You just received a disciplinary referral from Johnny Jones. Because Johnny has an I-Phone, he has already called his mom and explained his version of the events. Johnny’s mom is now on the phone and demands that she be present when you interview him. She claims that you cannot speak to her son alone. Is she right? The next day, you receive a letter from Johnny Jones’ attorney, who threatened to initiate litigation against the District if you speak to Johnny without his mom, dad or his guardian there. This, then, begs the following question: under what circumstances can an administrator question a student alone, without the presence of his parent or guardian? Like many legal questions, the answer is “it depends.” It depends on the purpose of the interview; i.e., is it in reference to an alleged code of conduct violation, an alleged H.I.B. violation, or an alleged criminal violation? It also depends on the status of the student to be interviewed; i.e., is the student a mere witness to an alleged incident or the alleged suspect of the investigation?
Before addressing each scenario set forth above, an overview of the applicable law is important. Historically, school districts relied on the common law principle of “in loco parentis” to question students without a parent or guardian present. In the school setting, the doctrine has been construed to mean that an administrator temporarily takes the place of the student’s parents or guardian once the student is dropped off at the school-house door. The school administrator can therefore investigate alleged student misconduct, interview the suspect student without parental presence, and impose appropriate discipline, if the allegation of misconduct is substantiated.
Our State Legislature has since codified the common law principle of “in loco parentis” and granted school administrators investigatory and disciplinary authority over the pupils who are under their care. In doing so, it has delineated the respective responsibilities of teaching staff members and their pupils: “A teacher orother person in authority over such pupil shall hold every pupil accountable for disorderly conduct in school and during recess and on the playgrounds of the school and on the way to and from school.” N.J.S.A. 18A:25-2; [Emphasis added]; “Pupils in the public schools shall comply with the rules established in pursuance of law for the government of such schools, pursue the proscribed course of study and submit to the authority of the teachers and others in authority over them.” N.J.S.A. 18A:37-1. [Emphasis added].
How, then, do these legal principles apply, if at all, to the interview of a student who is alleged to have, 1) violated the school’s code of conduct, 2) committed an act of harassment intimidation or bullying; or 3) committed an act that would constitute a crime or an offense if committed by an adult as set forth in our criminal code?
- Code of Conduct Violations
If a student is referred to a Principal or Assistant Principal because of an alleged code of conduct violation, thatdoes not constitute an alleged commission of a crime or offense. In other words, a student who violates student dress code or creates a disturbance in class can be interviewed without a parent or guardian present. If the student’s parents demand to be present for the interview, you can rely on the principle of “in loco parentis” and/or the statutory provisions cited above in respectfully rejecting their demand. Remember, it is the pupil’s responsibility to comply with the District’s rules and regulations, N.J.S.A. 18A:37-1, and the administrator’s responsibility to hold every student accountable for misbehavior inside of school, on the playground, and on the bus to and from school. N.J.S.A. 18A:25-2.
2. Alleged H.I.B. Violations
Pursuant to the requirements of the new anti-bullying law, once an allegation of H.I.B. has been made, the Principal must refer the allegation to the Anti-Bullying Specialist to perform the investigation. N.J.S.A. 18A:37-15b.(6)(a). The Anti-Bullying Specialist then has 10 days from the date of the written H.I.B. report to complete the investigation, which will naturally include an interview of the alleged bully. Id.
Does the parent or guardian of the alleged bully have a right to be present during the interview? The answer is generally no! While the statute requires parental notification of the bullying allegation, N.J.S.A. 18A:37-15b.(5),and the findings of the Board, N.J.S.A. 18A:37-15b.(6)(d), there is no requirement that the parent be present during the alleged bully’s interview. One note of caution, however, as noted above with certain alleged student code of conduct violations: if the H.I.B. allegation concerns an alleged criminal act, the Memorandum of Agreement must be reviewed and law enforcement authorities contacted before the student is interviewed by the Anti-Bullying Specialist. Once contacted, the authorities will likely ask the Anti-Bullying Specialist to hold off interviewing the alleged bully until the criminal investigation is complete. Because a District has the right to amend its bullying report if there is information that is anticipated but not received before the 10-day period expires, the delay will not be fatal to its investigation. N.J.S.A. 18A:37-15b.(6)(a). If criminal behavior is not at play, however, there is nothing that prohibits an Anti-Bullying Specialist from interviewing an alleged suspect without a parent or guardian present.
3. Students Alleged to Have Committed Crimes or Offenses
It is 3:00 on Friday afternoon and you have been informed that one of your students has been found with several baggies of marijuana and two hundred dollars in cash, which is broken up in denominations of 1s, 5s, 10s and 20s. You suspect that the student not only possessed the marijuana for his own use, but that he is also selling it to others. You now want to speak to the student to determine whether your suspicions are accurate. As noted above, however, because of the criminal nature of the incident, you must first review the Memorandum of Agreement and contact the local Law Enforcement Authorities. Most likely, your involvement in the matter, at least for the time being, will end. Moreover, because of the student’s constitutional right against self-incrimination, which has been recognized in New Jersey’s common law and codified within our rules of evidence, this is one circumstance where our State’s Supreme Court has recognized a parent or guardian’s right to be present during a student interview. State v. Presha, 163 N.J. 304, 315 (2000). (The Court finds that “a parent or legal guardian should be present in the interrogation room, whenever possible.”). When and if the criminal charges are dismissed in favor the student, and all that remains is a possible code of conduct violation, the administrator can now interview the student without the parent or guardian being present.
I hope this information is helpful the next time you receive a phone call from Johnny’s mother or a letter from Johnny’s attorney. If you have any questions, please do not hesitate to contact the NJPSA Legal Department. Please also remember to review your Memorandum of Agreement and contact Law Enforcement if an allegation(s) of criminal conduct has been made.
 This statutory provision also grants a principal the authority to exclude a pupil from a school bus for disciplinary reasons.
 Students who are only witnesses to these alleged acts, including alleged criminal acts, can be questioned alone. However, if the alleged act at issue, if proven, constitutes a violation of New Jersey’s criminal code, the administrator must review the Memorandum of Agreement between Education and Law Enforcement Officials and then contact local law enforcement before speaking to the student-witness.