A Parent's Guide to Connecticut School Law- Part 3

IV. School Discipline

Introduction

    It is now well-established that out-of-school sanctions have an adverse academic and social impact on students. Out-of-school suspensions and expulsions contribute to poor performance in school, higher drop-out rates, and increased misbehavior at school.80 One report found that students who had been subjected to out-of-class disciplinary sanctions tended to score lower on the Connecticut Mastery Test (CMT) and Connecticut Academic Proficiency Test (CAPT).81 In another study, 89% of sixteen and seventeen year old students in the juvenile justice system had previously been suspended or expelled from school.82 Despite their negative impact on students, Connecticut schools continue to resort with alarming frequency to out-of-school sanctions. During the 2007-2008 school year for example, as a result of suspensions or expulsions, schoolchildren within the state missed over 250,000 school days.83 
    It is therefore important for parents to understand their child’s legal rights before a school board or district can impose student discipline. This section will provide parents with an overview of laws, regulations and guidelines governing suspension, expulsion, and removal from class. The first part will discuss the Connecticut laws on school suspensions. While the statutes give school administrators discretion in this area, the Connecticut General Assembly’s preference for in-school suspensions and Connecticut Department of Education guidelines for out-of-school suspension protect students from unwarranted out-of-class sanctions. Knowledge of these laws and guidelines is essential because parents can refer to them to avoid or shorten a suspension during the informal hearing stage, which we will also discuss in detail.
    We will next address expulsion, an obviously more serious disciplinary measure. Though the expulsion factors schools have to consider are the same as those for suspension, there are a few key differences. First, the U.S. Congress and the General Assembly have mandated expulsion for students in certain situations. Second, the pre-expulsion hearing is more formal, giving parents and students the right to cross-examine witnesses, submit evidence, and retain an attorney at their own expense. Finally, we will conclude with a discussion on removal from class.
    While this section is intended to provide parents with a comprehensive understanding of school discipline laws and regulations so they can advocate on behalf of their child, each case is different. Parents may want to consult with an attorney early on in the process to help them craft a strategy tailored to the particular circumstances of their child’s case.

What is the law in Connecticut on school suspensions?

    The General Assembly has defined suspension as exclusion from school privileges and transportation for no more than ten days.84 Under Section 10-233b of the Connecticut General Statutes, school administrators can suspend students only if the conduct:
    1. violates publicized policy of the local or regional board of education;
    2. seriously disrupts the educational process; or
    3. endangers persons or property85
If the student’s conduct occurred on school grounds, then it needs to satisfy only one of the elements.86 If the student’s conduct occurred off-campus, then administrators can suspend students only if the misbehavior violates publicized policy and seriously disrupts the educational process.87 We will discuss each of the elements in detail below so parents can better understand what kind of student conduct would result in suspension.

What conduct qualifies as “violation of publicized policy?”

    The Connecticut General Assembly has authorized local or regional boards of education to prescribe disciplinary rules and policies for the schools they oversee. Individual schools, in accordance with these policies, will typically list prohibited conduct in school handbooks. The school administration may suspend a student if he or she engages in such conduct.
    If your child is suspended under the publicized policy category, you should first consult the school handbook to determine whether his or her conduct violates any articulated school disciplinary rule. You will likely be able to make a stronger case for your child during suspension hearings (which we will discuss in more detail later in the section) if you can show that his or her conduct is neither prohibited by the school nor violates any school rules. There are three things to keep in mind in the process. First, Connecticut courts have held that school rules have to be clear and understandable so students and parents can reasonably understand what conduct is prohibited.88 Second, under the Connecticut statutes, school districts must inform parents and students at least annually of board policies related to student conduct, which they usually do through student handbooks.89 Finally, any school rule must have some rational relationship with its intended purpose. It is worth noting that this is not a difficult standard for the board or the school to meet since it does not have to show that the rule is the best approach, but only that there is some reasonable connection between the two. 

What kind of behavior qualifies as “serious disruption of the educational process?”

    According to guidelines issued by the Connecticut State Department of Education, a student’s conduct is not a serious disruption of the educational process unless it substantially interferes with the operation of a class, study hall, library, or any meeting involving students and school staff.90 The Department has noted that recurring or cumulative disruptions, even if not considered serious if taken separately, can amount to a serious disruption of the educational process.91 In making this determination, the Department suggests that administrators should consider the frequency, number, and severity of the offenses.92
    For conduct that occurs off school grounds, the Connecticut Supreme Court has held that there has to be a concrete relationship between the off-campus conduct and the school’s operation.93 Moreover, the General Assembly has set forth the following criteria that administrators may consider in determining whether a student’s conduct is a serious disruption: (1) Whether the incident occurred close to a school; (2) Whether other students or a gang were involved; (3) Whether the conduct involved violence, threats of violence, or unlawful use of a weapon and whether there were injuries; and (4) Whether the conduct involved the use of alcohol.94

What kind of behavior qualifies as “endangerment of persons or property?”

    The State Department of Education has defined “endangerment of persons or property” as conduct that exposes a student to an injury, risk, or a harmful situation.95 Under this definition, fighting, bullying, possession of firearms or controlled substances, or damage to personal or school property would satisfy this requirement. 

What If my child has a school disciplinary history or has never been suspended?  

    Administrators may consider a student’s past disciplinary record when determining the length of a suspension or whether it is warranted in the first place. If your child has never previously been suspended or expelled, the school administrator has discretion under the law to waive or shorten the suspension.96 Instead, school officials may require the student to complete an administration-specified program, which parents would not have to pay for.97 Conversely, the school administration may also hand down a harsher suspension period if your child has a record of past suspension, expulsion, or removal from class.98

What action is the state taking to minimize the academic impact of school suspensions?

    Under the Connecticut statutes, an in-school suspension consists of exclusion from the regular classroom, but not from school altogether, for no more than ten consecutive days. Based on data showing that out-of-school suspensions actually perpetuated misbehavior and increased the likelihood that students would end up in the juvenile justice system, the General Assembly moved to increase the use of in-school suspensions as a disciplinary tool. Starting July 1, 2010, all suspensions have to be in school unless:
    1. The student poses such a danger to persons or property or a serious disruption to the educational process that he     or she should be out of school; or
    2. It is appropriate based on a student’s past disciplinary problems, specifically if the administration tried to address     the student’s behavior through means other than suspension or expulsion.99
    
    The Connecticut State Department of Education has also recommended that administrators should consider the following mitigating factors before moving ahead with outof-school suspensions:

    i. Age, Grade, and Developmental Stage of Student: A younger child may not have the developmental maturity to     understand that his or her conduct is inappropriate in a school setting. Alternative behavioral support programs     educating him or her about this fact could be a more effective and less severe form of discipline.
    ii. The Student’s Reasons for Engaging in Misbehavior: If the student did not intend to harm someone or     something, but was acting out of frustration, then an out-of-school suspension may be unwarranted because it would     not effectively address the underlying problems. Examples of mitigating reasons include teasing by peers, family     issues, etc.
    iii. The Student’s Past Disciplinary Problems and Likelihood of Recurrence: If the student does not have a     disciplinary history, then an out-of-school suspension could be unnecessarily harsh. Instead, an in-school     suspension or another behavioral support program could be equally as effective in punishing and deterring the     student from engaging in such misconduct in the future. But if the student does have a history of disciplinary     problems, an out-of-school suspension could be the next logical step in addressing the student’s behavior. 
    iv. The Risk of Loss of Instruction: If a student is disengaging from class, an out of-school suspension may     compromise academic performance and actually exacerbate the student’s lack of interest in school.
    v. Cultural Factors: A student could misbehave due to misunderstandings and different interpretations of events     based on race, ethnicity, and linguistic differences.
    vi. Extent of Parental Support in Addressing Student’s Misbehavior: Administrators should consult with parents     whenever a student is misbehaving in school. If there is not a history of such collaboration, then the school should     involve parents in addressing a student’s misconduct before moving on to more serious measures.100 

    If the school administration does proceed with an in-school suspension, the pupil can, depending on the administration’s preference, serve the suspension in the school or in a different school under the jurisdiction of the local or regional board of education.101

What are my child’s legal rights before a suspension?

    In Goss v. Lopez, the United States Supreme Court set forth a student’s procedural legal rights before he or she could be suspended. In that case, eight students had been suspended following an outbreak of student unrest without a hearing to determine the underlying facts resulting in the suspension.102 The Court noted that students facing suspension were entitled to notice of the reasons for the suspension and an informal hearing to tell their side of the story.103

What are the school’s notice requirements?

    What can I do to prepare for the hearing? The General Assembly, consistent with the decision in Goss, requires school officials to notify parents within twenty-four hours regarding the proposed suspension.104 Before the suspension, absent an emergency, the student is entitled to notice of the reasons for the suspension and an informal hearing in front of the administrator to explain his or her side of the story. 105 Under the Connecticut statutes, an emergency exists if the student poses an unwarranted danger to a person or property or disruption to the educational process. If this is the case, then the hearing must be held as soon after the suspension as possible.
    The hearing is the best opportunity for the student to persuade the school administration to dismiss or shorten the length of the suspension. To that end, parents may want to rely on the information mentioned above in helping their child craft a strategy during the give-and-take with the school administrator. For instance, students may point out that their conduct did not fall under the list of prohibited conduct warranting suspension or that the misbehavior did not constitute a serious disruption of the educational process.
    Even if the student’s misbehavior was inappropriate within a school setting, students may also invoke the mitigating factors identified by the State Department of Education to shorten the length of the suspension or receive, instead, an in-school suspension. The particular approach to contesting a suspension will depend on the facts and circumstances of the student’s case.
    
What are my child’s rights after the hearing?

    If the administration authorizes a suspension after a hearing, parents cannot appeal the decision. But the school must give the student the opportunity to complete homework, including examinations, which he or she missed during the suspension period.106 Under the law, schools also cannot use out-of-school suspensions to discipline students more than ten times or fifty days during the school year, whichever comes first, without convening a more formal hearing.107 The limit for in-school suspensions is fifteen times or fifty days during the school year. 
    If the administration imposes an in-school suspension, parents should note that the Department of Education has issued guidelines on what they consider effective in-school suspension programs. First, the program should have a strong academic focus.108 To that end, the Department recommends that administrators group students together by age or grade and have the group supervised by a qualified individual.109 School officials should also keep the student to teacher ratio low and have certified teachers in essential areas such as math or reading to provide instruction to students.110 Along with providing students with an academically oriented program, administrators must allow students to receive and complete schoolwork from their regular classroom.111
    Second, the program should include a strong counseling component so students can get the necessary support to correct their behavior. Accordingly, guidance counselors, social workers, or psychologists should be available to students in the in-school suspension room. Quality programs would help the student manage his or her emotions, handle challenging situations more effectively, and develop positive relationships with both students and teachers.112

What is the law in Connecticut for school expulsion?

    Under Section 10-233d of the Connecticut General Statutes, expulsion is an exclusion from school for a period of ten or more days. As with suspension, a student can be expelled by the local or regional school board if his or her conduct (1) violates publicized policy; (2) seriously disrupts the educational process; or (3) endangers persons or property.113 For actions which occurred off school grounds, the student’s conduct has to have both violated publicized policy and seriously disrupted the educational process. The local board can consider (1) whether the conduct happened close to the school; (2) whether other students or a gang were involved; (3) whether the conduct involved violence, threats, unlawful use of a weapon, and any injuries; and (4) whether the conduct involved the use of alcohol.114 

What conduct qualifies for “mandatory expulsion?”

    The Connecticut General Assembly enacted legislation mandating expulsion for students who have engaged in specific dangerous conduct. If a student possesses a firearm or another weapon while on school grounds or at a school-sponsored activity, the school must expel that student for no less than one calendar year under state and federal law. The federal law, the Guns-Free School Act, defines “firearm” as:
    -Any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an     explosive;
    -The frame or receiver of such a weapon;
    -Any firearm muffler or silencer;
    -Any destructive device, including a bomb, grenade, rocket, missile, mine, or similar device.

    Building on the federal law, the General Assembly requires mandatory expulsion for no less than one calendar year for a student in possession of a firearm, deadly weapon, dangerous instrument, or martial arts weapon while on school grounds, subject to exceptions on a caseby-case basis. Listed below are the definitions for each of the terms:
    Deadly weapon: Any weapon from which a shot may be discharged, or a switchblade knife, gravity knife, billy,     blackjack, bludgeon, or metal knuckles.
    Dangerous instrument: Any instrument capable of causing death or serious injury.
    Martial Arts Weapon: A nunchaku, kama, kasari-fundo, octagon sai, tonfa, or Chinese star.115
    
    The requirements for mandatory expulsion differ if the conduct occurred off school grounds. In such cases, the school must recommend expulsion for the student only if that student carries a pistol without a permit or uses a firearm, instrument, or weapon in the commission of a crime.
    Moreover, the board must expel a student for at least one calendar year if the student is engaged in the sale or distribution on or off school grounds of a controlled substance, irrespective of the amount.116 Drugs such as marijuana, cocaine, heroin, and hallucinogenic substances would fall under this definition. Parents should consult student handbooks for a more extensive list of prohibited controlled substances.

What are my child’s legal rights before expulsion?

    The General Assembly has mandated that, unless there is an emergency, a student facing expulsion be entitled to a formal hearing in front of a hearing board within ten days after the proposed expulsion.117 As with suspension, an emergency exists if the student facing expulsion poses an unwarranted danger to a person or property or such a serious disruption to the educational process that the school has to delay the hearing until after the suspension. Since school expulsion is a more serious form of discipline, only local or regional school boards can make the decision to expel a student.118 The following section will provide an overview of the procedures during expulsion proceedings, so parents can gain a better understanding of their child’s legal rights. 

What are the school’s notice requirements? What can I do to prepare for the hearing?

    When the administration recommends a student for expulsion, the local or regional school board must provide parents with written notice within twenty-four hours detailing the date, time, a plain statement of the matters at hand, and a list of local free or reduced-fee legal services.119 In addition, the board must provide all documentary evidence that the administration plans to use during the hearing.
    To prepare for the hearing, parents should examine carefully the school record stating the facts of the matter, talk to school witnesses to see what they are going to say, and arrange for additional witnesses, especially ones that can testify favorably on your child’s character, to tell your child’s side of the story at the hearing.  

What are my child’s legal rights at the hearing?

    At the hearing, two issues will be decided: (1) whether the child should be expelled; and (2) if so, the length of the expulsion. Under Section 10-233d, at least three members of the local board of education have to preside over the expulsion proceedings.120 Alternatively, the school board can delegate the duty to an impartial hearing officer provided the officer is not a member of the appointing board.121 In both cases, neither the board members nor the hearing officer can discuss the case outside the hearing. Should the administration elect to retain an attorney to represent it in proceedings, it cannot choose an attorney that represents both the local board of education and the administration. 
    Generally, the administration will begin the proceedings by laying out the underlying facts leading to expulsion. Then, both the administration and the student will have an opportunity to present evidence and cross-examine witnesses. Following the presentation of evidence, the members of the board can ask both sides questions concerning the expulsion. Before the board makes a final decision on whether the student should be expelled, both sides can present additional arguments opposing or supporting the expulsion.
    The hearing officer can recommend one of the following three results. First, they can decide not to expel the student, thereby allowing the child to return to school immediately after the hearing. Second, the board can recommend your child’s expulsion. If the board adopts this recommendation, the child, for the duration of the expulsion, will be ineligible to attend any other schools within the district or participate in any on or off campus school activities. The board can review the student’s disciplinary history to decide on the length of the expulsion, but cannot consider it for purposes of determining whether to move forward with the expulsion. For instance, if a student has been expelled only once, the board has discretion to shorten (or even waive) the expulsion. Finally, the board can recommend “suspended expulsion.” In this case, the student is legally expelled, but is permitted to stay in school on a probationary status. The administration, however, can thereafter invoke the expulsion if the student engages in a further act of misconduct. 

What are my child’s legal rights after the hearing?
    
    Under the Connecticut statutes, parents are to receive a decision within twenty-four hours of the hearing. Should the board proceed with the expulsion, parents cannot appeal the decision, but still have some options for their child. First, if your child is under sixteen years old, then the local board must provide him or her with an alternative educational program during the course of the expulsion.122 If your child is between the ages of sixteen and eighteen, then the board must provide your child with an alternative educational opportunity if he or she wants to continue school and meets specified conditions set by the board.123 But schools do not have to provide alternative educational opportunities if the student has been expelled previously, or was expelled for possession of a firearm or a controlled substance.124 While administrators have discretion in designing alternative educational programs, eligible students are entitled to at least two hours of tutoring per day and instruction in the core subjects of English, math, social studies, and science.
    Second, parents can apply for their child to be enrolled in another school. But the potential receiving school can reject your child’s application by adopting the decision of the previous school without a hearing on the matter. It can also hold an informal hearing to determine whether the prospective student would be expelled under that school’s rules and policies.125
    Third, the parent can apply on behalf of their child for early readmission to the school. The laws do not prescribe criteria for a child’s early readmission. Instead, readmission decisions are at the discretion of the local board, or a superintendent, who may themselves prescribe specific criteria for readmission.126
    As a closing note, notice of the expulsion and the nature of the misconduct must be on the student’s educational record. If the student graduates from high school, then the administrator must expunge the expulsion from the student’s record unless the student was in possession of a firearm or a deadly weapon. Alternatively, if the board shortened or waived the expulsion, then it can choose to expunge the expulsion from the student’s record if he or she completes an administration-specified program.127

What are my child’s legal rights when he or she is removed from class?

    Removal is defined as exclusion from a classroom for all or part of a single class period given that such exclusion does not extend beyond ninety minutes.128 A teacher can remove a child from class if that student deliberately causes a serious disruption of the educational process within the classroom. If a teacher decides to proceed with this action, he or she has to send the student to a designated area and immediately inform the principal of the student’s name and the specifics of the incident.129 Generally, the school is not obligated to provide the student with an informal hearing before removal. Students, however, are entitled to an informal hearing if the teacher removes the student more than six times during the school year or twice a week, whichever comes first. 

V. Search and Seizure: Your Child’s Fourth Amendment Rights in School

Introduction

    As drugs and weapons infiltrate our nation’s schools, it is imperative that school officials take the necessary steps to maintain safety and preserve order in your child’s school. With that being said, your child has a right to privacy and school officials must not be overzealous in their investigation of alleged violations of school policy. The following will provide you, as a parent, with a basic understanding of the rights your child has as well as the requirements your child’s school must adhere to regarding the search of his or her person or property while in school. 
    The Fourth Amendment of the United States Constitution protects persons from unreasonable searches and seizures by agents of the government, which includes school officials.130 The Fourth Amendment provides that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause…”131 First, we will discuss your child’s Fourth Amendment rights while he or she is at school and the applicable standard that will allow school administrators to conduct a search. Second, we will look at the permissible scope of locker and desk searches, searches of personal items, such as knapsacks and pocketbooks, as well as the use of drug testing, sniffer dogs and metal detectors.
    While this is a practical overview of Fourth Amendment search and seizure issues pertaining to your child and their school, you should contact one of our attorneys at Maya Murphy P.C. if you believe that your child’s rights have been violated by a school official in the course of an investigation. 

How does the Fourth Amendment apply to my child while at school?

    The application of the Fourth Amendment to an in-school search of your child or their property differs from the more generally applicable criminal standard. With respect to the criminal standard, the Fourth Amendment requires law enforcement officials to first demonstrate that they have “probable cause” to believe that a crime has been committed. This usually means that evidence must be presented to a judge and a warrant must be obtained before law enforcement officials may conduct a search of private property. Unlike the criminal standard, the requirements for conducting a permissible search of your child while he or she is in school are somewhat different.
    The United States Supreme Court has articulated a clear-cut standard that school officials must adhere to when conducting a search of your child or his or her property. First, school officials do not need to obtain a warrant before conducting a search of your child or his or her property.132 The Court reasoned that requiring school officials to obtain a warrant would interfere with their ability to obtain evidence and maintain the informal disciplinary procedures that schools use to preserve order.133 Moreover, the need to maintain safety in the school environment at all times outweighs the warrant requirement.
    Unlike the criminal standard that requires probable cause, the legal standard set forth by the court for in-school searches by school officials is “reasonable, under all of the circumstances.” In determining what “reasonable” is, the Court has developed a two-fold inquiry before a search may be conducted of your child or his or her property. First, the search must be “justified at its inception.” Second, the search must be “permissible in its scope.”134  

What does “justified at inception” mean?

     A school official that conducts a search of your child must have reasonable grounds for suspecting that the search will reveal evidence demonstrating that your child has violated or is violating school rules or the law.135 Here, unlike the probable cause standard requiring probability that a search will produce evidence, school officials using the reasonableness standard may conduct a search irrespective of whether it is probable that a search will reveal evidence of wrongdoing. School administrators, however, must not abuse this leniency in conducting a search and must do so “with reason and common sense.”136 This relatively relaxed approach, while justified in deference to the safety of the school population, pertains only if at the time of the search, school officials had reasonable suspicion in conducting a search of your child or his or her property.  
    Reasonable suspicion sufficient to satisfy the “justified at inception” prong can be found in many different ways. For example, if your child is acting in a manner indicating that he or she has consumed alcohol or has taken illicit drugs, this will likely be found to be reasonable. Additional examples include, the smell of alcohol or drugs on your child, or other students informing school officials that your child may be engaging in activity inconsistent with school policy or the law.     To justify a search of your child or their property, school officials must have a logical reason for doing so in order to satisfy the “justified at inception” requirement. If a school official is able to demonstrate that school safety concerns were the primary factors for conducting a search, it is likely that the search will be found reasonable. 

What does “permissible in its scope” mean?

    A search will be found “permissible in its scope” when the measures that school officials employ in searching your child or their property were reasonably related to the objective of the search, and that the search was not excessively intrusive in light of the age and sex of your child.137
    First, when conducting a search, school officials must show that the search was related to the object of the search. Therefore, if your child is accused of allegedly possessing or selling illegal drugs, a more thorough search may be tolerated. On the other hand, if your child is accused of possessing a bottle of alcohol, a search of her pocketbook or his knapsack may be reasonable, while the removal of clothing would likely be unreasonable.
    Second, the search should not invade the legitimate privacy right of your child in relation to the search. Taking into consideration your child’s age and sex, different search procedures will be subjectively evaluated. For example, a school was found to have violated a thirteen-year old girl’s Fourth Amendment rights after school officials were informed that she allegedly possessed prescription painkillers. Following a search of the girl’s knapsack, which revealed no evidence of prescription drugs, she was sent to the nurse’s office for a strip search, which further revealed no evidence of prescription drugs. Due to its highly intrusive nature, a strip search of your child should only be conducted when there is reasonable suspicion of danger or the resort to underwear for hiding evidence of wrongdoing.138 Conversely, pat-downs are held to be minimally intrusive. Thus, the means used in conducting a search and the age and sex of your child are pertinent factors that school officials must consider before conducting a search of your child’s person or their property. 

What if a search of my child or their property results in the discovery of another item of contraband not subject to the initial search?

    If a school administrator conducts a search of your child or their property when there is reasonable suspicion to do so and that search results in discovery of an item that was not the intended object of the search, the school may still use that evidence of contraband to discipline your child for violating school policy or the law. An example of such a scenario would include checking your child’s bag or purse for cigarettes and finding of illicit drugs, such as marijuana or other contraband.
    Moreover, the school still may take disciplinary action against your child even if they violate your child’s Fourth Amendment rights. These violations, however, may provide grounds for you and your child to bring a Title 42 U.S.C. Section 1983 action against the school and school personnel for infringing upon your child’s civil rights. 

Can my child’s school search their personal property?

    Provided school officials adhere to the “reasonable, under all of the circumstances” requirement, your child’s personal property, such as purses, backpacks, and even their car is subject to being searched. Although conducting a search of your child’s property is permissible, school officials still must adhere to the same standard applicable to the search of your child’s person, i.e., the search must be “justified at inception,” and it must be “permissible in its scope.” Again, the search must not be excessively intrusive, and school officials must adhere to this requirement even when it comes to the searching of your child’s personal property. 

Can my child’s locker or desk be subject to a search?

    The short answer is yes. The Connecticut General Assembly enacted legislation, whereby, all boards of education may authorize school officials or law enforcement officials to search lockers and other school property that is available for use by your child, which includes desks, for the presence of weapons, contraband or the fruits of a crime.139 This legislation expressly states that a search of your child’s locker or other property owned by the school is permitted so long as the “reasonable, under all of the circumstances,” requirement is found (i.e., reasonable at inception and permissible in its scope). 
    
Can my child’s school conduct a search without having reasonable suspicion?

    Having discussed searches conducted by school officials where there was reasonable suspicion to support a search of your child or their property, we now turn our attention to random and suspicionless searches involving your child. 

Can my child be subject to random drug testing?

    Drug testing is considered to be a type of search. For that reason, school officials may require your child to take a drug test when it is justifiable and the requisite “reasonable suspicion” standard is met. There are, however, in this context, certain exceptions to the reasonable suspicion standard, whereby your child may be subject to drug testing regardless of whether or not they are suspected of taking illicit drugs. 
    In a case stemming from Oregon, the United States Supreme Court found that random drug testing of athletes through urinalysis was not a violation of a child’s Fourth Amendment rights.140 The Court articulated a three-part balancing test that is to be used when evaluating suspicionless searches, consisting of: 1.) The nature of the privacy interest upon which the search intrudes, 141 2.) The character of the intrusion,142 and 3.) The nature and immediacy of the governmental concern and the efficacy of the means to meet it.143 Your child’s right to privacy in the school is distinct from that of the general population. This lessened right to privacy is even more pronounced for student-athletes, due in part to the voluntary nature of their child’s participation and the reduced expectation of privacy (i.e. communal showers and shared locker rooms). The Supreme Court extended this decision in a subsequent case, which now allows schools to drug-test any student who participates in extracurricular activities, such as the Academic Team, cheerleading team, the band and choir.144 Further, the urinalysis test is designed to detect only the use of illegal drugs, such as amphetamines, marijuana, cocaine and opiates, and not for medical conditions or the presence of authorized prescription medication.145 The circumstances surrounding a urinalysis test are no different than going to the restroom in a public facility, and a monitor is present only to make sure that your child does not tamper with the urine specimen. The procedure used to conduct a urinalysis test has been found not to be intrusive of your child’s expectation of privacy.146
    Your child’s school has a compelling (and judicially countenanced) interest to deter, detect and prevent the use of drugs in their school in order to preserve the safety of the school environment. The results of your child’s drug test are confidential and only school personnel who are on a “need to know” basis will be granted access to the records.147 Additionally, these tests may not be turned over to law enforcement officials or used to discipline your child. They are employed solely to identify if your child may have a drug problem and accordingly needs help. As a result, schools, at their discretion, may implement suspicionless drug testing programs that your child must adhere to if they plan on participating in extracurricular activities.

Can my child’s school use metal detectors and/or sniffer dogs to conduct searches?

    Due to increasing violence in schools over the past two decades, school districts have been permitted to employ metal detectors to screen students for weapons or other contraband that may harm the student population. A metal detector, whether it be stationary or hand held, is considered to be a minimally intrusive search. The courts have allowed schools to use this method in order to ensure weapons are excluded from the school environment. In regards to the use of “sniffer dogs,” it is generally seen as being non-intrusive since sniffer dogs are exploring for items that while perhaps not in “plain sight,” are within “plain smell.” In accordance with C.G.S. § 54-33n, if a sniffer dog alerts to a certain smell within your child’s locker or other school property that has been made available to them, it will likely satisfy the “reasonable, under all of the circumstances” requirement and school personnel may conduct a search of your child’s locker or other property. Note, however, sniffer dogs may not be used to search your child’s person unless the reasonable suspicion requirement is satisfied. Although metal detectors and sniffer dogs are usually found to be minimally intrusive, your child’s school district must still have reasonable suspicion to conduct an additional search of your child or their property. If one of these devices was to alert school personnel of possible contraband, a search should not continue unless school personnel can show that it was reasonable for them to conduct a more detailed search at that time in order to obtain evidence that your child violated school policy or the law. 

    Please know that we at Maya Murphy stand ready to be of further service to you and your loved ones. My hope is this publication will narrow the divide between teachers, parents and children. If at any point there is something you don’t understand, call me. If there is a family that can use help, but can’t afford representation, let me know. We want to help every family, and importantly, every child. I can be reached via e-mail directly at JMaya@Mayalaw.com. You can also call my office at (203) 221-3100, or in New York at (212) 682-5700. 

Footnotes

80 Alexandra Dufresne, Annemarie Hillman, et. al, Teaching Discipline: A Toolkit for Educators on Positive Alternatives to Out-of-School Suspensions, Connecticut Voices on Children 1 (2010).
81 Conn. St. Dep’t of Ed., Guidelines for In-School and Out-of-School Suspensions 4 (2010).
82 Connecticut Appleseed, Keep Kids in School: Improving School Discipline, 4 (2010).
83 Dufrene, supra, 1.
84 Conn. Gen. Stat § 10-233a(a).
85 Id. § 10-233c(a).
86 Id.
87 Id.
88 Crossen v. Fatsi, 309 F. Supp. 114 (D. Conn. 1970).
89 Conn. Gen. Stat. § 10-233e.
90 CT State Dep’t of Educ., Guidelines for In-School and Out-of-School Suspensions, at 9.
91 Id.
92 Id.
93 Packer v. Thomason Bd. of Educ., 246 Conn. 89, 110 (1998).
94 Conn. Gen. Stat § 10-233c(a) (2010).
95 CT State Dep’t of Educ., supra, at 10.
96 Conn. Gen. Stat. § 10-233c(b) (2010).
97 Id. § 10-233c(e)
98 Id.
99 Id. § 10-233c(g).
100 CT State Dep’t of Educ., supra, at 11-12.
101 Conn. Gen. Stat. § 10-233c(g).
102 Goss v. Lopez, 419 U.S. 565, 569 (1975).
103 Id. at 596.
104 Conn. Gen. Stat. § 10-233c(a).
105 Id.
106 Id. § 10-233c(d).
107 Id.
108 CT State Dep’t of Educ., supra, at 17.
109 Id.
110 Id.
111 Id.
112 Id.
113 Conn. Gen. Stat. § 10-233d(b).
114 Id.
115 Conn. Gen. Stat. § 53a-3.
116 Conn. Gen. Stat. § 10-233d(e).
117 Id. § 10-233d(a)(3).
118 Id. § 10-233d(a).
119 Id. § 10-233d(a)(3).
120 Id. § 10-233d(a).
121 Id. § 10-233d(b).
122 Id. § 10-233d(e).
123 Id.
124 Id.
125 Id. § 10-233d(h)(2).
126 Id. § 10-233d(j).
127 Id. § 10-233d(f).
128 Id. § 10-233a(b).
129 Id. § 10-233b(a)
130 New Jersey v. T.LO., 469 U.S. 325 (1985).
131 U.S. Const. Amend. IV.
132 New Jersey v. T.LO., 469 U.S. 325 (1985).
133 Id. at 340.
134 Id. at 341-342.
135 Id. at 342.
136 Id. at 343.
137 Id. at 342.
138 Id. 2643.
139 Conn. Gen. Stat. Ann. §54-33n (West 2011)
140 Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).
141 Id. at 654.
142 Id. 658.
143 Id. 660.
144 Board of Education Independent School District No. 92 v. Earls, 536 U.S. 822 (2002).
145 Id. at 826.
146 Id. at 833.
147 Id. at 883.