US Supreme Court

School Safety Report Urges Undoing Obama Discipline Guidance

/in /by

The Federal Commission on School Safety, created after the mass shooting last February at Marjory Stoneman Douglas High School in Parkland, Florida, in which former student Nikolas Cruz killed 17 students and staff members, issued its report on December 18.  

Among the Commission’s nearly 100 recommendations was eliminating “guidance” statements made jointly by the Obama administration’s Department of Education (DOE) and Department of Justice in 2014, which critics say discourage elementary and secondary schools from reporting to law enforcement students who may pose safety risks. 

The report of the panel, chaired by DOE Secretary Betsy DeVos and comprising her and the heads of the Departments of Health and Human Services, Homeland Security, and Justice, called the 2014 guidance well-meant, but voiced serious concerns it might have “paradoxically contributed to making schools less safe.”  

The Obama-era guidance warned school disciplinary policies have sometimes been disproportionately invoked against racial and ethnic minorities, citing data that African-American students have been suspended or expelled at more than triple the rate for white students, and that half of students referred to police by schools are Hispanic or African-American. Titles IV and VI of the Civil Rights Act of 1964 forbid discrimination by elementary or secondary education programs run or funded by the federal government. 

So early in 2014, the two federal agencies provided their views of how they will judge school disciplinary policies, urging schools to “Rethink School Discipline” and sending school officials nationwide advisories that violations can bring federal investigations, lawsuits and funding cut-offs. 

The temporary commission’s recently issued report faulted the Obama-era guidance on three main grounds: first, for making teachers and school officials more reluctant to impose discipline, for fear of the consequences to their funding and control, areas the report argues are inherently local in scope, and for misstating the reach of the proper federal legal authority. 

The 2014 guidance did not restrict themselves for policies or practices that clearly violate Titles IV or VI of the Civil Rights Act by being either intentionally different treatment based on race, national origin, or other improper grounds. Instead, the guidance asserted the enforcement agencies’ view that it also authorized sanctions against what lawyers call disparate impact – i.e., policies or practices which on their face appear neutral, but somehow wind up have an outsized impact on a racial or other legally protected group.  

This directly led to the commission’s third objection to the Obama-era guidance: schools had little clear idea of when their disciplinary policies might come under attack, if they could be attacked with claims that federal enforcers could claim statistical disparities among demographic groups could be used to challenge a school’s discipline rules or practices, no matter with how much good faith they had been adopted and implemented. 

Although the report of the Federal Commission on School Safety also addressed a wide range of additional issues, including gun control measures, arming teachers, violent video games, and cyberbullying, it generally expressed a strong emphasis on avoiding across-the-board answers devised by federal authorities.  

Throughout, it repeatedly stressed its view the most effective approach to these areas, as with school discipline, was to allow local educators to determine what works best, rather than look to federal policymakers to devise nationwide answers, and to exert greater control.  

What a Criminal Defense Attorney Tells His Children About Pledging a Fraternity or Sorority

/in /by

On many campuses, college culture is synonymous with Greek life. Every year students attend rush events hoping to be picked to pledge a fraternity or sorority both to be part of a social group, and to enjoy what is usually an active party scene. With the spring semester now in full swing, many students are deciding when/if to pledge. And while there may be many benefits to joining one of these on campus organizations, there is one very dangerous obstacle that often stands in the way of a pledge becoming a member of the organization; hazing.

Usually acceptance into a fraternity or sorority entails engaging in a series of mandatory tasks or exercises imposed by upperclassmen. Many of these activities are completely harmless, such as learning to recite the Greek alphabet, memorizing the organization’s history, interviewing current members, or participating in philanthropic events. However sometimes the activities are taken too far. The problem starts when, to gain acceptance to the group, students are put through any number of ordeals that can be classified as hazing.

What is Hazing?

Hazing is defined as; the imposition of strenuous, often humiliating, tasks as part of a program of rigorous physical training and initiation. Placing a group of 19-21 year olds in charge of imposing strenuous and humiliating tasks upon lowerclassmen does not inspire much confidence, especially when it comes to safety. The problem only gets worse when you realize that most hazing involves alcohol and drug use, both by the members doing the hazing and the pledges acting on their orders.

It’s common knowledge that hazing often involves binge drinking. There have been plenty of news stories where the combination of pledging and alcohol consumption has gone seriously wrong, causing accidents, injuries, hospitalization, and in some cases death. In February of last year college sophomore Timothy Piazza made major headlines when he died from falling down a flight of stairs and suffering serious internal injuries after being forced to drink lethal amounts of alcohol during hazing at a party.

Even on college campuses that don’t have fraternities or sororities students can still be at risk as this behavior can occur on athletic teams, or within other student organizations.

It’s almost impossible to completely avoid risk when pledging, and that’s why it’s so important to have a discussion with your kids about the potential consequences involved before you send them off to school on their own. At least that way they don’t go into the situation blind, but have some knowledge of what to expect and how to stay safe and out of trouble.

Why pledge in the first place?

It may seem obvious to us now that if someone tells you to do something you don’t want to do, you just say no. But when you’re a college student new to campus it’s very easy to succumb to the pressure of wanting to be part of a group, and doing whatever it takes to make that happen.

When I was in college I pledged a fraternity. I didn’t plan on it, and it’s not something I ever discussed with my parents. But 3 weeks into my freshman year, I was given a bid and became a pledge. I participated in plenty of nonsense, and thankfully most of it was pretty tame. But we also participated in a number of unsafe activities, in which one wrong step could have caused serious harm to one of us.

The reason I participated is the same reason most kids today do, acceptance. Acceptance by this large group of upperclassmen that want you to be part of their group. Acceptance by the other students that you are pledging with. And as ridiculous at it may be, you can’t help but develop strong bonds with the other people who are going through it with you.

In college it’s an honor to be part of a fraternity or sorority. It means you belong to a brother or sisterhood, that you’re not alone on campus. You had to earn your way into that group by demonstrating your worthiness during pledging, making you special. You now have an automatic invitation to a lot of fun parties, and a host of other students you call friends because of your membership. All of these are desirable things to many freshmen who find themselves on their own for the first time.

The problem is when the desire to be part of the group causes kids to do reckless things that can have long term consequences.

What schools are doing about this

While the obvious answer may seem like banning all Greek life from campus, that’s probably not going to happen anytime soon. Instead, colleges have begun imposing prerequisites to pledging, and policies that are supposed to protect new students. These include:

  • GPA minimums 

  • The “New member” process can only be a certain designated time 

  • Participating in a hazing education course 

  • No Hazing 

  • No drinking when pledges present

The challenge with the prerequisites is enforcement. It’s one thing for a college to declare “no hazing” but there’s little way for them to enforce this policy unless they are monitoring students 24/7.

In certain cases colleges are also taking more serious steps to punish fraternities and sororities for serious misconduct. At my alma mater alone (SUNY Albany) out of 21 fraternities on campus, two have been derecognized, two had their charters revoked, five are currently suspended, and four are on probation, meaning only one third of the 21 fraternities are actually in good standing with the school.

As of September of this year Monmouth University in New Jersey suspended all of its fraternities and sororities because of hazing.

If your kids are planning on pledging

Just as it’s unrealistic to think that schools are going to ban all fraternities/sororities anytime soon, it’s also unrealistic to think that your kids are not going to participate, or get hazed. That’s the reason why having a conversation with them about what to expect is crucial.

Make sure they know their limits. As I mentioned before, not all pledging is bad; some of the acts students have to do are harmless. However it’s critical that your kids recognize the difference between harmless pledging, and the type of activities that could cause them either physical harm, or serious repercussions with the school. They should be aware of circumstances that might put them in danger or being asked to consume alcohol to an unreasonable degree. That way at least if they are going to pledge, they can have a positive social experience without getting themselves hurt.

 

What a Criminal Lawyer Tells His Kids About… Social Media and School

/in /by

School Discipline in the Past 

Over my years as a criminal defense attorney, I often get calls to represent students at high-school disciplinary hearings. When I first started practicing in 1998 most of those hearings stemmed from one or more of three main factors: drugs, weapons or fights.

However, challenging it might be to defend a student in cases like these, at least the charges and often the evidence was usually straightforward. If a student was charged with possessing or using drugs or weapons, that usually meant someone at the school had found some drugs or weapons on the person of my client. And it there was a fight, it would usually attract, a significant number of witnesses, able to offer numerous perspectives and statements on what had happened, and maybe why as well. Pretty straightforward. Action took place on school property. Wrongdoer is easily identified.

The Current State of School Discipline of Social Media

But today, in the age of social media, things have changed in several important ways. First, most schools, rightly or not, feel empowered or compelled to assume a wider, more active role in disciplining young people. Especially in the case of conduct using social media, disciplinary hearings are no longer restricted to what happened at school, or on the way to or from school.

As long as the school can find some sort of nexus linking the alleged behavior to the school, then they will take jurisdiction and initiate a disciplinary complaint that outlines the violations of the school’s code of conduct. So, if there are 5 classmates in a chat group, and they are texting over the weekend and someone says something harassing to the other, upon a complaint to the school, they will most likely face a suspension. I have seen schools claim jurisdiction when the students are in different schools but in the same district. I have seen schools claim jurisdiction when students are on Christmas break and texting each other from their vacation spots and when they return to school they are hit with a violation.

Social Media Offenses are Easy to Show 

Another difference today is that social media is unbeatable when it comes to preserving evidence of abusive or threatening messages. The ease with which social media allows questionable messages to get circulated far beyond the knowledge or control of the sender makes it great for dispersing messages that could get you into real trouble. In fact, my experience is that schools routinely pile on penalties for social media misconduct that goes far beyond what might be expected for similar behavior not involving social media.

Here’s one example: Suppose five teenage boys are hanging out in a basement one evening, and turn to raunchy talk about a classmate who’s not present. Even if the word of that talk gets out, proving it will be extremely difficult, so probably nothing happens. But if the same conversation happens with the boys on a chat group, and someone sees it, takes offense and complains to school authorities, the result could well be multi-month suspensions.

Should Kids be Punished for Social Media Behavior?

What if someone using social media communicates to a particular person that they hate them and wishes they were dead? The reality of life is that everyone has a bad day. Everyone gets emotional or lashes out sometimes. Moments like that in the past would fade away and hopefully be a learning experience, But with social media, those moments don’t fade away, but are memorialized forever and ever. And its tough to try and get kids, emotional, hormonal, kids, who we try to tell to try things and learn from their mistakes that in this area, a mistake could change your life.

What I Tell My Kids 

So, I tell my kids to realize anything they communicate on social media to another student might wind up being scrutinized by their school, and could land them in a disciplinary hearing with potentially serious, long-lasting consequences.

I tell them to always take a few deep breaths before they hit send. It’s a good practice for anyone sending out content to review the content and think to yourself, what if I became famous and everyone in the world saw this text or tweet or post.

What a Criminal Defense Attorney Tells His Children about… Fake IDs

/in /by

Warm weather, graduations and summer vacation will soon be here, time for parties, concerts and… getting arrested for trying to obtain alcohol with phony IDs? These days both sides of the The Fake ID business are booming. Underage kids buying fake ids in greater numbers and then police arresting them for using and possessing them. So why is law enforcement taking such a hard line with fake ids? What has changed over the years?

Fake Ids – The 1st Generation

Maybe some of you are old enough, maybe some of you remember hearing stories about the old days, when federal authorities in 1984 used the threat of cutting off highway funds to get states with legal drinking ages lower than 21 to raise them to that age. (Who remembers those mythical people who were “Grandfathered in” when the law changed?)

You may remember a time when New York State issued paper licenses and all it took was a talented friend to change that “69” to a “64”. Even when they switched to a laminated material it still wasn’t that hard to do a little artwork and have it be acceptable for the local bouncers. And the holy grail was a 21 year old friend who gave you his license because the bouncers just wanted to see a real one.

And if it didn’t work, it wasn’t that big a deal. You’d get refused and you either tried somewhere else or called it an early night, but that was about all that happened.

What to be aware of today 

Today there are much more serious legal consequences if you’re caught with a fake ID, consequences that your children need to know about before they get themselves into a boat load of very real trouble.

I’ve seen it first hand. When I first became a prosecutor, kids were actually being arrested for forgery felonies just for having a fake ID. Imagine some poor 18 year old who purchased an ID just to be able to go out drinking at college, and is now facing felony charges. Usually the charges were reduced to non-criminal offenses, but these teens still had to go through the horrible ordeal of thinking they’d be life-long felons.

Thankfully New York state now has the option to prosecute using a fake ID as a violation of the Vehicle and Traffic Law, which they often do, but the state still has the right to issue felony charges if they choose.

Why are fake IDs drawing treatment that’s so much harsher than in the past

A prime reason is that states have become more serious about dealing with the issues of underage drinking and the many related problems that accompany it.

As a result, state enforcement agencies have stepped up pressure on the heavily regulated bars and alcohol distributors. Instead of a mere refusal to serve, bar bouncers may seize a fake ID, then call the cops. To keep in good graces with the State Liquor Authority (SLA), some bar owners reportedly pay their bouncers a bounty for every fake ID they seize.

New York’s DMV also runs the year-round Operation Prevent, which teams with state and local police and the SLA to check the IDs of young drinkers not just in bars, but also at concert venues (lots of violations at Jones Beach last year) and other likely spots where underage drinkers are likely to congregate. It’s probably no coincidence New York has reported record-level numbers of seized fake IDs and arrests of underage drinkers in several recent years.

Fake IDs and Technology

Another reason for this crackdown is because fake IDs have not only become easier to get, but the design has become much more sophisticated. Bouncers are routinely duped by convincing fake international IDs, which can be purchased abroad. There are also plenty of websites in the US that sell good fake IDs for as little as $50. Websites such as IDgod even allow kids to band together to purchase the IDs in bulk to get the cost down.

Charges Your Kids Could Face If Caught With a Fake ID

As I stated above, you can be prosecuted pursuant to Section 509(6) of New York’s Vehicle and Traffic Law. If you “possess or use any forged, fictitious or illegally obtained license, or use any license belonging to another person.” You can be fined up to $300 and sentenced to 15 days in jail.

Being charged under this statute will also get your driver’s license suspended for at least 90 days by DMV.  If you choose to dispute the suspension, you will be entitled to a hearing. If you lose that hearing your license is then suspended for 12 months.

If the police decide to charge you pursuant to the New York State Penal Law, having or trying to use a fake ID can get you charged with: criminal possession of a forged instrument (a Class D felony, which can bring a sentence of between 2-1/3 and seven years in one of New York’s finest state prisons); or criminal impersonation (if you’re using someone else’s ID, a Class A misdemeanor punishable by as much as a year in jail, probation for three years, plus a fine up to $1,000).

What to tell your kids 

The many risks a fake ID brings far outweigh whatever benefits your kids could hope to derive from getting early access to alcohol. They need to know that. Most kids aren’t thinking about consequences when they engage in this type of behavior. That’s why it’s your job to talk to them about these risks. It’s just not worth jeopardizing their school and career prospects – not to mention their freedom – for the sake of a refreshing beverage or two.

But…………..if my child was not to listen to my advice and decided to get one anyway I would give her the following guidance;

  1. See what the culture is at your college. Some college towns are happy to sell or serve to underage students. But in some college towns, you may not see the inside of a bar until you are 21.
  2. Don’t be the person who gets nailed for not knowing the information on their license.
  3. Most importantly, If stopped by the police, and asked for identification do not, and I repeat do not show or hand the police the fake ID. Sounds like common sense but when you are nervous and used to showing the fake one, it’s not that hard to slip up.
studying on the lawn

Student Interrogations at a Long Island High School

/in , /by

I recently wrote about “The Reid Technique,” an interrogation methodology taught to over a half million law enforcement and security employees, including those in the CIA, the DEA, and every U.S. military branch. I noted it’s now being taught to groups of secondary school administrators in New York and elsewhere.

In this post, I’ll outline a case I recently had which illustrates why it may not be such a good idea to train middle- and high-school staff in advanced interrogation techniques they’re likely, as in my case, to misapply.

So here is what happened. At about 3:00 on a Friday afternoon, I received a phone call from the father of a fourteen year old, 9th grade female student who had just undergone hours of intimidating interrogation at her school over having sent video that contained sexual content several weeks earlier from the cellphone of one student in the school, let’s call him Alfred, to two other students, whom we’ll call Bert and Charlie.

An assistant principal in the school apparently thought my client had used Alfred’s phone to send the offensive video to Bert and Charlie. Before I had a chance to investigate, my first thought was that if my client did send the offending video, then she was likely to be in real trouble. After some discussion I was confident that the school had no evidence that she sent the video and I also learned she made no admissions during her interrogation.

At the time I didn’t know for sure why they felt my client sent the video. But I felt it was fairly obvious that Alfred, knowing he was in trouble, was trying to deflect blame onto my client. Relieved, I said it was unlikely the school had much of a case against her.

But then we started discussing how the school had handled this issue. While an assistant principal no doubt has the right to ask a student a few questions when he has a reasonable belief the student is involved in a violation of school disciplinary rules or the law, I was genuinely shocked to hear my client’s account of what the school did.

She had been called out of class, sent to an administrative office, asked to write a statement about the incident, then permitted to return to class. Before long, she was called out of class again; this time her phone was taken away and she was put in a locked room, and kept there for close to three hours.

At no time did the assistant principal inform my client that she could call her parents, — despite the school district’s stated policy of allowing students being questioned by administrators to call their parents, except where health or safety issues justify not doing so.

Even though The Reid Technique warns against intimidating questioning of young juveniles, the interrogation was high-pressure (e.g., client was told if she could not remember a small detail, she would be held entirely responsible for the incident — intense questioning).

The assistant principal interrogation caused this 9th grader’s emotional state to deteriorate to the point where she broke down crying and asked to speak with her psychologist multiple times before her request was granted. She then called her therapist, who notified her parents. When her father called the assistant principal, he was told coming to the school would impede the investigation. He was nevertheless allowed to take his daughter home.

As soon became evident, even to the school, my client had nothing to do with the video. In fact, in a meeting with my client’s parents, the school admitted the only evidence they had was the statement of Alfred denying he sent the video (from his own phone) and blaming my client for the action. So, to be clear, the only facts that informed this assistant principal’s decision to detain a 9th grader for 3 hours and question her to the point they felt she needed to speak to her therapist was a statement of another student. A statement by a student who, when faced with the evidence that a video was sent from his phone, became desperate not to get in trouble, and implicated someone else.

The overreaching assistant principal who decided to play TV detective for an afternoon, by trying to coerce an admission from my client, with no real basis for his suspicions, remains in place, and may mistreat other students on similarly poor evidence.

My advice to parents with school-age children: tell them, if they’re questioned by someone at school, be very polite, be very respectful and simply say that they can’t make a statement until they speak with their parents.

Supreme Court’s New Case May Define Impact of Johnson Decision

/in /by

The U.S. Supreme Court last June, in its decision in Johnson v. United States, struck down as too vague a key provision of the Armed Career Criminal Act (ACCA), which imposed additional high mandatory minimum sentences — ranging from 15 years to life — for persons who had previously been convicted for three or more “violent felonies.”

The Johnson case raised the issue of whether part of the definition that law used for “violent felony” was so indefinite as to fall short of the Fifth Amendment’s due process guarantee, by failing to give defendants prosecuted under the ACCA fair notice of their charges, or by allowing judges to enforce it arbitrarily.

Besides applying to offenses involving actual, attempted or threatened use of violence, and to arson, burglary, extortion, or use of explosives, the ACCA definition also gave longer sentences for past crimes that ran afoul of what became known as the “residual clause.” This covered criminal conduct which “presents a serious potential risk” of physical injury to one or more people.

The majority opinion, written by Justice Antonin Scalia and joined by five other members of the high court, held the residual clause was unconstitutionally vague, and recounted the difficulties both district and appellate courts have had trying to come up with consistent standards for determining whether various criminal offenses should be viewed as presenting a serious risk of harm. Justices Kennedy and Thomas wrote separate opinions, concurring in the result but not the reasoning, leaving Justice Alito as the lone dissenter.

The Johnson decision invalidated imposing additional sentences for offenses covered by the residual clause, but did not affect enhanced sentences for convictions under the other parts of ACCA’s “violent felony” definition. But there has been widespread disagreement among legal authorities, post-Johnson, on how, or even if, sentences may be rolled back in the wake of the decision.

While the Supreme Court clearly ended enhanced sentences for crimes covered by ACCA’s residual clause, federal trial and appellate courts have not seen eye-to-eye on what prisoners with such claims can do about it. As soon as different courts began considering prisoner lawsuits to void sentences enhanced by the ACCA’s residual clause, they began to come to different conclusions.

At least three federal appeals courts have ruled that, due to another law limiting the number of times prisoners can appeal their sentences, that inmates with potential Johnson claims can ask a court to reduce their sentences only if they have never previously filed an appeal — on any grounds.

Even in circuits where the federal appeals court would not forbid further appeals, a prisoner might be stymied in bringing such a claim, if the sentencing lower court rejects that bid because it views the Johnson decision as not having retroactive effect, because the Supreme Court was silent on that issue.

Fortunately, on January 12, the high court agreed to accept a new case (Welch v. United States) that could spell out how wide an impact the Johnson decision will have in reopening sentences already handed down under the ACCA.

The new case asks the high court to: set clear directions on handling Johnson claims in federal courts, by deciding if the Johnson decision has retroactive effect, and to set a clear standard for handling prisoners’ sentence reduction claims based on the decision. A favorable Supreme Court decision could offer new hope of reduced sentences for potentially hundreds or even thousands of prisoners with Johnson-based claims.

An Entirely New Way to Get in Trouble with Your College

/in /by

As often happens among young collegians, 19-year-old Jack Worth, a sophomore at Emerson College in Boston, found himself short of ready cash this January. Then inspiration struck, and Worth turned to the residence-sharing website Airbnb.com, where he posted an invitation for visitors to the city to take advantage of a “private, single-bedroom” at a central downtown location, highlighting its commanding views of picturesque Boston Common.

Although the charges for the lodgings weren’t stated in Worth’s ad – making it impossible to say how great a bargain the resourceful student was offering — the listing did attract paying customers three times during the two weeks Worth’s rental was available. But before long, Worth found himself hauled before the college’s disciplinary officials, charged with violating school policies.

The precise nature of Worth’s alleged offense? The property he was renting out through the internet was not in an off-campus residence to which he had access. Rather, the private, one-bedroom listing was for Worth’s dormitory room, in a 12-story residence hall housing about 750 Emerson students.

And attempting to rent out or sublet a room, or even a bed, in a college residential hall violated the housing contract students had signed before being admitted in the school’s housing (with a minimum of three other suitemates and a cost of $14,700 per academic year), Emerson officials explained, adding the prohibition was to protect students and the college from safety and security risks.

After Emerson residential life officials called Airbnb to complain about the ad, the home-sharing service (which advises its listers to check with the property owner to make sure sublets are legal, but does not require them to provide proof that’s the case) pulled Worth’s ad and fined him $150. He’s now facing school disciplinary proceedings on several charges related to his foray in residential rentals.

For his part, Worth — surprisingly, not majoring in business, but in visual and media arts — says he rented his dorm room for money, but adds he was also trying to “help some people out.” He was no doubt thinking of those poor souls hoping to visit Beantown without surrendering their life savings to the Marriotts or Hiltons of the world.

A quick perusal of Airbnb in recent months also shows Worth was onto an emerging trend, since it would have turned up listings for dormitory spaces in locations across the nation, ranging from Brooklyn to Berkeley – although the publicity given to Worth’s case and similar students-turned-internet hoteliers may reduce such listings, by making college residential housing officials more wary of, and vigilant against, such underground rentals. Worth maintains he did not recall having ever read an explicit warning from the school that such sublets were forbidden; expect to see very, very clear statements to that effect become more common on campuses.

While some dorm-dwellers might not welcome the prospect of sharing their digs with unknown transients, Worth has drawn some outpouring of support. A student-posted petition on Change.com calling on Emerson College not to punish Worth has, at last check, gathered about 500 signatures.