Mass. High Court Considers When Police Can Access Student Records

What if a 15-year-old student is a suspect in a robbery and police ask the officer working in the student's school to get that student's school photo to use in a lineup? Is that legal? That's the question now before Massachusetts Supreme Judicial Court.

The case involves a student from the former Monument High School in Boston who was suspected of stealing an iPod at knifepoint. A few weeks after the robbery, Boston detectives asked the police officer working at Monument to get the student's school photo for a lineup.

Complicating things further — because the student photo was strikingly different from those typically used in a police photo array — the school police officer also obtained photos of about half a dozen other students. Those photos were put in the lineup as well.

"These photos should not be used to say the juvenile did anything wrong," said Sarah Rothenberg, an associate with the firm Proskauer Rose who wrote an amicus brief in the case. "It shouldn't be used as part of a case against him because it was improperly shared with the police, in violation of his expectation of privacy."

A lower court judge ruled the photos could not be used as evidence because doing so was an intrusion of the students' privacy rights. But the state disagrees.

Suffolk County Assistant District Attorney Kathleen Celio presented the commonwealth's side during oral arguments before the high court Thursday. She argued that while school records such as test scores and grades are private, a school photo is different.

Justice Margot Botsford asked Celio: "If the school requires a student to have this photo, how is it not part of the record? How can that photo then be used to identify somebody for a crime that did not happen on school property?"

"It's the same as a photo taken at the Registry of Motor Vehicles for a driver's license or state ID; it's to be used for identification and shown to others," Celio responded. "It's not a school record and there is a different privacy standard."

Justice Botsford also asked: "Couldn't police have gotten a warrant?"

"They didn't need to," Celio answered. "They just went to the school police officer."

Attorney Peter Onek, with the Committee for Public Counsel Services, argued on behalf of the juvenile. "Imagine the feelings of parents," he said, "upon learning that materials used to register their child for school were then used in a criminal investigation without their permission?"

But Justice Ralph Gants replied, "That photo is intended to be shown to others. Do you think a parent should be expressly asked if a student ever has to hand over an identification card for any purpose?"

Justice Gants also raised the question of public safety. "Is it not a school's purpose to find out if one of its students is robbing someone at knifepoint?" he asked. "Doesn't that pose a problem with bullying, and don't we have statewide concern about bullying?"

"Bullying is a problem," Onek replied, "but that doesn't nullify constitutional protections." Police, he said, "should get a warrant."

The justices are expected to render an opinion in a few months.