School-Police Cooperation Worries Civil Libertarians

There’s a little-known weapon in the escalating war against gangs in Orange County that has hardly been used and may not even be necessary. But the fact that it exists is deeply troubling to many juvenile rights activists.

The weapon is a 1989 court order that clears the way for Orange County school districts and law enforcement agencies to swap information on minors believed to be connected with gang activity. Those on the front line in the war on gangs hail it as a small but helpful step in the battle. But civil libertarians are concerned that the order could at the very least lead to an abuse of privacy laws, and at worst to “Big Brother” intelligence gathering by police.

The court order was prepared by the Orange County Gang Task Force and signed March 13, 1989, by Orange County Juvenile Court Presiding Judge C. Robert Jameson.

It was issued because “. . . the court has been informed that concerns about ‘confidentiality’ have often hampered or prevented communication among educators, law enforcement, District Attorney and Probation personnel,” impeding the solving and prosecution of crimes.

It states that school districts, “all police departments in Orange County, the Orange County Probation Department and Orange Court District Attorney” may swap information about students whenever there is “a reasonable belief” that the student is “a gang member or at significant risk of becoming a gang member.”

Although the order has been on the books for more than a year, few school officials or juvenile justice attorneys contacted were aware that it existed, and law enforcement officials said the order is rarely used to cull information on suspected gang members. Jameson said the order is merely a clarification of existing laws for the benefit of school districts and police agencies engaged in cooperative anti-gang programs.

But the fact that the order is not widely used does not appease civil liberties groups, which argue that the court order violates the spirit, if not the letter, of state and federal laws prohibiting school districts from releasing student files such as transcripts or disciplinary records. Tight restrictions on information sharing are necessary to keep innocent youths from being unfairly branded as potential gang members and to prevent police from compiling lists of “usual suspects,” juvenile rights advocates said.

On the other hand, proponents of open record-sharing--including many parents whose children are constantly preyed on by gang members--argue that restrictive laws prevent police from taking precautionary measures against gang members and deprive the public of its right to know of threats to the community.

“Many measures that are presented are going to appear suppressive and in violation of civil rights,” said Tony Borbon, chairman of the Orange County Youth Gang Action Committee, a group of educators, law enforcement and community officials that requested the court order. “However, in the larger scope of things, let’s say we don’t do this type of sharing of information, and then if we have a (gang-related) homicide at a school--will that be enough impetus for the community to say, ‘Heinous crimes are being committed; why didn’t you do anything?’ Is that time to act, or do we take preventive measures now?”

Advocates of juvenile rights said that while they are aware of the increasing gang problem, court orders and changes in confidentiality laws could lead to unfair targeting of youths from poor neighborhoods, especially blacks and Latinos.

“What makes someone a gang member as opposed to a wanna-be or the friend of wanna-be?” said Cathy Jensen, an Irvine civil rights attorney specializing in juvenile rights. “What is ‘at risk’? That’s living in Santa Ana, being alive, male and under 30.”

The Orange County court order--believed to be the only such blanket order in the state--is faulty because it fails to specify what sort of information schools may release and does not spell out guidelines to determine who is deemed “at significant risk” of joining a gang, Jensen and other attorneys said. The vague language of the order, one attorney said, could allow police to gather names of gang members based on unsubstantiated hunches and innuendo.

“What the police really want to know is who are the troublemakers,” said Marketa Sims, an American Civil Liberties Union attorney in Los Angeles. “We’ve always been opposed to keeping a roster on anybody. We would consider it to be a Big Brother sort of tactic and we would be opposed to it.”

Some parents and police officials agreed that there is potential for increased targeting of minorities by police and may unfairly stigmatize innocent youths.

But they said such concerns are becoming secondary as Orange County watches its gang population and gang violence grow. A record 17 gang-related killings have been recorded in the county so far this year, and police say there are 65 gangs with more than 7,000 members in Santa Ana alone.

Michael Salgado, a member of the Santa Ana Mayor’s Task Force on Neighborhood Policing and head of Parents Against a Gang Environment, a grass-roots community group, said parents recognize that the court order “might invade privacy,” but they feel that it’s better to ensure the safety of the majority of youths than to worry about the privacy rights of a few.

“The laws in general right now are protecting the juveniles,” Salgado said. “It’s a tool for the kids, and it’s also an excuse for their parents. Kids are committing crimes at a younger age--that should be concentrated on more than a right to privacy.”

Education, law enforcement and court officials involved in preparing the court order said that any concerns about privacy violations are unwarranted because the court order merely restates statutes already on the books and was signed to ease doubts of school administrators reluctant to pass along information of any kind.

“To me, there is nothing earthshaking about the order,” said Deputy Dist. Atty. John Conley, who wrote the court order when he was head of the Orange County Gang Task Force. “When you are confronted with a problem about crime in the schools and the problem of gangs, there was an imaginary wall between the information the schools have and the information the police have. We have enough problems trying to deal with gangs without that wall, let alone an imaginary wall.”

Judge Jameson said that even though districts were already legally authorized to release certain kinds of information, such as addresses and telephone numbers, to law enforcement agencies, he decided to sign the order after Conley came to him and asked for his help in explaining privacy statutes to school officials.

“My point to Conley was, this stuff is exchangeable anyway,” Jameson said. “He said, ‘I know it is, but the schools are reluctant.’ (The order) is just a matter of making people feel comfortable.”

Jameson said the court order clarifies a recent amendment to the state Education Code that authorizes school officials to release records to police departments or district attorneys that are conducting criminal investigations or investigating probation violations by students. The order is also backed up by Section 49076 of the state Education Code, which outlines several situations under which court orders can require school officials to allow access to student records without parental notification, Jameson said.

However, juvenile rights attorneys said the court order goes beyond those sections of the Education Code because it authorizes release of information under any circumstance, rather than for specific investigations.

“The law (under Section 49076) goes to a specific kid, not a general order,” said Loren Warboys, a senior staff attorney at the Youth Law Center in San Francisco. “There are provisions for a court order to supersede those restrictions, but I don’t believe the law supports the notion that you can issue a blanket court order.”

In addition, Warboys and other attorneys said, a line in the court order reading, “The parental notification requirement of (Section) 49077 of the Education Code are not applicable to oral communications made pursuant to this Order,” further violates the spirit of the law since, theoretically, it could allow officials to simply tell each other what is in a student’s file rather than passing a written document from one agency to another. Police and school officials, however, said that the order has never been used for those purposes.

“It hasn’t been an issue with us,” said Sgt. Bob Sayne, head of the Santa Ana Police Department’s gang detail. “We have officers on campus and they are well aware of who’s new in the zoo and who’s doing what to whom. We don’t have school personnel doing detective work for us.”

LeRoy Kellogg, assistant superintendent for administrative services at the Anaheim Union High School District, said that while district officials are aware of the court order, they will release student records only “under very limited circumstances,” and, in most cases, only with a specific court order instructing them to do so.

Kellogg was one of the few district administrators contacted who was aware of the law. Officials in the Fullerton Joint Union High School, Santa Ana Unified and Huntington Beach Union High School districts--among many in Orange County faced with increasing gang activity--said they had never heard of the order and will continue to rely on district policy. Those policies, for the most part, are in line with the guidelines of the Anaheim Union High School District.