Although I am a special education attorney and not a criminal defense attorney, occasionally I receive phone calls from parents who are angry and concerned because their child has been questioned or searched by school officials for disciplinary infractions or worse. Occasionally these incidents involve school resource officers or police, particularly when drugs or alcohol are involved. Fundamentally, these parents want to know: were my child’s legal rights violated? Can my child be questioned by the school or police without my knowledge or consent? Can my child or his or her possessions be searched? This issue comes up a lot and all too often with serious consequences for the student. Schools play on their authority and make false promises to induce "confessions" even from student with language-based disabilities. Criminalization of school students especially those with special needs is large issue that has not been effectively addressed.
The Fifth Amendment protects US citizens from self-incrimination, and a Miranda warning (or the “right to remain silent” heard on every police television drama) must be given by police to suspects in custody before questioning. However, courts have been clear that a Miranda warning does not apply to routine disciplinary issues between school officials and students. Whether or not a student can be questioned in school by police without receiving his or her Miranda rights, however, is predicated on whether or not the student is in formal custody. In general, “custody” may be defined as when a “reasonable person” in the suspect’s position would conclude that he or she is not under arrest and feel able to leave the room. A somewhat recent Supreme Court case, J.D.B. v North Carolina, however, found that police must consider the child’s age in determining whether or not the child is in custody for Miranda purposes; previous cases had rejected consideration of age as part of the “custody reasonable person standard.” This most recent Supreme Court case recognized that a ”reasonable child” may feel pressure to speak to the police in situations in which adults may not feel compelled to speak, thereby making a Miranda warning necessary in a broader range of settings for children. Justice Sotomayor wrote in the majority opinion, “Officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult.”
Justice Alito included an interesting argument in his dissent to this case. Justice Alito felt that this ruling would muddy the clarity of a Miranda warning by opening the door “to the consideration of innumerable other personal characteristics, such as intelligence and education level.” Jeff Welty of the UNC School of Government posited that the “implications extend also to other categories of people who might be especially prone to believe that interactions with the police are effectively compulsory, such as those with limited intellectual functioning, those with mental illnesses, and those who have limited proficiency in English.”
This latter argument is exactly what so many parents of children with special needs call my office about. Their children simply didn’t understand what it is that they have been accused of, they were incapable of the behavior for which they were being faulted, or they were simply too suggestive and agreed with whatever school officials stated. All of this wends us back to the IEP process. Some parents insist that the IEP state that parents needs to be present for any disciplinary issues that result in their child being sent to a principal or dean’s office for questioning. Schools push back claiming this level of supervision is unrealistic and too intrusive to management of the school.
Whether a school does or does not accept such terms in an IEP, it is essential that parents as much as possible document in the IEP or through private evaluations shared with the school the different manifestations of their child’s disability. Outbursts caused by frustration, extremely impulsivity, poor social judgment that leads children to manipulation by peers-- all these behaviors need to be documented. Thus, if a child’s behavior results in a manifestation determination review, it will be easier to prove that the behavior is related to the disability, which should ideally result in a stronger IEP, that will better meet the needs of the child. If the parents are unable to provide this documentation, the child may be subject to the same discipline and consequences afforded to children without disabilities, including expulsion or placements in alternative schools. Time and time again, the outcome of these unhappy events hinges upon whether or not it can be proved that the behavior is substantially related to the student's disability.
These answers are not always what parents want to hear. Their children have been treated unfairly, and many of the children have been traumatized by the events that precipitated the parent’s call to me. Often the parent has also been traumatized. It is yet another example of the unfairness to which many of our children are subjected, leaving us (and them) vulnerable. We simply want to protect our children. As a special education attorney, I urge parents to consider that one of the best ways to protect their children is through the development of the strongest IEP possible including an IEP version of Miranda warnings and call home when real trouble arises.