When a student faces an allegation that he or she has violated the student conduct code, consideration should always be taken regarding potential criminal liability. In other words, is the behavior alleged also a potential violation of city ordinance or state law? If yes, or if you don’t know, it is important to consult with an education attorney who also has criminal defense experience so that any action taken by the student in an effort to resolve the discipline matter does not jeopardize the student’s procedural and substantive rights in the potential criminal matter.
One issue to consider is the investigation. Typically a report is made either by another student, or a teacher or professor, alleging a violation of the student conduct code. Once the report is made to the school’s administration, a Conduct Board, or a Standards Committee at the university level, an investigation begins. As part of that investigation, a student is often asked to come in and explain or respond to the allegations. This request is often in the form of a letter or email. The student’s next steps are critical and should be informed before proceeding, in most misconduct cases, but definitely in cases where criminal culpability is a possibility.
While there are a variety of issues to contemplate in a scenario where a criminal prosecution is a possibility, one critical question is who is leading the investigation. At the university level, there are often trained investigators who are employed by the college or university who spearhead the case, interview parties and witnesses, and draft outcome reports. In primary and secondary schools, there are a number of possible leaders of the discipline investigation from principals, to the dean of students, to school security.
If the person leading the investigation is a member of school security, the critical question is the relationship of the security personnel to the educational institution. If the security officer is employed by law enforcement, certain constitutional rights attach to the student during questioning. If the security official is employed by the institution, while some rights apply pursuant to the student conduct code, they typically don’t amount to the elevated status of constitutional rights–for example the right to remain silent, without consequences.
In primary and secondary schools, there are several types of security personnel- SRO, CSO, SSO, and Contracted Security Personnel. Pursuant to RCW, 28A.320.124, a School Resource Officer (SRO) is a commissioned law enforcement officer in Washington state with sworn authority to make arrests. SROs are employed by a law enforcement agency, not employed by an educational institution. This is an important distinction as SROs are essentially cops who are stationed on school campuses and therefore, anything stated to them can and will be used against the student in criminal prosecution. Students have a right to an attorney before speaking with an SRO. CSOs (Campus Security Officers) and SSOs (School Security Officers) are school district employees, are not commissioned law enforcement officers, and cannot make arrests. However, statements made to them can be available in a criminal prosecution of the student, subject to FERPA (Federal Education Rights and Privacy Act) and subpoena power. Schools typically either have SROs or CSOs/SSOs, not both.
Pursuant to recent legislation ESHB 1214 (2019) and HB 1216 (2020-21), SROs are not supposed to be involved in formal school discipline situations that are the responsibility of school administrators. However, in practice, many school districts rely on the SROs or at least work in tandem with SROs as part of the discipline process. It is therefore important to understand the role of each individual in the investigation when faced with alleged misconduct that is both a school discipline matter and a potential referral for criminal prosecution.
On college and university campuses, the same analysis applies. Campus police or the university or college’s Department of Public Safety, are typically commissioned law enforcement officers with arrest powers. Therefore, before consenting to a dialogue with a university official in a conduct investigation, it is imperative to understand the role, and the duties and obligations, of the person conducting the investigation. School discipline is a serious enough action, with long-term consequences for one’s educational goals. A criminal conviction, where one’s liberty is at stake, is quite
Feel free to contact Burke Brown Attorneys, PLLC at 206-933-2414 for a consultation to review your education matter and address the aforementioned concerns or answer any questions you may have.
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