Parents not entitled to be present when students questioned |
By the New York State Association of School Attorneys
Frequently, questions arise concerning students’ rights when students are questioned by school officials about school-related misconduct or a breach of school security. For instance, parents may be upset that a school official has spoken to their child without their knowledge or presence. Parents may mistakenly believe that their child is entitled to some type of Miranda rights.
It is well established by commissioner’s decisions and New York case law that neither the provisions of the Education Law nor constitutional due process considerations require that school officials contact parents before questioning students concerning an alleged infraction of a school rule.
Unlike police interrogators, who are required to read the Miranda rights to a suspect held in a custodial setting, school officials may question students in the absence of their parents, whether or not parental consent has been given.
One case that illustrates this point involved a student who had been arrested and charged with assaulting and attempting to stab a friend’s mother during a school vacation. Upon the student’s return to school, the school superintendent questioned him regarding the incident. The student admitted the attack and stated that it occurred after he smoked marijuana that, unknown to him, had been laced with “angel dust.” The student was suspended from school.
The student claimed that his interrogation by the school superintendent had been improper because he was not advised that he could call his parents before discussing the incident. In Pollnow v. Glennon, the U.S. Court of Appeals for the Second Circuit ruled in 1984 that “there is … no requirement for any sort of ‘Miranda’-type warning in such informal non-custodial discussions.” The Second Circuit has jurisdiction over all of New York State.
The state commissioner of education has ruled similarly. In one case, a principal was investigating the alleged theft of clothing and other items from students at school. As part of his investigation, the principal questioned a student who admitted to taking a Walkman radio from the boys’ locker room. The principal contacted the student’s mother to discuss the incident and decided to suspend the student for three days.
The student’s father commenced an appeal arguing that it was improper for the principal to have secured an incriminating admission from the student. The father also claimed that the principal’s failure to notify him before securing the admission constituted an abuse of authority and a breach of his duties. In Appeal of Pronti (1992), the commissioner rejected the father’s claims and upheld the suspension.
It should be noted, however, that the state Education Law does grant parents the right to participate in certain disciplinary procedures. For instance, parents or guardians must be provided with the opportunity for an informal conference with the principal in the event of a suspension from school for five days or less, a removal from class by a teacher, or an involuntary transfer. [In cases in which a student is suspended for more than five days, the student is entitled to have the opportunity for a formal hearing.]
It should further be noted that prior to a student being suspended, the principal is to provide the student with a notice of the charge of misconduct. If the student denies the misconduct, he or she must be provided with an explanation of the basis for the suspension.
Additionally, prior to suspension, school officials must give parents immediate written notice of the suspension, a description of the incident underlying the proposed suspension and their right to request an informal conference with the principal during which the student or the parent(s) can state the student’s version of the events and ask questions of complaining witnesses. This notice and opportunity for an informal conference must take place prior to suspension of the student unless the student’s presence in the school poses a “continuing danger to persons or property or an ongoing threat of disruption to the academic process,” according to the Education Law. If that is the case, the informal conference shall take place as soon after the suspension as is reasonably practicable. This section of the Education Law concerning discipline is the only provision specifically dealing with the presence of a parent for any initial questioning in a disciplinary matter.
When questioning students, school officials should keep records of all relevant meetings with students. During these meetings, a second school official should be present as a witness. School officials should request that students put their statements and/or admissions in writing; the written statements may be used as evidence for disciplinary purposes. Even if the information that a student provides to a school official is not acknowledged by a student in writing, these communications are not protected by any privilege and may be disclosed to others. In contrast to criminal proceedings, hearsay evidence is admissible in student disciplinary proceedings.
Miranda warnings may be required
It is also important for school officials to keep in mind that court decisions suggest that there would be an obligation to give a student a Miranda warning if school officials act with police when questioning one of their students, depending on the circumstances.
If police instigate or direct the interrogation, the student must be advised of his or her rights under the 1966 U.S. Supreme Court decision in Miranda v. Arizona. And if police give instructions to school officials on questioning a student, or provide some other form of input that serves to have school officials act as their agents, the student must be advised of his or her rights under Miranda.
On the other hand, courts have ruled that the mere presence of police officers during questioning does not require a Miranda warning. Nor does the possibility that the alleged infraction could carry criminal sanctions requiring school officials to a give Miranda-like warnings.
Different standards apply when police officials question students on school property. A 1959 opinion by the counsel of the State Education Department says police may not question students (or remove them for questioning) without parental consent. However, a recent ruling by the Appellate Division of State Supreme Court, Third Department, said parents need not be notified if the student being questioned by police is 16 or older. That ruling only applies to school districts within the jurisdiction of the Third Department, which covers 28 upstate counties as far north as St. Lawrence, as far west as Schuyler and as far south as Sullivan. See “Parental permission not required for police to question 16-year-old” (On Board, June 11, 2007).
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was contributed by Tracie L. Lopardi of the Harris Beach law firm in Buffalo.