14. Qualified Immunity

State and federal legislation should grant to teachers and other educational personnel immunity in respect to civil liability, where they, in good faith and for reasonable cause, report in confidence to the proper school personnel the suspected abuse, possession or sale of drugs or alcohol by a student on school property.

Both adult and teenage witnesses testifying before the Advisory Commission field hearings acknowledged the critical role that is played by teachers and other school personnel in responding to youth with alcohol or drug problems.331 Because of their regular contacts with students, school personnel can greatly assist in identifying those students with problems and referring them to appropriate treatment. Several witnesses, however, raised the issue of the potential legal ramifications for teachers and school personnel who attemRt to identify or counsel youth with alcohol and other drug problems.352 Because of current legal developments, there is a legitimate concern regarding the civil liability of teachers who identify, report, or confront students with alcohol or other drug problems.

A number of states currently provide immunity from civil liability to school personnel who report suspected student drug-related activity to appropriate school officials.333 These states allow exemptions from liability for a variety of different teacher actions. For example, Delaware provides civil and criminal immunity for school personnel who have probable cause to believe a person possesses controlled substances and provides information leading to the arrest of that person. 334

Florida limits the civil immunity to school personnel who report "in good faith to the proper school authority suspected unlawful uses, possession, or sale of drugs by students."335 Any report to the parent or guardian may be made only by the school principal or his designee.336

Georgia, on the other hand, provides civil immunity for teachers and other school personnel who "communicate directly information in good faith concerning drug abuse by any child to that child's parents, to law enforcement officials, or health care providers."337 This statute, though similar to Florida's, gives the teacher greater discretion -- either to consult the student's parents immediately, to go directly to the police, or to a health care provider. This permits a teacher to expose the suspected abuse to those outside the school community. In Florida, by contrast, the responsibility to notify parents is vested solely with the school principal, and the statute is silent as to immunity for even a principal who involves the police or others not the child's guardian.

New York's education statute provides for civil immunity for any school personnel who have reasonable cause to suspect that a student is a substance abuser, and subsequently reports such information to school officials or parents, depending on that particular school's established drug policy. 338

Of the statutes researched to date, New Jersey's teacher immunity statute is the most complex.339 New Jersey not only grants school officials an immunity from civil liability for reporting suspected student drug abuse, but alsoiolaces an affirmative duty on educational personnel to make such a report.540 Upon a good faith suspicion of student drug abuse, educational personnel may notify the student's parents, and then compel a medical investigation to prove or dispute the allegations. If each of these actions, the report by the teacher, the medical investigation, and the suspension of the student, is taken in good faith the school representative is free from potential civil liability. The statute provides New Jersey education personnel with a step-by-step procedure to follow once student drug activity is suspected. Also included in the statute is the grant of authority to school officials to require an immediate medical examination to substantiate the charges.

Although this aspect of the law has yet to be judicially tested, a recent U.S. Supreme Court decision, New Jersey v. T.L.O.,341 suggests that the other sections of the New Jersey law are permissible under the Fourth Amendment.342 In T.L.O., the Court held that although the Fourth Amendment prohibition against unreasonable searches and seizures applies to searches conducted by public school officials,343 such searches need not be supported by a warrant, nor by probable cause.344 Rather, in the school setting, the Fourth Amendment requires only that a student search be "reasonable" in light of the circumstances. The Court concluded:

Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.345

The Court in T.L.O. attempted to balance the legitimate end of preserving order in the schools with the recognized interest of student privacy.3" The Court resolved the balance by applying a reasonableness standard: was the initiation and extent of the search reasonable given the setting, the nature of the offense and the grounds for the suspicion that an offense had occurred. Any future student searches, including those mandated by the New Jersey teacher immunity statute, will be judged by the T.L.O. standard. Also, based on T.L.O.'s "reasonable" standard, there may soon be attempts to amend existing state statutes to reflect the "probable cause" standard.

The T.L.O. decision spares "teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permits them to regulate their conduct according to the dictates of reason and common sense."347 The Supreme Court has sanctioned those student searches reasonably undertaken. Accordingly, because of the deterrent effect of possible tort liability on teachers and other school personnel, this recommendation urges that teachers and school personnel be granted qualified immunity for attempts to help students get treatment by reporting suspected drug and alcohol use. With such an immunity, teachers and other school personnel can act conscientiously in providing access to treatment for drug and alcohol abusing students, without fear of recrimination if their basis for reporting is challenged later in court.

328 Atascadero State Hospital v. Scanlon, No. 84-351, 53 U.S.L.W. 4985 (June 28, 1985).

329 1d.

330 Id.

331 5ee, e.g., testimony of William Coletti, Atlanta, and Mark Byrne, Mia Andersen, Princeton.

332 See e• g testimony of William Coletti and Robert Halford, Atlanta.

333 5ee e.g., Del Code Ann. tit. 14, Sec. 4112(01974); Fla. Stat. Ann. Sec. 232.277 (West Supp. 1985); Ga. Code Ann. Sec. 51-1-30.2 (Supp. 1984); N.J.Stat. Ann. Sec. 18A: 4.1-4.2 (West 1984); N.Y. Educ. Law Sec. 3028-1 (McKinney 1981).

334 Del. Code Ann. tit. 14, Sec. 4112(01974).

335Fla. Stat. Ann. Sec. 232.277 (West Supp. 1985).

3361d.

337Ga. Code Ann. Sec. 51-1-30.2 (Supp. 1984).

338N.Y. Educ. Law Sec. 3028-1(a)(McKinney 1981). The establishment of such a school "drug policy" could provide an additional protection for teachers and students in the drug reporting situation involving possible civil liability. Such a drug policy can also conceivably include procedures for treatment referral and providing educationally related services. See the recommendation and report on discrimination.

339N.J.Stat. Ann. Sec. 18A:40-4.1 4.2 (West Supp. 1984-85).

340N.J. Stat. Ann. Sec. 18A:40-4.1:

Whenever it shall appear to any teaching staff member, school nurse or other educational personnel ... that a pupil may be under the influence of a controlled dangerous substance ... such teaching staff ... shall report the matter as soon as possible to the school nurse.... The principal or his designee, shall immediately notify the parent or guardian and the superintendent of schools, ... and arrange for an immediate examination of the pupil by a doctor selected by the parent or guardian.... If such doctor ... is not immediately available, the pupil shall be taken to the emergency room of the nearest hospital accompanied by a member of the school staff ... and a parent or guardian, ... for the purpose of diagnosing whether or not the pupil is under such influence.... If such diagnosis is positive, the pupil shall be returned to his home ... and appropriate data shall be furnished to the Department of Health.... The pupil shall not resume attendance at school until he submits to the principal a written report certifying that he is physically and mentally able to return.

34INew Jersey v. T.L.O., 105 S. Ct. 733 (1985). Florida similarly mandates reporting. Fla. Stat. Ann. Sec. 232.277 (West Supp. 1985).

342See U.S. Const. amend. IV.

343105 S. Ct. at 739.

344Id. at 743.

345Id. at 744.

3461d. at 742.

347Id. at 744.