After the Columbine High School and other school shootings, law enforcement personnel in schools have become more common across the country. These law enforcement agents or school resource officers (SROs) are on contract from local departments of law enforcement to help ensure that schools are safe. SROs have fostered many controversies among civil liberties organizations, school personnel, parents, and students themselves. Specifically, there has been debate regarding the role that the SRO should play in public schools. Much of the controversy has been related to recent news events that have highlighted SROs using force over minor offenses. For example, the country saw a video clip of a student in South Carolina getting flipped over while seated in her desk for allegedly being disruptive and refusing to leave the classroom.
In September 2016, the departments of Education (ED) and Justice (DOJ) sent letters to states and school districts emphasizing the importance of well-designed training programs for SROs. In an effort to curb the school-to-prison pipeline, then-Secretary of Education John King said, “We must ensure that school discipline is being handled by trained educators, not by law enforcement officers.” King further stated that “some schools are simply turning misbehaving students over to SROs. This can set students on a path to dropping out or even to prison.”
There is a growing concern among many that the presence of SROs in schools might increase the criminalization of student misbehavior—classifying it as criminal misconduct rather than an issue that should be resolved through other school discipline policies. The concern is even greater for minority students, particularly black students—who are more than twice as likely as white students to be disciplined through law enforcement—and for students with disabilities. King suggests that school districts adopt memorandums of understanding among local law enforcement, juvenile administrators, and the civil rights community using rubrics created jointly by the DOJ and ED as guidance.
It is important to note that only school districts that receive federal funding for SROs through the Community Oriented Policing Services will be required to adopt these agreements. However, by requiring higher standards for those SROs funded through the federal program, these departments hope that states and school districts will also consider creating these agreements.
In addition to the social and political issues surrounding SROs in schools, education leaders should pay close attention to the legal controversies that the use of SROs can invite. Commonly, such complaints allege excessive force, false imprisonment, unconstitutional search and seizure, or due process violations. The following discussion is limited to public schools, since government action is necessary to trigger constitutional protections for students and their families.
Lawsuits have often been brought where minor infractions were handled as if they were serious criminal offenses. Recently in Kansas, for instance, a lawsuit was initiated after an elementary school student was allegedly handcuffed by the SRO after being removed from class for crying and screaming because he had been teased about his disability. And recently in Chicago, the parent of a first-grader sued after the girl was handcuffed for allegedly stealing a piece of candy. These and similar instances likely could have been prevented with proper training and more clearly defined limitations for SRO involvement with regard to student discipline.
Legal complaints often arise after SROs or school administrators unintentionally violate the rights of students in situations where it may be difficult to balance those rights with maintaining a safe school environment. The precise age of the student can impact this analysis, further complicating an administrator’s or SRO’s decision making. Protecting a student’s right against unconstitutional search and seizure, as well as a student’s right to due process during investigations that could have criminal implications in particular, are matters that require greater caution.
Search and Seizure
Regarding search and seizure, while school administrators are afforded some flexibility in how they conduct searches of students (which generally require only reasonable individualized suspicion), SROs must still adhere to the same harder-to-meet probable-cause standard required for searches outside of the school setting. Regarding due process protections, questioning a student about criminal conduct with an SRO present, even when the SRO is not conducting the investigation, can trigger Miranda rights.
Specifically, reading a student’s Miranda rights and informing the student of the potential consequence of suspected criminal actions may be required if the student can reasonably infer that she is not free to leave the “custody” of her interrogators—as when a student is questioned in the dean’s or principal’s office. Finally, simply asking an SRO to leave before questioning a student about suspected criminal activity on behalf of law enforcement is also insufficient. In addition to violating a student’s right to due process, any evidence solicited without a Miranda reading in these contexts can be suppressed, at least in criminal proceedings.
Richard LaFosse, JD, MEd, is an Education Policy doctoral student at Indiana University in Bloomington, IN, and a licensed attorney in Indiana. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University. She has published widely on school legal matters, including co-editing The Principal’s Legal Handbook.
Recommendations for Principals
- Clear regulations must be laid out before an SRO begins work in a school, and the SRO’s role should be transparent to staff and families.
- The role of the SRO should be to create a better climate in the school by employing nonpunitive techniques when dealing with students; school-based arrest should be used only as a last resort.
- The boundaries of students’ rights should be clearly identified, and both school officials and SROs should be made aware of those rights, including the unique standards each one must adhere to when conducting investigations into potentially illegal student conduct.
- When a student is being investigated under allegations of criminal conduct in the presence of an SRO or by an individual acting on behalf of law enforcement, which may include a school administrator in certain circumstances, the student should first be made aware of the potential legal consequences that may result from his or her responses and of the juvenile Miranda protections—including the right to remain silent—that she or he may be legally entitled to.