December 4, 2024
Part 6

School District Governance: Student Handbooks (Codes of Conduct)

WASDA Conference Student Codes of Conduct

In this series on school district governance, we’ve been covering the major talking points from Kirk Strang’s presentation at this year’s WASDA Summer Legal Seminar.

Thus far, we’ve covered:

Upcoming installments include:

  • Part 7: Vendor Contracts — Legal Capacity to Contract
  • Part 8: Vendor Contract Clauses — Specifics to Examine & More

In this part of the series, we’re shifting our attention to student handbooks/codes of conduct, focusing on athletics, searches, as well as some tips and notes.

ATHLETICS

  1. Review athletic/extracurricular codes of conduct and district policies regulating off-campus speech in light of the Mahanoy decision.
    1. The Mahanoy decision identified types of off-campus speech that might be deemed permissible for schools to regulate in the future:
      1. Engaging in serious/severe bullying or harassment that targets particular individuals;
      2. Threatening students or teachers;
      3. Failing to follow rules regarding lessons, writing papers, using computers, or participating in other online school activities; and
      4. Breaching school security devices, including material maintained within school computers.
    2. Morality clauses, such as a provision banning “conduct unbecoming an athlete,” are too vague to withstand free speech concerns.
    3. Instead, identify specific behavior that can be prohibited, e.g., use of alcohol, tobacco, and drugs. 
    4. Then create categories of behavior: behavior that violates certain levels of the criminal code; behavior that offends district policy; or behavior that directly affects the welfare of the student’s athletic team/activity.

SEARCHES

  1. Searches by school officials.

    Students are protected by the Fourth Amendment and have the right to be free from unreasonable searches and seizures while at school.

    When public school officials conduct searches, they act as representatives of the state. Accordingly, they are accountable under the Fourth Amendment. 

  2. Standard.

    1. Public school officials must meet the “reasonable suspicion” standard to conduct a search, and the search must be “narrowly tailored.” 

      Note: School officials do not need “probable cause.” This is a law enforcement standard.

    2. A search of a student by school officials must be reasonable in its inception and in its scope.

      A student search is justified in its inception when there are reasonable grounds for suspecting that the search will garner evidence that: 

      1. The student has violated or is violating the law
      2. The student has violated or is violating the rules of the school, or 
      3. The student is in imminent danger on school premises

  3. Strip searches. 

    Strip searches are illegal in Wisconsin. Our legislature has made clear that it does not condone strip searches in our schools under any circumstances. 

    1. A school official who conducts a strip search of a pupil is guilty of a Class B misdemeanor. Wis. Stat. § 948.50.
    2. Resist the temptation to ask for parental consent to conduct a strip search. If the search occurs on school grounds, and is conducted or directed by a school official, it is still illegal. Parental consent does not circumvent the statute.

  4. School Resource Officer. 

    When do you contact the SRO? How do student rights change when the SRO becomes involved? 

    1. The Wisconsin Supreme Court has extended the lower standard of “reasonable suspicion” to police conducting searches in school, in conjunction with school officials. 
    2. When initially interviewing a student, the SRO should not be present. If the SRO is present, the student is speaking to the police, rather than a school official, and should be read their rights. 

MORE TIPS AND NOTES

  1. School must do its own investigations.
    1. The Principal should interview without SRO.
    2. Principal will still need to follow the suspension statute and tell the student/parents why suspension is being imposed.

  2. Co-curricular codes should be reviewed.

    Provisions concerning “conduct unbecoming” are too vague to enforce. Even if not too vague, may not be defensible (e.g., freedom of association, free speech, and other authority may impede sanctions).

  3. Dress codes.

    Dress codes must be revised and/or interpreted in a way that does not constitute or further sex discrimination. Basic civil modesty can be required, but avoid expressing this concept in terms that state or hint that the problem with a girl’s choice of dress is its effect on boys.

  4. Align with suspension/expulsion statutes.

    Don’t get creative! Use the same language in both the handbook and policy that appears in the statute.

This brings us to the end of Part 6 of our series. In Part 7, we’ll continue diving into school district governance issues — this time with a focus on vendor contracts and legal capacity to contract.

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