Rebecca Livengood of the New Jersey ACLU offers a review of juvenile rights during police interactions.
By Matt Skoufalos
After a weeks-long policy in which Collingswood school staff were told to call borough police to investigate discipline issues in the district, many parents remain confused and concerned about their rights and the rights of their children during encounters with law enforcement.
To gain some perspective on the matter, NJ Pen spoke with Rebecca Livengood, a Skadden Fellow at the New Jersey chapter of the American Civil Liberties Union (ACLU) in Newark. The organization has worked on “Know Your Rights” templates for juvenile encounters with police, and believes that expanded opportunities for civil liberties education can help build stronger communities. Livengood said the organization has conducted “Know Your Rights” trainings in cooperation with school districts, and continues to do so upon invitation.
“It is our position that police should only be involved in school discipline in serious incidents, which are extremely rare,” she said.
When school officials administer discipline internally, the stakes for students are almost uniformly lower than if consequences are determined by law enforcement, Livengood said. When students interact with the legal system, “incarceration becomes a possibility,” she said, which can make it more difficult for children to find employment later in life, or to enroll in secondary education when school becomes “another conduit for children into the criminal justice system.”
(For more on those findings, Livengood recommends this report from the Justice Policy Institute.)
In the opinion of the ACLU, even community policing strategies, which have gained ground nationally as models for improved outcomes with law enforcement, stand to benefit from civilian oversight. Furthermore, the organization believes no community policing model should include a permanent police presence in schools; even school resource officers reflect an increased police presence, which “overall, has negative consequences for kids,” Livengood said.
Similarly, the organization does not support zero-tolerance policies, mandatory morality pledges related to student participation in activities, and dual-reinforcement policies that land children in trouble at school for things that happen outside of the school environment.
“The overarching principle is that discipline should be addressed in a way where decisions are made by school officials and parents, and not by law enforcement,” Livengood said. “Any way in which those decisions are shifted to law enforcement, we are very concerned about.”
When discipline involves police, or when the presence of officers in school is “excessive,” children can be made to feel that they’re doing something wrong, even when they aren’t, Livengood said. Furthermore, children often do not have the wherewithal to advocate for themselves in dealing with most authority figures, including police, which is why police should “almost never” investigate young children, and absolutely never without a parent present.
The ACLU recommends all students follow a few key rules during all police encounters.
Fifth Amendment Right. The right to remain silent is important. Every American has the constitutional protection from self-incrimination when discussing suspected criminal activity with law enforcement. In short, a police officer can never punish a citizen for failing to answer a question. School officials may be able to punish students for refusing to answer questions related to school rules, but police can never punish them for failing to answer a question. The ACLU recommends that students never consent to police questioning without an attorney or parent present.
Miranda rights. A student cannot be made to forfeit his or her Miranda rights—the right to remain silent and the right to an attorney—if the student believes a school official is asking questions because of suspected criminal activity. If police are present, an officer must read the student his or her rights and use best efforts to locate his or her guardian even if not asking any questions.
Stay safe. Don’t resist. If a minor is arrested, the ACLU recommends that student comply with all police directives in order to stay safe. Not resisting and being polite are important strategies, as is remembering to invoke rights to silence and to an attorney.
Parents have a right to be present. If police wish to question a child inside or outside of school, his or her parents have a right to be present. Police must make a reasonable attempt to locate a child’s guardian before questioning him or her. The ACLU also recommends that a lawyer be present before answering any questions.
Searches. Police officers can require a generalized search of any school facility, and most schools have policies that allow police to search desks, lockers, and other school property at any time. If a search policy is in effect, however, the law does distinguish between individualized student searches and broad searches. Searches and pat-downs of individual students are not allowed without a warrant or without reasonable suspicion that a law is being broken or has been broken. Reasonable suspicion can include suspicious behavior, seeing or smelling something, an emergency situation, or a third-party tip.
Metal detectors. Students may have to walk through a metal detector before entering a school, before boarding a school bus, and if told to do so by a school official. Setting off a metal detector may give an officer reasonable suspicion for conducting an individual search or pat-down.
Right to parent notification. If a minor is arrested during the school day, parents must be notified as soon as possible. An arrest made without parent notification may be grounds for an attorney to argue for suppression of any evidence gathered during questioning.
Admissibility of evidence. If police violate the law in gathering evidence during an investigation, that evidence may be suppressed before trial, which may lead to any charges being dismissed.
“The prosecutor’s office is not empowered to exempt the police from their constitutional obligations,” Livengood said. “The obligation of identifying parents and the rights of children not to make incriminating statements exists even if prosecutors say police should be more involved with schools.”
As important as it is to educate children on their rights, Livengood said it’s even more important for adults to use their policymaking power to limit police interactions with kids. She described the incident involving the prosecutor’s office and the Collingswood school district as “a good example of how, beyond the statewide Memorandum of Agreement governing police and school cooperation, there is local policy-setting that can happen.
“We as adults can collectively decide that discipline is overwhelmingly a matter for schools and parents, and that only in the rarest instances should police be involved in schools,” she said. “We are very in favor of kids receiving trainings about their constitutional rights. If it requires parents and teachers talking through some of those scenarios with kids, we’re in favor of that.”
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