Midwest Education Law

The U.S. Court of Appeals for the Eighth Circuit today affirmed the trial court's grant of summary judgment in favor a school district and against tenth grade student who was suspended for sending "instant messages" to various friends in which the plaintiff talked about bringing a gun to school and committing acts of violence.  The case, D.J.M. v.  Hannibal Public School Dist., can be found here. 

The messages in question were sent by DJM through his home computer to various friends (who were also using their home computers), including messages to a female student, CM. Although CM initially believed DJM to be joking, she became concerned at the increasingly threatening nature of DJM's messages and alerted a school administrator, who in turn contacted police. DJM was taken into juvenile custody and later suspended for the balance of the school year.  DJM and his parents sued the School District under Section 1983, alleging that the School District had violated the First Amendment because the instant messages in question were not "school speech."

Rejecting this claim, the court held that true threats are not protected by the First Amendment and here the school district was given enough information that it reasonably feared DJM had access to a handgun and was thinking about shooting specific classmates.  In light of the district's obligation to protect its students and reasonable concerns created by other school shooting incidents, the district did not violate DJM's First Amendment rights by notifying the police about the messages and subsequently suspending him after he was placed in juvenile detention.  The action was also appropriate under the school's authority to prevent a "substantial disruption" of school activities.  The court also found that the district court did not abuse its discretion in remanding DJM's state law claim for administrative relief to Missouri state court after it dismissed his Section 1983 claims.

Yesterday, in a closely divided 5-4 decision, the United States Supreme Court ruled for the first time that police must take into account a child's age in deciding whether to give a “Miranda warning” advising them of their constitutional rights, including the right to remain silent.  You can find the Court's opinion in J.D.B. v. North Carolina here.Speaking for the majority, Justice Sotomayor stressed that children, particularly in the school setting, “will often feel bound to submit to police questioning when an adult in the same circumstances” would not. The Court noted that a student required by law to attend school, and who is subject to disciplinary action for disobedience, might well believe that he or she must answer all police questions.

The dissenting opinion complained that the Court is abandoning the objective,bright-line rule of Miranda, which is undeniably true.  Yet,because the Court gave virtually no guidance as to at what age Miranda warnings should be given or precisely how an investigating officer should factor in age when making this decision, the practical effect may be that, out of an abundance of caution, law enforcement will give warnings to anyone who doesn’t appear close to eighteen years of age.

According to a new federal court of appeals , school districts who want to protect sensitive information gathered in internal investigations may be able to claim it as privileged if they use outside legal counsel to conduct the investigation. Maintaining the information as attorney-client privileged would protect the information from being disclosed to adverse parties in future litigation, possibly help ensure frank discussions with employees involved in the matter and improve the district's ability to effectively investigate and respond to complaints. The court lays out a road map for making the investigations privileged in the case. The attorneys in the case took several important steps as noted by the court. First, the attorneys advised employees during confidential interviews that they represented the school board, not the employee, and the school board had control over whether the conversations remained privileged. Second, no third parties attended the interviews. Third, the board received the report from the attorneys in an executive session closed to the public. Fourth, the written summary of the investigation was marked "Privileged and Confidential," "Attorney-Client Communication," and "Attorney Work Product." Finally, the attorneys and school board president submitted affidavits to the court affirming the law firm was hired to provide legal advice in the the context of facts it uncovered during the internal investigation. When requesting the assistance of outside counsel in such investigations, school districts should also consider asking legal counsel to draft any reports or interview summaries with an eye toward possibly disclosing them in support of its case in future litigation, should it become advantageous to do so.