Recent scholarship raises important questions about the rights of children in schools, about the links between schools and punitive government systems, and about how the distributive choices around education impose systemic, racialized harm. With their article The Law of Disposable Children: Interrogations in Schools, Tonja Jacobi and Riley Clafton take this conversation deep into the realm of criminal procedure, opening a window into harmful practices in school-based interrogations. The authors reveal just how vulnerable students are to coercive interrogation tactics when they are in schools and how little protection the law provides them.
The article begins with an overview of the generally impoverished state of Miranda protections, explaining the many ways the Court has limited scope of those protections in the years since the case was decided. It also contains a discussion of the Court’s recognition of the need for special protections for young people in J.D.B. v. North Carolina, the 2011 decision holding that the age of the person subject to government interrogation is a relevant factor in determining whether an individual was in custody and therefore entitled to Miranda’s protections. The authors’ discussion acknowledges the many ways that existing constitutional doctrine offers insufficient protections against coercive interrogations, especially for young people. They note that “[n]ot only is there is no Supreme Court precedent laying out any special protections for schoolchildren to protect them from coercive interrogations—as opposed to custody—there has never even been an explicit ruling by the Court detailing what standards govern the interrogations of schoolchildren or whether they are even afforded the constitutionally required minimum protections of Miranda in the school context.”
The authors then go on to show how most children in schools lack access to even these admittedly insufficient procedural protections. The clear doctrinal analysis of the first section of the paper is complemented by significant additional work done by the authors to show how the Supreme Court’s decisions shape life on the ground in the nation’s schools. They begin with a nationwide survey of lower court cases evaluating challenges to in-school interrogations. They offer a typology of these cases: those where an officer is not involved in an interrogation conducted by a school teacher or administrator; those where an officer is present during such an interrogation; those where an officer and school administrators assume a shared lead role in the interrogation; and those where an officer leads questioning in the school context. The authors reveal that in all but the last set of cases, courts are highly unlikely to find that Miranda applies, and even in the last set of cases, they do not always find that Miranda applies.
Section II takes the reader through a number of examples in each of the categories, and illustrates the significant latitude courts give to both school officials and police officers to conduct interrogations in schools without complying with Miranda’s requirements. The detailed presentation of the facts of some of these cases shows just how far the lower courts have strayed from any effort to bestow Miranda’s intended protections on children subject to interrogations in schools. The authors also illustrate the ironic reality that lower courts frequently find ways to avoid applying the Supreme Court’s holding in J.D.B. to school interrogations, notwithstanding the fact that the ruling was intended to provide greater interrogation protections to children.
In the final section of the article, the authors grapple with the limits of the preceding doctrinal analysis. Even an exhaustive search of lower court decisions involving interrogations in schools cannot paint a full picture of what is happening, since those cases can only capture the interrogations that are challenged in court. To round out the picture, Jacobi and Clafton narrow their lens, and focus in depth on developments in Illinois. They begin by noting that there are no published decisions in Illinois in which the statement of a child in school was suppressed on account of a Miranda violation. Using several case examples, they show how Illinois courts ignore the (admittedly limited) protections purportedly offered by Miranda and J.D.B., and refuse to apply them to interrogations in schools, “where children may be most in need of protection.” (P. 337.)
The authors then explain that the Illinois legislature enacted legislation in 2017 that required Miranda warnings for people under eighteen, followed by the express inquiry into whether the individual wanted a lawyer and whether that individual wanted to speak with the questioner. The authors show how courts have effectively gutted this potentially helpful legislation, at least in the school context, by holding that it would be “absurd” to subject school personnel to these requirements. (P. 337.) Courts also have admitted into evidence statements obtained through unlawfully administered police interrogations of students in instances where the students signed statements for a teacher or administrator admitting culpability prior to the officers’ interrogation.
In the final subsection of the paper, with continuing focus on Illinois, the authors offer information about school interrogations beyond the caselaw—data obtained through interviews with eighteen experts working in Illinois on issues relating to school students’ lives and education. These experts included attorneys representing students, disability advocates, school administrators, social workers, probation officers in the juvenile justice system, juvenile court judges, and post-incarceration reintegration officers. Those interviewed corroborate the authors’ doctrinal conclusion that the Supreme Court’s decision in J.B.D. does not offer meaningful protection to Illinois children interrogated in school.
The authors draw on these interviews to document the commonplace use of the “Reid technique” in Illinois school interrogations. That technique involves an interrogator conducting a pre-interview in which they begin to infer the guilt of the suspect from indicators like lack of eye contact. They then proceed to assume the individual’s guilt in further questioning. The questioning often incorporates deception, including references to nonexistent evidence. It is a highly coercive interrogation technique, and one that is poorly suited for use on juveniles. Yet Illinois school principals have been routinely trained to use the Reid technique, and its usage is common in Chicago public schools. After use of the Reid technique drove one high school student to suicide, the Illinois Principals Association stopped their official promotion of the training, but the Illinois educators interviewed by the authors confirm that the training and techniques remain in wide circulation in the state.
The authors’ interviews with education experts in the state also reveal disparities in how different children are treated in school interrogations. Schools that serve predominantly wealthy and white students are more likely to adopt protective procedures than students that enroll more poor, Black, and Latine students. (P. 351.) Moreover, they note that racial bias and cultural differences can work in ways that subject Black and Latine students to a disproportionate share of coercive interrogation techniques.
Ultimately, drawing on their doctrinal analysis and their expert interviews, the authors conclude that the overall effect is that the legal system treats some children as “disposable.” (P. 297.) This is obviously true when children are condemned to bear legal consequences such as arrests. It is also true when a student is never arrested or placed in formal legal proceedings, but when the evidence obtained in coercive interrogations serves as the basis for severe school disciplinary actions such as lengthy expulsion.
Valuable on its own, the article makes a more significant contribution when read in conjunction with two other articles by the same authors exploring other criminal procedural protections in schools. The first, The Law of Disposable Children: Searches in Schools, 13 U.C. Irvine L. Rev. 205 (2022), documents the attrition of constitutional protections against unreasonable searches in the context of schools. The second, The Law of Disposable Children: Discipline in Schools, 2023 U. Ill. L. Rev. 1123 (2023), examines how school disciplinary procedures also undermine rights that the constitution purports to protect. This trio of articles provides a detailed picture of the ways that students are failed by the law, and contains the outlines of the kinds of changes that might provide children with greater safety and protection when they are in school.
