Monday, April 29, 2013

The School, Suicide and the Cell-phone

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From 2005 to 2008, “G.C.” was enrolled as an out-of-district student in the Owensboro [Kentucky] Public School District. G.C. v. Owensboro Public Schools, 711 F.3d 623 (U.S. Court of Appeals for the 6th Circuit 2013). 

The Owensboro district “has a reciprocal agreement with Daviess County Public School District, the district where G.C.'s parents reside, that allows a limited number of students to enroll in" the Owensboro schools. G.C. v. Owensboro Public Schools, supra. The “`enrollment of non-resident students in the District's schools is subject to the recommendation of the school Principal and approval of the Superintendent.’”  G.C. v. Owensboro Public Schools, supra.  Non-resident students are “`defined as those whose parent or guardian resides outside the District.’” G.C. v. Owensboro Public Schools, supra



During his freshman year at Owensboro High School, G.C. began having disciplinary problems and told “school officials he used drugs and was disposed to anger and depression.” G.C. v. Owensboro Public Schools, supra.  These incidents then occurred:



On September 12, 2007, . . . G.C. was given a warning for using profanity in class. . . . In February 2008, G.C. visited [Assistant Principal Christina] Smith's office and expressed to Smith `that he was very upset about an argument he had with his girlfriend, he didn't want to live anymore, and he had a plan to take his life.’ . . .



G.C. told Smith `he felt a lot of pressure because of football and school and smoked marijuana to ease the pressure.’ . . . Smith met with G.C.'s parents and suggested he be evaluated for mental health issues. . . .. G.C.'s parents took him to a treatment facility that day. . . . .



G.C. v. Owensboro Public Schools, supra. 



Apparently nothing happened until the next fall, when, on November 12, 2008, G.C. was



given a warning for excessive tardies, and on November 17, G.C. was disciplined for fighting and arguing in the boy’s locker room. . . . On March 5, 2009, G.C. walked out of a meeting with Summer Bell, the prevention coordinator at the high school, and left the building without permission. . . . G.C. made a phone call to his father and was in the parking lot at his car, where there were tobacco products in plain view. . . .



G.C. went to Smith's office, and Smith avers G.C. `indicated he was worried about the same things we had discussed before when he had told me he was suicidal.’ . . . She . . . `was very concerned about [his] well-being because he indicated he was thinking about suicide again. I, therefore, checked [G.C.'s] cell phone to see if there was any indication he was thinking about suicide.’ . . . G.C. visited a treatment center that day, and the counselor recommended he be admitted for one to two weeks. . . .



G.C. v. Owensboro Public Schools, supra. 



On March 9, 2009, school officials met with G.C. and his parents “regarding the March 5 incident” and he “was placed on probation and assigned four days of in-school suspension.” G.C. v. Owensboro Public Schools, supra. On April 8, he was suspended “after yelling and hitting a locker” and at the end of the academic year, Principal Anita Burnette recommended that Superintendent Larry Vick revoke G.C.'s authorization to attend Owensboro High School. G.C. v. Owensboro Public Schools, supra. 



Vick did not follow her recommendation; instead, he met  with G.C.’s parents on June 15 to discuss what was expected of him. if he continued to attend Owensboro.  G.C. v. Owensboro Public Schools, supra. Among other things, Vick told them that if G.C. had “`any further disciplinary infraction, this privilege would be immediately revoked and he would be required to return to his home school district.” G.C. v. Owensboro Public Schools, supra.



On September 2, 2009, G.C. violated Owensboro’s cell-phone policy when



he was seen texting in class. . . . G.C.'s teacher confiscated the phone, which was brought to [Assistant Principal Melissa] Brown, who read four text messages on the phone. . . . Brown said she looked at the messages `to see if there was an issue with which I could help him so that he would not do something harmful to himself or someone else.’ . . .



Brown explained that she had these worries because she `was aware of previous angry outbursts from [G.C.] and that [he] had admitted to drug use in the past. I also knew [he] drove a fast car and had once talked about suicide to [Smith]. . . . I was concerned how [he] would react to his phone being taken away and that he might hurt himself or someone else.’



G.C. v. Owensboro Public Schools, supra.



“After this incident, Burnette recommended to Vick that G.C.'s out-of-district privilege be revoked,” and Vick agreed.  G.C. v. Owensboro Public Schools, supra. On October 15, 2009, he and other school officials met with G.C.'s parents and their attorney. G.C. v. Owensboro Public Schools, supra.  Vick told them G.C. "had violated the condition of his out-of-district privilege to attend Owensboro High School by texting in class”, which seems to have meant he was dismissed.  G.C. v. Owensboro Public Schools, supra.



On October 21, G.C. filed suit in federal district court against Vick, Burnette, Brown and Smith, in which he alleged various violations of his constitutional rights.  G.C. v. Owensboro Public Schools, supra. One of his claims, the only one examined in this post, was that his 4th Amendment rights were violated by school officials “when they read text messages on his phone without the requisite reasonable suspicion”.  G.C. v. Owensboro Public Schools, supra. 
--> (The opinion does not say this, but I assume his 4th Amendment claim, at least, was brought under the federal civil rights statute.)


The defendants responded by filing a motion for summary judgment on all his claims which, as Wikipedia explains, lets a judge enter a judgment “before trial, effectively holding that no trial will be necessary.”  As Wikipedia notes, summary judgment can only be entered when the judge finds that



  1. there are no disputes of "material" fact requiring a trial to resolve, and
  2. in applying the law to the undisputed facts, one party is clearly entitled to judgment.



In other words, summary judgment cannot resolve factual issues.  It is proper only when a claim is legally defective, so the opposing party wins on the law. G.C. appealed the district court judge’s grant of summary judgment on his 4th Amendment claim, so the U.S. Court of Appeals for the Sixth Circuit is, in this opinion, deciding whether the judge erred in making that decision. G.C. v. Owensboro Public Schools, supra. 



The Court of Appeals began its analysis of G.C.’s appealing the grant of summary judgment on his 4th Amendment claim by noting that the Supreme Court “has implemented a relaxed standard for searches in the school setting”.  G.C. v. Owensboro Public Schools, supra.  It explained that in New Jersey v. T.L.O., 469 U.S. 325 (1985), the Court held that



the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.



New Jersey v. T.L.O, supra.



The Court of Appeals then elaborated on precisely what this means in practice:



`[a] student search is justified in its inception when there are reasonable grounds for suspecting that the search will garner evidence that a student has violated or is violating the law or the rules of the school, or is in imminent danger of injury on school premises. Brannum v. Overton County Sch. Bd., 516 F.3d 489 (U.S. Court of Appeals for the 6th Circuit 2008). `Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.’ New Jersey v. T.L.O., supra.



`In determining whether a search is excessive in its scope, the nature and immediacy of the governmental concern that prompted the search is considered. Brannum v. Overton County, supra. `In order to satisfy the constitutional requirements, the means employed must be congruent to the end sought.’ Brannum v. Overton County, supra



G.C. v. Owensboro Public Schools, supra. 



Since this Court of Appeals had not addressed “how the T.L.O. inquiry applies to the search of a student’s cell phone”, the plaintiff and defendants cited two federal district court cases that had addressed this issue.  G.C. v. Owensboro Public Schools, supra.  


The defendants relied on J.W. v. Desoto County School District, 2010 WL 4394059 (U.S. District Court forthe Northern District of Mississippi 2010), in which a teacher, who saw a student using his cell phone in class, took the cell phone and opened it to view “the personal pictures on it” that were taken by the student while at his come. 



The federal district court judge who had the case held that in deciding the reasonableness of the teacher’s actions, a “crucial factor” was that the student was caught using the phone at school.  J.W. v. Desoto County School District, supra.  This judge found that “[u]pon witnessing a student improperly using a cell phone at school, it strikes this court as being reasonable for a school official to seek to determine to what end the student was improperly using that phone.” J.W. v. Desoto County School District, supra. 



The Court of Appeals did not agree with this reasoning, noting that a search is



justified at its inception if there is reasonable suspicion that a search will uncover evidence of further wrongdoing or of injury to the student or another. Not all infractions involving cell phones will present such indications. 

Moreover, even assuming a search of the phone were justified, the scope of the search must be tailored to the nature of the infraction and must be related to the objectives of the search. Under our two-part test, using a cell phone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantively or temporally to the infraction. 



G.C. v. Owensboro Public Schools, supra. 



G.C. relied on Klump v. Nazareth Area School District, 425 F.Supp.2d 622 (U.S. District Court for the Eastern District of Pennsylvania 2006), in which “a student was seen using his cell phone, followed by two school officials accessing [his] text messages and voice mail; searching [his] contacts list; using the phone to call other students; and having an online conversation with [his]  brother.”  G.C. v. Owensboro Public Schools, supra.  The Klump court found that the school officials were “justified in seizing the cell phone, as [the student] had violated the school's policy prohibiting use or display of cell phones during school hours.” Klump v. Nazareth Area School District, supra.



The Klump judge also, though, found the school officials were not “ justified in calling other students, as `[t]hey had no reason to suspect at the outset that such a search would reveal that [the student] was violating another school policy.’’ Klump v. Nazareth Area School District, supra. The judge discussed the text messages read by the school officials, concluding that although they ultimately found evidence of drug activity on the phone,



for the purposes of a 4th Amendment claim, the court must consider only that which the officials knew at the inception of the search: `the school officials did not see the allegedly drug-related text message until after they initiated the search of [the] cell phone. Accordingly, . . .  there was no justification for the school officials to search [the] phone for evidence of drug activity.



Klump v. Nazareth Area School District, supra.



The Court of Appeals noted that the Klump court’s “fact-based approach” more accurately represented its standard “than the blanket rule set forth in DeSoto. G.C. v. Owensboro Public Schools, supra.  It then explained that G.C.’s objection to the



September 2009 search centers on the first step of the T.L.O. inquiry -- whether the search was justified at its inception. G.C. argues that the school officials had no reasonable grounds to suspect that a search of his phone would result in evidence of any improper activity.



The defendants counter that the search was justified because of G.C.'s documented drug abuse and suicidal thoughts. . . . Therefore, they argue, the school officials had reason to believe they would find evidence of unlawful activity on G.C.'s cell phone or an indication that he was intending to harm himself or others. . . .



G.C. v. Owensboro Public Schools, supra.



The Court of Appeals was not convinced:



We disagree . . . that general background knowledge of drug abuse or depressive tendencies, without more, enables a school official to search a student's cell phone when a search would otherwise be unwarranted. The defendants do not argue, and there is no evidence in the record to support the conclusion, that the school officials had any specific reason at the inception of the September 2009 search to believe that G.C. then was engaging in any unlawful activity or that he was contemplating injuring himself or another student.



Rather, the evidence in the record demonstrates that G.C. was sitting in class when his teacher caught him sending two text messages on his phone. . . . When his phone was confiscated by his teacher pursuant to school policy, G.C. became upset. . . . 

The defendants have failed to demonstrate how anything in this sequence of events indicated to them that a search of the phone would reveal evidence of criminal activity, impending contravention of additional school rules, or potential harm to anyone in the school.  On these facts, the defendants did not have a reasonable suspicion to justify the search at its inception.



G.C. v. Owensboro Public Schools, supra.



In a footnote, the court also pointed out that the “ordinary nature” of the September 2009



 infraction is highlighted further when contrasted with the March 2009 search, which G.C. has conceded was justified at its inception. Immediately prior to the March 2009 search, G.C. admitted to making a call on his cell phone in the school parking lot after having walked out of a meeting with the school prevention coordinator. . . . 

Upon his return, G.C. told Bell he was having suicidal thoughts, and the security officer reported to Bell that there were tobacco products in plain view in G.C.'s car. There was thus reason to believe -- based on that day's sequence of events -- that G.C. was contemplating injuring himself or breaking additional school rules. The defendants, however, can point to no such indications in the hours, weeks, or months leading up to the September 2009 search.



G.C. v. Owensboro Public Schools, supra.



The Court of Appeals therefore reversed the district court judge’s grant of summary judgment to the defendants on G.C.’s 4th Amendment claim and remanded the case to the district court for further proceedings.  G.C. v. Owensboro Public Schools, supra. That does not, as I have noted before, mean that G.C. prevailed and will prevail on the claim.  It means that the case goes forward, at least as to this cause of action.  G.C. v. Owensboro Public Schools, supra.

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