Season 3: Episode 3: Anonymous Reporting Apps- What Your Districts Need to Know

In the wake of school shootings and similar tragedies, many school districts across the country now offer hotline services where students can submit anonymous tips through an app, and a crisis center evaluates these concerns for bullying, suicidal ideations, or other potential violence. These technological advances come with many benefits for children and parents, but they also present some interesting legal issues for school boards and administrators. For example, can a principal search a student’s backpack based on an anonymous tip? What other obligations do school districts have in responding to tips sent to a third-party crisis center? Attorney Peter Zawadski joins Lisa and Miriam in exploring the Fourth Amendment and its legal implications for school districts that use anonymous reporting apps.

View Podcast Transcript

[music]

Lisa: Welcome back to Class Act: Updates in Education Law. I’m Lisa.

Miriam: I’m Miriam.

Lisa: We are attorneys at Walter | Haverfield in Cleveland, Ohio. We practice school law, and every few weeks we get together to talk about the most recent legal developments in education relevant to school boards, teachers, administrators, really anyone who works in schools. Today we are going to continue our discussion about technology, and switch over to the concept of anonymous reporting apps that are now coming out in wake of some school tragedies, and the implications and considerations for school districts about those. We have Peter Zawadski joining us again today. Thanks for joining us. Hi, Peter!

Peter: Thank you. Happy to be here!

Lisa: Let’s dive into this topic. Miriam, can you kind of let our listeners know what these reporting apps are, how they work, and how we’re seeing them come up as issues?

Miriam: Sure. In the wake of school shooting tragedies, there are now several organizations that help school districts identify potential problems, potential crises before they occur by providing a type of a hotline that students, children, community members can send anonymous tips to through an app. In other words, if you are, let’s say, a seventh-grade student, you overheard two kids in the bathroom talking about hurting other people, talking about blowing up the school. talking about hurting themselves, and you want to tell somebody about this, but you’re not sure who and you don’t want to be a tattletale, you download this app onto your phone, and you can send a message anonymously saying whatever you want to say, “I’m a sixth-grader. I overheard this in the bathroom”, and then that anonymous message will go not to the school district directly, but to a national crisis center, staffed by individuals who look at your message, look at this tip, and they separate the tips that they receive into life-threatening and non-life-threatening tips.

Lisa: Basically, it’s going to a third provider to first kind of weed out.

Miriam: Yes, like the silly ones or the ones that are less important.

Peter: What does the crisis center then do?

Miriam: Then the crisis center forwards the life-threatening tips to the police and to the school district. Then the non-life threatening ones, I guess it depends on this specific arrangement that the school district has with the organization. I would assume that the non-life-threatening tips are also eventually forwarded to the district for investigation and for handling. I think that this anonymous reporting app definitely has many benefits, but also some drawbacks that school districts should be aware of.

Peter: Sure, I could see how children– It probably has always been this way. Nobody wants to be seen as a snitch or a tattletale, so they’re reluctant to disclose anything. Now with this app, they’re going to be able to report concerns that they see in the school.

Miriam: Then technology nowadays, kids are very familiar with apps, they’re very comfortable with them. It’s another way to get kids to participate, and an easy way for them to communicate.

Peter: They don’t feel like somebody’s going to come back at them and bully them or harass them for reporting.

Miriam: I can see the benefits also of the third party of a central location and trained professionals who are specifically designated to respond and to evaluate these tips. That’s a useful too.

Lisa: Right. I definitely like that idea, that they are focused on weeding through these tips then kind of have more expertise than that than your typical administrator who–

Miriam: Might be busy also. You know? Might be busy.

Peter: The kids have these their phones, and they’re very familiar with apps. They’re working with them on a daily, probably hourly basis. They’re probably more comfortable using the app than using the phone or going into a principal’s office to discuss these things.

Lisa: I think we can’t skip over the issues that come with anonymous reporting. Anonymity, we talk about a lot is problematic with social media. It’s easy to say things when you’re not held accountable for it, it’s not connected to you. I think that just really opens potential for misuse pretty exponentially.

Miriam: If you don’t like somebody, if you’re a middle school, you don’t like somebody, you want to get them into trouble, you can just now send an anonymous tip, and maybe they’ll get into trouble.

Peter: Yes. I would probably have the police officers at my annoying neighbor’s house on a weekly basis. Just send an anonymous tip of what needs to be searched?

Miriam: This is what sometimes comes up here exactly, the search question, can a school district search somebody’s property, a student’s backpack or a locker based on an anonymous tip? Let’s say, somebody sends in an anonymous tip, “Bobby brought a weapon to school.” That’s it. That’s the tip. Can the school district now, just based on this vague and anonymous tip, go and search Bobby’s backpack, Bobby’s locker, Bobby’s pants? Can the school district do this? Or would this violate Bobby’s Fourth Amendment rights? I’m hoping that we can talk a little bit about the Fourth Amendment today, and how Bobby’s rights could be affected.

Lisa: That’s just not going to be a simple yes or no, right? It’s going to be very fact-specific. We do have a little bit of guidance on that from courts, not specific to this specific anonymous reporting app, but regarding searches that we kind of need to lean on.

Miriam: Peter, generally, just maybe tell our audience about the Fourth Amendment. I think most of our listeners are very familiar with it, but if you can just do a brief overview.

Peter: The Fourth Amendment in the US Constitution is what is going to be preventing a district from just searching anybody they want at any time. The Fourth Amendment protects against unreasonable searches and seizures, specifically searches that are done by government entities. The Fourth Amendment doesn’t protect a student from being searched by-

Lisa: Their mom.

Peter: -some random individual. Their mom.

[laughter]

Peter: There may be some invasion of privacy issues if it’s somebody other than a parent, but it’s not the Fourth Amendment that would be utilized there. The Fourth Amendment protects people from unreasonable searches done by government entities, and school districts are government entities. That’s why the Fourth Amendment applies to them.

Miriam: Right. School administrators, in general, have to be careful not to violate search and seizure rights. Not only federal protection, but most states also have a comparable search and seizure right in their own state constitutions, and depending on your state, it might provide even additional protection to students over and above what the federal Fourth Amendment provides. In any case, school administrators have to be aware of the laws and take them into consideration when deciding if they’re allowed to search a student’s personal property, locker, backpack or their clothing. This has been discussed for already for decades. Back in 1985, the Supreme Court ruled that in the school setting, a search must be justified at its inception, and not excessively intrusive in scope. I don’t know if you guys are–

Lisa: What does that mean?

Miriam: If you recall this case, the TLO case, was a situation where there were these two teenagers, two teen girls, and they were accused of smoking in the girls’ bathroom at school. One of them confessed, and the other one did not. She denied anything like that. She denied violating the school laws, regulations. The administrator demanded to search her purse. Inside, there were cigarettes and rolling papers. I don’t even know what rolling papers are. I’m sorry to admit. [laughs]

Peter: They’re probably be used for the marijuana cigarettes.

Miriam: That’s why he suspected marijuana use. This administrator searched more, found some marijuana paraphernalia and a grass-like substance in a baggie. He called the cops. He called the police. The police call this girl’s mother. The mother eventually brought her daughter to the police station, which she admitted selling marijuana. Then the student faced charges in juvenile court. Her attorney, the criminal attorney argued that the search was unconstitutional, that the school district violated the law by searching her personal property, and that because the search was unconstitutional, everything that they found, the baggie with the grass-like substance, all of that should be thrown out. Ultimately, this case ended up going to the Supreme Court, which held in favor of the school district, basically saying that it was fine for them to search her, but it also kind of set the standard. The Supreme Court clarified that probable cause is not needed for a school district that wants to search a student, whereas probable cause is required in the criminal context.

Peter: What’s needed if you don’t need a probable cause?

Miriam: Yes, that’s what I’m going to explain.

Lisa: We’re looking more at fair probability, right?

Miriam: In the criminal context, if you want to search somebody, if you want to search a suspect, you have to have probable cause, which exists when there’s a fair probability that a search will result in evidence of a crime being discovered. Very often, you’re going to need a search warrant that shows probable cause, that delineates what you have to show probable cause. In the schools, the Supreme Court pointed out, you don’t have to have a search warrant to check a student’s backpack. Instead, the search will be justified at the inception, at the beginning, with there are reasonable grounds for suspecting that the search will turn up evidence that the school has violated either the school rules or the law. It’s kind of a lower standard, I would say.

Lisa: So reasonable grounds are really kind of those keywords.

Miriam: Right.

Lisa: I think it’s also important to really focus on that piece of at inception. Once you already did the search and what you turn up, you need to have this reasonableness before you even start.

Miriam: Right. You have to have reasonable grounds for suspecting that this search is going to turn up evidence before you start, just like you said, Lisa. Then the second piece, which I think school districts sometimes error in, is that the search cannot be intrusive in the scope. You’re not really going to go into a student’s underwear. You’re not going to make them strip down.

Peter: Wasn’t there a recent case about district strip searching a student for, was it Tylenol or Advil, that they ended up finding on the student.

Miriam: Yes, exactly.

Lisa: You’ve got to question some judgment there. Right?

Peter: Strip searched a teenage girl.

Miriam: In 2009, the Supreme Court took a look at a school district that asked a 13 year old girl to strip when they were searching her for aspirin. Specifically, the principal thought that this student, Savannah Redding, was selling pain relief pills at school. Savannah allowed a search of her backpack. It turned up nothing. The principal had then had his administrative assistant, so his secretary, take Savannah, 13 year old, to the nurse, and the nurse and the administrative assistant made her undress and pull the elastic on her underwear, and no pills were found then either.

Lisa: As a parent, this is making you cringe, right?

Miriam: Yes.

Lisa: How they thought this was reasonable. Well, clearly they probably didn’t think through that.

Miriam: Even if they thought there were reasonable grounds for suspecting that the search was going to turn up evidence, it was still considered to be overly intrusive in the scope.

Lisa: Well, and especially consider what they were looking– I mean, they’re looking for aspirin.

Miriam: Yes, right. Exactly. The court said that– Obviously the student and the mom sued the school, and then eventually this went to the Supreme Court, and the court noted that the content of the suspicion failed to match the degree of intrusion because of the categorically extreme intrusiveness of a search down to the body of an adolescent for non-dangerous school contraband. The court even pointed out, just like you did, that this is aspirin. It wasn’t a gun. It wasn’t a weapon. It was aspirin. Nothing suggested that she was hiding these pills in her underwear, and the students in the school were not in danger.

Lisa: Even if they had found the aspirin in conducting this search, nothing about her having that on her really put the other students in danger that would have warranted this type of conducts.

Miriam: Such an intrusive search. Exactly, such an intrusive search.

Peter: It probably was a violation of the policy about caring, obsessing over the counter meds, and then distributing to other students.

Lisa: Well, and that’s an important thing to point out too. We didn’t really dive into policy yet, but a lot of districts have conduct policies, and that’s probably what they were relying on.

Peter: They probably thought it’s more black and white. We see a policy violation, then we’re going to try to enforce that policy.

Miriam: Now that we kind of have laid out the Fourth Amendment context here, let’s talk about anonymous tips. What if somebody, a student, a community member submits an anonymous tip. Is that enough to search a student? Although we don’t really have any court cases or any legal decisions specific to the technology that we just discussed, the anonymous reporting apps, we definitely have guidance from case law about anonymous tips in the criminal context that I think is really important for school districts to keep in mind. In general, the Supreme Court has looked at whether an anonymous tip from an informant justifies a search in the criminal context.

Peter: Do you have reasonable grounds for your suspicion?

Miriam: In a criminal case, Florida v. JL, the Supreme Court considered a case of a teenager, a 15-year old, who was frisked based on an anonymous tip that a black male was wearing a plaid shirt, and was carrying a gun near a bus stop. That was the tip. There’s a black male. He has a plaid shirt. He’s carrying a gun near a bus stop. In a unanimous opinion, back in 2000, almost 20 years ago, in a unanimous opinion, the court said that anonymous tips cannot justify a warrantless search without meeting additional indicators of credibility. In other words, the court is concerned, the court says basically anybody can get anybody else into trouble essentially by submitting an anonymous tip. Anonymous tip is not enough to search somebody’s belongings and property without a warrant.

Lisa: Really the issue comes down to how reliable is the information you’re getting in that tip.

Miriam: Yes. An anonymous tip, the court said, has to possess a moderate level of reliability, including predictive information that offers the police a means to test the informant’s knowledge or credibility. Typically, the general rule is that an anonymous tip, in the absence of further investigation, is unlikely to justify a school search. Now, if the anonymous tip has some special indicators showing that whoever submitting the tip really is knowledgeable about what’s going to take place, or credible about what’s going to take place, then you may be able to rely on an anonymous tip, but it’s going to have to be really specific.

Lisa: You’re talking about some specific facts that the school would be able to verify.

Miriam: To test, yes. For example, let’s say an anonymous tip comes in and it’s very general. Bobby has marijuana in his backpack. That’s the anonymous tip. Can the school district search Bobby’s backpack? I would say no.

Peter: Going back to these apps that students are using for their anonymous tipping. The anonymous tip alone just saying that so and so has drugs, or so and so has a whole trunk of guns in the room, and they make comments, but in a district that’s not enough.

Lisa: Right. Let’s take that one step further. What if the tip is something more like Bobby will be skipping third period math today and meeting with a different student at her locker before they both leave out a specific entrance to go smoke marijuana, and then you can verify, yes, Bobby did in fact skip third period.

Miriam: Right. In that case, this is exactly like what the Supreme Court decided in Florida v. JL. If there’s a specific indicators of a liability that you can look and see, “Oh yes, look, the anonymous tip said that Bobby’s going to be skipping third period.” and in fact, Bobby did skip third period. We do see from the video surveillance that he met with his other students at the locker. At that point, if you have indicators that the tip is reliable, credible, knowledgeable, then a search may possibly be justified. I guess this is an individual analysis that school districts would have to undertake, but I would caution any school district from just searching students based on a general anonymous tip that is vague and doesn’t have additional indicators of a liability.

Peter: Would you recommend that the school district involve the police when they get these tips?

Miriam: Yes, I think that police involvement can often be justified, especially if it’s something that is illegal, not just against school policy, but also violates the laws of that state. Another thing I wanted to just alert our audience is that, these anonymous reporting apps, school districts should be careful to additionally make sure that they receive from the organization all of the tips, even the non-life threatening ones, because if there’s any tips that are relevant to bullying or harassment, even if they’re not life threatening, the school district should still follow it’s bullying and harassment policies, and investigate all tips that come in to make sure that it follows those policies and comes up with disciplinary decisions or other general practices.

Lisa: Right. If you’re a district utilizing one of these apps for reporting, it’s going to be really important that you’re acting on the information that you get. You’re going to have some problems arise if you’re getting all these reports and getting this information and kind of just sitting on it and not doing anything with it. Make sure if you are going to employ one of these apps for recording, you’ve thought through, “Okay, here’s the procedure when we get the information, here’s what’s going to happen.” You have some people over looking that that actually occurs.

Peter: Well, that’s good. You’re saying just because a district receives an anonymous tip, it doesn’t mean that you don’t do anything. Just because it’s anonymous, it doesn’t mean you can sit back. You still have to take some sort of action.

Miriam: Yes, and I guess, even more than that, Peter, what I’m saying is, if a school district has received any kind of tip, whether anonymous or not anonymous, if it’s a tip that maybe the central agency didn’t prioritize, “This is not life threatening, they’re just making fun of so and so in the bathroom or teasing so and so in the cafeteria. It’s not life threatening”, the school district still has an obligation to follow its policy. They can’t just abdicate that responsibility. They can’t say, “Okay, look, we contracted with a third party.” The third party is now responsible for all these reporting tips and deciding what to do and handling it. It’s this other agency’s obligation. We wash our hands of this. The school district can’t do that. The school district has to respond and follow its policy just like if this was a tip that was reported to an administrator or a teacher. The school district still has to follow its policies in terms of–

Lisa: Right. By that, it may be as simple as you just do an investigation. I hope that we’ve given you some good tips. I know we’ve given lots of factors that districts really are going to have to weigh the pros and cons of using these apps and different reporting systems. There’s definitely a lot to think about than what’s just on the surface.

[music]

Miriam: Thanks for joining us today, Peter and Lisa.

Peter: Thank you! My pleasure, really.

Miriam: Next time we’re going to talk to Peter again and take a look at booster clubs and the various legal and tax related issues that you may never even have considered. In the meantime, please subscribe to our podcast, rate us on Apple podcast, Stitcher, Google Play Music, wherever you get your podcast. Give us a good rating. This helps our algorithm and helps other audience members find our podcast.

Lisa: As always, thanks for listening. The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of information contained in this podcast.