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.