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Benjamin Lam Student Tribunal 1
MEMORANDUM
TO: Principal, City County High School
FROM: Benjamin Lam, Assistant Principal, City County High School
RE: Student Disciplinary Matter (T. Student)
DATE: June 26, 2014
SUMMARY OF FACTSDuring Mr. Smother’s class, Andy Pupil gave something to Truant
Student. Andy and Truant claim that it was a piece of candy, which Truant then
proceeded to carve using a paperclip. After lunch, Sheila informed Mr. Smother’s
that Truant told her the thing he was carving was ecstasy. Sheila and Truant had a
brief altercation wit one another at lunch. Apparently, Truant stepped on Sheila’s
laptop bag and they exchanged in a verbal altercation. After this incident is when
Sheila informed Mr. Smother’s of the incident in his class. Mr. Smother’s informed
Officer Banks, the school resource officer.
Officer Banks, along with her mentor Deputy Dawg, proceeded to
investigate the situation without an administrator. They removed Truant from class
to question him, which Truant initially resisted. Andy Pupil, Sheila, and Truant all
wrote statements about the events that took place in class. Paul pupil dictated his
statement to Officer Banks to type. The officers searched Truant’s person and found
the paperclip, but no ecstasy or candy. Officer Banks tested the residue on the
paperclip. She destroyed the evidence in the process, but not before she concluded
that the residue tested positive for opiates. The officers then proceeded to search
Truant’s locker and bookbag, but they did not find any drugs or drug paraphernalia.
Benjamin Lam Student Tribunal 2
The officers then proceeded to search his car. Upon searching the car, they found
cigarettes. At this point, the officers had a drug test administered with the nurse,
and discovered amphetamines in Truant’s system. After receiving the results of the
drug test, the officers escorted Truant to the office where his mother was notified,
and he was given a 10-day suspension pending a disciplinary tribunal. It should be
noted that Truant resisted and objected to each search and step of the process, but
ultimately relented to follow instructions each time. Also, during Truant’s
suspension, he has created a website that is offensive to the principal and has
passed the address around to a couple of students at school.
ISSUES AT HAND1. Professionalism Issues: There are a number of professionalism issues with
this case. It is quite possible that a couple PSC code of ethics standards have
been violated. First, standard 2 that prevents unethical conduct with
students including the harassment of students. The search of Truants car
and subsequent drug test, as discussed later, could be seen as harassment by
Deputy Dawg which we, the educators, allowed to continue without cause.
Standard 7 dealing with confidential information has also been violated in
this case as several FERPA 1232(g) violations occurred when Paul Pupil was
told of Truant’s drug test and its results, as well as the accusation that Officer
Banks informed an entire class of the accusations against Truant. Our failure
to report these violations would violate Standard 9: Required reports.
Finally, if we prove and know that the handling of this case was improper at
times, and/or we prove that Paul Pupil’s statement is not his or was amended
Benjamin Lam Student Tribunal 3
(as discussed in a later bullet) then we will have violated Standard 4 Honesty
by knowingly reporting this false or improper reports to the school system.
2. Chronic Disciplinary Status: At this time, we are unable to identify Truant as
a chronic disciplinary problem. His behavior in the classroom is concerning,
and we should take steps to address the situation. According to Georgia
Statute O.C.G.A 20-2-765, we need to send Truant’s parent a letter via
certified mail or first-class mail outlining the disciplinary problems, inviting
them to observe a classroom situation, and meet with an administrator
and/or Truant’s teachers. We have already fulfilled the requirement of
telephoning the parent. Because these steps we have not taken all the
required steps, Truant’s chronic discipline problems may not be allowed as
evidence in a tribunal.
3. ADHD: During our conference with Truant’s parents, we also need to address
the suspicions his teachers have that he may have ADHD. If he does, this
would explain the amphetamines that showed during the drug test, as they
are used in the treatment of ADHD. If this is the case, Truant has not violated
any laws or code of conduct statutes. Additionally, the school has a
responsibility to identify and evaluate students with special needs, and
provide services as necessary according to Georgia law. Truant may qualify
for an IEP or 504 plan if he has ADHD. If Truant does not have ADHD, he may
have violated state law as well as the school system’s student code of conduct
based on the results of his drug test. The ramifications of this will be
addressed in another bullet.
Benjamin Lam Student Tribunal 4
4. Witness Statements:
a. Sheila’s statement: Sheila’s statement is very concise. The problem I
have with her statement is she makes no mention of the incident she
had with Truant at lunch, nor does she state that she waited because
she was “scared” of Truant as she mentioned to Mr. Smother. I am not
sure that her statement is as credible as first believed when she
reported the incident.
b. Paul Pupil’s Statement: My first issue with this statement is that it is
not a written statement from Paul, but rather a typed statement that
was dictated to Officer Banks. Paul’s statement seems to corroborate
Truant’s story that the candy was not ecstasy. However, as it is
worded, the statement leaves it open to question what Truant actually
told Sheila. One thing that makes me question the validity of the
statement is that Paul misspelled the word “statement” that he wrote,
however the language with which the statement is worded is much
loftier. Just knowing students, this doesn’t seem to match. I also have
problems with his last statement that he knows Truant failed a drug
test. Paul has no right to this information, and it is not medical
information that is necessary for Paul to know. Whoever told him
this, whether is be Officer Banks or the nurse, has committed a
violation of FERPA 1232(g) by disclosing information about Truant
that is not director information.
Benjamin Lam Student Tribunal 5
c. Andy Pupil’s statement: Andy’s statement corroborates much of
Truant’s statement. It details the incident at lunch between Truant
and Sheila. He also states that Sheila was not sitting near Truant. We
need to investigate with Mr. Smother’s where Sheila’s seat is in
relation to Truant’s and if he saw the two of them together during
class.
d. Truant Students’ Statement: Truant’s statement is very detailed. He
states the same thing as Andy regarding his assigned seat in class in
relation to Sheila’s assigned seat, and provides some more detail
about the incident at lunch, which matches Andy’s account of the
incident. Truant’s statement does not indicate that he used offensive
language with Deputy Dawg, nor does it state that they had an
argument. Additionally, I am concerned with his accusation that
Officer Banks stated out loud that he was being questioned for
suspected drug use. This would be a violation of FERPA 1232(g) as
Officer Banks is a school employee and disclosing information about a
student that is directory information.
5. Incident at lunch: According to Truant’s statement, he accidentally stepped
on Sheila’s laptop bag and the two of the exchanged offensive remarks to one
another. Andy Pupil corroborates this account of the incident in his
statement. Sheila does not mention this incident in her statement. This
leaves me to believe that Sheila would rather not mention the incident, and
that her motive for reporting Truant to Mr. Smother’s could be out of revenge
Benjamin Lam Student Tribunal 6
for him stepping on her laptop bag. We should investigate this further and
get Sheila’s account of the incident. This would be very relevant as evidence
in a disciplinary tribunal.
6. SRO’s role: Officer Banks is a new SRO. She did not handle this case well.
First, she botched the field test, and overstepped her bounds as a police
officer with some of the searches. The issues with the searches will be
discussed more in later bullets. Officer Banks may have also violated FERPA
as previously stated if she informed Paul Pupil about Truant’s drug test
and/or did announce in front of a class the reason for which Truant was
asked to go with the officers.
7. Deputy Dawg’s role: Deputy Dawg was at the school in a mentor capacity for
Officer Banks. His role in this investigation should have been limited unless
campus police or school administrators requested the assistance of the
sheriff’s department. Deputy Dawg overstepped his bounds several times in
this instance including the search of Truant’s locker, bookbag, and warrant
which he would have needed a warrant for. Also conducting the drug test
and testing the carpet residue – all of which he needed a warrant to conduct
as a sheriff’s deputy.
8. Truant’s resistance to searches/investigation: Truant has a responsibility to
comply with all requests and instructions from school staff according to
school code JD-R-3 Offense #8. Truant eventually complied with each stage of
the investigation despite initially resisting and making his objections known.
He should be reminded that complying with instructions of school personnel,
Benjamin Lam Student Tribunal 7
including the SRO's, is a part of the student code of conduct and punishable at
the discretion of the school administrator.
9. Truant’s due process rights: According the Supreme Court ruling in Goss v.
Lopez, a student’s due process rights are not violated so long as the student is
notified, either written or orally, of the charges against him/her, there is an
explanation of the evidence implicating him/her, and he/she has the
opportunity before the punishment is given to present his/her side of the
story. Truant was notified of the offenses he was accused of making and
Officer Banks presented the evidence to him. A parent is not required to be
present for this. We also have Truant’s statement about the entire incident,
which is a record of his account of his side of the story. The 11th Circuit
Court’s ruling in C.B. v. Driscoll states that a school administrator must
complete this due process 3-prong check. The case file, is not clear what
discussion you, as the principal, had with Truant before giving him a 10-day
suspension. Assuming that you read Truant’s statement and explained the
situation and evidence to Truant and his mother, Truant’s due process rights
were not violated in this case. If you did not review the case file before giving
out the 10-day suspension, then Truant may have a case that his due process
rights were violated.
10. Search of Truant’s person: According to the fourth amendment of the U.S.
Constitution, police officers must have “probably cause” in order to search an
individual. Based on Sheila’s report and Truant initially resisting leaving
class with the officers and being searched, Officer Banks and Deputy Dawg
Benjamin Lam Student Tribunal 8
had “probable cause” to search Truant’s person. The Supreme Court ruled in
New Jersey v. T.L.O. that school administrators only need “reasonable
suspicion” to search a student in school. SROs may conduct these searches at
the request of the school administrator, however if the officer is conducting
business in an official police capacity, they must follow the fourth
amendment and have “probably cause.” Because no administrator was
involved at this point, the SRO was acting in an official police capacity during
the course of this investigation.
11. SRO’s field test: There are numerous problems with the field test. The first
problem is that Officer Banks stated that “in her opinion” the sample tested
positive for opiates, however, her opinion doesn’t matter in a court of law
nor a student tribunal; only the factual evidence of the field test result. Also,
the evidence isn’t valid because she destroyed the sample thus creating
“reasonable doubt” that the sample was actually an opiate and does not allow
for any additional tests to be conducted. According to the Georgia Tribunal
Act (1979), Truant has the right to respond to evidence against him. Because
the sample cannot be retested now, he does not have the ability to contest or
respond to this evidence. Finally, Truant tested positive for amphetamines,
which are not opiates nor is ecstasy.
12. Search of Truant’s things/car: According to New Jersey v. T.L.O., a student’s
locker, bookbag, and car are subject to search at anytime during the school
year by a school administrator. A school administrator should have been
involved at the onset of the investigation, which would have meant these
Benjamin Lam Student Tribunal 9
searches could have taken place with “reasonable suspicion.” Because there
was no school administrator, the officers are bound by “probably cause” and
would have needed warrant to conduct some of these searches. The locker,
as school property is subject to search at any time unannounced.
Additionally, because the officers found the paperclip that was part of the
accusation against Truant, this would have given them “probably cause” to
search his bookbag and locker. However, because no drugs or drug
paraphernalia were found in the locker, the officers no longer had “probable
cause” to search Truant’s car. They would have needed a warrant to search
his car. That search, conducted by police officers, was an illegal search.
13. Cigarettes: According to school board policy JD-R-4 Offense #11 students are
prohibited from smoking or possessing tobacco products. The punishment
for a first offense is 3 days in school suspension. As discussed previously, the
search of Truant’s car is questionable, as the officers did not have a warrant
or “probable cause.” There is no evidence that Truant actually purchased the
cigarettes as Deputy Dawg implies in the arrest report, and Truant even
states in his statement that the cigarettes are his brother’s whom he shares a
car with. Truant also did not test positive for nicotine on his drug test.
Because of these facts, and that his 10-day out of school suspension exceeds
the punishment for a first offense, the next step would be to remind Truant of
the laws and school policies regarding tobacco products as well as the
consequences for a second offense.
Benjamin Lam Student Tribunal 10
14. Drug Test: The drug test was completely unnecessary and illegal. At the time
it was given, no drugs or drug paraphernalia were found in Truant’s car,
locker, bookbag, or in his possession. There was no “probably cause” or even
“reasonable suspicion” at this point to warrant a drug test. Furthermore,
Officer Banks and Deputy Dawg would have needed a warrant to conduct the
drug test. “Reasonable suspicion” would provide a school administrator
reason to conduct a drug test, but as there was no evidence uncovered during
the course of the investigation to even suggest Truant was involved with
drugs in some capacity, there was not even “reasonable suspicion” at this
point in the case. It should also be noted that Truant’s drug test did not test
positive for opiates or nicotine. The positive test for amphetamines could
quite possibly serve, as evidence to support teachers’ opinion that Truant is
ADHD as discussed earlier. Drug tests are allowed for extracurricular
activities as ruled by the Supreme Court in Vernonia v. Acton and Board of
Education ISD No. 92 v. Earls, however positive results from these tests may
only be used to preclude students from participating in extracurricular
activities.
15. Truant’s website: Unfortunately, this is very similar to the case Snyder v. Blue
Mountain in which a student created a MySpace profile of the principal using
lewd text and was suspended. The court ruled that the student could not be
suspended because it occurred off campus and did not cause a substantial
disruption to the school. The court ruled using the Tinker Test from the case
of Tinker v. Des Moines School District, which states that school’s may only
Benjamin Lam Student Tribunal 11
limit the free speech of students when it substantially disrupts the operations
of the school. Based on this, and the striking similarities in this situation to
Snyder v. Blue Mountain, Truant appears to be well within his First
Amendment rights despite your objections to the website.
NEXT STEPSAfter reviewing the evidence, facts, and circumstances surrounding this
case, I would recommend the following:
1. Truant can be punished for failing to follow code of conduct policy JD-R-3
Offense #8 for failure to comply with school official instructions. He resisted
the instructions of the SRO numerous times. The 10-day suspension covers
this and other issues where Truant is at fault in the case. According to the
Georgia Tribunal Act (1979), the school is allowed to suspend Truant 10 or
fewer days without a hearing so long as his due process rights were handled
correctly. 10 or more days up to the entire semester is a long-term
suspension. Expulsion is the permanent suspension/removal from school.
2. Truant’s 10-day suspension exceeds the first offense consequence for
tobacco, so no further action is necessary. Truant should be advised of the
consequences for using or possessing tobacco products on school grounds a
second time.
3. Because the drug test was unwarranted, we can do nothing about the
amphetamines in Truant’s system. We should investigate further with his
parents to determine if he has ADHD and he needs an IEP or 504 plan.
4. Because of previous cases, we cannot do much about Truant’s website. Once
he returns to school, it is my recommendation that we request that he take
Benjamin Lam Student Tribunal 12
the website down at a conference with his parents. If he does not comply, we
can advise him of policies JD-R-5 Offenses #16 and #19. These describe
student actions towards school employees outside of school and by making
false accusations. Should the website become a bigger problem and begin to
disrupt the operations of the school, then we may take additional disciplinary
action under these policies
5. Sheila and Truant should be recommended for peer mediation to solve their
differences.
6. Truant’s 10-day suspension is suitable for his insubordination towards
Officer Banks and the disruption he caused by carving on the candy with a
paperclip.
7. A conference needs to be set-up with Truant’s parents with an administrator,
his teachers, and Truant in attendance.
8. Officer Banks needs additional professional development from the campus
police department so that she can make better judgments through the course
of her duties.
Should you care to take this further and hold the tribunal, it should be noted that
according to the Georgia Tribunal Act (1979) teachers are required to receive three
days notice of their date to appear before the tribunal. Also, the tribunal must be
held within 10 days of the incident unless both the school and Truant’s parents
agree to move it. Also, pursuant to the Georgia Tribunal Act (1979) a notice of a
tribunal to Truant and his parents must be notified of the time, place, and nature of
Benjamin Lam Student Tribunal 13
the hearing. They must also be told the exact accusations made against him, and
that he as the right to be represented by a lawyer, the right to present evidence, and
the right to examine and cross-examine witnesses. An electronic record of the
hearing must be kept and made available to all parties. We will need to subpoena
the following witnesses:
1. Sheila: she is the one that reported the crime and will need to describe what
she heard and saw. Additionally the tribunal panel will want to question her
on the events at lunch
2. Paul and Andy Pupil: The brothers will need to testify to what they witnessed
in Mr. Smother’s class. Additionally, Andy will need to testify to what he gave
to Truant.
3. Officer Banks: She will need to testify to the events of the investigation. She
will further need to explain her decisions and reasoning for searching Truant
and the drug test. She will also need to testify on the results of the field test
on the paperclip, as there is no more evidence.
4. Deputy Dawg: He will need to testify to the events of the investigation and his
role in assisting Officer Banks with the searches and drug test.
5. Mr. Smothers: He will need to testify to Truant’s character and status as a
student. He will also need to testify to the events that occurred in his
classroom that day, and where each student involved sits in relation to one
another.
It is my recommendation that we not pursue this matter further. I do not
recommend sending this case to a tribunal hearing.
Benjamin Lam Student Tribunal 14
Finally, I would remind Deputy Dawg that no evidence was found that
Truant was in possession of a controlled substance and that the residue from the
paperclip was destroyed in the field test. The defense would have no way to test
the residue and thus create reasonable doubt. Furthermore, Deputy Dawg’s
arrest report states that Truant initially resisted the officers’ directions, but
eventually complied. At no point does the arrest warrant or statements from
Truant state that Truant used offensive language to the officer. I would also
present him with our facts regarding the nature of the questionable searches he
conducted with Officer Banks. All of these facts together would most likely have
any charges against Truant dropped or thrown out all together.
CONCLUSIONThis was a very tricky case, with many factors that must be considered.
After reviewing the case file, reading the statements, and looking at court
precedents, state and federal laws, and school board policies, I drew the
conclusions stated above. The school resource officer, in many regards, did
not handle the situation properly, and there are too many questions
regarding what actually happened in the classroom, especially when you
consider the events at lunch. Taking that into consideration, I do not
recommend this case be put before the disciplinary tribunal. I have made
several other recommendations to address matters involved in this case and
put interventions in place to handle similar situations in the future more
appropriately.
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