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Fighting the Most Common Probable Con Cause Strategy: Pro teams have a lot of work to do

September 10, 2016
Published in Newsletter

ALL Public Forum Resources 

Millennial Speech & Debate Institutes 

Introduction 

I had a great time judging eight Public Forum debates at Wake Forest this weekend.

Unlike on many other topics, I think the Con took the right approach and had a strategy that I think is difficult to defeat.

The Con’s Strategy

Basically, the Con argued that adopting the probable cause (PC) standard would not result in any (significant) reduction in searches and that the pressure from constituents concerned about school security after the adoption of the probable cause standard would mean that schools would adopt more aggressive measures – enhanced surveillance, more School Resource Officers (SROS), more metal detectors, and more zero tolerance policies that would result in a greater deprivation of rights and force more students into the School to Prison Pipeline (STPP).

These arguments are all covered in the lecture I gave at the Wake Forest tournament about how to answer the STTP argument and probable cause solvency when debating the Con and most of them are covered in the Master evidence release. But, to repeat them in text

  • The PC standard does not apply to voluntary searches and 90% of searches that occur in schools are voluntary (this was the most common argument);
  • In contexts where PC is required outside of schools, minorities, particularly blacks, are still six times more likely to be searched than whites;
  • Previous changes in legal standards has not resulted in any decrease in searches;
  • Judges will find PC where they have previously found reasonable suspicion;
  • Warrants (assuming they are required in schools, which they aren’t) would simply be rubber stamped;
  • School officials have substantial immunity from suits as long as they act in good faith;
  • School officials aren’t afraid of being sued because the district will cover their legal bills.

For all of these reasons (and perhaps others that I have not hear), it was very difficult for Pro teams to show any significant reduction in (inappropriate) searches as a result of the adoption of PC.  And, in addition to this, Pro teams didn’t really even have any good evidence to substantiate a claim that adoption of PC would reduce the number of searches.  Many teams just read evidence about how higher legal standards are good an protect rights, but I honestly don’t remember ever hearing a card about why PC would be effective in curtailing searches.  Often, teams would just read evidence that said reasonable suspicion (RS) was a bad standard, and then just assert that PC would be a better standard.

Given this, it was pretty easy for me to conclude in most of the debates I judge that teams had little to know solvency.

Now in my view,  a “little” solvency isn’t a reason to vote Con, it is a reason to vote Pro. BUT, if the Con wins a solvency turn (that the Pro make the situation worse), then clearly I’m going to vote Con.  I most of the debates I judged, this was the case.

How did the Con win that the Pro would make things worse? Basically, as I said, they argued that schools would adopt other, more threatening security measures –

SROS.  Teams argue that schools would hire more SROS if PC because the standard for __ reasons.

One, there would be a public outcry in support of more security measures.

Two, schools would think that SROs are most qualified to make PC determinations.

Surveillance.   Teams argue that surveillance would increase if PC cause was the standard for two reasons.

One, there would be a public outcry in support of more security measures.

Two, currently schools can rely on anonymous tips to conduct searches but if PC because the standard they couldn’t use anonymous tips unless they had corroborating evidence, which they would gain from surveillance.

Metal detectors, dog sniffs, and locker searches.   Teams argue these types of searches would increase if PC cause was the standard for two reasons.

One, there would be a public outcry in support of more security measures.

Two, they are administrative searches and not searches of students so they would not be constrained by the adoption of the PC standard.

Zero tolerance policies (ZTPs)s.  Teams argue these types of searches would increase if PC cause was the standard because there would be a public outcry in support of more security measures

When combined with increases in SROS, general surveillance, and various types of administrative searches, ZTPS can be especially problematic because more students are arrested for minor behavioral infractions.

The solvency arguments, combined with these turns is, in my mind, a very effective Con strategy.

Tackling the Con’s Strategy 

I think there are three basic approaches to dealing with this Con strategy.  I will discuss each based on the degree of difficulty, starting with the strategy I think will be the most effective and finishing with the one that is the most difficult.

*Impact turn the turns/the disadvantages.   Teams can argue SROS good, increased surveillance good, more ZTPs good, etc.   This is the most effective strategy I saw at Wake Forest, as most teams were not able to muster any significant defense against the link to these arguments. Of course, when arguing these measures are good, you also need to answer the reasons they are bad, but if you can win that these measures are net desirable, you can win the debate without winning any of the original solvency (probable causes reduces (racist, rights-depriving) searches.

*Arguing that random searches are bad.  I think “random searches bad” is a major part of the topic that people are missing on the Pro.  Every Pro case that I judged simply argued that a searched based on reasonable suspicion was worse than a search based on probable cause for rights/racism reasons. While this is most likely true, it is hard to win a significant, articulable difference in light of the solvency arguments discussed above.

That said, it is not the case that the only types of searches of students/persons are searches based on reasonable suspicion.  There also also random searches of student athletes (Vernonia v. Action) and students in extra-curricular activities (Board of Education v. Earls). Teams can read these court decisions, Amicus briefs, and related law review articles and argue these random searches of these groups are bad.

This is strategically beneficial because the solvency arguments the Con is making against the significance of the difference between RS and PC do not apply in this instance. Let’s look at the particular arguments.

Voluntary searches. Yes, many students let teachers and administrators search them voluntarily when they are suspected of committing a crime or violating a school rule, but students (and parents) are not going to allow random drug testing if the courts explicitly say that such random drug testing is unconstitutional because suspicion-based, probable cause is necessary.

Qualified immunity.  Teachers and school administrators are not going to have qualified immunity for a random search that has been explicitly deemed illegal by the courts because they won’t be able to demonstrate/argue they have acted in good faith, which is essential to have qualified immunity.  Conducting a random search after it has been deemed illegal would be a blatant violation of the laws.

Schools paying attorneys’ fees.  Schools aren’t going to simply pay attorney fees for administrators and teachers who blatantly violate the law. They are going to fire said administrators or remove them from their places of power.

Judge discretion.  Judge will not have discretion to uphold random searches under a probable cause standard because those are absolutely forbidden when a probable cause, suspicion-based standard is required.

Basically, I don’t think any of the strong arguments against probable cause failing to solve apply when the Pro is claiming to stop random searches.

Now, of course, the Pro still needs to confronts the turns/Das that were discussed above, but at least this way they can solve and weigh their case against the turns/Das.  As discussed below, these Das to have substantial uniqueness problems that become more significant when the Pro can retain their solvency.

Defend the ship.  Unfortunately, I think this is the route that many teams will try to take, simply trying to defend that they reduce the number of searches and arguing the turns are not very unique (that there are SROs now, that there is surveillance now, etc).

The basic problem I have with this strategy is that, as discussed, the evidence I’ve heard debaters read in debates that says that PC will significantly reduce searches is in the category of not very good/terrible. In many debates I judges the Pro didn’t either read or reference a single card that actually said PC would reduce that number of (racially motivated) searches (at all, let alone significantly). In most cases, this was an assertion by them. And, in many cases, their harm evidence event was really about why general school security measures (surveillance, metal detectors, SROS) was bad.  Unless Pro teams find substantially better solvency evidence than I’ve seen or heard, I think this strategy is futile and that Pro losses will continue to pile up.

Here are some cards from the Millennial Speech & Debate Master file that you may want to use —

Probable cause limits evidence admissible at trial, which is good because it prevents students from  being thrown into the criminal justice system

Harvard Law Review.  “Policing Students: Developments in the Law”.  April 2015.  , http://harvardlawreview.org/2015/04/policing-students/

School officials should additionally be held to a probable cause standard even for searches based on a suspected violation of school rules, where the policy of the school is to turn over any evidence of criminal activity found to the police. Such a requirement would, of course, mean that more evidence would be excluded from criminal cases. Though the exclusionary rule is often criticized for preventing valuable evidence from being introduced at trial, this criticism has less force when applied to children, who are considered less culpable for their crimes by both courts and legislatures. The criminal justice system has proved incapable of rehabilitating juveniles, and may indeed fate children who would otherwise have grown out of an unruly period to be forever connected with the system.

Probable cause places constraints on currently overpowered law enforcement and gives students more ammo for suppression motions

Sarah Jane Forman, University of Detroit Mercy School of Law.  “COUNTERING CRIMINALIZATION: TOWARD A YOUTH DEVELOPMENT APPROACH TO SCHOOL SEARCHES”.  The Scholar: St. Mary’s Law Review on Minority Issues,  Winter 2011, p. 301-ff

Furthermore, a shift to a probable cause standard would also address the problem of the expanding nexus between school officials and law enforcement. This was the elephant in the room in New Jersey v. T.L.O. Since that case was decided, police have become a prevalent fixture in public schools and it is more likely that disciplinary infractions will lead to school-based arrests and even criminal prosecutions.3 35 Under a probable cause standard, students who are searched and criminally prosecuted based on the fruits of the search, will have weightier grounds to support suppression motions. Probable cause would alter the current methodology of school discipline wherein every student is viewed as a potential safety threat and treated like a criminal suspect when accused of violating school rules.”‘ Moreover, probable cause would place limits on the discretion of school officials and SRO’s “bent upon searching particular stu- dents suspected of wrongdoing at school,” and who, under the current framework, have very “few constraints.””

Even if weak, probable cause constrains the government

Andrew Taslitz,2013,Professor of Law, Washington College of Law,  Journal of Criminal Law & Criminology, Cybersurveillance Without Restraint? The Meaning And Social Value Of The Probable Cause And Reasonable Suspicion Standards In Governmental Access To Third-Party Electronic Records, http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7458&context=jclc, DOA: 7-29-15, p. 896-7

Finally, even if probable cause is easily shown, that does not mean that it should not be required or that it should be relegated to secondary importance. If probable cause involves a significant standard of proof and is accompanied by the requirements of high-quality information, police accountability, and individualized justice, numerous benefits follow. Important constraints are placed on the risk of police abuses, respect for law via fair procedures is enhanced, and law enforcement itself can be prodded to embrace a culture of respect for constitutional values and of the professionalism requiring careful attention to evidence and hesitation before too readily invading privacy.

 

 

Now if the Pro can win some reasonable amount of solvency, I do think they can make substantial inroads into the uniqueness to the Das/turns by arguing there are a lot of SROS/surveillance/metal detectors/STPs in the status quo.  All of the Pro teams I judged did make this argument.

That said, there are two problems with the non-uniqueness arguments.  One, there is evidence the Con reads that says these more aggressive security measures are declining in the status quo.  The Con has a chance to win uniqueness.  Two, and most importantly, the turns/das are linear and the Con can win on the argument that the Pro makes all of their original harms worse. Unless the Pro can win a reasonable amount of solvency for their harms (which I think they can do if they argue why random searches are bad, they will continue to lose to this strategy.

Conclusion

The Pro has different approaches available to tackle what is the most common Con strategy, but if they are going to keep trying to defend the ship, they have to patch a lot of the holes.

 

 

 

 

 

 

 

 

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