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"You Do Not Have the Right to Remain Silent: The Fifth Amendment Right Against Compelled Self-Incrimination Inside the School Setting" by Elizabeth Lentini


You Do Not Have the Right to Remain Silent: The Fifth Amendment Right against Compelled Self-Incrimination Inside the School Setting

by Elizabeth Lentini

I Background of Student's Constitutional Rights Inside the School

Students in an educational setting have limited constitutional rights. The limits to a student's constitutional rights are often supported by the Supreme Court because of the special circumstances of the educational setting, which requires a balancing of the interests of a school in providing a productive and safe environment and a student's constitutional rights. For example, students have limited First Amendment free speech rights so that they may not interrupt the learning of other students. Another example is that students have limited Fourth Amendment search and seizure rights so a school may provide a safe environment for students. The limits to a student's constitutional rights have been reflected in the Supreme Court rulings, and as a result, the courts have developed guiding principals for educational administrators to follow.

However, the application of the Fifth Amendment right against compelled self-incrimination inside the school is not as developed. The recent increased presence of law enforcement personnel inside the school and school administrator's collaboration with the law enforcement personnel have led to the interrogation of students while on school grounds, which often leads to delinquency proceedings. See NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., DISMANTLING THE SCHOOL-TO-PRISON-PIPELINE 13 (2005)(citing ADVANCEMENT PROJECT, EDUCATION ON LOCKDOWN: THE SCHOOLHOUSE TO JAILHOUSE TRACK 13 (2005)).

Courts have been inconsistent in applying a balancing inquiry similar to that in the First and Fourth Amendment contexts. As a result, schools tend to have vague guidelines in this area. School policies typically provide that the administrator will protect a student, and that the administrator will also cooperate with law enforcement. As a result of limited judicial intervention from the Supreme Court, it is unclear whether a student is entitled to Fifth Amendment protections inside the school, and state courts continue to struggle with the appropriate legal analysis. More specifically, it is unclear whether a student under interrogation while inside the school is entitled to Miranda warnings.

For example, a recent United States Supreme Court case held that a student's age properly informs the custody analysis for Miranda purposes. J.D.B. v. North Carolina, 131 S.Ct. 2394, 2399 (2011). In J.D.B., the Court did not automatically apply Miranda warnings to students while under interrogation inside a school. The case was remanded to determine whether the student was in custody. As a result of this case, state courts will continue to struggle with the application of the Fifth Amendment to students while inside a school and whether students are entitled to Miranda warnings.

Because of the lack of clarity in the application of the Fifth Amendment right to students inside the school, I propose that students who are under interrogation by police officers not assigned to a school, while inside a school, for an alleged crime committed outside of school which poses no imminent threat, have the Fifth Amendment right against compelled self-incrimination and should be automatically informed of their Fifth Amendment right as required by the landmark decision of Miranda v. Arizona.

Historically, in loco parentis has been the legal phrase that was utilized by the courts to allow schools to modify the constitutional rights of children. In loco parentis gave school authorities the same responsibilities as a parent, and was adopted under the theory that educators were responsible for both the moral and educational development of their students. However, more recently, there has been an increased emphasis on practical education and higher educational standards, and the responsibility of schools for the moral development of students has decreased. As a result, in loco parentis is not entirely consistent with the modern theory of education. This is supported in New Jersey v. T.L.O,in which the Supreme Court stated that school authorities are state actors for purposes of the Due Process and Free Speech Clauses, and they are representatives of the State who may act pursuant to educational policies. See 469 U.S. 325, 336 (1985).

As courts began recognizing school administrators as state actors, students began receiving constitutional rights. However, students are not afforded the same Bill of Rights protections while inside the school as adults in our society. This paper addresses how the Supreme Court has balanced the interests of the schools and students in the First and Fourth Amendment contexts. Then, the paper explores how lower courts have analyzed the application of the Fifth Amendment to students while in school under the same balancing theories. This leaves students open to the risk of self-compelled admissions, which is contrary to the Fifth Amendment as interpreted by the Supreme Court in Miranda.

A. The First Amendment Right to Free Speech

The Supreme Court addressed a student's First Amendment right to free speech in Tinker v. DeMoines Independent Community School District, in which students wore armbands in protest of the Vietnam War, and held that students "do not shed their constitutional rights to freedom of speech or expression when they walk through the schoolhouse gates. See 393 U.S. 503, 506 (1969. The Court also stated that in order to infringe upon a student's constitutional rights, the school must demonstrate a constitutionally valid reason to regulate a student's speech while inside the school, such as disruption of the operation of the school, or interference with the rights of others. See id.

The Supreme Court also addressed a student's First Amendment right to free speech in Morse v. Frederick, in which the Supreme Court stated that a student did not have the right to hold a banner that read "BONG HITS 4 JESUS" at a school-sponsored event. See 551 U.S. 393 (2007). The Court upheld the principal's actions of suspending the student, and emphasized the importance of deterring drug use. See id. at 396. Specifically, the Court held, "a school may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use". Id.

The school in Morse v. Frederick did not provide a reason such as disruption of the operation of the school or interference with the rights of others as suggested under Tinker. In general, though, the Supreme Court's jurisprudence in this area appears to strike a balance between providing flexibility for school administrators due to the special circumstances of the school and ensuring that students are still provided with their First Amendment right to free speech.

B. The Fourth Amendment Right against Unreasonable Search and Seizure

The Supreme Court interpreted the Fourth Amendment to require a warrant for a search or seizure based on probable cause; if a warrant cannot be obtained then the question is whether there is an established exception to the warrant requirement that applies. See Kentucky v. King, 131 S.Ct. 1849, 1856 (2011).

In Griffin v. Wisconsin, the Supreme Court recognized an exception to the warrant and probable cause requirements called the "special needs exception." See 483 U.S. 868, 873 (1987). The Court further held that this exception is "applicable when special needs, beyond that of law enforcement, make the requirement for warrant and probable cause impracticable." New Jersey v. T.L.O., 469 U.S. 325, 351 (1985).

In New Jersey v. T.L.O., the Court held that the Fourth Amendment protection against unreasonable searches and seizures is applicable to students in the school context, and is governed by the reasonableness of the action determined by the context of the search. See id. at 333. Thus, the Court balances the needs of the school officials and the constitutional right of privacy applicable to the student. Id. at 337.In upholding the search of a student's purse, the Court stated that a school search will generally be reasonable if the school administrators have reasonable grounds for suspecting the search will turn up evidence that the student is violating the law or school policy, and the intrusiveness of the search is reasonable in scope. Id. at 342.

In sum, for a search of a student to be valid, schools need to show only that they have reasonable suspicion. No warrant is required, nor is probable cause even necessary. In addition, the reasonable suspicion that validates the search need only be for violation of a school rule as opposed to reasonable suspicion for a violation of the law.

In the First and Fourth Amendment contexts, a student does possess some form of constitutional protection while inside the school. However, as stated in Bethel School District No. 403 v. Fraser, the student's constitutional rights are "not automatically coextensive with rights of adults in other settings." 478 U.S. 675, 682 (1986). Rather, the constitutional rights of a student must be applied "in light of special characteristics of the school environment." Tinker v. DeMoines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

The next section of the article explores the background of the Fifth Amendment and the implementation of Miranda warnings generally, then explores the complications of Fifth Amendment application in the school context.

II The Fifth Amendment Right Against Compelled Self- Incrimination

The Fifth Amendment to the United States Constitution states, "no person shall be compelled in any criminal case to be a witness against himself." The Supreme Court interpreted this clause in Miranda v. Arizona, in which the Court required a suspect to be given specific warnings before he or she is subjected to custodial interrogation. See 384 U.S. 436, 444 (1966). These warnings inform the suspect that he or she has the right to remain silent, that anything the suspect says can be used against him or her, the suspect has the right to an attorney, and if he or she cannot afford an attorney one will be provided to him or her.

The Court's primary concern in Miranda was the coercive, police-dominated atmosphere during interrogations of suspects. See id. at 461. In the process of deciding the case, the Court examined police manuals describing effective interrogation techniques, discussions which emphasized the importance of isolation and depriving the suspect of any outside support during an interrogation. The Court then stated that "an individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion cannot be otherwise under compulsion to speak." Miranda, 384 U.S. 436, 461 (1966). In the end, the Court found this compulsion to be contrary to our "nation's most cherished principles--that the individual may not be compelled to incriminate himself." Id. at 458.

Without these protections against self-incrimination, compulsion would be inevitable and the resulting confession would not be voluntary. As a result of these concerns, the Supreme Court required warnings be given to suspects prior to custodial interrogation. However, in order for these warnings to be required, both elements of custody and interrogation must be met. This is at the core of the issue in applying these Miranda warnings to students.

For purposes of the Miranda analysis, the Supreme Court examined the meaning of "interrogation" in Rhode Island v. Innis, finding that interrogation means the express questioning of a suspect or words and actions by police that are reasonably likely to elicit self-incriminating responses. See 446 U.S. 291, 300-301 (1980). The Supreme Court added that the latter portion of this definition primarily focuses on the perceptions of the suspect. See id. at 301.

The Supreme Court also examined the meaning of "custody" for Miranda purposes, finding that custody is either a formal arrest or the restraint of freedom similar to that of an arrest. The Court noted that the relevant inquiry considers whether a reasonable person in the situation under review would feel that they are free to leave. See Stansbury v. Cal., 511 U.S. 318, 322 (1994); Cal. v. Beheler, 463 U.S. 1121, 1125 (1983); Beckwith v. U.S. 425 U.S. 341, 347 (1976).

The Supreme Court has never directly addressed how these Fifth Amendment protections against self-incrimination are applicable to juveniles who are interrogated inside a school building. While the interrogation may not lead to adult criminal proceedings, the questioning is likely to lead to delinquency proceedings, which is analogous to criminal proceedings for juveniles. Up to this point, the First and Fourth Amendment cases focus on the role of school officials and the need to provide them with flexibility due to the special circumstances that exist in the educational setting. The Supreme Court has arguably found a balance between a student's constitutional rights, and the special needs of a school official. However, the question remains whether a similar balance can or should be reached in the Fifth Amendment context between students under interrogation while inside the school, by law enforcement authorities not assigned to the school, for a crime committed outside a school that poses no imminent threat to a school or its students and school administrators.

J.D.B. v. North Carolina exemplifies the common circumstances that arise in placing a student under interrogation at a school and demonstrates the resistance in applying full Fifth Amendment protections by providing a student with Miranda warnings. In J.D.B.,the student was questioned inside a school by police officers and school administrators regarding two home break-ins. See J.D.B. v. North Carolina, 131 S.Ct. 2394, 2396 (2011) Before interrogation, the student was not given Miranda warnings or the opportunity to call his guardian; nor was he told that he was free to leave. See id. The Court narrowed the issue to the custody analysis, and held that "a child's age properly informs the Miranda custody analysis." Id. at 2399. While recognizing that a child is not a "miniature adult", and deciding that their age should therefore be considered for purposes of a Miranda rights analysis, the Supreme Court failed to address the complexities that exist in the educational setting for interrogations. As a result, there are only very limited guiding principles from the Court in this decision, leaving this area of the law rather murky.

The Miranda analysis is not as simplistic as it initially appears, and is not easily amenable to additional complexities that can arise within the educational setting. The next section of this article focuses on three "wrinkles" that frequently enter this analysis in school cases: (1)Where did the interrogation take place?, (2)Who conducted the interrogation?, and (3)Where was the crime committed and was there any imminent threat to the school or to the students?

A. Where did the interrogation take place?

Compulsory education laws require students under a certain age to attend school. Therefore, a child is considered in the custody of the school during school hours. However, this form of custody has not been held to constitute custody synonymous with what is required by Miranda in order for a student to receive Miranda warnings.

To require Miranda warnings, custody must be restraint of freedom similar to that of an arrest. This considers whether a reasonable person would feel that they are free to leave. Often, a student is removed from class, where he or she is required by law or school policy to be present, into the principal's office for questioning. In J.D.B. v. North Carolina, the Court stated that a child's age may affect how a reasonable person would perceive his or her freedom to leave. See J.D.B. at 2403. Therefore, the appropriate question is whether a reasonable student would feel they are free to leave. This analysis is consistent with Miranda. However, it is unreasonable to assume that any student would feel that they are free to terminate the questioning and leave. While the Supreme Court in J.D.B. recognizes that students are more susceptible than their adult counterparts, in the past the lower courts application of this custody analysis is inconsistent and often contrary to reality. See In re Drolshagen 310 S.E. 2d 927 (S.C. 1984); Jefferson v. State 449 So.2d 1280 (Ala. Crim. App. 1984).

When a student is summoned from a class in which he or she is required to be present by law or school policy, to attend a questioning session in the principals office, with no access to a guardian, the student is away from his or her peers or familiar surroundings, and the educational setting becomes analogous to the interrogation manuals examined by the Supreme Court that emphasized isolation from outside support. As a result, the educational setting under these circumstances should constitute custody for Miranda purposes.

B. Who conducted the interrogation?

A recent development in the educational setting has been an increase in law enforcement presence or collaboration with law enforcement personnel. NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., DISMANTLING THE SCHOOL-TO-PRISON-PIPELINE (2005. This is perhaps one of the greatest challenges that the Miranda analysis faces when applied to the educational environment. There are three primary actors in conducting a school interrogation: the administrators, the school resource officers, and the police officers. A student under interrogation is typically in a room with one of these actors or any combination of these actors. While questioning by any of these actors can lead to criminal charges or a delinquency proceeding, the state courts have treated the Miranda rights requirement differently depending on who is conducting the interrogation.

The guidelines for police officers or detectives who are not assigned to a detail at the school are perhaps the easiest to establish. They are primarily questioning for law enforcement purposes with no school disciplinary authority, and as a result some states require police officers to abide by Miranda requirements. See State v. D.R.,930 P.2d 350, 353 (Wash. App. Div 3, 1997). In State v. D.R., a Washington appeals court stated that a police officer's interrogation of a student at school required Miranda warnings, and because the warnings were not given, the student's confession was not admissible. Id. In another state case, an Oregon court refused to admit a student's confession under similar grounds, stating that "special precautions should be taken to ensure that children understand that they are not required to stay or answer questions asked of them by a police officer." State ex rel. Juvenile Dep't of Multnomah Cnty. v. Loredo, 865 P. 2d 1312, 1315 (Or. App. 1993).

A much more complicated issue arises when the questioning is done by school resource officers. According to the National School Safety and Security Services, a school resource officer works under a cooperation agreement with education officials to provide law enforcement, student counseling, and law-related education. See Nat'l School Safety and Security Services, http://www.schoolsecurity.org/ resources/school-resource-officers.html. Usually, school resource officers are local or county police who are assigned to work at the school. See id. As a result, they have full police powers, yet remain located in the educational setting. A question that often arises is whether a school resource officer is more synonymous with an outside police officer, and therefore must provide Miranda warnings, or whether he or she is more synonymous with a school official, and therefore given more flexibility due to the special circumstances of the educational setting.

On this question, the state courts have not come to a consistent conclusion. Courts here often focus on factors such as the job title, duties, their attire, and the purpose of the questioning. See In re R.H., 791 A.2d. 331 (Pa., 2002); In re G.S.P., 610 N.W.2d 651 (Minn. App. 2000). If the questioning takes place for law enforcement purposes, then the school resource officer is more synonymous with a police officer, and therefore must provide Miranda warnings. For example, in a Minnesota court stated that because the juvenile "was questioned for potential criminal conduct, not just for misbehavior at school," Miranda warnings were required. In re G.S.P., 610 N.W. 2d. 651,658 (Minn. App., 2000).

If the questioning took place for disciplinary purposes, then the school resource officer is more synonymous with an educational administrator and therefore is given more flexibility. The problem with this balancing is that it requires the resource officer to determine whether the questioning will lead to discipline or law enforcement consequences before the questioning. Under this view, the courts often apply the New Jersey v. T.L.O. standard for Fourth Amendment search and seizures and focus on whether or not the school resource officer is acting in concert with law enforcement, or in concert with administration, in which case refusing to give the student Miranda rights is reasonable in light of the special circumstances of the educational environment. See In re Harold S., 731 A.2d 265 (R.I. 1999), State v. Biancamano, 666 A. 2d 199 (N.J. Super.Ct. App. Div. 1995), Commonwealth v. Snyder, 597 N.E. 2d 1363 (Mass.1992). Here, the courts follow First and Fourth Amendment jurisprudence by trying to find a balance between the special circumstances of the school and the constitutional rights of the student. In In re R.H., the Pennsylvania Supreme Court held a juvenile was entitled to receive Miranda warnings because "the interrogation ultimately led to charges by the municipal office, not punishment by school officials pursuant to school rules." 791 A.2d. 331,334 (Pa. 2002).

However, this balancing is inconsistent with Miranda v. Arizona. The Supreme Court has consistently held the purpose of the questioning and the subjective view of the officer irrelevant for Miranda analysis. See, e.g., Stansbury v. Cal., 511 U.S. 318 (1994). In the educational setting, disciplinary and law enforcement purposes overlap, which shows why this analysis is inappropriate. It requires the school resource officer to make a judgment regarding the nature of the questioning prior to asking any questions and conduct a balancing inquiry, which is deficient for the intended Fifth Amendment safeguards.

Because of the consistent overlap between disciplinary and law enforcement purposes of questioning, the school administrator's role in questioning is not easily defined. School administrators have been given great flexibility in providing students with limited constitutional rights due to the circumstances in the educational setting in first and fourth amendment circumstances. Although the Supreme Court has held administrators out to be state actors for fourth amendment concerns, and therefore must abide by some constitutional principals for search and seizure purposes, this reasoning has not translated accurately into the Fifth Amendment context.

With the case of In re Harold S., a state court rejected the argument that the principal was acting as an agent of the police reasoning that no officer was present, even though the questioning ultimately led to a delinquency proceeding. See 731 A.2d 265 (R.I. 1999). In Commonwealth v. Snyder, the court was even more daring, rejecting the contention that a principal was acting as an agent of the police and holding that "the fact that school administrators had every intention of turning the marijuana over to the police does not make them agents or instrumentalities of the police in questioning the juvenile." 597 N.E. 2d 1363,1369 (Mass.1992).

These state courts focus on the employment or job description of the person who is questioning the juvenile, appearing to follow the First and Fourth Amendment balancing inquiry, and providing flexibility to the administrators. However, this ignores the fact that the principal is a state actor for Fourth Amendment concerns. In the Fifth Amendment context, the state courts focus on the other actors in the room to determine whether Miranda warnings are required, and disregard the possibility that a principal may be a state actor for Fifth Amendment concerns. This reasoning is inevitably excluding the possibility that any interrogation of a student could require Miranda warnings, so long as a school administrator conducts the questioning. Because of the increased collaboration between school administrators and law enforcement personnel, this can ultimately lead to the circumventing of a student's Fifth Amendment right against compelled self-incrimination by merely asking a school administrator to conduct questioning, in which no Miranda warnings are required.

C. Where was the crime committed and was there any imminent threat to the school or students?

Whether an alleged crime occurred on school grounds, or poses an imminent threat to the school or students, should play a significant role in determining how much flexibility is provided for the interrogation. The most discernible potential bright-line rule in this area is that if the crime occurred off of school grounds, it would be a law enforcement concern, and therefore a student should be provided Miranda warnings while under interrogation. If the crime occurred on school grounds, and did not pose a danger to a school or students, it would be a disciplinary concern that is limited to the purview of a school, and therefore the student would not need to be provided with Miranda warnings.

However, this bright-line rule is unrealistic, because the disciplinary and law enforcement aspects of the crime may overlap. For example, weapons possession is a crime may occur on school grounds. However, it is also a law enforcement concern because of the nature of the crime. Similarly, a fight may occur between two students off school grounds, which may affect disciplinary proceedings. This overlap between disciplinary and law enforcement concerns would make the application of a such a bright-line rule difficult.

The proposal of providing full Fifth Amendment rights and Miranda warnings to students who are under interrogation is specific to crimes that occur off school grounds that pose no imminent consequence to the school or its students. J.D.B. v. North Carolina is a perfect example of the circumstances in which Miranda warnings should be provided. The student was questioned regarding home break-ins, a crime that occurred off school grounds and posed no imminent danger to the students. See J.D.B. v. North Carolina, 131 S.Ct. 2394, 2399 (2011). Conceivably, one could wonder whether the detectives even made a strategic decision to question the student inside the school because this environment provided the chance to interrogate the student without providing Miranda warnings or otherwise abiding by Fifth Amendment constitutional considerations.

III Solution

While this article proposes what most likely is a controversial bright-line rule providing all students under interrogation by law enforcement authorities inside the school for a crime committed outside the school, Fifth Amendment rights and automatic Miranda warnings, I recognize this is not a comprehensive solution for all of the complexities that could arise. Perhaps the Supreme Court in J.D.B. recognized this problem, and chose to wait for a later day when these additional issues present themselves.

However, as the law enforcement presence on school grounds continues to increase, and administrators continue to collaborate with law enforcement personnel, this issue is ever present, and murky guidelines are not sufficient to provide students with their constitutional rights. A violation of Fifth Amendment rights poses a unique risk to students that are inapplicable in the First and Fourth Amendment contexts and therefore students should be provided greater protection in the Fifth Amendment context. Until this is settled, these students are subject to compulsory self-incrimination, which is contrary to the Fifth Amendment of the United States Constitution.

IV Conclusion

As the state laws currently stand, an unpredictable balance exists between a student's constitutional rights and law enforcement objectives. This unpredictability is inappropriate for Fifth Amendment considerations and contrary to the Supreme Court in Miranda v. Arizona. Federal law should implement guidelines for state courts to abide by to remedy the unpredictability in the application of the Fifth Amendment inside the school.

The purpose of the Fifth Amendment in conjunction with Miranda warnings is to safeguard against the coercive, police dominated atmosphere in custodial interrogations resulting in compelled self-incrimination. Inside the school setting, it is unrealistic for a student to leave without some consequence, therefore, when a detective is interrogating a student inside the school, regarding a crime that occurred outside the school, these interrogations are custodial and police dominated and mimic the atmosphere the Supreme Court was concerned with in Miranda. Id.

As a result, students who are under interrogation by law enforcement inside the school for an alleged crime committed outside of the school which poses no imminent consequence should be viewed as maintaning full Fifth Amendment rights against compelled self-incrimination and, therefore, should be automatically informed of their Fifth Amendment right as required by the Supreme Court in Miranda v. Arizona.

Elizabeth Lentini is a 3L who will be graduating New York Law School in May 2012. Elizabeth has been an intern at the Office of the Taxi and Limousine Commission, and the Office of the Public Defenders of New Jersey. Additionally, Elizabeth volunteers as an honorary student co-chair for the New York County Lawyers Association committee for non-profit organizations.

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This page contains a single entry from the blog posted on February 17, 2012 7:11 PM.

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