SRO’s presence does not taint resulting student suspension |
On Board Online • Legal Agenda • September 29, 2008
By Kimberly A. Fanniff
Associate Counsel
The questioning of a student in the presence of a school resource officer (SRO) who is a police official did not violate the student’s rights, the commissioner of education ruled in Appeal of a Student with a Disability. The student’s parents claimed that the school resource officer questioned and searched their son in violation of the district’s code of conduct, and that his suspension for attending school under the influence of marijuana should be expunged from his record.
A school security guard found the student in the boy’s bathroom after he left his English class without permission. The student was escorted to the office of the assistant principal, who questioned him in the presence of the school resource officer, a state trooper.
The student admitted to smoking marijuana. The assistant principal’s search of the student’s backpack and pockets did not reveal any contraband. After consulting with the assistant principal, the principal suspended the student for five days.
The district’s code of conduct provides that parents must have an opportunity to be present during police questioning or search of a student. It also states that students who are questioned by police on school property are entitled to the same rights they would receive outside of school, including being informed of their right to remain silent and to request the presence of an attorney (also known as Miranda rights). The petitioners alleged the school resource officer questioned and searched their son without informing him of his Miranda rights.
However, according to affidavits submitted by both the school resource officer and the assistant principal, the officer served as a third party witness while the assistant principal questioned and searched the student. There was no evidence the assistant principal was working under the direction of or on behalf of the police to “elicit evidence of criminality.”
In New York, courts have held that school officials have no obligation to give students Miranda-type warnings prior to questioning them while investigating school related misconduct. The mere presence of a police officer during questioning by a school official does not require Miranda warnings.
Based on the above, the commissioner found the district’s actions did not violate the code of conduct and refused to expunge the student’s record.