The relationship between the Nutmeg Public Schools and the Nutmeg Police Department has always been characterized by cooperation and respect. Therefore, when Chief O'Blue called Mr. Superintendent to ask for his help, Mr. Superintendent wanted to oblige. Chief O'Blue explained that over the last several months various Nutmeg youth have been involved in incidents at the Nutmeg Mall ranging from running out on the check to "smash-and-grabs" at the jewelry store. Mr. Superintendent interrupted him to ask what these unfortunate events had to do with the Nutmeg Public Schools.
"Aye, that's the question," responded the Chief. "We need to know just who this criminal element is, and your staff is the best way to find out. We want to meet with the high school teachers and talk to them about what they have heard. We also want to train them to act as security personnel to keep their eyes and ears open so that they can report suspicious activity to the recently-formed Young Troublemaker Task Force."
Mr. Superintendent thought about this request. He wanted to cooperate with the police, but he was concerned about the privacy of the Nutmeg students. "Wouldn't sharing such information violate FERPA?" he asked Chief O'Blue. "We don't want to get sued by some disgruntled parent, you know."
"Do I look like a lawyer?" the Chief responded. "You can get sued walking down the street. We have a public safety emergency on our hands here, and we must dare to be great."
Mr. Superintendent told the Chief that he had better talk with the Board about this idea. At the next meeting, Mr. Superintendent waited for the executive session and brought up the Chief's request to train staff to serve as security personnel. Veteran Board member Bob Bombast was all over it. "Finally. Someone is going to take action against these punks. I hope that you pledged the complete cooperation of your staff."
Mr. Superintendent explained his reservations, and the Board mulled it over. The Board members decided that the Administration should cooperate, but only on the condition that the Nutmeg PD would assign someone to serve as a school resource officer. That way, they reasoned, the district could have additional security personnel. In addition, such an assignment would permit them to describe the SRO as a "school official" entitled to receive any relevant information about students.
As the Board had requested, a school resource officer was appointed, but the Department committed many more officers to the Task Force. In teams of two, a large number of police officers descended upon Nutmeg Memorial High School and started interviewing everyone in sight. Mal Content, a longtime social studies teacher (and closet anarchist), was particularly offended by the intrusive police presence at the school. When it came time for his interview, he adamantly refused to provide any information, telling the officers that he did not wish to become a police stooge and betray the confidences of his students. The police immediately reported Mal's failure to cooperate, and Mr. Superintendent directed Mal to answer all questions posed by the police or "face the consequences."
Mal was not cowed by Mr. Superintendent. He called the ACLU-Connecticut and reported what he perceived to be an egregious abuse of power. Who has the problem here - the Nutmeg Public Schools or Mal?
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Given these facts, Mal could have the problem. Mr. Superintendent should have been more specific in his directive, which was overly broad. However, a more narrowly-tailored directive to answer police questions could be enforceable, and Mal's refusal to comply would be insubordination, a serious disciplinary offense. More generally, the activities of the Task Force were legal and did not violate the rights of the students.
The problem with the directive is that there are certain categories of student information that are protected. Any personally identifiable information contained in student records, for example, is protected from unauthorized disclosure by the Family Educational Rights and Privacy Act (FERPA), a federal law passed over thirty years ago. In addition, teachers have the legal right under Connecticut General Statutes § 10-154a to refrain from disclosing confidential information shared by a student about a drug or alcohol problem or abuse. By requiring Mal to answer "all questions" the police might have, Mr. Superintendent's directive was overly broad.
That said, there is significant opportunity for sharing of information between school personnel and police officials. The United States Supreme Court has interpreted FERPA to apply to information only after it is included in specific school records. If school personnel make observations about student conduct or hear student statements, they are free to report such information to the police without constraint by FERPA. A more restrictive interpretation of student confidentiality requirements would be illogical and would even prevent school personnel from reporting crimes by students to the police. Accordingly, while school personnel should require either a subpoena or other compliance with FERPA requirements to share confidential information contained in school records (e.g., student discipline records, student witness statements), they may share more general information with the police.
The role of the school resource officer in such matters is evolving. Some judicial opinions hold that school resource officers are still police officials constrained by the more stringent standards applicable to law enforcement personnel (e.g., probable cause, warrants). However, others have held that school resource officers are also school officials. At this point, it is advisable to consider school resource officers as "school officials" only when they are providing assistance at the request of other school personnel. When the police are fulfilling a law enforcement mission, as with the Task Force here, the school resource officer will most likely not be considered a school official.
Finally, the Board's discussion of such matters in executive session may have been proper (provided that the Board stated the reason for the executive session as required by law). One of the five reasons under the Freedom of Information Act for executive session is "(C) matters concerning security strategy or the deployment of security personnel, or devices affecting public security." The scope of this provision will be interpreted in light of the specific discussion, and it is important not to stray from the topic. However, public agencies have the right to discuss specific security strategy and/or personnel in executive session.
Thomas Mooney is a partner in the School Law practice.