Monday, March 31, 2008

ACLU to students: Know your rights - WISCONSIN STATE JOURNAL

By Andy Hall

Parents of a Madison fourth-grader who was suspended from school for asking a classmate to disassemble his pencil sharpener say they wish their son had remained silent and had insisted they be present before he answered questions from the principal.

"Now all of a sudden, pencil sharpeners are a danger to society?" asked Lisa McConkey, the mother of the Kennedy Elementary student.

Her new advice to the fourth-grader and his younger brother: "If you ever get called into the office again, you tell them that you want your mom there."

And that's the gist of the advice coming from an expanding American Civil Liberties Union of Wisconsin campaign to inform elementary, middle and high school students of their rights.

Children who get in trouble at school should refuse to answer questions from school officials and police until a parent, attorney or other advocate arrives, according to the nonprofit civil rights organization.

"You have the right to remain silent," says the headline on a three-point summary the ACLU has designed for students to carry in their wallets and purses.

"Don't say anything without your attorney or parent present," says the tip sheet, which adds that students should "never speak to school administrators about a suspension, expulsion or the accusations, even if law enforcement is present, without an advocate."

ACLU officials say the hardline advice is needed because school officials, increasingly concerned about school safety issues, appear to be taking harsher actions against students deemed to be troublemakers.

"We're not training kids to be noncooperative with staff but to understand what are the rules, what are their rights if they're accused of breaking the rules and what the consequences are for breaking the rules," said Stacy Harbaugh, ACLU community advocate.

But the head of a group representing the state's school superintendents says that if students follow ACLU's advice, students will unnecessarily miss hours of class, administrators will waste time waiting for students to talk, and students and staff might be placed in danger.

"Certainly students should know their rights but students should not be afraid of the truth and I don't know why the ACLU would be," said Miles Turner, a former superintendent and principal of elementary, middle and high schools who now is executive director of the Wisconsin Association of School District Administrators.

"Unfortunately the ACLU's tipsheet does not differentiate throwing a spit wad from phoning in a bomb threat."

Turner said that it makes sense for students to be represented by a parent or other advocate when facing allegations of criminal conduct, but it's also essential that students feel an obligation to speak up when they know of imminent danger.

"There are times when immediate information may save other children," said Turner, who recalled that while he was superintendent of the Wisconsin Heights School District, a student's tip allowed school officials to remove a weapon from the school before anyone was harmed.

Students' willingness to talk to administrators, Turner said, also was the key to foiling a 2006 bombing plot at a Green Bay high school. The ACLU's message, he said, threatens to confuse students into remaining mum.

"The assumption that somebody is going to twist their words and find them guilty of something that they didn't do is absurd," said Turner, who suggested that ACLU should be telling students: "Well, what's wrong with the truth? Maybe you deserve to be suspended or expelled to take responsibility for your actions."

Harbaugh, in response, said the ACLU "would never suggest that students should be silent on reporting abuse, threats of violence or the threats of weapons or a bomb."

Those lines of communication can remain open, Harbaugh said, even as they assert their right to remain silent to avoid self-incrimination.

Erik Guenther, a Madison lawyer and president of the board of directors of the state ACLU, said that with so much at stake, students should avail themselves of the opportunity to remain silent until they know about the evidence against them and review the student conduct handbook. Too often, he said, students' words have been misconstrued or misused.

"If you miss a class or two while waiting for parents to show up, it's worth it, " said Guenther, who for years with fellow Madison lawyer Marcus Berghahn has presented workshops focusing on the rights of students ranging from elementary school to college.

Lisa and Todd McConkey, parents of the 10-year-old boy involved in the Kennedy Elementary pencil sharpener case, said they wish they could have been present to help protect his rights while he was questioned by school officials. Instead, they received a phone call after he'd admitted asking a classmate to remove the blade from a small pencil sharpener he'd purchased at the school store.

"Does this make the person who operates the school store an arms dealer?" Todd McConkey said. "It's crazy."

The incident, which occurred about a month ago, began after three of their son's classmates unscrewed the covers of their small pencil sharpeners. The McConkeys said their son then asked a classmate to do the same to his pencil sharpener. It wasn't taken apart, but another classmate told a school official about it.

The McConkeys said they're concerned that a letter placed in their child's school file says that he tried to obtain a blade -- a detail that might someday hurt his chances of landing a scholarship or job just as a similar case once kept a relative in the Marines from being allowed to serve at the Tomb of the Unknowns at Arlington National Cemetery.

Madison School District officials declined to discuss details of the case, citing student privacy laws.

However, Superintendent Art Rainwater said that student behavioral records are destroyed a year after graduation, and "a case where a child is suspended for a half-day in fourth grade is not going to affect their future. "

Rainwater praised the ACLU for helping make students aware of their rights but criticized the group for advising students to remain silent until an advocate arrives. Such silence, he said, may be appropriate in some cases involving criminal conduct.

The vast majority of school incidents, however, are relatively minor, Rainwater said, and it's in the students' best interest to give their version of events.

Administrators, Rainwater said, "are not prosecuting you. They're there to find out what happened."

Rainwater acknowledged, though, that in some cases, principals or assistant principals who investigate incidents do wind up testifying against students in expulsion hearings.

On a new, two-page tipsheet, the ACLU also advises students to "find an advocate before trouble happens "so that "if you get busted for fighting or get into conflicts over student protests, it's good to know in advance where to get help so that you aren't scrambling at the last minute. "

Rainwater said it's impractical to think that the district's more than 24,000 students should line up an advocate.

The Madison district this spring plans to hire a staff member to help guide students facing disciplinary action, making it perhaps the first school system in Wisconsin to offer such assistance to students. The new employee, known as a navigator, won't advocate on behalf of the student but will inform the student and family of how the system works and what types of help are available from attorneys and unpaid advocates.


The ACLU's latest tipsheet on student rights isn't yet available on the Internet, but copies are available from Stacy Harbaugh, community advocate, at or 608-469-5540. She also has information on workshops. More information is available from Madison lawyers Erik Guenther and Marcus Berghahn at


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