One popular case area for 2017-18 will focus on measures to address the School to Prison pipeline, a metaphor that describes the disproportionate application of school disciplinary policies to minorities, particularly Blacks and Hispanics, and that ends up resulting in more students dropping out, being picked-up by the police for misdemeanors, resulting in incarceration.
We have one case finished that focuses on this area — adoption of a probable cause standard for searches of students in schools.
These files also contain a lot of additional evidence on the general harm area.
Below you will find some additional solvency evidence/plan ideas that are suggested by some of the leading scholars in the field. You could choose to combine these plan approaches with some of the harm evidence in the files above.
There is a Word version of these cards here —
Full education topic bibliography, with more school to prison pipeline citations.
Jason Nance, 16, law professor, University of Florida, August 27, 2016, Student Surveillance, Racial Inequalities, and Implicit Racial Bias, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2830885
Proposals for Reform
The use of intense, coercive surveillance methods, especially when applied disproportionately to students of color, harms students’ interests, delegitimizes the educational process, perpetuates racial inequalities, weakens trust in government institutions and processes, skews minorities’ perceptions of their standing in our society, and sends harmful messages to members of all races that students attending majority-white schools enjoy greater privileges and have superior privacy rights.412 Furthermore, while one might try to justify these disparities on the basis that majority-minority schools often face greater safety concerns, the empirical evidence demonstrates that these racial disparities exist even after taking into account factors such as school crime, school disorder, and neighborhood crime, suggesting that other factors— such as implicit racial bias—may also influence school officials’ decisionmaking to some degree.413 The question now is how to address this problem.
Elsewhere, I have argued that school-led reform is the most effective means of addressing over-reliance on strict security measures and its disproportionate use on students of color.414 Schools should apply alternative, evidence-based methods to promote safe learning environments, such as restorative justice, School-Wide Positive Behavioral Interventions and Supports, social and emotional learning, and training to improve the teaching and classroom management skills of teachers.415 I have also urged the U.S. Department of Education’s Office of Civil Rights to play a more active role in reducing racial disparities relating to the use of strict security measures.416 Further, I have argued that state and federal agencies should stop providing money for strict security measures and instead help fund and establish incentives for schools to employ these alternative measures.417 I broaden this recommendation now, urging governments to drastically reduce expenditures associated with the criminal justice system and, instead, invest those funds in public education and the programs and initiatives described above. Disturbingly, according to data recently released by the U.S. Department of Education, expenditures on public Pre-K–12 education increased by 107 percent from 1979–1980 to 2012–2013, but expenditures on state and local correction increased by 324 percent over that same time period.4
In addition, there are concrete steps that the federal government and state governments should take to address the ill effects of implicit racial bias on school security decisions
Importantly, not only will these recommendations help address the disproportionate use of strict security measures on students of color, but they will also help address racial disparities in other areas of public education, such as student discipline, student placement, and academic achievement.
- Increased Support from the Federal Government and State Governments to Address Educators’ Implicit Racial Biases
First, as part of the Elementary and Secondary Education Act, the federal government should require, in exchange for federal education funds, that states enact laws mandating that all school personnel receive implicit bias training, and that all teacher certification programs include such training.421 It is imperative that educators understand the concepts associated with implicit bias, its pernicious effects on decisionmaking, and what they can do to neutralize its influence. Indeed, even though implicit racial biases are deeply rooted in our subconscious minds, they are still malleable and their effects can be neutralized.422 If the federal government does not enact a law requiring states to provide this training, state legislatures should enact such legislation on their own.423
Notably, the U.S. Department of Justice recently announced that it will require all of its attorneys and law enforcement agents to receive implicit bias training.424 The Justice Department made this decision after observing success with such training programs in local jurisdictions.425 Likewise, police departments throughout the country, including in major cities such as Baltimore, New York City, Seattle, New Orleans, and Los Angeles, require their employees to participate in implicit bias training.426 In addition, the American Bar Association recently launched an initiative to “combat implicit bias in the judicial system” by providing resources to “bar leaders, legal educators, judges, other judicial system stake-holders, and community leaders in general” so they can “present programming on implicit bias in their own communities.”427
Further, it is important that these laws require educators to receive implicit racial bias training regularly, perhaps at least annually. Field-tested strategies and interventions to debias individuals are still in their early stages.428 As the science of debiasing becomes more understood and sophisticated, that new knowledge must be shared with educators. In addition, research suggests that positive changes associated with debiasing strategies are elastic and biases may return to their earlier configurations if participants do not reapply strategies and techniques.429 Thus, regular training may assist educators to more effectively neutralize their biases over longer periods of time.
Second, the federal government and state governments should provide financial assistance to impoverished school districts to ensure that these school districts can provide adequate implicit bias training to their employees. Implicit bias training requires resources that many cash-strapped school districts lack.431 Financial assistance to poorer school districts is particularly important because poorer school districts often serve higher concentrations of minority students.432 Third, the federal government and state governments should fund more research to advance the science of implicit racial bias, particularly as it applies to educators.433 As stated above, although researchers have a reasonable understanding of the concept of implicit bias, the science behind its causes, effects, and how to neutralize its negative effects is less advanced. Indeed, it is critical to increase our understanding of implicit racial bias and how to neutralize its effects because it appears that implicit racial bias imbues educators’ decisions and actions in several areas outside of school security, including student discipline, student achievement, and student placement.434 Furthermore, as the U.S. Department of Education and state departments of education do with respect to other areas of education, these government agencies should take a much more active role in analyzing and disseminating information about implicit bias, particularly with respect to best practices regarding how to neutralize its effects, as our understanding of this complex science increases.435
- Require Schools to Publicly Report Their Security Practices
Although the Civil Rights Data Collection provides much needed information to the public regarding many areas of K–12 education, the federal government and state governments currently do not require all schools to publicly report information about their security practices.436 Accordingly, I urge the federal government (and state governments) to require each school to collect and publicly report detailed information regarding all security practices it employs, how often its school officials search individual students (or directs those searches), how often its school officials conducts (or directs) random, suspicionless searches on groups of students, and the reasons for these searches.437 I also urge the federal government and state governments to require each school to disclose the alternative measures it employs to promote a safe learning climate. This requirement may help motivate school officials to carefully consider why they rely on strict security measures (if they do so), which can help them confront their implicit racial biases. It may also help motivate school officials to rely on concrete data to make security decisions and perhaps more carefully consider whether they should implement alternative measures to create safer environments. Relatedly, the federal government and state governments should also consider holding schools accountable for relying too heavily on strict security measures and for racial disparities relating to their use. This can be done by incorporating these data into broader accountability rubrics used to evaluate schools and districts.
Finally, I urge the federal government and state governments to make all of the information they gather on school security publicly available to help keep school officials accountable for their decisions.439 Public data will provide parents with information they need to make informed decisions regarding where to send their children to school and for whom they should vote to serve on school boards and in other public offices.440 Data will also provide parents with information they need to demand changes if necessary.441 And, critically, by making this information public, civil rights activists, lawmakers, lawyers, and others will have access to the information they need to push for reforms in this area.442 Indeed, since the U.S. Department of Education’s Office of Civil Rights has shined a powerful light on school districts’ exclusionary student discipline practices through its Civil Rights Data Collection, we have witnessed a decrease in the number of out-of-school suspensions nationwide.
Intense surveillance practices, while uncommon just a few decades ago, are becoming more commonplace in schools. This trend is troubling because such practices can create hostile learning climates that generate inferior learning opportunities for youth. These intense measures also may end up pushing more students out of school and putting them on a pathway to prison. Furthermore, as empirical data confirm, including an original empirical analysis of restricted data recently released by the U.S. Department of Education after the shootings at Sandy Hook Elementary School, not all schools rely on these strict measures. Rather, the data suggest that schools serving primarily students of color are more likely to implement more intense surveillance measures than other schools, which may further exacerbate existing inequalities between minority and white students. Importantly, empirical data and scientific studies also suggest that the implicit racial biases of school officials may influence school officials’ security decisions to some degree.
Educators can and should lead efforts to reform the disparate application of strict security measures on minority students and address educators’ implicit racial biases. Nevertheless, the federal government and state governments must take a much more active role to help school officials and teachers understand the concept of implicit bias, its unconscious influence on their decisionmaking, and how to neutralize its negative effects. Not only will this increased understanding help address the disproportionate application of strict security measures on students of color, but it will also help address racial disparities in other areas of public education. Such efforts will help move us closer to developing better learning environments for students of all races. Our youth deserve nothing less.
Jason Nance. Students, Security, and Race, 63 EMORY L.J. 1 (2013), http://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1390&context=facultypub
Alternative Measures More Effectively Reduce Violence
The disproportionate use of strict security measures on minority and low- income students is a compelling reason for policymakers not to make funds available to schools to purchase these measures. But another compelling reason is that school officials can do more to reduce violence in their schools and communities by adopting alternative measures. While strict security measures are visible, tangible responses to address school violence that might provide superficial comfort,262 they do not address what is truly needed: to help children become ethical, well-rounded, productive members of our society who can resolve conflicts without resorting to violence.263 At a recent conference for community members in New Jersey, “Safe and Secure Schools: Perspectives After Newtown,” keynote speaker Maurice Elias reminded attendees that “our children cannot learn, and our teachers cannot teach, in schools that are unsafe, unsupportive, uncaring, uncivil or lacking in intellectual challenge . . T These are the ultimate sources re more lasting than metal detectors.” These are the ultimate sources of security to children and in ways that are more lasting than metal detectors.” Similarly, after the Columbine shootings, the U.S. Secret Service and the Department of Education issued a joint report concluding that a fundamental component for reducing school violence is to improve the school’s climate and strengthen trust and communication among students and educators. As that report emphasized,
In educational settings that support climates of safety, adults and students respect each other. A safe school environment offers positive personal role models in its faculty. It provides a place for open discussion where diversity and differences are respected; communication between adults and students is encouraged and supported; and conflict is managed and mediated constructively.
Indeed, after conducting a comprehensive study of school safety in the Chicago public school system, scholars Matthew Steinberg, Elaine Allensworth, and David Johnson concluded that even in schools serving large populations of students from areas of high crime and high poverty, “it is the quality of relationships between staff and students and between staff and parents that most strongly defines safe schools.”
We certainly cannot prevent all acts of violence at school or elsewhere. But we can do more to help students develop social and emotional stability, improve their attitudes about themselves and others, decrease their levels of emotional stress, teach them how to resolve conflicts peacefully, and help them develop positive relationships with their teachers, other adults, and their peers. Such initiatives will do more to curb violence in schools and in communities – and help students to become more well-rounded and prepared for the workforce – than strict security measures ever could. This section will describe specific, alternative methods that schools can implement to achieve these results.
First, a program called Positive Behavioral Interventions and Supports (PBIS) is a well-respected, data-driven initiative that provides strategies for defining, teaching, and supporting appropriate behavior to create strong learning environments for an entire district or school. PBIS is a decision-making framework that helps educators select and implement evidence-based practices to improve academic and behavioral outcomes for all students. Under this program, educators develop a set of behavior interventions and supports, use data to solve problems, modify the environment to prevent problems from developing and occurring, teach and support appropriate skills and behaviors, implement the social and behavioral practices with consistency and accountability, and continually monitor progress.
The program takes a multi-tiered approach. The first tier consists of providing a system-wide set of prevention strategies for all students, staff, and settings that include defining, teaching, and rewarding appropriate behavior. Second-tier strategies consist of intensive prevention initiatives directed at specialized groups of students who did not respond positively to the system-wide approach. Core elements of the second-tier strategies include screenings, progress monitoring, systems for increasing structure and predictability, contingent adult feedback, and increasing home and school communication. Finally, third-tier strategies are directed at students who did not respond positively to the second-tier prevention strategies. Those strategies include developing team-based, highly individualized plans to assist students with their needs. In sum, this program creates learning environments that are more inclusive, productive, and engaging, and of course, safer for both students and educators. It has been successful in all settings, including urban schools and in the juvenile justice system.
Second, the practice of restorative justice is another alternative approach to top-down, authoritarian discipline regimes that rely on strict security measures. Restorative justice practices are dispute resolution tools that involve both the victims and offenders. These practices “focus on repairing the harm, engaging victims, establishing accountability, developing a community, and preventing future actions.” Through formal and informal conferences, victims share with offenders how they have been hurt by the offenders’ actions, and the offenders have opportunities to make apologies. During the conferences, both the victims and offenders devise remedies for the wrong committed. Restorative justice initiatives teach all students to share feelings in response to undesirable behavior from other students, which has the effect of humanizing victims and changing the dynamics of those involved in the incidents.
The following example is provided to illustrate the benefits of restorative justice. After a student broke a window in the Humanities Preparatory Academy in Manhattan, New York, the student participated in a restorative justice conference. During the session, participants discovered that the day before the incident, the student had received notice that his family was being removed from its shelter and had no place to go. Because this did not excuse his behavior, the offender and the committee members decided that he needed to give back to the school community. Understanding that the student could not afford to replace the window, the session participants jointly decided that the offender would help answer an office phone after school for a month. During that time, his advisor and a social worker contacted the student’s family to offer support.
While breaking a window is less serious than an assault or, worse, a shooting, a central theme to the practice of restorative justice is to teach students early about the consequences of their actions and to allow them to restore their integrity, reputation, and self-esteem as they seek to make amends for their wrongful actions. By participating in restorative justice initiatives, students will avoid serious offenses later in their lives. But even when students engage in more serious offenses, restorative justice practices can help put students back on track to avoid even more serious offenses in the future. Schools that have implemented restorative justice practices have shown tremendous results. For example, West Philadelphia High School, formerly known as one of Philadelphia’s most dangerous schools, posted strong results after implementing restorative justice initiatives. After the first year, violent acts and serious incidents decreased by fifty-two percent; after the second year, violent acts and serious incidents decreased by an additional forty percent. Several other schools implementing restorative justice practices also have improved school safety.
Third, educators can enhance safety and order in their schools by improving the strength and quality of classroom activities. Having well-planned lessons and a varied instructional approach that includes hands-on learning activities, clear and well-defined behavioral expectations, teaching strategies that are targeted to meet students’ individual needs, and an empathetic approach focused on engaging and continually re-engaging students are vital to a safe learning environment. Such an environment provides students with a sense of purpose, commitment, and personal responsibility. It can help students feel that the educational process will work for them if they trust their teachers and commit themselves to the process. And above all, students need to feel and understand that teachers care about them, that teachers want them to succeed, that teachers believe that they can succeed, and that teachers are willing to do what it takes to help them succeed.
Fourth, policymakers can promote safety by creating smaller schools where students can receive individualized attention and develop personal relationships with adults and other students. Where this is not possible, large schools can divide children into smaller groups that remain together for an extended period of time and are taught by the same group of teachers. Research suggests that these smaller learning environments provide students with a better sense of community and reduce school crime.
Fifth, schools can implement initiatives targeted to help students develop emotional and social stability. Social and emotional learning strategies enable students to “recognize and manage emotions, set and achieve positive goals, appreciate the perspectives of others, establish and maintain positive relationships, make responsible decisions, and handle interpersonal situations constructively.” These programs provide instruction in understanding, integrating, and applying social and emotional skills in many contexts, which helps prevent violence, bullying, and substance abuse among students.
Implementing these alternative programs to reduce school violence is not easy, but it is possible. Six New York City schools serving at-risk students all have successfully created safe, constructive learning environments without relying on strict security measures. Common characteristics these schools share include efforts to promote dignity and respect among all school members; strong and compassionate leadership; open lines of communication among students, teachers, and school officials; and establishing clear, fair rules and disciplinary procedures. Notably, none of these schools use a metal detector.The results truly have been remarkable. Each school enjoys above- average attendance, graduation rates, and substantially lower than average incidents of crime and suspension rates.
C. Further Recommendations
While school-led reform is the most important component for instituting change, federal and state agencies must also play a role. An obvious place for federal and state agencies to begin is to stop providing grants to schools for strict security measures and make those funds available to support alternative initiatives. This is particularly important now that federal and state governments are considering providing money to schools for strict security measures after the Newtown tragedy. I urge policymakers to use those funds to encourage schools to implement PBIS, restorative justice, and social and emotional learning programs; to provide training to teachers and school officials; to grant students access to additional mental health services; and to help schools hire more behavioral counselors and other specialists.
In addition, I encourage the U.S. Department of Education to provide grants to researchers to study more closely the harmful effects of strict security measures on students, especially when those measures are applied disproportionately to low-income and minority students. The Department of Education could disseminate the results of these studies to school districts nationally. Further, it could recommend that schools refrain from using strict security measures in favor of alternative, more effective methods and provide training to school officials. State boards of education could do the same for the schools in their respective states.
Finally, I recommend that the Department of Education’s Office of Civil Rights play a more active role in addressing the disproportionate use of strict security measures on minority students. The regulations to Title VI promulgated by the OCR recognize disparate impact as a form of discrimination. While a private plaintiff cannot seek relief under a Title VI [regulation, the OCR can enforce those regulations. Recently, the OCR began investigating the discipline practices of approximately twenty school districts to examine any racial disparities, including Oakland Unified School District (OUSD). Those investigations were part of the Obama administration’s efforts to address the overrepresentation of some racial groups in suspensions and expulsions from school. The investigations have proved effective thus far. On September 28, 2012, the Department of Education announced the voluntary resolution of its investigation of OUSD regarding whether African-American students were disciplined more often and more severely than white students. OUSD made several commitments to address this problem. Those commitments included agreeing to collaborate with experts to develop positive school climates, identifying at-risk students and providing them with support services, revising its disciplinary policies, and providing training to school officials and educators. I encourage the OCR to play a similar role to address the disproportionate use of strict security measures on minority students.
Following these recommendations will help rectify the disproportionate use of strict security measures on minorities, reduce the overall number of schools that rely on strict security measures, provide a better learning environment for all students, and prepare children who will be more emotionally and socially balanced and less prone to commit violent acts.
Jason Nance. School Surveillance and the Fourth Amendment, 2014 WIS. L. REV. 79 (2014), http://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1441&context=facultypub
- A Reformulated Balancing Test
Many scholars have called for better balancing tests to evaluate citizens’ Fourth Amendment rights when government officials conduct suspicionless searches. Most of these scholars argue that courts should afford less weight to the government’s interest and more weight to the individuals’ interests. The reformulated balancing test proposed in this Article also maintains that courts should afford more weight to students’ interests under certain circumstances – but for reasons grounded primarily in pedagogy and the overall welfare of students. Working primarily within the existing Fourth Amendment framework, this Subpart identifies two different ways that a court can afford more weight – and why a court should afford more weight – to the students’ privacy interests under the Fourth Amendment when students are subjected to prison-like conditions in schools. The first way is rooted in the Court’s cases evaluating students’ rights under the First, Fourth, and Fourteenth Amendments. The second way is to rethink the concept of “intrusion.”
1. pedagogical concerns underlie the court’s analyses
The Supreme Court’s jurisprudence evaluating students’ Fourth Amendment rights is better understood when viewed in connection with Supreme Court cases evaluating students’ First and Fourteenth Amendment rights. In these cases, the underlying justification for abridging students’ constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. That is, courts reduce students’ constitutional rights to provide school officials with the constitutional leeway to create an orderly environment conducive to learning. This Article maintains that when this justification no longer holds true – when conducting suspicionless searches or, worse, creating a prison-like environment contributes to a deteriorated learning climate and harms the educational interests of the students – students’ Fourth Amendment rights should not be abridged but strengthened.
a. The foundational cases
In Tinker v. Des Moines Independent School District, the Court evaluated students’ First Amendment right to wear black armbands to publicize their objections to the Vietnam War and their support for a truce. When school officials became aware of the students’ plan to wear armbands, the officials adopted a policy that all students wearing armbands would be asked to remove them, and if they refused, they would be suspended until they did. When a group of students arrived at school wearing their armbands, they were sent home and suspended from school until they returned without them.
The Court famously held in Tinker that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and that “state-operated schools may not be enclaves of totalitarianism.” However, the Court also recognized the comprehensive authority of school officials “consistent with fundamental constitutional safeguards, to prescribe and control conduct in schools.” Thus, while the Court maintained that the Constitution protected the students’ right to express their views in schools, it also restricted those rights if speech “materially disrupted classwork or involved substantial disorder or invasion of the rights of others.” In Tinker, because the record did not show that the students materially disrupted the learning environment, interfered with school activities, or intruded in the lives of others, the Court concluded that the Constitution did not permit school officials to deny the students the right to wear their armbands at school.
Tinker is important because the Court clearly articulated the general principles for evaluating students’ constitutional rights in schools and established the tone for cases that would follow. Students do not shed their constitutional rights at the schoolhouse gate; yet, those rights must be balanced against the school’s interest in providing a productive learning environment. When students’ speech disrupts the learning environment, school officials can limit students’ First Amendment right to self-expression. Tinker is important for another reason as well. It demonstrates the Court’s attempt to align its constitutional jurisprudence affecting public schools with good educational policy. For example, the Court emphasized the pedagogical benefits of safeguarding students’ free speech rights. The Court noted that students are trained by exposure to a “marketplace of ideas,” and suppressing students’ expressions would dampen what should be a robust exchange of thoughts and opinions. Further, the Court explained that safeguarding students’ free speech rights in schools would help them learn the importance of their constitutional rights and not discount them “as mere platitudes.”
Six years later, the Court invoked these same principles when evaluating students’ right to procedural due process under the Fourteenth Amendment in disciplinary proceedings. In Goss v. Lopez, the Court addressed whether a school district violated several high school students’ due process rights by temporarily suspending them without holding a hearing.One of those students, Dwight Lopez, was suspended in connection with a disturbance in the lunchroom that resulted in damage to school property. Lopez claimed that he did not participate in the destructive conduct but was only an innocent bystander. He was nevertheless suspended without a hearing. Another student, Betty Crome, was present at a demonstration that took place at a high school that she did not attend. After she was arrested with the other students and subsequently released without being formally charged, she received notice from her school that she had been suspended for ten days. The school did not provide a reason for the suspension; nor was Crome given a hearing.
The Court first held that although the Constitution does not guarantee the right to an education at the public’s expense, these students had a legitimate property interest because they were entitled to a public education under their state’s constitution, and that interest could not be taken away absent minimal procedures required under the Fourteenth Amendment. Nevertheless, the Court concluded that students were not entitled to the full panoply of protections normally provided to citizens under the Fourteenth Amendment in other contexts such as criminal proceedings. Thus, at least with respect to short suspensions, students were not entitled to secure counsel, confront or cross-examine witnesses, or call their own witnesses to support their version of the incident. Rather, students facing suspension were guaranteed only “some kind of notice and afforded some kind of hearing.”The Court explained that in the vast majority of cases, this constitutional requirement would be met if school officials simply conducted “an informal give-and-take,” which included informing the student of the misconduct and the basis for the accusation, then providing the student with an opportunity to explain his or her version of the facts.
As in Tinker, the justification for abridging the students’ constitutional rights in Goss was to protect the state’s interest in providing an environment conducive to learning. The Court reasoned that “some modicum of discipline and order is essential if the educational function is to be performed.” The Court acknowledged that disciplinary events are “frequent occurrences” and sometimes require immediate action to be effective. Thus, an immediate response to a violation of a school rule was not only “a necessary tool to maintain order but a valuable educational device.” Equally important, as in Tinker, Goss highlights the educational value of students retaining their constitutional rights. The Court explained that the risk of error without holding at least some kind of hearing “is not at all trivial,” and it would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done.
Thus, it is apparent that the Court also was concerned that the students perceived that they were treated fairly in a government institution charged with teaching students about their constitutional rights.
In his dissent, Justice Lewis Powell, joined by three other Justices, sought to abridge students’ due process rights even further for pedagogical reasons, arguing that students should not be entitled even to the minimal due process protections outlined in the majority’s opinion. According to Justice Powell, students had no legitimate need for due process protection because the government’s interest was aligned with the students’ best long-term interests.
In 1985, the Supreme Court in T.L.O. evaluated students’ Fourth Amendment rights in schools for the first time, following the same pattern it established in prior cases evaluating students’ free speech and due process rights in Tinker and Goss. In T.L.O., a school official searched high school freshman T.L.O.’s purse for cigarettes after a teacher claimed that she spotted T.L.O. smoking in the bathroom and T.L.O. denied those accusations. During the search, the school official discovered marijuana and other materials suggesting that T.L.O. was dealing marijuana. The school official turned the evidence over to the police, who brought delinquency charges against T.L.O. in juvenile court. T.L.O. moved to suppress the evidence, arguing that the school official’s search violated the Fourth Amendment. The Supreme Court disagreed.
As it did when evaluating students’ free speech and due process rights, the Court evaluated the constitutionality of the search by balancing T.L.O.’s expectation of privacy against the school’s need to maintain an orderly environment conducive to learning. The Court first explained that students have legitimate expectations of privacy in the personal items they bring to school. At the same time, the Court recognized that school officials have an “equally legitimate need to maintain an environment in which learning can take place.” To strike a balance, the Court held that school officials were not required to obtain a warrant before searching a student, and a school official’s level of suspicion need not rise to the level of “probable cause.” The Court reasoned that the warrant and probable cause requirements did not suit the “informality of the student-teacher relationship” because they would unduly burden school officials and interfere with “the swift and informal disciplinary procedures” necessary to maintain an effective and orderly learning climate. Rather, the constitutionality of a search in school depends on its reasonableness under the circumstances. The determination of “reasonableness” involves a two-fold inquiry: (1) “”whether the … action was justified at its inception,'” and (2) “whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place.'” Using this framework, the Court concluded that the search was constitutional.
In his concurrence, Justice Powell reiterated his insistence that the government’s interest aligned with the students’ interests, making it “unnecessary to afford students the same constitutional protections granted adults and juveniles in a nonschool setting.”
The Court generally maintained this line of reasoning when evaluating students’ Fourth Amendment rights in the context of suspicionless searches in Vernonia and Earls. As explained above in both Vernonia and Earls – as in Tinker – the Court acknowledged that children “assuredly do not “shed their constitutional rights … at the schoolhouse gate,'” but reasoned that students’ “Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere.” According to the Court, the “reasonableness” inquiry could not disregard a school’s tutelary and custodial responsibilities; thus, the nature of a student’s Fourth Amendment rights “is what is appropriate for children in school.” Further, in both cases, the Court justified the searches on the ground that the government’s interest and the students’ interest were aligned. For example, in Vernonia the Court explained that deterring drug use – especially among student athletes – was important because of the physical, psychological, and addictive effects of drugs, and drug use disrupts the educational process.
More recently, the Supreme Court addressed the constitutionality of a student search in Safford Unified School District v. Redding. In Redding, the Court did not evaluate the constitutionality of a random, suspicionless search as it did in Vernonia and Earls; instead, the Court evaluated the legality of a strip search performed on a thirteen-year-old female student who was accused of bringing unauthorized prescription and over-the-counter drugs to school. As in T.L.O., the Court again recognized that students’ Fourth Amendment rights are abridged in schools, reasoning that searches in the school setting “”require some modification of the level of suspicion of illicit activity needed to justify a search.'” Relying on the same two factors the Court delineated in T.L.O., the Court concluded that the search violated the Constitution because it was excessively intrusive in light of the age of the student and the nature of the school violation. Notably, as it had in prior cases, the Court in Redding displayed a willingness to rely on pedagogical considerations not only to justify the abridgment of students’ rights in schools, but also to make its determination of whether the search itself was constitutional. When evaluating the student’s expectation of privacy in the school setting, the Court acknowledged that the strip search was embarrassing, frightening, and humiliating, and that there was empirical evidence indicating that strip searches could “result in serious emotional damage” for students. It further noted that a strip search was so degrading to students that many schools had banned them under all circumstances.
b. A more balanced approach
As the above cases demonstrate, the Court has repeatedly held that although students do not lose their constitutional rights upon entering the schoolhouse gates, students in school do not have the same rights they have outside of school. A primary justification that the Court relies on to abridge students’ constitutional rights – including their Fourth Amendment rights – is to promote the educational interests of the students. Stated another way, for pedagogical reasons, the Court dilutes students’ constitutional rights to provide flexibility for school officials to preserve an orderly environment conducive to learning. Relatedly, the Court also justifies reducing students’ constitutional rights on the ground that students’ interests are aligned with the government’s interest, and thus, heightened constitutional protections are unnecessary because school officials have students’ best interests in mind.
This Article maintains that if students can demonstrate that this justification is no longer true – that conducting random, suspicionless searches promotes an environment that is antithetical to learning or does not promote the educational interests of the students – their privacy interests should be given greater consideration against the government’s interest to conduct these searches. To make this assessment, a court should consider evidence regarding the effect of the challenged search practices on the learning environment. For example, the court might evaluate evidence assessing school climate; student learning; whether students are fearful and distrustful; whether school crime or disorder decreased or increased as a result of using these search tactics; and how the search practices affect students’ attitudes towards the government, school officials, teachers, and other students. In addition, the court might consider whether the use of these strict security measures exacerbates the school-to-prison pipeline by increasing the number of suspensions, expulsions, or referrals of students to the juvenile justice system for infractions that could be handled better internally. The court also might consider whether students attending schools with high minority populations perceive that they are being treated differently than students in other settings. Using such criteria, a court could declare these suspicionless search practices unconstitutional, which would encourage schools to rely on alternative measures to decrease crime and, if necessary, to conduct searches based only on individualized suspicion. Such a test more closely aligns with the overall tenor of cases evaluating students’ constitutional rights in schools and is more consistent with good education policy and practice.
To be clear, I do not propose that school officials should never be permitted to use strict security measures; perhaps there are circumstances where it would be appropriate to use them. Nevertheless, this modified framework would send a clear message to school administrators that strict security measures should be used only when they promote the educational interests of the students rather than as a first response to address school crime and disorder.
A proposed modification to align the constitutional rights of juveniles with good policy grounded in empirical evidence, of course, is not unprecedented in the case law. For example, at one time, adolescents in juvenile court were not entitled to traditional procedural protections provided to adults in criminal court because it was assumed that juvenile courts were nonadversarial institutions with adolescents’ best interests in mind. However, in light of the growing body of evidence that juvenile court officials failed to provide adolescents with benevolent protection, the Court in In re Gault determined that it was appropriate to extend at least some procedural protections to adolescents. Similarly, in Miller v. Alabama, Graham v. Florida, and Roper v. Simmons, the Court relied on social science to conclude that the Eighth Amendment precluded (1) a sentencing scheme mandating life in prison without the possibility of parole for juveniles who committed homicide, (2) life without parole for juveniles who committed a non-homicide offense, and (3) the death penalty for juveniles. And, in Safford Unified School District v. Redding, the most recent case evaluating students’ Fourth Amendment rights in schools, the Court cited social science evidence indicating that strip searches could “result in serious emotional damage” for students because they are so degrading.
Further, this modification is fundamentally consistent with other proposed Fourth Amendment balancing tests in other contexts. For example, Alexander Reinert characterizes the reasonableness balancing test as pitting the government interest against an individual’s privacy interest but maintains that the government interest should be construed more broadly to include important collective values, such as pluralist civic participation and the efficient administration of criminal justice. According to Reinert, when searches undermine long-term public interests such as ostracizing subgroups from the political process or hindering future law enforcement efforts by increasing distrust between students and law enforcement, courts might declare suspicionless search practices to be unreasonable under the Fourth Amendment. Shima Baradaran argues that when analyzing suspicionless searches, courts should consider broader societal data, such as potential racial targeting or low hit rates, instead of making less-informed balancing decisions based on only common sense. Fundamentally similar to these proposals, this Article essentially argues that courts should consider school data regarding the short-term and long-term impacts of suspicionless searches on the learning environment to make an informed balancing decision under the Fourth Amendment.
c. Criticisms of the reformulated approach
Some might criticize this reformulated approach by arguing that the justification for abridging students’ rights under the Fourth Amendment is distinct from the First and Fourteenth Amendments. They might argue that the Court’s justification, especially in Earls, is primarily grounded in student safety concerns, not in having an orderly environment conducive to learning. They also might argue that school officials should have the constitutional leeway to use strict security measures to protect students at almost all costs. My response to these arguments is twofold.
First, I maintain that a more complete view of the jurisprudence on students’ constitutional rights – and even of the jurisprudence addressing only students’ Fourth Amendment rights – is that safety is only one aspect, albeit an important aspect, of an overarching concern for allowing school officials to have the flexibility to fulfill their “custodial” and “tutelary” responsibilities by providing an orderly environment conducive to learning. While student safety is important, it is certainly not the sole – or even the primary – responsibility of public schools. Rather, a more balanced look at the jurisprudence suggests that the Court reduces students’ constitutional rights so that school officials can have the flexibility to provide for the well-being of children. The way that school officials primarily go about providing for the well-being of children is to treat them with dignity and to provide them with an appropriate learning environment. If courts permit school officials to treat students like prisoners, students’ overall well-being is jeopardized, and the learning environment is compromised. Stated another way, school officials should not be able to hide behind the Constitution when they treat students like prisoners because they are trying to keep students “safe” – especially when there are more effective means for creating safe schools that do not harm the learning environment or impair students’ dignity. Furthermore, we must remember that strict security measures do not guarantee students’ safety, and, in fact, may even compromise it. Indeed, maintaining an appropriate learning environment is simply a better foundation on which to build the Court’s Fourth Amendment analysis.
Second, even if student safety is the sole justification by which the Court abridges students’ Fourth Amendment rights, as explained above, many scholars argue that implementing strict security measures increases student behavioral problems and crime by alienating students. Accordingly, I propose that students, at minimum, should have the opportunity to submit evidence demonstrating that the use of strict security measures has not improved student safety. If this can be shown, then students’ Fourth Amendment rights should be given greater consideration against the government’s interest.
Some might also criticize the reformulated approach because it provides less deference to school officials. They might argue that courts should not second-guess school officials’ decision to use strict security measures, nor should courts make assessments regarding the school environment, because school officials are in a better position to make such judgments. My response to this criticism is again twofold. First, courts already make assessments regarding the learning environment under the First Amendment analysis. For example, as Tinker explains, school officials may restrict students’ free speech rights if speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Second, courts have the responsibility to limit school officials’ actions when those actions impinge upon students’ civil rights. In fact, in the current politically charged environment, courts have the responsibility to clarify students’ Fourth Amendment rights and should insist that schools preserve students’ privacy and dignity by finding alternative ways to deter school crime, especially in light of the fact that minorities are disproportionately subjected to these intrusive measures.
2. the combined effect amounts to a substantial intrusion
A second way in which a court can afford more weight to students’ privacy interests under the Fourth Amendment is to rethink the concept of “intrusion.” As explained above, lower courts routinely justify the use of a variety of random, suspicionless search practices in schools because they deem each individual search in isolation as “minimally intrusive.” This Article maintains that a more appropriate analysis of intrusion involves examining the cumulative effect of using all these measures together instead of evaluating each measure in isolation. Indeed, it is the cumulative effect of these measures that amounts to a substantial invasion of students’ privacy, harming students’ educational progress.
The recent testimony from the U.S. Senate Committee Hearing on Ending the School-to-Prison Pipeline provides a sobering illustration of how intrusive using a combination of these surveillance methods can be. Edward Ward, a twenty-year-old honor roll student at DePaul University, attended public schools on the West Side of Chicago, where 90 percent of the students were low-income and 100 percent were minority students. Ward described his school as his “own personal prison.” He stated that “from the moment we stepped through the doors in the morning, we were faced with metal detectors, x-ray machines and uniformed security. Upon entering school, it was like we stepped into a prison.” He continues:
My school’s environment was very tense; the halls were full with school security officers whose only purpose seemed to be to serve students with detentions or suspensions. Many of the school security officers were very disrespectful to students; some of them spoke to us as if we were animals. They were constantly yelling and antagonizing us from the moment we stepped into the halls until we reached our destination. This was nerve-wracking for me, because although I was an honor student, I felt constantly in a state of alert, afraid to make even the smallest mistake or create a noise that could enable the security officers to serve me with a detention. Instead of feeling like I could trust them, I felt I couldn’t go to them for general security issues because I would first be interrogated before anything would get done… . The officers don’t get any special training to be in the school so they don’t treat us like we are misbehaving; they treat us like we are committing crimes… . These policies and actions disheartened me. I could slowly see the determination to get an education fade from the faces of my peers because they were convinced that they no longer mattered, … the last thing that would work is to place them in institutions of confinement and control.
In another example, Minerva Dickson views her high school as a prison. Every day before being allowed to enter, Minerva waits in a long line as each student is subject to various security checks. When Minerva finally arrives to the front of the line, she first swipes an identification card through a machine. Then she walks to the metal detectors that are monitored by several police officers. While the police officers stand watching, Minerva removes her jewelry, hairpins, and shoes, then puts her personal bags on a conveyor belt to be scanned. Finally, Minerva stands with her arms out and legs spread as an officer runs a security wand around her body. Minerva then collects her things, puts on her shoes, and hurries to her first class. When asked how she feels about school security, she responds, “They treat us like criminals. It makes me hate school. When you cage up students like that it doesn’t make us safe, it makes things worse.”
In these examples, and probably thousands of others, it is clear that something fundamentally wrong is happening. While being treated like a criminal may involve more than a privacy violation and intrudes on one’s dignity, it also seems clear that the cumulative effect of using all of these measures together amounts to a significant intrusion of students’ privacy interests and can and should be evaluated as such.
Jason Nance. Over-Disciplining Students, Racial Bias, and the School-to-Prison Pipeline, 50 U. RICH. L. REV. 1063 (2016), http://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1766&context=facultypub
In addition, as part of a national strategy to re- duce disparities in discipline, it is critical that national and state lawmakers, the DOE, and state departments of education implement the following three recommendations.
First, school officials and teachers must receive training to understand the concept of implicit bias and learn neutralizing techniques. 44 Empirical research demonstrates that such training helps ameliorate the negative effects of implicit bias.45 As a condition for receiving federal funds under the Elementary and Secondary Education Act, the U.S. Congress should require states to develop programs to provide implicit bias training to teachers and school administrators on an annual basis. Alternatively, state legislatures should pass legislation requiring such annual training.
Second, although the concept of implicit bias is reasonably understood, less understood are its causes and effects and ways to neutralize its negative effects.46 Our national and state governments must invest more money to fund more research to better understand how to address the implicit biases of school officials and teachers.47 Notably, such investment not only will address implicit biases relating to discipline, but also will address biases that affect disparities relating to a multitude of other areas of education, including academic achievement and placement in gifted and special education programs.
Third, the DOE and state departments of education should play more assertive and active roles in reducing implicit bias.49 For example, the DOE and state departments of education can analyze, support, and disseminate research to school districts about effective programs to reduce implicit bias. Because implicit bias imbues so many daily (even hourly) decisions that hundreds of thousands of school officials and teachers make, it is imperative that the DOE and state departments of education harness their influence, resources, and skills to address this problem that negatively affects millions of students of color everywhere.50
Jason Nance (2016) Students, Police, and the School- to-Prison Pipeline, 93 WASH. U. L. REV., https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577333
It is critical to recognize that there are better, more pedagogically sound methods to address school violence and help students maximize the educational opportunities available to them. For example, rather than spending exorbitant amounts of money hiring SROs and installing other strict security measures to promote school safety, we should use our resources to provide students with more mentoring programs; counselors; mental health services; programs that build a strong sense of community, character, collective responsibility, and trust; and programs that help students develop anger-management skills and teach students how to resolve conflict.272 In fact, there are many alternative methods that enhance school safety more effectively than implementing measures that rely on coercion and fear.273 Indeed, school safety experts and educators have long recognized that creating a safe environment depends largely on creating a positive school climate based on trust, respect, and open communication among members of the school community.274 Perhaps the most effective way to enhance school safety is to improve the quality and strength of educators’ teaching and classroom-management skills.275 When teachers have well-planned lessons, employ a varied instructional approach that includes hands-on learning activities to target different learning styles and student needs, establish clear behavioral expectations, and help students understand how the material is useful, teachers engage students and behavioral problems dissipate.276 An educational experience such as this provides students with a sense of commitment, personal responsibility, and purpose.277 Students want to be in the classroom and fully participate in the educational experience offered to them. They feel that the educational process will work for them if they commit themselves and establish positive relationships with other members of the school community.
In connection with improving teaching quality, another effective initiative to improve school safety and discipline is School-Wide Positive Behavioral Interventions and Supports (“SWPBIS”).279 It is a data-driven initiative that provides educators and students with strategies to define, teach, model, and support appropriate behavior that helps create an optimal learning climate.280 SWPBIS sets out a decision-making framework to help educators choose and implement evidence-based practices, develop a set of behavior interventions and supports, use data to address school issues, and create environments to prevent behavioral problems from developing.281 This program has been successful in promoting school safety in many types of settings, including in schools within the juvenile justice system.282 In fact, several studies empirically demonstrate substantial improvement in student behavior, school climate, and overall academic achievement when schools implement the SWPBIS program.283
Yet another effective practice for reducing school violence is restorative justice.284 Restorative justice initiatives are dispute resolution based tools that seek to reconcile offenders and victims.285 It focuses on “repairing the harm, engaging victims, establishing accountability, developing a community, and preventing future actions.”286 Schools can employ a variety of restorative practices ranging from on-the-spot responses to misbehavior to community conferencing involving parents, students, and teachers.287 During conferences, victims share with offenders how they have been harmed, and offenders are given the opportunity to apologize and make amends.288 This practice teaches students to share feelings, which can humanize the victims and transform the dynamics of the relationship to prevent further wrongdoing.289 As with SWPBIS, schools that have implemented restorative justice practices have improved school safety and student discipline. For example, after the first year of implementation, West Philadelphia High School, once known as one of Philadelphia’s most dangerous schools, experienced a decrease in violent offenses by 52%.290 After the second year of implementation, violence incidents decreased by an additional 40%.291 Several other schools implementing restorative justice practices likewise have significantly improved student behavior.292 SWPBIS and restorative justice initiatives are but a few of the many programs and initiatives available to school officials to enhance school safety while strengthening the learning climate.
Jason Nance, 13, law professor, University of Florida, 2013, University of Colorado Law Review, Suspicionless searches of students’ belongings: A legal, empirical, and normative analysis, http://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1295&context=facultypub,
School security measures and their implications involve complex, sensitive issues that should be addressed by state and federal legislatures, courts, school boards, school administrators, teachers, students, parents, business leaders, and members of the community. Based on these preliminary findings, this Article makes three primary recommendations to these constituencies.
First, this Article recommends that courts take a more assertive role in establishing a baseline standard for school officials to follow when deciding whether to engage in intrusive search practices. Although the current legal framework indicates that school officials should not be permitted to search students’ belongings absent a serious substance abuse or weapons problem, the Supreme Court and all of the federal circuit courts, except the Eighth Circuit, have not yet directly addressed this issue. Accordingly, this Article urges courts around the country, and especially the Supreme Court, to follow the Eighth Circuit’s lead and expressly require school officials to provide concrete evidence of a serious substance abuse or weapons problem before permitting schools to engage in intrusive search practices and provide students with appropriate relief when schools do not. Courts generally are reluctant to interfere with school officials’ day-to-day administrative practices,^^6 b^^ ^]^Qy must set appropriate boundaries to protect students’ Fourth Amendment rights, particularly in a setting where students are learning the contours of their civil rights and are forming views of themselves, their communities, and their place in society. Too often courts refuse to hold schools accountable for performing intrusive searches without having sufficient justification for doing so.^27 T^YIÍQ recommendation applies equally to state courts as well as federal courts. In fact, independent of how the Supreme Court decides this issue, states can interpret principles from their own constitutions to provide students with greater privacy rights than what students currently enjoy under the U.S. Constitution.
Second, stronger court intervention cannot be the only means to rectify these issues, especially if the number of suits brought by parents of aggrieved students remains low.329 State legislatures should consider requiring state and local boards of education to employ an education ombudsman^^^ to act as an independent intermediary to resolve these and other complaints that arise among families and school officials. Some state and local school boards already have educational ombudsmen in place to resolve problems between families and schools, which could be used as a model for other schools.^^^ If an ombudsman were readily available to students and parents at no cost and would maintain confidences, the ombudsman could ameliorate many problems students face to protect their civil rights.
Third, school officials and policymakers should consider alternative, more effective means for reducing school violence and drug abuse than resorting to methods that rely on coercion, punishment, and fear. As explained above, programs that promote a strong sense of community and collective responsibility more effectively reduce school crime and do not degrade the learning environment
These analyses should cause courts to strongly consider following the lead of the Eighth Circuit and require school officials to provide evidence of a substance abuse or weapons problem before permitting schools to engage in an intrusive search. Nevertheless, the most effective reform will occur if school officials themselves voluntarily agree to refrain from using measures that coerce and punish students and, instead, adopt measures that promote collective responsibility and trust. Such actions are more consistent with students’ best interests, will preserve a healthy learning environment in which all children can learn more effectively, and will help create a better society to live in for people of all races.
Sarah Jane Forman, University of Detroit Mercy School of Law. “COUNTERING CRIMINALIZATION: TOWARD A YOUTH DEVELOPMENT APPROACH TO SCHOOL SEARCHES”. The Scholar: St Mary Law Review on Minority Issues. https://works.bepress.com/sarahjane_forman/1/2012
As Justice Kennedy writes in Graham “criminal procedure laws that fail to take a defendant’s youthfulness into account at all would be flawed.”285 But how do we take “youthfulness into account” in a way that is consistent with both maintaining safe schools and creating democratic citizens? One way is to identify the factors that make youthfulness an important consideration, and then incorporate these factors into the reasonableness calculus, balancing this interest (as well as personal privacy) against school safety. With regard to adolescents, their youthfulness is important because “this is the developmental period during which . . . an adult-like understanding of society and its institutions” are being formed.286 School search jurisprudence can better account for the developmental realities of adolescence in much the same way that Eight Amendment jurisprudence now does. The Court arrived at the holdings in Simmons and Graham by referring to “the evolving standards of decency that mark the progress of a maturing society” inherent in the Eighth Amendment’s proscription against cruel and unusual punishment.287 Similarly, the Fourth Amendment’s reasonableness balancing test “does not operate in a vacuum; instead, it must comport with evolving societal norms.”288 It is an evolving standard that is based on what “society is prepared to recognize as ‘reasonable.'”289 The current school search and seizure model balances student privacy interests against the state’s interest in maintaining safe schools. This binary approach creates a false choice because there are other interests at stake. I submit that both society and students have a significant interest in the development of future citizens. This interest, which I will refer to as a “development interest,” should be taken into account when determining what is reasonable under the Fourth Amendment. The framework that emerges when the development interest is factored into the reasonableness balance is a youth development approach to school search and seizure because the development interest militates in favour of a school search standard that promotes democratic socialization and thus encourages positive youth development. “The greater the area in which juveniles are free to pursue their own interests, and to act responsibly without interference, the better able they are to respond to society’s many demands upon them.”290 Under this new paradigm, students’ Fourth Amendment rights become a tool of democratic socialization, enhancing young people’s capacity for autonomous decision making and lending legitimacy to the law and legal authorities. A youth development approach mandates a probable cause standard, the standard that bestows the presumption of reasonableness on all search and seizures because it requires a particularized, articulable basis for suspecting a disciplinary violation has occurred before a search can be undertaken. 291 The youth development approach would address the three ‘dangerous lessons’ set forth in section II of this article. First, it would give practical meaning, based in actual experience, to the Constitution’s lofty guarantees of privacy thus enhancing the “perception of rights as entitlements applicable to oneself.”292 Second, the youth development approach would encourage positive youth development because it would respect adolescents’ developing sense of autonomy by requiring the state to “justify coercive intervention” into their privacy.293 Third, it would promote an orientation toward law and legal authority that is based on respect and trust rather than fear and control. This will yield better developmental outcomes for students because it nurtures pro-social rather than anti-social patterns of behavior.294 Moreover, it increases the perception of fairness and equity of legal rules which fosters a sense of institutional legitimacy towards schools’ disciplinary regimes.
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. TLO. 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.296 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. 297 Moreover, probable cause would place limits on the discretion of school officials and SRO’s “bent upon searching particular students suspected of wrongdoing at school” who, under the current framework, have very “few constraints.”298
Critics of the youth development approach to school searches might reason that schools’ moral and legal duty to maintain a safety is so compelling, no interest can outweigh it. If probable cause were to prevent even one student with a gun from being searched, the consequences could be disastrous and thus a lower standard of reasonable suspicion is always justified. After all, school safety is to education policy what national security is to domestic policy – invasions of privacy that would be otherwise unacceptable are considered a necessary evil that contributes to the greater good.299 Critics also might argue that the problem isn’t a lack of rights for students, but too many. The internet is abuzz with blog posts and opinion commentary on the need for more, not less school discipline. “[S]tudents [who bring drugs or weapons to school]can create a bitter and fearful environment for students interested in learning, and students who care are grateful when the frequent fliers in the disciplinary system are removed from their classes.”300 Under this view, perhaps the “development interest” is not a societal interest in making democratic citizens out of troublemakers, but rather a societal interest in guaranteeing a safe learning environment for the ‘good kids’. As the world outside gets more violent, school should be a place where children can be free from fear. Finally, because this approach to school searches draws support from scientific studies involving adolescent brain development, it is potentially vulnerable to criticism if the research is refuted or supplanted by new discoveries.
While I acknowledge these concerns, I remain committed to the notion that the rights embodied in the Fourth Amendment are so essential to a basic citizen identity that even without the science or the emphasis on children’s rights – the right to be left alone is at the core of Constitutional liberty and freedom and must remain inviolate. “[T]he makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.”301 The fact that children are the right holders in the context to school search and seizure should not undermine our commitment to zealously protect such an “indispensible freedom.”302
However, school safety is of paramount importance, and must always be accounted for when formulating effective search and seizure protocols. A probable cause standard is not mutually exclusive of school safety. As Justice Brennan pointed out in is dissent in T.L.O.: “in Illinois v. Gates, 462 U.S. 213 (1983), this Court expounded at some length its view of the probable-cause standard. Among the adjectives used to describe the standard were “practical,” “fluid,” “flexible,” “easily applied,” and “nontechnical.” See id., at 232, 236, 239. The probable-cause standard was to be seen as a “common-sense” test whose application depended on an evaluation of the “totality of the circumstances.” Id., at 238.” Schools’ ability to keep students safe will remain intact because the flexibility and fluidity that teachers and school administrators depend upon is inherent in the probable cause standard. In fact,” in most instances the evidence of wrongdoing prompting teachers or principals to conduct searches is sufficiently detailed and specific to meet the traditional probable cause test.”303 Moreover, a move to probable cause would not foreclose school officials from conducting Terry stops (under a reasonable suspicion standard) when necessary for safety. While a youth development approach to school searches that adopts a probable cause standard is not a panacea for our ailing public school system, if implemented correctly, it is one small step toward educating for citizenship and restoring legitimacy of the rule of law in the eyes of marginalized youth. The probable cause is a more suitable standard in school searches because it provides greater protection to youth, is developmentally appropriate and sends a message to students that they are entitled to the rights and protections of citizenship, thus restoring legitimacy and encouraging engagement and participation in civil society.
A youth development approach to school searches also requires changes in the way school searches are conducted. A doctrinal shift to probable cause is not enough because even if the Court overrules T.L.O., it cannot legislate best practices from the bench. Boards of education must adopt policies which assure that the probable cause standard is implemented in a manner that respects student’s rights and fosters positive youth development. Capitalizing on the socializing value of rights, SROs and school officials should always notify students or their rights before conducting a search and explain why the student is being searched. This would be akin to a Fourth Amendment Mirada warning, employing simple, easy to understand language that conveys core rights. The exact language could be determined by individual school boards in conjunction with teachers, students and parent groups. For example, a school might adopt the following notification: “[student’s name], your [backpack, purse, jacket, pockets, etc] is about to be searched. We have a right to search you because [state the underlying probable cause i.e. Mrs. Smith saw you smoking in the restroom]. This means we have probable cause to think [state underlying violation i.e. you were smoking on school property]. You do not have to make any statements at this point. We will be as respectful of your privacy as possible, but we do have to search you now.”
In addition, police involvement in all school searches should limited as much as possible. Schools should adopt memoranda of understanding (MOU) with police departments that clearly define the role of SROs in the context of schools’ educational mission. 304 The MOU should emphasize that probable cause is required before a search can be undertaken. In the absence of an immediate threat to school safety, teachers and school officials should be the ones actually conducting the searches. Furthermore, clear standards should govern when and how the fruits of school searches are turned over to police for law enforcement purposes. These standards should limit the situations in which students are referred to juvenile, family or adult criminal court by keeping most matters within the school’s disciplinary process.
School search practices can be modified to this end even under the reasonable suspicion school standard. For example, in their whitepaper on policing in schools, the ACLU sets forth a model governing document that includes language on students’ rights in the context of both searches conducted by SRO’s and school officials.305 The model governance document sets forth the standard in police initiated searches as probable cause, and explicitly prohibits SRO’s from “ask[ing] school officials to search a student’s person, possessions, or locker in an effort to circumvent these protections.” The standard for searches by school officials is reasonable suspicion, and the model governance document excludes SRO’s from participating in such searches absent compelling circumstances.306 Moreover, the 4th Amendment “notice” described above could also be utilized under a reasonable suspicion standard.
The current reality in urban public schools is that students are subjected to a pedagogy of punishment that treats students as if they pose a threat to society rather than as if they are young citizens deserving of autonomy and personhood status. Students in the public education system are often treated like criminals, and this is exacerbated by reduced Fourth Amendment protections in school searches. Abrogating Fourth Amendment rights of students in the name of public safety is not good public policy because such measures, in conjunction with other harsh disciplinary practices and increased police presence in schools, fail to achieve their purported public safety outcomes in the long term. Rather, such policies may actually induce youth to behave more anti-socially, rendering schools less safe. Therefore, although the safety gains are low, the developmental setbacks for the developing adolescent are high: when students are treated as threats to society, they become threats to society. The counterproductive nature of these policies stems from the fact that they do not account for the developmental needs of adolescents and thus they produce outcomes that are inconsistent with the stated objectives of public education. Schools should not cultivate authoritarian environments where school officials wield absolute and unfettered power. Rater, their disciplinary policies and practices should comport with their special role in the socialization of future democratic citizens to this end, they should respect students’ autonomy, dignity and individual rights. School search law should reflect a developmentally accurate assessment of public safety concerns, students’ privacy interests, and the joint interest of students and society in the creation of democratic, law-abiding citizens. A youth development approach to school searches incorporates this joint interest into the reasonableness determination and, in doing so, calls for a probable cause standard in school searches. 304
Law professor Jim Nance explains from Florida State explains in 2016 two ways that, https://www.reddit.com/r/Debate/comments/4uisut/jason_nance_associate_professor_of_law_at_the/)
My thought is that adopting a probable cause standard may help to reverse the school to prison pipeline for two reasons. First, you need to remember that the use of searches is sometimes connected to zero tolerance policies. When schools rely on intense surveillance measures and zero tolerance policies together, students might be automatically suspended, expelled, or referred to law enforcement for violating certain school rules with taking into consideration mitigating factors, surrounding circumstances, of the seriousness of the offense. (i.e., maybe, after a suspicionless search, a school official or SRO uncovers some ibuprofen, which may be in violation of school rules and may justify suspension, but the student has a legitimate reason for carrying it). Suspensions and expulsions many times increase the probability of involvement in the justice system (either immediately or eventually). See here for that discussion: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2671447
Second, perhaps requiring probable cause might motivate school officials to adopt alternative, better, evidence-based methods to promote school safety and discipline without relying harsh, punitive measures like searching students (and other strict security measures that create a prison-like environment in schools). See this article for a discussion on these alternative, evidence-based measures: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2671447 (https://www.reddit.com/r/Debate/comments/4uisut/jason_nance_associate_professor_of_law_at_the/)
American Bar Association (2016) Task Force on Reversing School-to-Prison Pipeline. Redfield & Nance, https://www.americanbar.org/content/dam/aba/administrative/diversity_pipeline/stp_preliminary_report_final.authcheckdam.pdf
(T)he Task Force recommends that the ABA take steps to: ABA AND PARTNERS: CONVENINGS AND TRAINING
- Adopt ABA policy and specific resolutions as appropriate to implement these recommendations
- Join with other partners to continue additional of Town Halls discussing solutions and offering training on implementation
- Support legal representation for students at point of exclusion from school, including development of model best practice training modules for lawyers and law students for representation for students facing suspension or expulsion
- Support ongoing convenings where educators, School Resource Officers, law enforcement, and juvenile justice decision makers join together to develop strategies to reverse the School-to-PrisonPipeline
- Develop training modules for training of SROs and police dealing with youth on appropriate strategies for LGBTQ students and students with disabilities
- Develop training modules on Implicit Bias and De-Biasing for decision makers along the StPP including teachers and administrators, school resource officers, police, juvenile judges and others dealing with juveniles, to reduce disproportionalities
- Encourage its members to continue engagement in youth mentoring initiatives
- Support related legislative and policy initiatives
Catherine Kim et al, 2010, The School-to-prison Pipeline: Structuring Legal Reform, CATHERINE Y. KIM spent seven years as an attorney with the American Civil Liberties Union National Legal Department in its Racial Justice Program, specializing in the intersection between education and the juvenile justice system
This book has sought to describe what happens to children at each of the different entry points on the School-to-Prison Pipeline, from the front end of the pipeline, including inadequate and inequitable access to resources, all the way to the back end of the pipeline, including the various barriers confronting court-involved youth who seek to continue their education and eventually reenter the mainstream school system. By analyzing theories and strategies to challenge disturbing trends at each of these entry points through impact litigation, the book has sought to provide an arsenal of resources for advocates seeking to stem the pernicious impact of the pipeline, particularly for our most at-risk youth.
That said, throughout the book, we have noted the limitations of impact litigation to stem the pipeline. In some cases, courts have refused to intervene, even when constitutional or statutory violations have been found. In other cases, doctrinal barriers to relief have been erected. Finally, sometimes advocates have simply lacked the resources, either to bring systemic litigation or to adequately monitor and enforce legal victories. For these reasons, we encourage all advocates—including members of the bar, the bench, and the legal academy, community members, government officials, and legislators—to identify alternative strategies to protect the rights of these students and to ensure equal educational opportunities for all. Indeed, in many of the case studies profiled throughout this book, advocates initiated impact litigation in conjunction with alternative
strategies including grass-roots organizing, legislative lobbying, and policy advocacy, to name a few. In other situations, litigation may not be able to be initiated at all, and advocates will need to rely on these alternative strategies exclusively. For example, a lawsuit against a particular district for failing to provide a free and appropriate public education as required under the Individuals with Disabilities Education Act for a specific subgroup of students with disabilities with disproportionate suspension rates might be brought at the same time as a distinct lawsuit more generally redressing the high school push-out rate of all students before they reach the maximum age for compulsory education. Each of these lawsuits might complement a general move to increase direct representation of individual students of color in a district or state. Moreover, these distinct legal
approaches may be pursued as part of an even broader impact advocacy strategy that could include state litigation for failing to provide an adequate education along with a grassroots awareness and media campaign designed to help communities throughout the state raise these issues at local school board meetings. In the meantime, advocates may also pursue a legislative amendment to the state’s definition of “adequate education” or related administrative remedies with the state’s board of education. Most advocates agree that pursuing litigation in isolation limits its impact over time. Nonlitigation strategies such as grass-roots activism and state and federal legislative initiatives can develop and build momentum from a successful litigation. Additionally, impact litigation may be coupled with direct legal representation for maximum effect. It has not been our intent in this book to provide an exhaustive how-to guide to litigate the most damaging aspects of the School-to-Prison Pipeline, much less to set forth the various nonlitigation methods that might be employed. Rather, our goal has been to identify the harms that befall our most at-risk youth, to identify some of the legal strategies that have succeeded in the past, and to issue a call to advocates of different stripes to continue bringing these cases, to brainstorm alternative strategies, and to work together to ensure that children of all backgrounds have a chance at obtaining a high school diploma rather than a criminal record. Kim, Catherine Y.; Losen, Daniel J.; Hewitt, Damon T.. The School-to-Prison Pipeline: Structuring Legal Reform (Kindle Locations 3122-3126). NYU Press. Kindle Edition.
Jason Nance. Dismantling the School-to-Prison Pipeline: Tools for Change, 48 ARIZ. ST. L.J. 313 (2016), http://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1783&context=facultypub