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Adopting the Probable Cause Standard will NOT lead to Restorative Justice

September 16, 2016
Published in Newsletter

I’ve heard this argument floating around that claims that if probable cause became the standard for searches in schools that somehow schools would decide to adopt restorative justice. I’ve read a ton about this topic and hadn’t seen it in any literature so I’ve been curious to see what this argument is.

I finally heard it in a debate.

I was “nonplussed.”

Basically, the Pro said that if a person or set of people had their ideas affirmed that they would get excited about said ideas and move forward with them.

After the debate, the showed me this card —  “Individuals who are motivated to take collective action have an interest in claiming legitimacy…Legitimizing collective action increases the likelihood that individuals will take collective rather than individual action.” from this article.

There are so many problems with this that it is unfortunate that the Con only has a four minute rebuttal.

One, there is no evidence that restorative justice advocates would see the adoption of the PC standard as legitimizing their cause. PC is a complex legal standard and restorative justice is a comprehensive program that requires experts and substantial funding.  The whole point of PC is that students don’t end up being searched and have the need for things like jail or restorative justice in the first place.  There is zero  evidence that PC or a change in legal standards would allow restorative justice advocates to claim legitimacy or feel them were legitimized.

Two, there is no evidence that if they had more legitimacy that they would be more effective in getting their costly and controversial programs developed in schools.

Three, as the Con in my debate pointed out, if they win that probable cause won’t substantially constrain searches (which isn’t a hard argument for the Con to win), anyone who was originally excited would quickly become disillusioned.

Four, there is an equally good chance that the adoption of the PC standard could trigger complacency. Individuals who are  concerned about student rights may think the problem is solved and that restorative justice is not needed.

Five, there is substantial evidence that court victories (notice: this is about the Pro) trigger a backlash and do not produce widespread social change.

Gerald Rosenberg, a political scientist at the University of Chicago who did extensive research on this issue, explains:

Gerald Rosenberg, Political Scientist @ Chicago, 1991 (THE HOLLOW HOPE: CAN THE COURTS BRING ABOUT SOCIAL CHANGE?, p. 341-2)

While I have found no evidence that court decisions mobilize supporters of significant social reform, the data suggest that they may mobilize opponents. With civil rights, there was growth in the membership and activities of pro-segregation groups such as the White Citizens Councils and the Klu Klux Klan in the years after Brown. With abortion, the Right to Life movement expanded rapidly after 1973. While both types of groups existed before Court action, they appeared re-invigorated after it.

He even goes so far as to argue that if any movements do get excited they will mobilize toward the courts in hopes of achieving more legal victories only to be crushed.

Referencing Rosenberg’s work, the website Organizational Theory, explains:

As Rosenberg stated, groups that pin their hopes for social change on the courts are likely to be disappointed. “[C]ourts act as ‘fly-paper’ for social reformers who succumb to the ‘lure of litigation”; they are being lured “to an institution that is structurally constrained from serving their needs, providing only an illusion of change” (341).

Yes, court victories act as fly paper for social reform, attracting movements to the courts only to kill/crush them.

Six, there is no evidence that adopting a probable cause standard would legitimize collective action.  There is no collective movement to adopt a probable cause standard in schools now so there is nothing to legitimize.

Seven, of courser, Con teams can attack the merits of restorative justice, though that is really not necessary in this instance.

Sometimes in debate people just make stuff up.  To a degree, many arguments are “BS,” but the link from PC to a (successful) restorative justice movement scores pretty high on the BS meter.

 

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