t involve law enforcement for classroom or behavior management • Don’t write SRO contact into BIP § Remember FERPA issues – when in doubt seek FERPA consent from parent § Document antecedents!

Questions? Karen Haase (402) 804 -8000 karen@ksbschoollawcom KSB School Law @Karen. Haase

Questions? Karen Haase (402) 804 -8000 karen@ksbschoollawcom KSB School Law @Karen. Haase