DCF Interviews at School

It is a pet peeve of mine that DCF investigators think they can talk to children at school and that schools let them.

It has been a major debate in several federal appeals courts, amongst attorney members of the National Association of Counsel for Children, on the American Bar Association Child / Parent Attorneys email discussion list, amongst members of the National Association of CPS Defenses Attorneys and even at the U.S. Supreme Court.

Unfortunately it remains an open question. But I lean toward the proposition that schools should not permit DCF personnel, police or other employees of outside agencies to interview children, who are not in the custody of the interviewing person, at school.

My answer to the question "is it legal?"on avvo.com, which lays out some of my reasoning, can be found here: http://www.avvo.com/legal-answers/my-child-is-being-questioned-at-school-by-dcf.

If your school committee has a policy about visitors or interviews and you know or suspect that your child might be a target for an interview, consider adapting the form letters in my previous post to your situation.

And consult with an attorney who is familiar with DCF policies and practices.

SCOTUS overturns CA9 on Warrantless CPS interrogations

The U. S. Supreme Court issued its decision today in Camreta v. Greene. Read the full decision here:
http://www.supremecourt.gov/opinions/10pdf/09-1454.pdf

This is the 9th circuit case in which the circuit court found a Fourth Amendment violation based on a CPS worker and Sheriff's deputy's warrantless interrogation of a then 9-year-old at school. The 9th Circuit, though finding the violation, found that the official had qualified immunity since the law was unclear before. The deputy was granted cert in the U.S. Supreme Court.

The Supreme Court ruled it could review the appellate court's constitutional decision, even though Camreta was the prevailing party below, based on qualified immunity. Nevertheless, the Court held the case is moot, because Greene has no continuing stake in the controversy. Consequently, it vacated the portion of the 9th Circuit opinion that imposed the warrant requirement.

Justice Kagan wrote the majority opinion in which Roberts, Scalia, Ginsberg and Alito joined. Scalia wrote a concurring opinion. Sotomayor, joined by Breyer wrote an opinion concurring in the result, but opining that the court should have decided only that the case was moot and vacated the judgment below. Kennedy, joined by Thomas, wrote a dissent concluding that Camreta as a "prevailing party" should not have been permitted to appeal the constitutional decision below, which he describes as "obiter dictum".

Thanks to the NACC yahoo group for notice of and the link to the decision and to members of the group for the concise summary quoted above.

When Schools' Zero-Tolerance Policies Make Zero Sense

High school student expelled for blowing pieces of paper at classmates through a tube pen. Read the full article from Legal Blog Watch here.

Something Else Schools Can't Do -- Teach

About sex that is.

According to a District Attorney in Juneau County, Wisconsin, if teachers follow their state's new sex education law they risk being prosecuted for "misdemeanor or felony delinquency of a minor, with maximum punishments ranging from nine months in jail to six years in prison."

He suggested in his letter to school districts that someone instructing students under 16 in the use of contraceptives is punishable because "the 'natural and probable consequences' of the teacher's instruction is to cause that child to engage in sexual intercourse with a child".

Read the rest of the article here.

So, apparently, this DA thinks it is a criminal act to even cause a kid to think about sex. And that is regardless of whether what is taught actually causes sex or is designed for the purpose of protecting students from some of the consequences of their youthful indiscretions.

Legal Consequences of Teen Sexuality

The following question was posted here:

http://www.avvo.com/legal-answers/can-a-16-year-old-consent-to-sex-in-ma-to-a-29-yea-233319.html

Paraphrasing the question:

I am 16 and see a personal counselor. I told her I am in a relationship with a 29 year old man. She checked with her advisers and DCF to see if it was legal or not and said yes it is legal -- there's nothing anyone can do about it. Then a couple of months after that my counselor brought my mom in with us during a session to work on my relationship with her. My mom brought up her concerns of me possibly being with this man. I have always said to her I wasn't with him and he has told her the same. The next day tells me that it's illegal and she needs to tell the authorities. So, is it legal or not?

My answers:

The age of consent for sexual relations in Massachusetts is 16. I'll post more in a few minutes after searching to give you some citations.

Call me at 781-641-3472 if you would like a free, brief initial consultation about your rights.

The Massachusetts Trial Court Law Libraries have put together a great set of links on a page called "Massachusetts Law About Sex."

I suppose it could be argued that it might be "abuse" under DCF (formerly DSS)'s definition if the counselor had "reasonable cause to believe" that your relationship with this man "causes, or creates a substantial risk of physical or emotional injury," or if the man can be defined as a "caretaker" in relationship to you because "any sexual contact between a caretaker and a child under the care of that individual" also constitutes "abuse." I'll link the definition page below as well as the statutory link about what a counselor is "mandated" to "report."

On the other hand, a child in DCF custody is allowed to consent to her own "family planning services" which can include contraception. See §11.05 of the Medical Authorizations regulation linked below.

If the counselor is required to report under §51A, linked below, your right to privacy of your conversations with her is essentially voided. If she is wrong about her insistence on reporting and ignores your reasonable requests that she keep your confidences, you may have a claim against her.

DCF's Glossary regulation

Mandated reporting Law

DCF's Medical authorizations regulation

And Now Something that Schools Cannot Do to Kids

And Now Something that Schools Cannot Do to Kids - ridicule a child and have the school police escort her out of the room for refusing to stand for the Pledge of Allegiance.

But that appears to be just what happened to a 13 year old at the Roberto Clemente Middle School in Montgomery County, Virginia, last month. It happened despite it being settled law since 1943 that one cannot be forced to say the Pledge or participate in other patriotic exercises and despite the fact that the school handbook even says that kids cannot be disciplined for refusal to participate.

See the full story here.

Post comments below to ask me about other things that you want to know whether schools can do to kids and I'll consider a Ten Things list.

Another Thing Not to do to Your Child?

Don't let him wear long hair.

At least not if he goes to Floyd Elementary School in Mesquite, Texas.

Texas school board keeps ban on boy's long hair

and continues the in-school suspension for the pre-kindergartner. The article says:

The district is known for standing tough on its dress code. Last year, a seventh-grader was sent home for wearing black skinny pants.

Teen Strip-Search Ruled Unconstitutional, But School Officials Are Off the Hook

At least the U.S. Supreme Court got the main part of the case right -- they found it was outrageous and unreasonable for school officials to search 13 year old Savanna Redding for Ibuprofen. The court though gave qualified immunity to the school officials saying it wasn't constitutionally settled before now such that they should have known it was a violation.

Here's a summary of the case from the Willamette Law School Supreme Court news:

Safford Unified School District #1 v. Redding
Decided: 06/25/09
No. 08-479
Full Text: http://www.supremecourtus.gov/opinions/08pdf/08-479.pdf

FOURTH AMENDMENT (The Fourth Amendment prohibits a search of a student by school officials that extends beyond the outer clothing and belongings when the degree of suspicion of further contraband is low, and when the contraband is of limited danger)

The United States Supreme Court held 8-1 (opinion by Souter) that a search of a student’s underwear is a violation of the Fourth Amendment when suspicion of further contraband is low and the contraband is of limited danger because the measures adopted must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

The Court also held 7-2 that the school officials were still protected from liability by qualified immunity, because the search was not a violation of the Fourth Amendment by clearly established prior case law.

The student was suspected of distributing common pain relievers some of which were prescription strength. The school officials found pain relievers in the student’s belongings. The school officials had the student strip down to her underwear and then extend out the elastic of her bra and waistband of her underwear and attempt to shake out any other drugs she might have been hiding. The student’s mother filed suit, alleging the strip search violated the student’s Fourth Amendment rights. Claiming qualified immunity, the school officials moved for summary judgment. The district court granted the motion, finding that there was no Fourth Amendment violation, and the federal appellate court reversed.

The United States Supreme Court affirmed, holding that the search of the student’s underwear violated the Fourth Amendment. The Court reasoned that individual and societal expectations of personal privacy support the notion that a search extending beyond the outer clothing is a distinct search from the previous search. The court held that this level of search requires a further element of justification on the part of a school official. The suspicion must match the degree of the intrusion. In this case the threat was possession of common pain relievers which are a limited threat in their nature and which were not suspected of being passed around in large quantities. Further, the school official had no specific reason to suspect that there were more drugs hidden in the student’s underwear. [Summarized by Jim LeBlanc]

And here's a link to the AlterNet story about the decision:

SCOTUS: Teen Strip-Search Ruled Unconstitutional, But School Officials Are Off the Hook | Rights and Liberties | AlterNet

School curbs girl's report on gay rights activist Milk

The project was to create a powerpoint about a famous person to present to the class. The sixth grade girl chose Harvey Milk, the first openly gay public official in the U.S., about whom a feature film had recently been released. When it was her turn to present to the class the school principal said the teacher had to get permission from parents under the school's sex education policy for other class members to attend.

School curbs girl's report on gay rights activist Milk

The powerpoint is included in a link with the above article. Give me a break - she mentions that Milk was gay (no-duh) and the name of his partner but there was nothing else in it that should have required a parental permission slip. The ACLU is asking that she be allowed to give her presentation to the whole class and that the school give her an apology that they send to all the parents who received the original sex ed notification.

I'm all for parents having a say in the education of their children but, as the U.S. Supreme Court said in Tinker v. Illinois ..., students "do not leave all their rights at the schoolhouse door." The government should not be engaged in content-based censorship.

Student Arrested For Classroom Texting

When you put cops in schools, school discipline issues become police issues.

According to the The Smoking Gun "A 14-year-old Wisconsin girl who refused to stop texting during a high school math class was arrested and charged with disorderly conduct ..." Read the rest of the story, including the 5 page police report here.

See also SchooltoPrison.org "Challenging the School to Prison Pipeline".

Students' First Amendment rights take a hit at Supreme Court

While quoting past cases such as Tinker v. DesMoines Independent School District (school could not ban anti-war armbands) and Veronia School District v. Acton (a Fourth Amendment case that went against the student but contains the language that "children assuredly do not 'shed their constitutional rights ... at the schoolhouse gate,'") the U.S. Supreme Court ruled today that a Juneau, Alaska, high school could punish a student for unfurling and refusing to put away a banner that said, "BONG HITS 4 JESUS" at the Olympic torch parade on the public street outside the school.

In Morse v. Frederick Justice Roberts wrote the court's decision (5 1/2 to 3 1/2) noting that it was not unreasonable for the principal to conclude that "BONG HITS 4 JESUS" could "materially and substantially disrupt the work and discipline of the school" in the same way that sexual metaphors in a graduation speech did in Bethel School Dist. No. 403 v. Fraser.

Roberts wrote that Tinker allows for students' rights to not be absolute and this case is distinguishable because the Tinker court did not go through the "material and substantial disruption analysis" that was articulated in Bethel.

Presumably the answer to the question "Do high school students in public schools have the freedom under G. L. c. 71, § 82 to engage in non-school-sponsored expression that may reasonably be considered vulgar, but causes no disruption or disorder?" is still "affirmative" in Massachusetts and that a student in a similar situation would not be able to be punished without having caused an actual disruption in a Massachusetts high school. See the Massachusetts Supreme Judicial Court ruling in Jeffrey J. Pyle v. School Committee of South Hadley, 423 Mass. 283, 667 N.E.2d 869 (1996).