Cuddy Law: Education Law Quarterly, Vol. XIII No. 33 September, 2007

Schools do not have to provide a hearing in order to suspend students for cell phone violations, according to the U.S. Court of Appeals for the Sixth Circuit, but the court did not address confiscation.

Tennessee’s Wilson County School District had a policy banning cell phones in school. Student Victoria Laney’s cell phone was confiscated when it began ringing in class at West Wilson Middle School in Mt. Juliet, Tennessee. Per policy, her cell phone was confiscated by the school for 30 days and she received a one-day, in-school suspension. The policy provided for minimal due process: that the student had to be told the accusation and evidence against her and given an opportunity to respond. Such informal charge-and-response procedure was approved by the United States Supreme Court in the 1975 case of Goss v. Lopez, in which the Court held that such informal due process was sufficient for short-term suspension of 10 days or less.

As minimal as the suspension was, the Laneys sued the school, claiming Victoria had a due process right to a full evidentiary hearing for one day of ISS. And despite Goss, a federal district court agreed with them.

The Sixth Circuit reversed the district court, relying on Goss. Although Tennessee students have property interests in receiving a public education, the deprivation of that interest created by one day of ISS was so minimal as to be well within the Goss rule, such that informal give-and-take due process was sufficient, particularly as students given in-school suspensions remain in school and must continue their school work.

The much vexed issue of cell phone confiscation, however, was not, apparently, even raised by the parents, despite the 30-day deprivation of the phone. Although it is clear that students can be subjected to regular school discipline, such as suspensions, for violations of cell phone rules, the issue of the schools’ legal obligations in confiscating a cell phone remains to be decided in a reported case. Like the right to a public education, a cell phone is property, and confiscation for more than a brief period is a deprivation. The 30-day confiscation imposed per policy in the Laney case may well have been sufficient to constitute a legally cognizable deprivation for due process purposes, but, as it does not appear to have been claimed as a deprivation in Laney, the court could not address it. The when, how, and how long of cell phone confiscation thus remain obscure.

School districts continue to inquire on the ability of teachers and administrators to seize cell phones for violation of cell phone rules, and we continue to advocate gradually escalating suspensions in preference to confiscation. Confiscation appears to be more effective in annoying parents than in deterring students from violations, but if confiscation is your preferred method, remember that the extent of due process that must be provided is in direct relation to the extent of the deprivation of property imposed.

The New Mexico Court of Appeals in Henning v. Hobbs Municipal Schools has ruled that schools and school personnel are immune from suit for claims based on employee evaluations.

Ms. Henning sued claiming breach of the “implied covenant of good faith and fair dealing” (i.e., that the district obstructed her ability to fulfill her contract), for interference with contractual relations, for unlawful retaliation, defamation, fraud, and for civil conspiracy. As Ms. Henning was still employed, and had suffered neither demotion nor any other adverse employment action, however, the district court dismissed her claims.

The Court of Appeals upheld the dismissal but on the different ground that Henning’s claims, other than the breach of good faith and fair dealing, were barred by the Tort Claims Act. Subject to a few exceptions for certain types of claims, the Tort Claims Act provides immunity from suit for state entities and employees for all tort claims based on such employees’ conduct within the scope of their jobs. The court held that under the Tort Claims Act, school administrators cannot be subjected to suit for their evaluations of employees, even if the evaluations were wrongfully motivated, because conducting such evaluations is within the scope of school administrators’employment.

The claim for good faith and fair dealing, which is implied in every contract, requires that neither party do anything that will injure the rights of the other to the benefits of the agreement. Bourgeous v. Horizon Healthcare Corp., 117 N.M. 434 (1994). Ms. Henning’s allegations were that the evaluations and criticisms of her job performance were a bad faith attempt to force her out of her job, and denied her the opportunity to earn a Level III license. The Court found that those facts did not breach the implied duty of good faith and fair dealing because Ms. Henning was not denied any of her rights under her employment contract and had not demonstrated she was otherwise qualified for a Level III license.

Finally, stating that there is “no general duty on the part of an employer to act nicely,” the court explained that to allow suits over evaluations, absent any direct denial of contractual rights, would “unnecessarily involve courts in the employer-employee relationship, and could potentially subject employers to torrents of unwarranted and vexatious suits filed by disgruntled employees at every juncture of the employment process.”

The ruling by the Court of Appeals constitutes a significant victory for school districts and school administrators. Administrators are now able to accurately and adequately evaluate poor teaching or management skills and implement proper growth plans without fear of legal challenges seeking to circumvent this process.

NEW MEXICO SCHOOLS HAVE A GOOD DAY IN COURT

By Frank J. Albetta

In a “two-run homer” for New Mexico Schools, the New Mexico Court of Appeals has held (1) that schools may use evidence in student disciplinary proceedings that was seized in violation of the constitution, and (2) that schools are not required to produce student witnesses in such proceedings. Scanlon, et al. v. Las Cruces Public Schools, No 26,334 (N.M.Ct.App., Oct. 1, 2007). Both issues had been unresolved in New Mexico.

The Facts

Student Jarrett Scanlon fled when he and three colleagues were discovered smoking marijuana in Jarrett’s car in the Las Cruces High School parking lot. School officials found marijuana in the passenger compartment and a “decorative sword” in the trunk of the car. The three students who were apprehended told the assistant principal that the marijuana was Jarrett’s and that all four of them had smoked it. At Jarrett’s hearing, the assistant principal, but not the three students, testified about what the three had told him, inculpating Jarrett. Jarrett was given a one year suspension for drug and weapon possession, but was offered enrollment in the alternative high school, which he accepted.

In a subsequent court challenge to the “suspension,” Jarrett’s parents claimed denial of due process in that (1) the marijuana and sword should have been excluded from evidence in the disciplinary hearing on the (novel) theory that school officials needed reasonable suspicion and exigent circumstances to conduct the search without a warrant; and (2) that Jarrett was denied the opportunity to confront the three students who had implicated him to school officials.

No Exclusion Based on an Illegal Seizure of Evidence

The Court of Appeals noted that in criminal proceedings, illegally seized evidence was regularly excluded from evidence and could not be used at trial. The court, however, distinguished the seriousness of the individual interest in freedom from wrongful imprisonment in criminal proceedings from the lesser property interest of a student in a free public education, and held that, even if the marijuana and sword had been seized illegally (which was most doubtful) the federal and state constitutional prohibitions against unreasonable searches and seizures did not require their exclusion from evidence in the disciplinary proceedings.

While that is a good outcome, schools still face the threat of liability in failing to observe the legal limitations on student searches and seizures. As noted, the seizure of Jarrett’s marijuana and sword did appear to be in keeping with state and federal constitutional requirements. If it had not been, however, its usability in the disciplinary proceedings may have been a hollow victory for the school, because Jarrett could have sued the school for a civil rights violation in conducting an illegal search. The situation in which a civil rights suit against the school was counterposed against the school’s student suspension proceedings may have produced an unhappy standoff for the school. Careful conformity to federal and state requirements regarding reasonable searches and seizures thus remains an important practice for schools.

The court also held that Jarrett was not denied due process by the failure of the school to identify and produce the other three students as witnesses during the disciplinary hearing. The court identified three reasons for that result. First, the risk of an error in the hearing due to the failure of the school to produce the three students as witnesses was low. Jarrett knew who was in the car with him, and could not claim that the school’s refusal to identify those students had prejudiced him. Second, the value and credibility of the testimony by one student against another in a disciplinary matter was better assessed by a school official with knowledge of the student’s trustworthiness. The assistant principal’s judgement that the information from the three students reliable was sufficient to support the case against Jarrett.

Most of all, however, the court relied upon the dual considerations (1) that it was impractical to expect schools to be able to conduct student disciplinary proceedings with the formality of a criminal trial and according to the technical rules of evidence, and (2) that, as a policy matter, it a requirement that students testify against one another created the risk of reprisals, and the consequent disincentive for students to come forward with information, “thereby hindering the school’s ability to enforce its rules.”

By relieving the schools of the obligation to produce students as primary witnesses in student disciplinary proceedings, the Scanlon decision relieves the schools of a substantial burden in – and, in some instances, an insurmountable obstacle to – the imposition of long-term suspensions and expulsions.

An interesting sidelight to the Scanlon decision is the court’s discussion of the import of the school district’s placement of Jarrett in its alternative school during his “suspension.” The court noted that the district did not “argue that its offer of an alternative school setting remedied any deprivation” of the student’s property interest in his public education. Yet, such an argument may have succeeded.

As most alternative schools provide the same curriculum as regular schools, the student would have received the public education to which he was entitled, albeit in a more restrictive setting. The extent of due process that must be afforded is in direct relation to the gravity of the deprivation – a short term suspension requires only an informal interview of the student, while a long-term suspension or expulsion requires a full hearing. As the change in setting effected by transfer to the alternative school was a minimal deprivation, however, the evidentiary hearing the school provided may actually have been unnecessary – the student may have been entitled to no more than an informal opportunity to respond to the charges.

As of the time of this article, the period for appealing the decision has not yet run, so the Scanlon case may yet undergo further review by the New Mexico Supreme Court. It is a sound, well-reasoned decision, however, and so likely to be sustained. Stay tuned.

Although the court did not have to decide that broader due process question, it did observe that the offer of education in the alternative school substantially reduced the extent of the deprivation the student suffered, compared to actual out of school suspension. Scanlon thus sets the stage favorably for schools for further litigation of that specific issue in the future.

The New Mexico Activities Association is sponsoring a summit conference for northern New Mexico basketball coaches and referees on Wednesday, October 10, 2007, in Santa Fe.

The conference is part of an effort to promote civility and sportsmanship during intermural basketball games at New Mexico secondary schools. Such games have frequently been marred by instances of hostility, disrespect, and even violence by fans, which are often initially kindled by angry exchanges between coaches and officials.

NMAA plans to host a summit in each region of the state in the future. The October 10^th event will feature Mr. Jimmy Casas, a nationally renowned NCAA Division I Men’s Basketball Official from Denver, Colorado. Mr. Casas is currently the coordinator for the Referee Educational Forums in Colorado and New Mexico, where officials discuss communication skills from the pregame to the final buzzer.

Due to the increasing problems at basketball games, NMAA would like to get 100 percent attendance from the coaches and officials in Northern New Mexico in order to begin the process of building beneficial and positive relationships between all members of the interscholastic family in the years to come.

The Education Law Quarterly provides general information of interest to our clients and should not be used or taken as legal advice for specific situations, which depend on evaluation of precise factual circumstances.


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EDUCATION LAW QUARTERLY A PREVENTIVE LAW NEWSLETTER Vol. XIII No. 33 September, 2007 STANDARDS FOR CELL PHONE CONFISCATION STILL UNDECIDED By Frank J. Albetta Schools do not have to provide a hearing in order to suspend students for cell phone violations, according to the U.S. Court of Appeals for the Sixth Circuit, but the court did not address confiscation. Tennessee’s Wilson County School District had a policy banning cell phones in school. Student Victoria Laney’s cell phone was confiscated when it began ringing in class at West Wilson Middle School in Mt. Juliet, Tennessee. Per policy, her cell phone was confiscated by the school for 30 days and she received a one-day, in-school suspension. The policy provided for minimal due process: that the student had to be told the accusation and evidence against her and given an opportunity to respond. Such informal charge-and-response procedure was approved by the United States Supreme Court in the 1975 case of Goss v. Lopez, in which the Court held that such informal due process was sufficient for short-term suspension of 10 days or less. As minimal as the suspension was, the Laneys sued the school, claiming Victoria had a due process right to a full evidentiary hearing for one day of ISS. And despite Goss, a federal district court agreed with them. The Sixth Circuit reversed the district court, relying on Goss. Although Tennessee students have property interests in receiving a public education, the deprivation of that interest created by one day of ISS was so minimal as to be well within the Goss rule, such that informal give-and-take due process was sufficient, particularly as students given in-school suspensions remain in school and must continue their school work. The much vexed issue of cell phone confiscation, however, was not, apparently, even raised by the parents, despite the 30-day deprivation of the phone. Although it is clear that students can be subjected to regular school discipline, such as suspensions, for violations of cell phone rules, the issue of the schools’ legal obligations in confiscating a cell phone remains to be decided in a reported case. Like the right to a public education, a cell phone is property, and confiscation for more than a brief period is a deprivation. The 30-day confiscation imposed per policy in the Laney case may well have been sufficient to constitute a legally cognizable deprivation for due process purposes, but, as it does not appear to have been claimed as a deprivation in Laney, the court could not address it. The when, how, and how long of cell phone confiscation thus remain obscure. School districts continue to inquire on the ability of teachers and administrators to seize cell phones for violation of cell phone rules, and we continue to advocate gradually escalating suspensions in preference to confiscation. Confiscation appears to be more effective in annoying parents than in deterring students from violations, but if confiscation is your preferred method, remember that the extent of due process that must be provided is in direct relation to the extent of the deprivation of property imposed. COURTS WON’T INTERFERE IN EMPLOYEE EVALUATION PROCESS By Melissa Wurtzel O’Shea The New Mexico Court of Appeals in Henning v. Hobbs Municipal Schools has ruled that schools and school personnel are immune from suit for claims based on employee evaluations. The plaintiff, Lady Anne Henning, a tenured teacher in the Hobbs Municipal Schools, alleged in her lawsuit that as a result of an improper and bad faith evaluation, a professional improvement plan was imposed upon her, and continued even after she had completed it. Ms. Henning further alleged that her classroom was videotaped, that critical memoranda were written by administrators about her teaching and classroom discipline, and that her evaluations and the memoranda were misleading or outright false. Ms. Henning argued that as a result of the professional improvement plan she was not eligible for a Level III license, and that such result constituted an adverse employment action by the district. Ms. Henning sued claiming breach of the “implied covenant of good faith and fair dealing” (i.e., that the district obstructed her ability to fulfill her contract), for interference with contractual relations, for unlawful retaliation, defamation, fraud, and for civil conspiracy. As Ms. Henning was still employed, and had suffered neither demotion nor any other adverse employment action, however, the district court dismissed her claims. The Court of Appeals upheld the dismissal but on the different ground that Henning’s claims, other than the breach of good faith and fair dealing, were barred by the Tort Claims Act. Subject to a few exceptions for certain types of claims, the Tort Claims Act provides immunity from suit for state entities and employees for all tort claims based on such employees’ conduct within the scope of their jobs. The court held that under the Tort Claims Act, school administrators cannot be subjected to suit for their evaluations of employees, even if the evaluations were wrongfully motivated, because conducting such evaluations is within the scope of school administrators’employment. The claim for good faith and fair dealing, which is implied in every contract, requires that neither party do anything that will injure the rights of the other to the benefits of the agreement. Bourgeous v. Horizon Healthcare Corp., 117 N.M. 434 (1994). Ms. Henning’s allegations were that the evaluations and criticisms of her job performance were a bad faith attempt to force her out of her job, and denied her the opportunity to earn a Level III license. The Court found that those facts did not breach the implied duty of good faith and fair dealing because Ms. Henning was not denied any of her rights under her employment contract and had not demonstrated she was otherwise qualified for a Level III license. Finally, stating that there is “no general duty on the part of an employer to act nicely,” the court explained that to allow suits over evaluations, absent any direct denial of contractual rights, would “unnecessarily involve courts in the employer-employee relationship, and could potentially subject employers to torrents of unwarranted and vexatious suits filed by disgruntled employees at every juncture of the employment process.” The ruling by the Court of Appeals constitutes a significant victory for school districts and school administrators. Administrators are now able to accurately and adequately evaluate poor teaching or management skills and implement proper growth plans without fear of legal challenges seeking to circumvent this process. NEW MEXICO SCHOOLS HAVE A GOOD DAY IN COURT By Frank J. Albetta In a “two-run homer” for New Mexico Schools, the New Mexico Court of Appeals has held (1) that schools may use evidence in student disciplinary proceedings that was seized in violation of the constitution, and (2) that schools are not required to produce student witnesses in such proceedings. Scanlon, et al. v. Las Cruces Public Schools, No 26,334 (N.M.Ct.App., Oct. 1, 2007). Both issues had been unresolved in New Mexico. The Facts Student Jarrett Scanlon fled when he and three colleagues were discovered smoking marijuana in Jarrett’s car in the Las Cruces High School parking lot. School officials found marijuana in the passenger compartment and a “decorative sword” in the trunk of the car. The three students who were apprehended told the assistant principal that the marijuana was Jarrett’s and that all four of them had smoked it. At Jarrett’s hearing, the assistant principal, but not the three students, testified about what the three had told him, inculpating Jarrett. Jarrett was given a one year suspension for drug and weapon possession, but was offered enrollment in the alternative high school, which he accepted. In a subsequent court challenge to the “suspension,” Jarrett’s parents claimed denial of due process in that (1) the marijuana and sword should have been excluded from evidence in the disciplinary hearing on the (novel) theory that school officials needed reasonable suspicion and exigent circumstances to conduct the search without a warrant; and (2) that Jarrett was denied the opportunity to confront the three students who had implicated him to school officials. No Exclusion Based on an Illegal Seizure of Evidence The Court of Appeals noted that in criminal proceedings, illegally seized evidence was regularly excluded from evidence and could not be used at trial. The court, however, distinguished the seriousness of the individual interest in freedom from wrongful imprisonment in criminal proceedings from the lesser property interest of a student in a free public education, and held that, even if the marijuana and sword had been seized illegally (which was most doubtful) the federal and state constitutional prohibitions against unreasonable searches and seizures did not require their exclusion from evidence in the disciplinary proceedings. While that is a good outcome, schools still face the threat of liability in failing to observe the legal limitations on student searches and seizures. As noted, the seizure of Jarrett’s marijuana and sword did appear to be in keeping with state and federal constitutional requirements. If it had not been, however, its usability in the disciplinary proceedings may have been a hollow victory for the school, because Jarrett could have sued the school for a civil rights violation in conducting an illegal search. The situation in which a civil rights suit against the school was counterposed against the school’s student suspension proceedings may have produced an unhappy standoff for the school. Careful conformity to federal and state requirements regarding reasonable searches and seizures thus remains an important practice for schools. No Obligation to Produce the Student Witnesses The court also held that Jarrett was not denied due process by the failure of the school to identify and produce the other three students as witnesses during the disciplinary hearing. The court identified three reasons for that result. First, the risk of an error in the hearing due to the failure of the school to produce the three students as witnesses was low. Jarrett knew who was in the car with him, and could not claim that the school’s refusal to identify those students had prejudiced him. Second, the value and credibility of the testimony by one student against another in a disciplinary matter was better assessed by a school official with knowledge of the student’s trustworthiness. The assistant principal’s judgement that the information from the three students reliable was sufficient to support the case against Jarrett. Most of all, however, the court relied upon the dual considerations (1) that it was impractical to expect schools to be able to conduct student disciplinary proceedings with the formality of a criminal trial and according to the technical rules of evidence, and (2) that, as a policy matter, it a requirement that students testify against one another created the risk of reprisals, and the consequent disincentive for students to come forward with information, “thereby hindering the school’s ability to enforce its rules.” By relieving the schools of the obligation to produce students as primary witnesses in student disciplinary proceedings, the Scanlon decision relieves the schools of a substantial burden in – and, in some instances, an insurmountable obstacle to – the imposition of long-term suspensions and expulsions. Enrollment in the Alternative School An interesting sidelight to the Scanlon decision is the court’s discussion of the import of the school district’s placement of Jarrett in its alternative school during his “suspension.” The court noted that the district did not “argue that its offer of an alternative school setting remedied any deprivation” of the student’s property interest in his public education. Yet, such an argument may have succeeded. As most alternative schools provide the same curriculum as regular schools, the student would have received the public education to which he was entitled, albeit in a more restrictive setting. The extent of due process that must be afforded is in direct relation to the gravity of the deprivation – a short term suspension requires only an informal interview of the student, while a long-term suspension or expulsion requires a full hearing. As the change in setting effected by transfer to the alternative school was a minimal deprivation, however, the evidentiary hearing the school provided may actually have been unnecessary – the student may have been entitled to no more than an informal opportunity to respond to the charges. Conclusion As of the time of this article, the period for appealing the decision has not yet run, so the Scanlon case may yet undergo further review by the New Mexico Supreme Court. It is a sound, well-reasoned decision, however, and so likely to be sustained. Stay tuned. Although the court did not have to decide that broader due process question, it did observe that the offer of education in the alternative school substantially reduced the extent of the deprivation the student suffered, compared to actual out of school suspension. Scanlon thus sets the stage favorably for schools for further litigation of that specific issue in the future. NMAA OFFERS PRE-BASKETBALL COACH-REFEREE SUMMIT The New Mexico Activities Association is sponsoring a summit conference for northern New Mexico basketball coaches and referees on Wednesday, October 10, 2007, in Santa Fe. The conference is part of an effort to promote civility and sportsmanship during intermural basketball games at New Mexico secondary schools. Such games have frequently been marred by instances of hostility, disrespect, and even violence by fans, which are often initially kindled by angry exchanges between coaches and officials. NMAA plans to host a summit in each region of the state in the future. The October 10^th event will feature Mr. Jimmy Casas, a nationally renowned NCAA Division I Men’s Basketball Official from Denver, Colorado. Mr. Casas is currently the coordinator for the Referee Educational Forums in Colorado and New Mexico, where officials discuss communication skills from the pregame to the final buzzer. Due to the increasing problems at basketball games, NMAA would like to get 100 percent attendance from the coaches and officials in Northern New Mexico in order to begin the process of building beneficial and positive relationships between all members of the interscholastic family in the years to come. Date: Wednesday, October 10, 2007 Time: 9:00 a.m – 4:00 p.m. Site: Capital High School Performing Arts Center (located next to the gymnasium) 4851 Paseo del Sol Santa Fe, NM 87505 Cost: $100.00 per attendee The Education Law Quarterly provides general information of interest to our clients and should not be used or taken as legal advice for specific situations, which depend on evaluation of precise factual circumstances.
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