When schools investigate student misconduct, they don't generally afford the accused student any particular rights. School disciplinary officials may engage in a host of investigatory abuses. Abuses may include bringing charges on guess, conjecture, and speculation rather than substantial evidence, unfair and leading questions asked during interviews, searches without probable cause, violations of privacy rights, and other wrongs that a court would never allow. Retain the Lento Law Firm's Student Defense Team the moment you learn of a school investigation. Let us help protect you against school abuses of student rights and interests. Call 888.535.3686 now or use our contact form to tell us about your case.
Why Schools Abuse Student Rights During Investigations
School disciplinary officials abuse student rights during investigations for several reasons. Some of those reasons for investigation abuses may be relatively innocent, while in other cases, the reasons may involve carelessness or even purposeful abuses. But make no mistake: school disciplinary officials commonly abuse student rights during school investigations of alleged misconduct. And those investigatory abuses can substantially affect disciplinary outcomes. Consider the following reasons for investigatory abuses.
Inadequate Investigator Skills, Poor Training, and Absent Procedures
First, school disciplinary officials typically don't have training in law and legal procedures. School disciplinary officials are often educators who have taken administrative positions within the school. They may have many duties, only one of which involves investigating disciplinary charges. The officials assigned to investigate may not even know the protections that constitutional rights generally afford individuals whom government actors accuse of wrongdoing. They may not know about due process of law, unreasonable search and seizure, probable cause, reasonable suspicion, Miranda rights, and the like. Their school may not have trained them, and their school may not have detailed the proper procedures to follow. You may face an investigator who is making it up as the investigator goes along. Don't expect a trained school investigator to protect your rights. Instead, get our help.
For example, Ohio State University's policy on investigating student misconduct authorizes all of the following officials to investigate student misconduct: the director of student conduct, the chief conduct officer for regional campuses, residence hall directors, assistant hall directors, academic misconduct committee members, Title IX coordinators and designees, university police, local police, and other designated university personnel. The policy does not detail what an investigation should look like. And it only says that the investigator may notify the accused student of the investigation, not the investigator must notify the student. In the worst case, you may not even know of the investigation until it concludes with disciplinary charges.
The Different Administrative Forums for School Disciplinary Charges
Schools investigate discipline in an administrative rather than court forum. Students may have only the rights the school gives them, not at all what you might expect from watching television legal dramas. Administrative forums generally have relaxed procedural rules, if they have any such rules at all. Courts, especially criminal courts, generally have elaborate procedural rules to ensure that prosecutors and investigators do not violate your constitutional rights. And the judge in a criminal court will protect your rights when your defense attorney calls upon the judge to do so. By contrast, school administrative forums can be remarkably informal. And they generally have no judge trained to protect constitutional rights, which may not in any case apply in the school administrative forum at all. Don't expect a formal school proceeding to protect your every right and interest. Instead, let us help you level the playing field.
The Different School Settings in Which Alleged Misconduct Occurs
The school setting also generally differs from the home, street, or workplace, where you might expect to have abundant protective rights against unfair investigations. Schools are highly regulated environments. Students generally don't have the same expectation of privacy when at school as they would at home or elsewhere. Depending on the circumstances, schools may be able to search lockers, backpacks, dormitory rooms, desks, and other spaces, review emails, texts, and other electronic transmissions and files, and surveil or monitor classrooms, hallways, dining rooms, outdoor areas, and even bathrooms and dormitory rooms, without violating student privacy rights. Don't expect privacy. Instead, let our Student Defense Team help you determine and defend your privacy rights.
The investigation policy for the Dallas (TX) Independent School District provides an example of the broad investigation authority, stating frankly that: “School officials have the legal authority and responsibility to investigate violations of the Student Code of Conduct and to interview students without prior notice to parents/legal guardians or the consent of parents/legal guardians in order to do so.” The Dallas public schools claim that authority “from the common law doctrine of in loco parentis, which means school officials are standing in the place of the parents when students are at school or attending school activities.” Dallas public school investigators “exercise this authority to maintain the safety and security of the school environment and to prevent the disruption of instructional programs,” not to protect or exonerate your student.
School Investigations May Be Adversarial Rather than Fact-Finding
School investigations of alleged student misconduct may also be adversarial in nature. That is, your school won't generally be looking for evidence to exonerate you or your student. Investigators won't be trying to prove innocence. Your school may not even be trying to get at the truth of who did what wrong. Your school may instead be trying to find responsible actors for the harm, loss, or injury that another claims to have suffered or observed. Don't assume that your school's investigator is working on your behalf. You would do far better to assume the opposite. And you would do your best to retain us to help protect your rights and ensure a fair investigation.
Types of School Investigation Abuses of Student Rights
You might be surprised at the high level of shenanigans some investigations entail. Don't be surprised. Learn here some of the tricks school officials may use to unfairly affect your disciplinary matter through an abusive investigation. Get our Student Defense Team's help so that you don't fall prey to one or more of these abuses.
Investigatory Abuses Concealing the Investigator and Investigation
As the two student discipline policies cited above indicate by example, schools generally grant broad authority to disciplinary officials to decide who should investigate. Policies often refer to a specific official, such as a dean of students or Title IX coordinator, but then add “or that official's designee.” The person you would expect to lead the investigation may simply delegate the investigation to a subordinate official. The University of Connecticut's Student Conduct Process is another example, authorizing the Associate Vice Provost “or designee” to accept complaints for investigation. Policies like the above also commonly permit school disciplinary officials to effectively deputize others, including campus security officers, to carry out all or part of the investigation. Abuse occurs when you do not know who is investigating you. Your resident assistant, an academic advisor, or another school official who has helped you in the past may be concealing their investigatory role, hoping to disarm you into uninformed and incriminating admissions. Be wary of anyone connected with the school who appears to be seeking information about your disciplinary matter.
Investigatory Abuses in Interviewing and Questioning
Similar abuses may occur in the course of interviewing and questioning. Because school officials rarely, if ever, determined to read you any Miranda or similar rights, you may have no idea that the school official, who may be a friend and advisor in other capacities, is actually questioning you in an active investigation. The school's investigator, posing as a friend, advisor, and confidante, may use leading questions, misleading questions, and questions that have no basis in fact for their foundation. Investigators may also secretly record the conversation or, if not, then inaccurately report the conversation, twisting your words into incriminating admissions. The Miranda warning, applicable in police interrogations, makes sense here: the investigator may and will use anything you say against you. And you won't even necessarily know that you are facing the investigator. Beware of seemingly friendly questions about your disciplinary matter. Don't answer questions without our Student Defense Team ensuring that the questions are fair and proper.
Investigatory Abuses in Search and Seizure
School officials may also abuse investigatory authority when searching for evidence of wrongdoing and seizing that evidence. School investigators may, for instance, open lockers, backpacks, purses, and bags to search for drugs, alcohol, weapons, stolen goods, or other contraband without having probable cause or reasonable suspicion of wrongdoing. School investigators may acquire computers, laptop computers, cell phones, tablets, or similar electronic devices or use electronic means to hack into student files, folders, emails, texts, and other electronically stored information. They may claim the right to do so under school policies stating that students consent to those searches, or they may claim an emergency or other right.
Investigatory Abuses in the Quality of Evidence
School disciplinary officials may also abuse investigatory authority when claiming to have evidence that is instead only guessing, conjecture, or speculation and when using information that is not reliable as evidence. Investigators may recommend and bring charges when they don't have the evidence to back up those charges. Evidence generally requires a reliable and credible witness who has first-hand knowledge of the matter from direct observation. Yet school investigators, lacking legal training in evidence, may instead accept and present second-hand, third-hand, or other hearsay statements from witnesses who were not present and made no observation of the matter about which they speculate. A court would never accept such speculation, but the very same speculation may somehow yet pass as if it were substantial evidence in a school disciplinary matter.
Investigatory Abuses in Handling of Evidence
When school investigators do acquire actual evidence, they may mishandle that evidence, leading to its spoliation or destruction. Law enforcement investigators generally have training in preserving a reliable chain of evidence, documenting every hand through which the evidence passes while ensuring that only secure individuals handle that evidence. But school investigators may not keep evidence in a secure place, may allow unknown or untrustworthy others to access the evidence, and may lose or destroy all or part of the evidence, making untrustworthy the little evidence that remains. School investigators may alter electronically stored information, taking it out of context, changing its format, and changing its meaning. They may preserve only incriminating parts of recorded conversations or of video surveillance while discarding or destroying exonerating parts, concealing the evidence that would have worked in your favor.
Investigatory Abuses in the Use of Evidence
School investigators may also commit abuses when using whatever evidence they discover of wrongdoing. They may seek disciplinary charges that the evidence does not support. Investigators may misconstrue documents, electronic communications, and statements as if they were incriminating admissions when, instead, they were immaterial and innocent. Investigators may present immaterial and prejudicial matters having nothing to do with the charges, like consensual relationships or off-campus conduct, to taint the hearing official or panel against you. They may also use against you information that you shared only in the context of a conciliation conference, not as part of a disciplinary investigation. Hearing officials and panels, and appeal review boards, may lack the legal training and experience to recognize investigator misuses of evidence, and may find misconduct where it did not occur or mistakenly assign responsibility.
Student Rights During Investigations
Despite these common, surprising, and unnerving investigatory abuses, you do have certain rights. While schools may have greater liberty to ensure a safe and orderly environment, and they may require you to consent to certain investigatory practices like reviewing electronic information, you may still have important rights that you can rely on and enforce during a school investigation of misconduct. Let us help you evaluate and assert these rights against an abusive school investigation.
Student Privacy Rights Against School Investigatory Abuses
You may well retain important privacy rights, notwithstanding school safety and security interests. Generally, as soon as an investigator recognizes that the matter the investigator is observing is private and unrelated to any potential school misconduct, the investigator should cease the observation. That right may protect your confidential electronic, audio, or written communications. That right may also protect your privacy in your personal effects, dormitory, motor vehicle, or other private place, against search or surveillance.
Student Constitutional Rights Against School Investigatory Abuses
If you or your student attend a public school, then the actions of a school investigator may, in certain cases, implicate your constitutional rights to due process. Those due process rights may include not only your right to notice and a hearing on disciplinary charges but also certain procedural protections against a biased and abusive investigation. Again, don't expect the full constitutional rights you see on television associated with a criminal investigation. But you may well have some constitutional due process rights to curtail the worst investigatory abuses, especially if you or your student attend a public school.
Student Contractual and Policy Rights Against School Investigatory Abuses
Public and private schools also often adopt some form of student misconduct procedures. The above examples show that those procedures may be very limited, especially when addressing what an investigator may or may not do. But those policies and procedures may nonetheless broadly promise due process. The University of Arizona's policy for responding to a disciplinary violation is an example of assuring students of due process in the university's disciplinary proceedings. A policy of this sort may also be a part of a student's contractual rights with the school. Let us help you evaluate whether you have these protective rights.
Student Statutory Rights Against School Investigatory Abuses
Many states also have statutes requiring public schools to provide due process protections to students accused of wrongdoing. Michigan's State Board of Education, for instance, has adopted a Model Code of Student Conduct under state legislative authority that guarantees due process to students facing suspension or expulsion. Public schools in the state must adopt procedures that are at least equivalent to the protections in the Model Code. You or your student may have important due process rights against investigatory abuses. Our Student Defense Team can help assert those rights during the investigation.
Steps to Take During Investigations
You or your student can take steps to reduce the risk of an abusive investigation. The first step is to retain our Student Defense Team as soon as you learn of the investigation. Don't wait for a disciplinary charge. The investigation may cast the die against you. Get out ahead of the charges by letting us help you participate actively and appropriately in the investigation. You may be able to avoid charges entirely.
If anyone inquires of you as to your role in suspected wrongdoing, do not answer without confirming their role. You may be facing an investigator or someone acting for an investigator. Don't speak to anyone about your disciplinary matter without knowing their role. And in general, don't speak about your disciplinary matter at all without our advice and assistance. You may need to give an interview or participate in a conciliation conference. But don't do so when ill-equipped.
Preserve everything that may in any way relate to the disciplinary matter over which you face investigation. Do not delete electronic files, texts, emails, or other information. Do not discard calendars, journals, notes, or assignments. Save videos, photographs, text messages, email strings, and other writings or images of any kind within your control that may relate to your matter. And hold those things for our review rather than releasing them to others who may alter, lose, or destroy them.
The Role of Defense Counsel During Investigations
Our Student Defense Team can help you during a disciplinary investigation. Our attorneys may first alert the investigator and other disciplinary officials that you have retained us. Our appearance in the matter on your behalf may discourage and forestall all of the above potential abuses. Generally, when an attorney appears on behalf of a client, the other side's attorneys must not go around that attorney. Your school's disciplinary officials will likely treat our appearance on your behalf as a signal to deal with you through us and to deal entirely fairly.
Our appearance on your behalf will also enable us to present your information and evidence at the appropriate time to the right school officials in an organized and orderly manner. We can help you include exonerating and mitigating evidence so that school investigators and other disciplinary officials see the full context of your disciplinary matter. You don't want the investigator to present only the school's side when seeking disciplinary charges and sanctions. You want the school to have the full picture, including your side, in the light that treats you most fairly.
We may also be able to arrange an early conciliation conference during the course of the investigation, where we may be able to show the investigator that disciplinary charges are unwarranted and unnecessary. Our team of attorneys may be able to propose a voluntary resolution that satisfies your school's concerns while meeting your own goal to avoid any finding of wrongdoing. An investigation often allows for substantial advocacy on the accused student's part, which may result in an appropriate workout in everyone's best interest.
Premier Defense Team Available
The Lento Law Firm's Student Defense Team is available nationwide to defend and protect against unfair and abusive investigations. We have successfully helped hundreds of students nationwide at all levels of education, in all types of educational programs, and against all kinds of misconduct charges. Retain us the moment you learn of a school investigation. Don't wait until an investigation concludes with disciplinary charges. Our help during the investigation may result in a resolution without charges or discipline. Call 888.535.3686 now or use our contact form to tell us about your case.
