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New Jersey district sues copier company claiming it mispresented savings in service contract

The Courier-Post reports that the Monroe Township Board of Education (MTBOE) has filed suit in Gloucester County Superior Court, against Konica Minolta Business Solution, alleging that the company’s misrepresentation of a service contract cost it $50,000.

The suit alleges that a Konica Minolta Business Solution salesman gave a false sales pitch to the school board in July of 2013, claiming that his company could save the district $11,056 a month for the same services provided by Xerox.  Relying on the sales pitch, MTBOE approved a contract with Konica Minolta in a unanimous vote.

According to the suit, despite salesman assurances, the school district discovered it had paid an additional $10,630 a month to Konica “for the same or less copying services” than what was provided by Xerox. The suit states that, “As a result of the defendant’s misrepresentation, the MTBOE has suffered damages in excess of $50,000.”

MTBOE is seeking monetary damages, alleging that Konica engaged in common law fraud, breached its contract with the school district and violated the New Jersey Consumer Fraud Act. The board asserts that the company engaged in an “unconscionable business practice, deception, fraud, falsity and misrepresentation.”

Source: Courier-Post, 11/10/14, By Carly Q. Romalino

[Editor’s Note:  For guidance on contracting for goods and services, COSA members can access Forrest Jack Lance’s April 2014 School Law Seminar article “Procuring and Contracting for Paper Clips to School Buildings: Lessons Learned.”]


Sua Sponte: COSA Webinar November 12, 2014 – School Bonds and Federal Disclosure Compliance Requirements for Issuers

As participants in the municipal bond market, school districts that issue bonds for school infrastructure, short-term revenue purposes and other projects are subject to post-issuance compliance, as regulated by the Internal Revenue Service (IRS) and Securities and Exchange Commission (SEC). This webinar will provide very timely information to school districts about the SEC’s Municipalities Continuing Disclosure Cooperation Initiative (MCDC Initiative) and the December 1, 2014 deadline to file. This information is pertinent to districts with outstanding bonds as well as those with bond issues pending on election ballots.

In addition, the webinar will address public pension disclosure requirements and how they impact bonds. School board members, school attorneys, financial officers and related staff are encouraged to participate. Register now for this webinar at https://secure.nsba.org/register/webinar/ .

It will be held from 12:30 p.m. to 2:00 p.m. ( EST).  It will be hosted by Deborah Rigsby, Director, NSBA Federal Legislation and the presenters will be Teri M. Guarnaccia, Partner, Ballard Spahr, Baltimore, MD; Matt Duke, Partner, Avant Strategic Partners, LP, Tustin, CA and Deborah Rigsby, Director, NSBA Federal Legislation.


Arizona’s interscholastic athletic association allows transgender student-athlete to compete in winter sport

The Arizona Republic reports that the Arizona Interscholastic Association’s (AIA) executive board approved the first transgender student-athlete to play in a winter sport in Arizona. AIA Associate Executive Director Chuck Schmidt declined to name the student-athlete, the school or sport due to privacy concerns.

An AIA subcommittee recommended the eligibility of the transgender athlete to the board, which unanimously voted to allow the student-athlete to play. Schmidt said that there have been several cases of transgender athletes appealing to play in the past, but the board denied those until now.

Schmidt pointed out that the AIA, which governs Arizona high school sports, does not have legislation that opens the door for all transgender athletes to participate in sports and it has no policy. Therefore, it makes decisions on a case-by-case basis, such as a hardship appeal.

“We look at the school,” Schmidt said. “Do they support the request? We look at the student. There is a lot of documentation to explore, the gender dysphoria. Are they working with medical professionals? Where are the parents and students themselves? What are their positions? How long have they identified as the opposite sex they were born?” “All of that is taken into consideration and the potential impact it would have on other students. All of those things came together. Based on all of the information, the subcommittee recommended approval, and it was supported by the board,” he said.

Arizona is not alone in dealing with this issue. According to the National Federation of High Schools, 32 states have some sort of policy on transgender athletes with some stating that they have to play on the gender-specific sports, according to what is on their birth certificates. In a Washington Post story, Trans Athlete states that transgender athletes have been allowed to play on their preferred teams in at least 10 states.

Source: The Arizona Republic, 10/22/14, By Richard Obert

[Editor’s Note: The Arizona Republic notes that the Minnesota State High School League (MSHSL) has also been grappling with developing a policy regarding transgender student-athletes. In October 2014, Legal Clips summarized an article in the Star Tribune which reported that the MSHSL board voted unanimously to table a plan that would have provided schools with a guide to determine eligibility of transgender athletes. The board’s decision came in the wake of a deluge of public outcry. The proposed policy was drafted by MSHSL staff with assistance from OutFront Minnesota, a LGBT advocacy group in Minnesota.]

Federal District Court in Virginia refuses to dismiss a fourth amendment claim filed against an administrator who allegedly searched a student’s cell phone for evidence of drug use

Gallimore v. Henrico Cnty. Sch. Bd., No. 14-009 (E.D. Va. Aug. 5, 2014) Abstract: A U.S. District Court, for the Eastern District of Virginia, ruled that a school official violated a student’s Fourth Amendment right to be free from unreasonable searches when she allegedly searched his cell phone after receiving information that a student, fitting his general description, was seen smoking marijuana on a school bus. The court found that school officials’ pat down of the student and the search of his backpack, shoes, and pockets, including his Vaseline jar and sandwich wrapper, were justified under the standard established by the U.S. Supreme Court in New Jersey v. T.L.O, 469 U.S. 325, 337 (1985). However, it found that the search of the cell phone exceeded the scope of a reasonable search initiated to find drugs.

The court concluded that the school official, who searched the cell phone, was not entitled to qualified immunity from the suit because the official had no basis for initiating a search of the student’s phone. It also dismissed the student’s Fourth Amendment claim against the school board based on the failure to train. Finally, the court dismissed the assault and battery claims that the student filed against one of the officials and the school board.

Facts/Issues:  Hermitage High School (HHS) Assistant Principal Robert A. Turpin III and HHS Associate Principal Diane R. Saunders were informed by two parents that a longhaired student had smoked marijuana on a school bus. W.S. G., a student at HHS, was escorted by Turpin to Saunders’ office. W.S.G. did  not know why they summoned him to the office. After he emptied his pockets, Turpin, without explanation, began a search. He patted down W.S.G.’s person and searched W.S.G.’s backpack, shoes, and pockets. Saunders searched W.S.G.’s Vaseline jar, a sandwich wrapper, and the student alleges that she searched his cell phone. School officials deny searching the cell phone. Neither official found marijuana. W.S.G. was sent back to class.

W.S.G. filed suit against the Henrico County School Board (HCSB), Turpin, and Saunders. The suit alleged that Turpin and Saunders conducted unreasonable searches in violation of W.S.G.’s Fourth Amendment rights. It claimed that HCSB was liable for Fourth Amendment violations based upon its failure to properly train school administrators on how to search students. He also filed assault and battery claims, under Virginia Law, against the school board and Turpin.

Turpin and Saunders filed answers asserting that they were entitled to qualified immunity from W.S.G.’s Fourth Amendment claims. The school board, Turpin and Saunders filed motions to dismiss the claims based upon the Fourth Amendment violations. The Board and Turpin also filed motions to dismiss the assault and battery claims.

Ruling/Rationale: The district court held that the searches conducted by Turpin and Saunders, with the exception of Saunders’ search of W.S.G.’s cell phone, passed Fourth Amendment muster. It pointed out that when searches are conducted by school officials they are analyzed in accordance with the T.L.O. standard, which asks: (1) whether the search “was justified at its inception;” and (2) whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place.”

The court found that Turpin and Saunders had justification for the search from the inception because W.S.G. generally fit the description that the parents had supplied, i.e. a male student with long hair. With regard to the reasonableness of the searches, it stated: “Turpin’s pat down of W.S.G. and the search of his backpack, shoes, and pockets were all reasonable in scope because W.S.G. could have hidden drugs in these places.” It also found that Saunders’ searches of W.S.G’s Vaseline jar and sandwich wrapper were reasonable because they were potential hiding places for drugs.

However, the court concluded that the alleged search of the cell phone, based on the facts as pleaded by W.S.G. and disputed by the district, exceeded the scope of a reasonable search conducted to discover drugs. It pointed out that unlike other items, such as a Vaseline jar or sandwich wrapper, the cell phone could not have contained drugs. It said, “The search of the cell phone was, therefore, not ‘reasonably related’ to the objective of the search—finding evidence of drug use on the school bus earlier that day.”

Turning to the question of qualified immunity, the court found that it was unnecessary to determine the question in regard to Turpin’s search of W.S.G. because it did not violate the Fourth Amendment. As to whether Saunders was entitled to qualified immunity, it concluded that she lacked a sufficient basis for searching the cell phone. The court stated: “No reasonable school administrator could believe that searching a student’s cell phone would result in finding marijuana—the purpose for which the administrator initiated the search.”The court found that she was not entitled to qualified immunity and it refused to dismiss the Fourth Amendment claim as to Saunders.

In addressing the failure to train claim filed against the school board, the court stated that W.S.G. needed to prove three elements to succeed. He needed to prove that the subordinates actually violated his constitutional or statutory rights; that the supervisor (HCSB) failed to properly train the subordinates which illustrated a “deliberate indifference” to the rights of persons with whom the subordinates came into contact; and that this failure to train caused the subordinates to violate the rights of the plaintiff.

After applying this standard, the court found that “W.S.G. simply fails to state sufficient facts as to the deliberate indifference element. W.S.G. does not allege (1) the existence of a pattern of constitutional violations or (2) that the School Board failed to train school administrators in an area where there is an obvious need for training.”  For these reasons, it dismissed the school board as a defendant in the Fourth Amendment claim.

The court found that Turpin’s touching of W.S.G. was legally justified because it was based on a moderate chance of finding illegal drugs, it was permissive in scope and it was not excessively intrusive. Therefore, the court dismissed the assault and battery claims against Turpin and the school board.   Gallimore v. Henrico Cnty. Sch. Bd., No. 14-009 (E.D. Va. Aug. 5, 2014)

[Editor’s Note:  Update:  On October 14, 2014, the United States District Court for the Eastern District of Virginia dismissed  the Fourth Amendment claim filed against Diane R. Saunders. The court dismissed the case, with prejudice by the parties’ agreement, making the dismissal final. The school district consistently denied that either administrator searched the student’s cell phone. It asserts that the suit was dismissed before the court could consider the remaining facts that had been alleged by the plaintiff and that it was fully prepared to defend its administrators and their actions before a jury. 

Readers should note that the holding in this case did not affect the application of T.L.O. to cell phone searches and it did not hold that schools could not search cell phones. It was a very narrow procedural ruling, based upon a narrow set of facts as pled by the plaintiff in the case.  We would like to congratulate COSA member Audrey Burges on this significant win for her client. ]

Federal court allows suit against New York state district over alleged anti-Semitic bullying to continue

The New York Times reports that a federal district court has denied a motion to dismiss a discrimination suit filed against Pine Bush Central School District (PBCSD). The suit, brought by the families of several Jewish students, claims that the students were victims of pervasive anti-Semitic harassment.

The students, identified by their initials, have described being subject to years of anti-Semitic bullying, slurs and other intimidation. In depositions and later interviews, the children described finding swastikas drawn on walls, desks, lockers, other school property and even on students’ faces. They told of students on buses chanting “white power” and making Nazi salutes with their arms. One middle school student, riding on the bus after a school-sponsored ski trip, said that he was punched repeatedly by other students after being asked if he was Jewish and responding that he was.

PBCSD filed the motion to dismiss the claims of three of the five students, arguing that it had responded properly to the allegations by holding anti-bullying assemblies and meting out discipline where appropriate. U.S. District Court Judge Kenneth M. Karas’s opinion denying the motion to dismiss found that a jury could reasonably find that the children had “suffered severe and discriminatory harassment, that the district had actual knowledge of the harassment, and that the district was deliberately indifferent to the harassment.”

Judge Karas’s 76-page opinion stated: “Given the numerous incidents of harassment alleged by D.C., T.E., and O.C., which the district does not dispute, a jury could find that the district was aware of such inadequacies, and that the district nonetheless failed to take reasonable steps to combat anti-Semitic harassment.” The holding is not a decision on the merits of the claims, but does allow the suit to proceed to trial if a settlement is not reached.

PBCSD Superintendent Joan Carbon, commenting on the judge’s ruling, said, “We are obviously disappointed by this ruling but we will have the opportunity at trial to demonstrate that the District and individual administrators were not indifferent to allegations of anti-Semitism.” Attorneys for the families applauded the ruling. Ilann M. Maazel, one the attorneys, said, “The opinion is a complete repudiation of virtually every argument made by the district.”

Source: The New York Times, 11/4/14, By Benjamin Weiser

[Editor’s Note: In January 2014, Legal Clips summarized an article in The New York Times reporting that the United States Attorney’s office (USA) for the Southern District of New York had intervened in the families’ suit against PBCSD. The USA’s memorandum stated that the evidence “is sufficient for a jury to find that [PBCSD]  failed to respond to pervasive anti-Semitic harassment in its schools.” ]

Mississippi Department of Education tentatively settles suit over alleged violations of special ed students’ federal disability rights

According to The Clarion-Ledger, the Mississippi Department of Education (MDE) has tentatively settled a federal suit that alleges that the state failed to protect students with disabilities at Jackson Public Schools (JPS) from widespread violations of federal disability laws. Special education advocates view the settlement as a positive development, but warn that problems continue at JPS, a school system they contend has been non-compliant with federal law for years.

The JPS students, who are now seniors, sued after claiming that they had exhausted all other legal means to obtain a free and appropriate education as guaranteed by the federal Individuals with Disabilities Education Act. Among their allegations is that the district withheld services for their disabilities, suspended them at a higher rate than their nondisabled peers and generally neglected their education over the course of several years. They also said that despite filing a complaint with MDE in 2010, and despite MDE finding that the district violated federal law, JPS continued to violate the students’ rights.

Because MDE bears the ultimate responsibility for ensuring that all districts follow the laws, plaintiffs sued MDE for “utterly fail[ing]” the plaintiffs and all other students with disabilities at JPS. The state eventually cleared JPS of wrongdoing, finding that it had corrected all of its IDEA violations even as the lawsuit remained active.

As part of the agreement, MDE must provide JPS training and assistance to implement a sustainable special education program. MDE must also conduct quarterly reviews of that program through the end of the current school year and provide summaries of those reviews to attorneys for the plaintiffs.

Corrie Cockrell, an attorney with the Southern Poverty Law Center (SPLC), which represented the students, said, “We reached an agreement with the state because we felt it was in the best interest of our clients.” Disability Rights Mississippi (DRM) also provided legal counsel in the case. Disability Rights Mississippi executive director Ann Maclaine lauded the settlement and what it will mean for students with emotional and behavioral disabilities. She also said that she looks forward to monitoring JPS’s progress through MDE’s reports.

Cockrell said it’s difficult to independently verify MDE’s findings based on the current reporting measures, which is why the settlement agreement requires the comprehensive quarterly reports. “We’re going to monitor things,” she said. “We want to make sure they’re moving in the right direction. Even though progress is being made in some areas, there are so many things that need to be done.”

Nearly 3,000 of the 29,898 students in JPS have a disability, according to MDE data. More than one-third have what’s called a “specific learning disability,” under which many conditions fall, among them dyslexia. Although the state set a goal for 71% of children with disabilities to graduate, MDE data revealed that only 12% of JPS’s disabled students graduated as of 2012.

JPS referred all comments to MDE. MDE would not comment because it is still technically an open case.

Source: The Clarion-Ledger, 10/24/14, By Emily Le Coz

[Editor’s Note: In July 2012, Legal Clips summarized an Associated Press (AP) article in The Republic reporting that SPLC and DRM filed suit against MDE, alleging that MDE has not done enough to solve special education problems in Jackson Public Schools (JPS). The suit charges that MDE has allowed JPS to get away with doing nothing to fix problems the groups cited in a previous 2010 complaint with the state.]


Suit claims Connecticut district barred student from school over unjustified fear of Ebola transmission

The New Haven Register reports that the father of an elementary school student who has been barred from returning to her school after a 25 day trip to Nigeria has filed suit in federal court against the City of Milford and the Milford school system. According to attorney Gary Phelan, who is representing the father Stephen Opayemi, the daughter was banned from school for 21 days because she attended a family wedding in Nigeria and there are fears that she might transmit the Ebola virus. The 7-year-old girl has not been diagnosed with Ebola and has not exhibited any symptoms of the virus.

The suit asserts that Ebola is now limited to three African countries, Guinea, Sierra Leone and Liberia, and that there have been no new Ebola cases in Nigeria since August 31, 2014. It also cites an October 20, 2014 statement from the World Health Organization that stated that Nigeria is officially Ebola free. Phelan said, “What the city of Milford and Milford school officials did to this young girl was outrageous. Rather than defend her against the rumors and misinformation about where she traveled and whether she had symptoms of Ebola, they chose to take the easy way out and prevent her from going to school. It’s the essence of discrimination.”

The lawsuit claims that the student and her father visited Nigeria for a family wedding from Oct. 2-13 of 2014. When the girl told administrators that she planned to return to Meadowside Elementary School, they told her that she would have to stay home until November 3, because of a concern that she might have been exposed to the virus. It states that on October 10, three days before Opayemi and his daughter flew back from Nigeria, City Health Director and the school district’s medical advisor, Dr. A. Dennis McBride, called Opayemi’s wife and told her that the state Department of Public Health had ordered municipal health departments to do health screenings for Ebola for everyone who had recently traveled to Africa.

Opayemi’s wife agreed to bring her daughter in for a health screening, the lawsuit states. However, on October 13, McBride called Stephen Opayemi and told him that his daughter could not return to school “due to concern from certain parents and teachers that she could transmit Ebola to other children.”

Opayemi responded with an email to McBride and Superintendent of Schools Elizabeth E. Feser in which he alleged that his daughter was being subjected to unfair and discriminatory treatment and pointed out that the federal Centers for Disease Control had said that anyone who traveled to Nigeria after September 30, 2014 was not at risk for exposure to Ebola.

However, the lawsuit states, later that day, McBride told Opayemi his daughter should continue to remain at home “until ‘the climate’ changed and the rumors at her school stopped.” McBride reportedly explained that this decision was based on officials’ desire to address the concerns of some teachers, staff and parents.

During that phone conversation, it is alleged that Opayemi reminded McBride about an earlier proposal that would have allowed the girl to undergo an Ebola screening, but McBride said that the idea was no longer an option. McBride also refused to accept Opayemi’s offer to take his daughter to an independent doctor for a screening. McBride allegedly rejected Opayemi’s offer to have the girl’s temperature checked by the school nurse.

The lawsuit indicates that on October 15,  Opayemi and his daughter met with Feser, McBride and Meadowside Principal Gail Krois. During that meeting, McBride reportedly said that the girl should stay home for 21 days because of the risk she posed to people at her school. McBride reportedly added he wanted to provide enough time to “douse rumors” from people at the school.

According to the lawsuit, McBride reportedly “stated that although the ‘risk of infection’ might be minor, the primary reason for his decision requiring her to be ‘quarantined’ at home for 21 days was due to the rumors, panic and the climate at Meadowside Elementary School.”

In an October 17, meeting with Opayemi, the lawsuit states, Feser told him that McBride was standing by his 21-day quarantine decision. The lawsuit quoted Feser as saying that if the girl showed up for school Oct. 20, “she would order her to be removed from the school by the police.” The student has not tried to return to the school. The suit added that on October 24, Pediatric Healthcare Associates gave the girl a medical evaluation and concluded that her health was fine and that she should be able to “participate fully in the school program” without restriction.

The lawsuit contends that Milford officials have violated the Americans With Disabilities Act (ADA). Phelan claims that the officials regarded the girl as being “substantially limited in one or more major life activities” and therefore classified her as an individual with a disability as defined by the ADA. “The defendants prohibited (the girl) from entering Meadowside Elementary School based on fears and myths related to the transmission of Ebola,” the lawsuit states. “She is not a ‘direct threat’ to others, as the term is defined under the ADA.”

The lawsuit requests that city officials be ordered to immediately permit the girl to return to school, that she be compensated for “the emotional trauma she has suffered” and that “reasonable attorney fees and costs” be paid. The civil cover sheet seeks $250,000 in damages.

Efforts to reach Milford health officials and school officials were unsuccessful.

Source: New Haven Register, 10/28/14, By Randall Beach

[Editor’s Note: Update – On October 30, 2014, Nicholas Rondinone of the Hartford Courant reported that the city and the school district had settled the suit with Stephen Opayemi, the student’s father. Settlement of the suit allows the student to return to classes immediately. According to the article, the school district had been providing the student with 90 minutes a day of home tutoring while she was barred from school.

On October 17, 2014, Legal Clips reported on school districts in Ohio and Texas which closed schools after learning that two students traveled on the Cleveland-to-Dallas flight with Amber Joy Vinson, a nurse infected with Ebola, and that an employee may have later flown on the same plane. ]

New Mexico Supreme Court holds minor student’s statements elicited for in-school disciplinary purposes are not admissible in a delinquency hearing in the absence of proof the student voluntarily waived his right to remain silent

Antonio T. v. State of New Mexico, No. 33,997 (N.M. Oct. 23, 2014)

Abstract: New Mexico Supreme Court has ruled that a high school student’s admission to a school administrator that he had brought alcohol on school grounds and consumed it there was not admissible at the student’s delinquency hearing on the charge of possession of an alcoholic beverage by a minor under state law. The court concluded that the law contained an exclusionary provision, based on the Fifth Amendment right to remain silent, that barred admitting into evidence statements by minors accused of committing delinquent acts unless the minor waives his right to remain silent. It acknowledged that the school administrator could compel the minor student to answer questions related to in-school disciplinary matters and that the answers to those questions could be used against the student in a school disciplinary proceeding because the exclusionary provision only applies to admissibility of statements at delinquency proceedings.

Facts/Issues: Antonio T., a student at Kirtland Central High School (KCHS), was escorted by two teachers to Assistant Principal Vanessa Sarna’s office on the suspicion that he was under the influence of alcohol. Confirming that suspicion, Sarna had the student resource officer (SRO) on duty administer a breath test to Antonio. The SRO is a deputy sheriff with the San Juan County Sheriff’s Office who had spent over eleven years on the police force before being assigned to KCHS as an SRO. He was in uniform, including his badge and gun. The SRO was present while Sarna questioned Antonio about his drinking. Antonio admitted to bringing alcohol to school and consuming it on campus. The statements that Antonio made during Sarna’s questions were documented in the SRO’s police report under the “Investigative” heading.

At Sarna’s request, the SRO administered a breath alcohol test to Antonio. He tested positive for alcohol. No parent or guardian was present, and the SRO did not read Antonio his Miranda rights before he administered the breath test because at that time the SRO “was going by what the school was requesting.”

While the SRO was administering the breath test, Sarna searched Antonio’s backpack and located a folding pocket knife. At Sarna’s request, the SRO conducted a search for the plastic bottle that had contained the alcohol. When the search proved unsuccessful, the SRO returned to Sarna’s office where he read Antonio his Miranda rights. Antonio answered the SRO’s questions about the knife, but he refused to answer questions regarding alcohol consumption.

Antonio was only charged with possession of alcoholic beverages by a minor. He filed a motion to suppress his statement or confession pursuant to  Section 32A-2-14(C) through (E), of New Mexico’s Delinquency Act, stating as grounds that “the State cannot prove that the statement or confession offered in evidence was elicited after a knowing, intelligent and voluntary waiver of the Child’s rights and must be suppressed.” Antonio specifically cited Section 32A-2-14(D), which “requires that the state shall prove the statement or confession offered in evidence was elicited only after a knowing, intelligent and voluntary waiver of the child’s constitutional rights was obtained. ”

The trial court denied the motion. Antonio entered into a conditional plea and disposition agreement, reserving his right to appeal the denial of his motion to suppress. He appealed to the New Mexico Court of Appeals, which affirmed the district court’s ruling. The appellate court analyzed the suppression as a constitutional issue, and discussed the constitutional rights of children during custodial interrogations. It concluded that Antonio had been subjected to an investigatory detention as opposed to a custodial interrogation.

The appellate court noted that “Section 32A-2-14 has thus far only been applied in cases where law  enforcement has interrogated or detained a child, never in instances of school discipline involving only a school administrator” and that “Section 32A-2-14 applies to investigations by or on behalf of law enforcement officials.” It concluded that Sarna was acting within the scope of her duties as a school  administrator and was not acting as an agent for law enforcement, and therefore she was not obligated to issue Miranda warnings to Antonio. The appellate court did not address Antonio’s statutory claim that his statement was inadmissible under the plain language of Section 32A-2-14(D), which was the original ground for Antonio’s motion to suppress.

Both Antonio and the state appealed to the New Mexico Supreme Court. The appeal addressed two issues: (1) Did the Court of Appeals err in affirming the trial court’s denial of Antonio’s suppression motion; and (2) was the plea invalid because there was insufficient evidence? The state supreme court also addressed the question raised in the state’s appeal: did the Court of Appeals err in holding that Antonio was in investigatory detention? The question discussed in the state’s appeal is not addressed herein.

Ruling/Rationale: The New Mexico Supreme Court held that Antonio’s statements to Sarna should be suppressed and, therefore, he was entitled to withdraw his guilty plea. It pointed out that the federal constitutional right at issue in the case is the right to remain silent. It explained that because the state legislature recognized that minors may not understand the right or that they are entitled to assert the right, the legislature provided procedural safeguards that must be met before any statement of a child is admitted as evidence in a court proceeding.

As a result, the state supreme court pointed to four factors that courts must consider before admitting a child’s statement or confession into evidence: (1) the age of the child, (2) whether the child’s statement was elicited, (3) whether the child was advised of his or her constitutional rights before  the statement was elicited, and (4) whether the child made a knowing, intelligent, and voluntary waiver of those constitutional rights, using the listed criteria in Section 32A-2-14(E). The State has the burden of proof on each of these elements.

In regard to minors age 15 or over, the supreme court found that statements made spontaneously without prompting, i.e., statements not elicited, are admissible. Unlike the appellate court, the supreme court found that elicited statements by minors 15 and older are admissible only if the state proves “that the child was advised of his or her constitutional rights and knowingly, intelligently, and voluntarily waived these rights, regardless of who elicited the statement.” It concluded that the appellate court had erroneously interpreted 32A-2-14(D) “to preclude only statements or confessions elicited by law enforcement officers or their agents.”

The supreme court clarified its previous holding in Javier M., 33 P.3d 1 (N.M. 2001), stressing that in that case the court was “not asked to determine whether the statute applied to persons other than law enforcement officers.” It said, “The issue in Javier M. was confined to whether law enforcement officers are obliged to warn and obtain a waiver before interrogating a child under Section 32A-2-14(C).”  The supreme court determined that “Section 32A-2-14(D) does not deal with the rights of children in the context of police encounters before the accused child is brought to court,” but rather “provides direction to judges and litigants in court proceedings, setting a purely evidentiary standard regarding what statements of a child are admissible as evidence in court.”

Having determined that the language in Section 32A-2-14(D) clearly does not specify that the statement must have been elicited “by a particular type of person,” the supreme court concluded, based on the rules of statutory construction, that it did not create an exception limiting application of Section 32A-2-14 (D) to law enforcement agents. Therefore, it held that “By its plain reading, Section 32A-2- 14(D) applies to statements elicited from a child by any person, regardless of that person’s status or position.” This interpretation furthers the legislative intent “to provide children with greater statutory protection than constitutionally mandated.”

Based on its legal conclusions, the supreme court found that the fact that the statements were elicited by a school official rather than a law enforcement officer was not controlling in regard to whether Antonio’s statements were admissible into evidence. The state still had the burden of proving that Antonio “knowingly, intelligently, and voluntarily waived his constitutional right to remain silent.” It determined that the state failed to meet that burden.

Noting that Antonio had been accused of a delinquent act, i.e., possessing and consuming alcoholic beverages, the court noted that he was entitled to assert the right to remain silent. It stated, “Antonio had the right to remain silent in the face of the assistant principal’s questions because the information about his possession of alcohol could be used in a subsequent delinquency proceeding against him.” However, the supreme court acknowledged that there is a difference between “questioning a child for school disciplinary matters and questioning a child because he or she is suspected of criminal wrongdoing.” It agreed that Sarna was entitled to compel  answers from Antonio “involving in-school disciplinary matters.”

The supreme court also acknowledged that those statements could then be used against him in a school disciplinary proceeding “because the Delinquency Act does not apply to non-criminal proceedings.” However, it concluded that Antonio’s statements “could not be used in court proceedings without the requisite showing under Sections 32A-2-14(D) and (E).”  It held that “The State did not establish that Antonio was advised of his right to remain silent. Nor does the State contend that Antonio expressly waived his right to remain silent. In addition, his answers to Ms. Sarna’s questions do not support a finding that he knowingly, intelligently, and voluntarily waived his right to remain silent. Accordingly, the Legislature has made it clear that such statements cannot be used as evidence in delinquency proceedings under Section 32A-2-14(D).”

In closing, the supreme court stressed that its holding “should not be construed to require school administrators to advise a child of his or her right to remain silent in order to use incriminating statements elicited from the child against the child in school disciplinary proceedings.” It again pointed out that the “plain language … of Section 32A-2-14(D) is only a bar to the admissibility of children’s confessions in delinquency proceedings; in no way does it prevent children’s confessions from being used against them in school disciplinary proceedings.”

Antonio T. v. State of New Mexico, No. 33,999 (N.M. Oct. 23, 2014)

[Editor’s Note: In May 2013, Legal Clips summarized the The Kentucky Supreme Court’s decision in N.C. v. Kentucky holding that a high school student who was detained in the school office, in the presence of a school resource officer, for questioning by an assistant principal regarding giving prescription drugs to a classmate was entitled to Miranda warnings before the school official began the questioning. The court’s majority held “that any incriminating statements elicited under the circumstances of this case, with a school official working with the police on a case involving a criminal offense, the police failing to give Miranda warnings, and the juvenile being in custody, are subject to suppression under the Unified Juvenile Code and the Fifth Amendment.”  It concluded that the student was in custody at the time of questioning and any statements made must be suppressed.]










DOJ, along with several civil rights groups, are asking federal appellate court to reinstate Title IX suit of female student used as bait in sex sting

According to an Associated Press (AP) report in the Las Vegas Review-Journal, the U.S. Department of Justice (DOJ) and 33 advocacy groups, are asking the U.S. Court of Appeals for the Eleventh Circuit to reverse U.S. Magistrate Judge Michael Putnam’s ruling dismissing a Title IX suit brought by the father of a female student who attends Sparkman Middle School in Huntsville, Alabama. The suit contends that the female was dangled as bait to lure a male eighth-grader with a history of sexual harassment to attempt  to have sex with her, so he could be disciplined.

The father, along with DOJ and others, argue that the judge should have let the suit against the Madison County School Board, four school employees and the male student, move forward. The parties assert that he erred when ruling that Sparkman Middle School officials didn’t have sufficient warning that the boy might pose a threat. Putnam didn’t endorse the idea of using the girl as bait for a predator, but said allowing her to be put in such a position wasn’t bad enough for the lawsuit to continue under legal standards.

Judge Putnam’s opinion stated: “Although it was foolish to send (the girl) to meet (the boy), the court cannot say that it was ‘extreme and outrageous.’ The scheme to catch (the boy) ended horribly and tragically, but the idea of using (the girl) to catch (the boy) ‘in the act,’ however foolish, was not so extreme or outrageous as ‘to be regarded as atrocious and utterly intolerable in a civilized society.'” DOJ supports the plaintiffs’ position that school administrators knew of the plan and should have realized that the male student was a threat based on his history of propositioning female students. The friend of the court (amicus) brief filed with the Eleventh Circuit by the 33 organizations said, “The district court failed to appreciate the role of the school’s sexual harassment policy and conduct in causing (the girl’s) rape.”

Ronnie Blair was the principal. Jeanne Dunaway and Teresa Terrell were assistant principals and June Simpson was a teacher’s aide. The male student named in the lawsuit had been subject to discipline by administrators at least 14 times, including four for sexual harassment of female students, the judge found. He had also had infractions at a school he attended prior to attending Sparkman. Some documents indicate that at least one of the youths involved has been in a special needs program, but their exact status isn’t clear because of student privacy laws.

According to allegations in the suit, Simpson said, “Blair advised me that we were going to have to catch (the boy) in the act before he could take any disciplinary action ….” Simpson also said that on Jan. 22, 2010, the female student came to her saying that the male student had propositioned her to have sex with him in a boy’s bathroom. “I suggested to them that (the girl) agree to meet (the boy) in the restroom so he could be ‘caught in the act,’ because Mr. Blair had told me that nothing could be done to help these girls until he was caught in the act,” Simpson said.

After the female student agreed, Simpson said she took her to Dunaway’s office and told the assistant principal about the plan. Dunaway appeared “disinterested,” Simpson said. The girl, in sworn testimony, said she met the boy in a bathroom at his urging and he began trying to take her pants off in a stall. “I said I don’t want to do this,'” the female student said.

She said she tried to block the boy, but he raped her moments before teachers entered the bathroom. Police were called and an examination found injuries consistent with rape, but no charges were filed. Authorities have said that the boy wasn’t prosecuted because the girl initially said she wasn’t threatened or forced to have sex.

Simpson said she quit after Blair threatened her with termination and prosecution, but Blair remains at the school. Dunaway was promoted and is now a principal at an elementary school in Madison County. The school denies that the administrators knew anything about Simpson’s plan, and Blair testified that he wasn’t sure if he ever told workers that the boy had to be “caught in the act” before he could be disciplined.

Source: Las Vegas Review-Journal, 10/12/14, By Jay Reeves (AP)

[Editor’s Note: DOJ’s involvement in the suit is as an amicus (friend of the court) in which capacity it has filed a brief. The DOJ brief makes two points: (1) the plaintiffs had presented sufficient evidence that school officials had actual notice that the male student posed a substantial risk to other students; and (2) the plaintiffs had presented sufficient evidence that school officials were deliberately indifferent to the male student’s history of  violent sexual misconduct.]

Florida’s teachers union refiles suit challenging expansion of state’s voucher program

Following dismissal of a lawsuit seeking to overturn Florida’s new law expanding the state’s private school voucher program, the Orlando Sentinel reports that the Florida Education Association led coalition has filed a new suit. The current suit again names the teacher as a plaintiff, but also adds parents whose children currently attend Miami-Dade County public schools in order to cure the problem of legal standing. The suit contends that they have legal standing, in part, because an expansion of the voucher program would shift to private schools money that otherwise would go into the public education system.

Patricia Levesque, chief executive officer of the Foundation for Excellence in Education, which is a major supporter of school-choice programs, criticized the suit saying, “It is unfortunate, but not unexpected, that the Florida Education Association continues its crusade against families who are poor or have students with learning disabilities.” She added, “How are we to take seriously an allegation that giving more than 70,000 disadvantaged children an opportunity to succeed in life threatens injury to three parents and a social studies teacher?”

The suit was spurred by passage of legislation that included expanding eligibility for the voucher program and creating “personal learning accounts” to help parents of students with disabilities pay for educational services.

Source: Orlando Sentinel, 10/22/14, By Jim Saunders

[Editor’s Note: In September 2014, Legal Clips summarized an article in the Miami Herald reporting that Leon County Circuit Court Judge Charles Francis had dismissed a suit, brought by the Florida Education Association (FEA), challenging recently enacted legislation expanding the state voucher program and creating new scholarships for children with disabilities. The suit claimed that the law violates a state constitutional requirement that each law be limited to a single subject.] 


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