School District Cases, and the Police Practices Within Them

Where a law enforcement agency assigns an officer to a school, the records that define the assignment are read before the incident's own records. The agency's directives govern the officer at the school as they govern any of its officers, and an agency may add a directive for school assignments. The agreement between the agency and the district, called a memorandum of understanding or an interagency agreement, sets out what the officer is there to do. National guidance on school resource officer programs, from the National Association of School Resource Officers (NASRO) and the U.S. Department of Justice's COPS Office, calls for a written agreement that defines the officer's role, and leaves the administration of school discipline with school administrators rather than the officer. The analysis reads the agreement and the directives in force on the date of the incident, and whether the officer had received the training the assignment called for, as described in what training records reveal.

Where a district runs its own police department, the district is also the law enforcement agency. Its police directives, its supervision of its officers and its hiring and retention of them are read the way any agency's are, the last as set out at hiring and retention.

Where the line between school discipline and law enforcement is in dispute, the record shows where the officer stood: who asked the officer to act, what the request was, whether the conduct the officer acted on was a violation of school rules or a crime, and what the agreement said the officer's role was.

A failure-to-protect claim puts two things on the record: what the school knew, and what was done with it. Counsel may call the same claim negligent supervision or child endangerment by the school, and the record is read the same way under any of those names. The record of what the school knew is the school's own: reports from students, parents or staff, discipline referrals, emails among staff, incident and visitor logs, and any report of a threat. The analysis does not judge what an educator should have done with that information. It places each entry on the record chronology so that the notice can be dated, and it identifies the point at which the information reached law enforcement.

That point has records on both sides. The school's side shows who decided to call the police or the officer assigned to the school, when, and what was reported; the agency's side shows the call or the officer's notes, the time the report was received and how it was classified. Where state law requires school employees to report suspected abuse or certain crimes to law enforcement or to a child protection agency, what the statute required, and of whom, is a question for counsel, and the analysis reports what the record shows was reported, when and to whom.

Where a school employee is accused of sexual misconduct toward a student, the conduct alleged is misconduct by the adult, and the record that matters for police practices is the reporting chain: who learned of it, whether a student, a parent, a colleague or an administrator; what that person did with it; when it reached an administrator; and when it reached law enforcement or a child protection agency, from whom and in what words. Files of this kind are sometimes labeled an inappropriate relationship between a teacher and a student. The analysis describes the conduct as misconduct by the adult, and reads the records the same way whatever label the file carries.

Each step in the chain is dated from its own record: the earliest report by the student or a parent, a colleague's note or email, the administrator's file, the call log and the agency's report. A gap between the date the information reached the school and the date it reached law enforcement is reported as a gap, with its dates, and what the law required of the school in that interval is a question for counsel.

Where the adult is a school resource officer or an officer of a district's own police department, the officer's activity, complaint and supervision records join the file, read as they are in cases of sexual misconduct under color of authority.

Several bodies of law can reach the same school facts, and choosing among them is counsel's work. Title IX, 20 U.S.C. § 1681, bars discrimination on the basis of sex in any education program or activity receiving federal financial assistance, with exceptions the statute lists. Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), held that, in a case that does not involve the district's official policy, damages for a teacher's sexual harassment of a student may not be recovered under Title IX unless an official with at least the authority to institute corrective measures on the district's behalf had actual notice of the misconduct and was deliberately indifferent to it. Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), held that a school board receiving federal funds may be liable in damages for harassment of one student by another, but only where it had substantial control over the harasser and the setting and was deliberately indifferent to known harassment so severe, pervasive and objectively offensive that it denied the victim access to an educational opportunity or benefit.

A federal civil rights statute, 42 U.S.C. § 1983, makes a person who, under color of state law, deprives another of rights secured by the Constitution and laws liable to the injured party, as set out in what a Section 1983 claim is. Monell v. Department of Social Services, 436 U.S. 658 (1978), held that a local government is answerable under that statute when its policy or custom inflicts the injury, not for an injury inflicted solely by its employees or agents, and it limited that holding to local government units not considered part of the State for Eleventh Amendment purposes. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), held that, as a general matter, a State's failure to protect a person against private violence does not violate the Due Process Clause. The opinion recognized a duty where the State takes a person into its custody and holds the person there against the person's will, and whether that or any other limit reaches a school case is a question for counsel in the governing circuit. The police practices analysis supplies the facts these questions are argued from, and none of the legal conclusions.

Records in a school case are sensitive. Student records, juvenile records and the files of a misconduct investigation may be produced under a protective order, and where one governs, its terms control how the records are handled. Nothing privileged travels with a first inquiry, privileged material is never exchanged by email, and after retention the record travels on physical media, a computer flash drive or an external hard drive by mail or courier, rather than through online sharing services.

Every engagement begins with a conflict check, before any substantive discussion. A review can stay consulting-only, as explained in consulting and testifying experts, or lead to a written report and testimony. Written reports require sixty days of advance notice, and retention is a non-refundable $9,000 flat fee covering discovery review and the written expert report; the full schedule is at For Counsel.