By John Farinella, Esq. and Robert M. Schwartz, Esq.
The Uniform State Memorandum of Agreement between education and law enforcement officials [hereinafter “MOA”] first issued in 1988, remains a significant guiding document to promote the cooperation of law enforcement and school officials to help protect the school environment. The MOA is to be reviewed by district boards of education annually. The annual review must include input from the executive county superintendent, the county prosecutor, law enforcement officials designated by the county prosecutor and community members including members of the board of education.
Since its initial issuance, the MOA has been revised multiple times, with the last revisions occurring in 2023. The purpose of this article is to review the 2023 revisions and how they impact schools and school officials, including school administrators. But before discussing the 2023 revisions it’s important to understand student conduct that requires reporting and conduct that doesn’t.
Article 3 – Mandatory Reporting
Mandatory reporting by school officials to law enforcement applies to student conduct occurring in schools, at school events, or, in matters related to certain conduct which occur outside of the school setting when the conduct touches and concerns one or more of the following:
- Whenever a school employee has reason to believe a student unlawfully possesses a controlled and dangerous substance or has been involved or implicated in its distribution; (Article 3.2)
- Whenever a school employee has reason to believe that a firearm or ammunition has unlawfully been brought onto school grounds, or that any student or any other person is in unlawful possession of a firearm or ammunition, whether on or off school grounds, or that a student or any other person has committed an offense with or while in possession of a firearm on or off school grounds; (Article 3.6)
- Whenever any school employee has reason to believe that anyone has threatened or planned to commit a violent act; (Article 3.10)
- Whenever any school employee has reason to believe that a sexual offense has been committed on school grounds or by or against a student during school operating hours or during school related functions or activities; (Article 3.12)
- Whenever any school employee has reason to believe that an assault upon a teacher, administrator or school board employee or member of the board of education has been committed; (Article 3.14)
- Whenever any school employee has reason to believe that a bias-related incident has been committed or is about to be committed on or off school grounds; (Article 3.16); and
- Whenever any school employee has reason to believe that a student is or potentially is missing, abused, or neglected. (Article 3.17)
Article 4 – Non-Mandatory Reporting
Non-mandatory or voluntary reporting deals with other types of offenses/infractions or forms of conduct occurring during the school day, at school events or even outside of school-sponsored activities that may impact schools that generally do not involve criminal activity. Typically, they include student code of conduct infractions where school-based interventions such as counseling, mediation, restorative interventions, detentions, in school suspensions, out of school suspensions, child study team interventions, and/or educational program adjustments are the primary pathways to correct and/or re-direct student conduct.
The MOA provides that schools are “encouraged to consult with law enforcement” concerning a non-mandatory report offense “to discuss the appropriate level of intervention.” Among the factors to be considered are the provisions of the school’s student code of conduct, the developmental age of the student, any history of inappropriate behavior, the nature and seriousness of the offense, and the risk the offense poses to the health or safety of other students, school employees, or the general public. (Article 4.1)
2023 Revisions
The 2023 revisions and/or additions to the MOA focuses on the following four critical areas:
- Bias-related incidents including student on student discrimination.
- The “handle with care” notification process in which law enforcement provides to school officials notice of serious matters that occur outside of the school setting.
- Guidance and limitation of the use of body worn cameras (BWC) by law enforcement in the school setting in accordance with the information contained in Attorney General Directive 2022-01.
- Incorporating relevant changes to the laws regarding the decriminalization of marijuana and the creation of legalized markets for cannabis is referenced in the MOA.
Article 3.16 – Bias-Related Matters
The MOA defines a bias related act as an act that is directed at persons that is motivated in whole or in part by race, color, national origin, ethnicity, gender, gender identity or expression, disability, religion or sexual orientation, While school officials have been responsible to stop or otherwise address bias related incidents for decades, the MOA now expressly states that:
- School officials must promptly notify the designated law enforcement official and the “bias investigation officer” in the county prosecutor’ office whenever any school employee has reason to believe a bias related act has occurred or is about to occur on or off school grounds.
- School officials must enforce the MOA in a manner that does not discriminate on the basis of race, ethnicity, gender, disability or any other protected characteristic. This includes mandatory referrals under Article 3 of the MOA.
- School officials should also be aware that bias related acts that trigger a school’s mandatory reporting requirement will also constitute a HIB triggering the school’s obligation under the Anti-Bullying Bill of Rights Act.
Article 8.13 – “Handle-With-Care” Notices
This provision, designed to improve communication and cooperation between law enforcement and schools, was inserted in Attorney General Directive 2020-9 effective on December 31, 2020. It requires communication by law enforcement to school officials following a child’s exposure and/or involvement in a traumatic event. Its purpose is to help provide the social or emotional support needed by students who were exposed to or who were the subject of traumatic events. This Attorney General Directive is now referenced in the MOA. The 2023 revisions to the MOA provide a non-exhaustive list of traumatic events that require law enforcement to provide to school officials the handle with care notice. The list includes:
- A house fire or forced displacement from the residence.
- Community violence (i.e., fights among gangs or other groups, bullying, shootings).
- The sudden death of an immediate family member or guardian of the child, which the police are made aware.
- A suicide or attempted suicide of an individual who resides in the child’s home where the child is present.
- A drug or alcohol overdose of an individual who resides in the child’s home where the child is present.
- An incident of domestic violence or abuse (physical or sexual).
- Involvement with the Department of Child Protection & Permanency.
- A search warrant executed at the residence.
- The arrest of an individual who resides in the home.
What is the purpose of the handle with care notice?
To provide notice to the school that the student may have been impacted by a traumatic matter, whether as a witness or as a victim, so that the school can provide to the student necessary support.
What should be included in the notice?
To protect the privacy of the child and his/her family, the notice shall only include the child’s name, age, grade, school enrollment and date and tome of the incident.
When should law enforcement complete the handle with care notice?
As soon as law enforcement is made aware that a child was a victim or was witness to a traumatic event, they must complete the handle with care notice.
When should the handle with care notice be sent?
Prior to the next day of school or prior to the child arriving to school, whichever is sooner.
Who should the notice be sent to?
To the appropriate point of contact person. This can be the school safety specialist or another designated employee.
What is the responsibility of the point of contact person?
To receive the notice and to disseminate it to the appropriate school staff.
Should the point of contact person designated by the school or other school personnel inquire about the traumatic event?
While school officials should assess whether the traumatic event and the circumstances are such that they should result in postponing assignments or referring the matter to a school counselor, the MOA also says that “school officials should not inquire with the child about the traumatic event.”
Article 7.8 – Law Enforcement Officials and Body-Worn Cameras
In general, when law enforcement officials equipped with body worn cameras are present in a school setting where students are engaging in their routine and lawful school activities—attending class, walking in the hallways, having lunch in the cafeteria—the body worn camera should be deactivated unless the law enforcement official is required to act in the course of his/her official duties. Guidance for law enforcement officials wearing body worn cameras (BWC) in the school setting was provided for in Attorney General Directive 2022-01. It is now referenced in the MOA.
When and how are body worn cameras to be activated in the school setting?
When an officer is actively engaging in an investigation of a criminal offense, responding to an emergency call, or if the officer reasonably believes he/she may be required to use his/her authority to arrest or exert control over a person who is the subject of investigative detention. This also includes when an officer is responding to or investigating the possession or the consumption of alcohol or drugs.
Officers, such as school resource officers, assigned to schools, as part of the daily educational environment, do not need to wear a body worn camera.
Are body worn cameras to be used at special events or athletic functions?
Officers assigned to duties at schools working security or crowd-control functions at special events such as athletic competitions, graduations or similar public events shall be equipped with body worn cameras but are not required to wear them at such events.
Article 7.8.1 – Body Worn Cameras and FERPA
In most cases footage from a body worn camera is not an educational record under the purview of FERPA (Family Education Rights Privacy ACT), unless a school maintains or uses the images of a student for a school related purpose.
Article 3.2.5 – Cannabis, Hashish and Marijuana
While “regulated cannabis” is now legal in New Jersey, it remains illegal for persons under the age of 21 to possess, consume, or otherwise use marijuana and/or legalized versions of cannabis products in the school setting except under very limited medical circumstances and then only in a manner which does not include any form of smoking or self-administration.
Accordingly, whenever a school employee has reason to believe that a student possesses marijuana or a cannabis product that is not medically prescribed it triggers the mandatory report requirement to law enforcement.
As for a student’s possession of medically prescribed cannabis, while it’s legal and does not trigger school officials’ mandatory obligation to report, it may nonetheless violate a school’s code of conduct. If this occurs it should be handled in accordance with the district board of education’s approved student code of conduct.
Summary
The 2023 version of the MOA provides the most updated guidance available on how school officials and law enforcement can communicate and support the needs of our local schools and the communities where they reside. Some of the key revisions to the 2023 MOA are highlighted herein. But there is no substitute for thoroughly reviewing the entire 2023 MOA attached this article in footnote1 and related information connected to it. Local school officials and local law enforcement officials are strongly encouraged to go through the 2023 MOA collaboratively, discussing how the revisions in the 2023 MOA impact the ability of school officials and local law enforcement to interact most effectively to protect the safety and well-being of all stakeholders who benefit from the many resources, programs, and opportunities that their local school district offers.
For any questions regarding the MOA or any employment issue please feel free to call or email (legal@njpsa.org) the NJPSA Legal Department.