Bibliography
Intro Essay
Security and its discontents — outlining efforts to ensure school safety
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Introduction
In this essay, I will review the terms of the resolution, identify strength and weaknesses in wording that debaters need to consider, and preview the major Pro and Con arguments. I will develop the Pro and Con arguments in subsequent essays.
Terms in the resolution
Resolved: In United States public K-12 schools, the probable cause standard ought to apply to searches of students.
The resolution is a mouthful. Let’s break it down.
United States. This is one of the two easy to understand terms in the resolution. It simply refers to searches of students that occur in the United States.
Public K-12 education. Public schools are schools that provide education to students free of charge. Those schools are funded, “in whole or in party by taxation” (Wikipedia). K-12 simply means grades Kintergarten through grade 12.
This term is important for three reasons —
(a) The resolution does not include a debate about probable cause requirements in private schools. This is important because private schools can impose their own standards for school searches through a contract with parents.
(b) The students in question are generally minors. Although there are some students in high school who are 18+, most will be minors in t he jurisdiction in which they live.
© Public school officials are pubic officials – They are government officials. This is important to a discussion of Constitutional protections, as the Constitution is designed to protect people from the government. In New Jersey v. TLO, the Supreme Court ruled that those protections exist for minors in public schools.
Searches of students. The first technical term in the resolution is “search” and the question is whether or not there should be a search of “students.” Both of these terms need unpacking.
Let’s start with “search.”
The significance of the term “search” stems from the Fourth Amendment to the Constitution, which protects
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.
Based on the Supreme Court’s interpretation of the Fourth Amendment established in US v. Katz (1967), a “search” occurs when the government infringes upon an individual’s legitimate expectation of privacy.
The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a “search and seizure” within the meaning of the Fourth Amendment. (US v. Katz)
Government searches are normally considered reasonable, and hence a justifiable intrusion on privacy, when the government can prove there is probable cause to conduct a search.
Reasonableness is measured by examining the totality of the circumstances surrounding the search and balancing the intrusion “on the individual’s Fourth Amendment interests” against the search’s “promotion of legitimate governmental interests.”
Generally, any search will be found to be unreasonable “where the government or its agent has not proven it to be necessary.”
The most common method of demonstrating the “reasonableness” of a search is by a showing of “probable cause” which is the “level of suspicion which is required to justify government intrusion upon interests protected by the Fourth Amendment.”5 (Ellis, 2010).
The second question related to “search” is, “what is searched?” The resolution refers to a search of a “student,” but what is a search of a student?
Clearly, a strip search (which has occurred) is a search of a student? In New Jersey v. TLO, the most important Supreme Court case related to this resolution, TLO’s purse was searched. Is that a search of a student? Seemingly so, since she was carrying her purse. But what if her locker was searched when she was not present? Is there a difference if her locker was searched by a school official directly or if a canine does a walk through sniff search of all lockers? What if a student’s automobile that is registered to his or her parents and parked in the school parking lot is searched? Is that a search of a student?
Arguably, these are all searches of students since it is the student who bears the penalty, but distinctions can be drawn, at least between object searches and person searches.
Dana Bedden, 2006, Ed Dissertation, 2006, Public School Law: Student Search & Seizure in K-12 Public Schools, https://theses.lib.vt.edu/theses/available/etd-03102006-174524/unrestricted/DBeddenFinalETD.pdf DOA: 6-22-16
In general, there are three types of legal searches: search of inanimate objects, search of persons, and administrative searches. The objects included in the inanimate search category include (but are not limited to) student lockers, desks, luggage and the contents of lockers and desks (for example, bags, purses, backpacks, and binders). A person/personal search consists of actions such as asking the person to empty pockets, pat downs, sniff searches, strip searches and searches of belongings on a person. It is important to note that the more personal or closer to the person’s body the search becomes, the reasonable suspicion standard requirement increases. The third, administrative searches are primarily sweep searches of persons or buildings. Administrative searches may include searches of groups of people when the “special need” exist to prevent a dangerous situation or the governmental interest outweighs the individual’s right to privacy. This may include searches for weapons or drugs.
This brings up important questions as you prepare for your debates –
- Can the Pro only topically argue for “person” searches, or do “student” searches include objects?
- What specific cases are both topical and best under what interpretations?
- Can the Pro just generally defend the resolution in the first Constructive speech and then use particular definitions to argue that particular Con arguments are not relevant?
Probable cause. In most instances (there are exceptions beyond school searches), the government must establish “probable cause” to conduct a search.
What is “probable cause?”
“Probable cause” is arguably both the most important term in the resolution and the one that is most difficult to define.
The Supreme Court has established that probable cause to search exists when “known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband . . . will be found” (Ornelas v. United States, 1996, at 696). Dana Bedden (2010) adds some additional explanation:
The precise meaning of “probable cause” is somewhat uncertain. Most academic debates over the years have centered on the differences between “more probable than not” and “substantial possibility”. The former, “more probable than not” involves the elements of certainty and technical knowledge. The latter, “substantial possibility”, involves the elements of fairness and common sense. There are more adherents of the latter approach, but how do you define common sense. Supreme Court case law has indicated that rumor, mere suspicion, and even “strong reason to suspect” are not equivalent to probable cause. The reasonable man definition; common textbook definition states: Probable cause is where known facts and circumstances, of a reasonably trustworthy nature, are sufficient to justify a man of reasonable caution or prudence.in the belief that a crime has been or is being committed. (reasonable man definition; common textbook definition)
In the context of this resolution, it is critical to understand the difference between probable cause and reasonable suspicion.
Why?
Because “reasonable suspicion” is the governing standard for most school searches.
The reasonable suspicion standard was established by the Supreme Court in New Jersey v. TLO (1983).
TLO began when a New Jersey high school teacher claimed to have found two female students smoking in the bathroom, which violated a school rule. The two students were taken to the assistant principal’s office. The student who TLO was with admitted to smoking, but TLO denied it.
The assistant principal searched TLO’s purse and found a pack of cigarettes as well as cigarette rolling papers. Since the assistant principal suspected that the rolling papers were signs of marijuana, he further searched the purse and discovered marijuana, a large stack of $1 bills, a list of students who owed TLO money, and two letters that implicated TLO in selling marijuana.
The assistant principal turned the evidence over to police and TLO was prosecuted in juvenile court. TLO, however, moved to suppress the evidence, claiming that it was obtained as a result of an illegal search.
The Supreme Court determined that a “search” did occur, but that it was not unconstitutional because “when ‘special needs,’ beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable,” a warrant based on probable cause is not required.
While the Court found that warrant and probable cause requirements were not necessary in a school setting, the Court did establish that students have Constitutional rights in schools and that “reasonable suspicion” was needed for school officials to conduct a search.
Although the Court did not unpack the probable cause v. reasonable suspicion distinction much in this case, it is possible to discern a general difference –
Michael K. Jordan is Professor of Law at William Mitchell College of Law, 2010, From T.L.O to Safford: A Close Look at the Supreme Court’s Decisions on Searches and Principles that Emerge from These Cases, https://wmlawandpractice.com/2010/01/20/from-t-l-o-to-safford-a-close-look-at-the-u-s-supreme-court%E2%80%99s-decisions-on-searches-of-students-and-the-principles-that-emerge-from-these-cases/#Y DOA: 1-22-16
Given Wilson’s belief that Redding was secreting pills in her clothing, the questions before the Court were: (1) whether his belief was reasonable and (2) whether the scope of the search was reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and nature of the infraction. Before addressing these questions the Court provided further guidance on the difference between reasonable suspicion and probable cause. Recall that T.L.O. did not give a precise explanation of the difference between the two, though one was clearly left with the impression that reasonable suspicion was a common sense notion of what one could conclude from any given set of facts. In this case the Court equated the knowledge component of probable cause as raising a fair probability or a substantial chance that the known facts imply prohibited conduct. Reasonable suspicion requires only a moderate chance of finding evidence of wrongdoing.[135] While this formulation may lack mathematical precision, it is consistent with the Court’s previous statements in T.L.O. that school administrators should not be compelled to educate themselves in the nuances of probable cause.[136] They ought to be held to a standard of reason and common sense.[137]
While it is not easy to parse the difference between RS and PC, especially for those unfamiliar with examples in the law, it is important to understand the PC is a more difficult standard for school officials to meet and that it would constrain searches of students in public schools.
As you prepare for the year, you may want to construct some examples of searches you think are (a) supported by PC, (b) supported by RS, and (c) supported by neither. These are excellent examples that you will be able to use in cross-fire both to articulate the difference when your are Pro but also to try to undermine the difference (to show there is no solvency) when you are Con.
In. “ In” generally means “within,” so the question the resolution presents is about searches in schools.
While this is an important constraining term, it does leave on basic question unanswered – what actor is conducting the search in schools?
In TLO, the search was conducted by an assistant principal. Within the current legal environment, most argue that this search without probable cause is acceptable.
But what if the search is conducted in school but by a police officer acting on his or her own? What if a school administrator directs the police officer to conduct the search? These are important distinctions that the resolution and (TLO) do not address.
Ransom Ellis, JD, Missouri Bar Association, 2010, Public School Search & Seizure Law, https://www.eehjfirm.com/pdf/MO-Bar-Student-Seaches-100726.pdf DOA: 6-22-16
School Resource Officers may or may not be certified law enforcement officers. In order to conduct a lawful search under the Fourth Amendment, a “law enforcement officer must have “probable cause” (or an exception of “probable cause” like, consent or plain view). The standard of school employees is much less – “Reasonable suspicion.”
Where a School Resource Officer is acting in a “law enforcement capacity” as opposed to a “school related capacity”, the SRO must have probable cause to engage in any search. The deciding factors to determine the status of the SRO will include the following:
- Whether the request for the search was directed by school administrators or as a result of law enforcement information.
- Whether the subject of the search constitutes a violation of school rules.
3. Whether the SRO is an employee of the school district or an employee of a law enforcement entity.
4. Whether the location and circumstances of the search appeared to be “school related” or “law enforcement related.
While there are cases that support the proposition that a city police officer who is assigned full-time to a school as a “liaison officer” is in the same position as a school official for Fourth Amendment purposes,32 caution should be exercised when an SRO searches students at school.
This evidence does offer some additional guidance —
Alfonso Gambone, attorney, August 25, 2015, Probable cause, public schools, and the police: State action vs. school action, https://gambonelaw.com/probable-cause-public-schools-and-the-police-state-action-vs-school-action/ DOA: 6-23-16
School officials are permitted to search individual students or the entire student body if they consider the search reasonable based on their suspicion that the student(s) is breaking the law or school policy. By definition, school officials would include teachers, a teacher’s aide, school administrators, school police, and local police school liaison officers. These people all need to satisfy a reasonable suspicion standard if they are acting on their own authority or on the authority of the school official.
If, however, a school official is acting on behalf of police, courts treat the situation much different. School officials must satisfy a probable cause standard which is much higher than a reasonable suspicion. Courts will evaluate whether school officials are acting as agents of police based on the circumstances surrounding the search (totality of the circumstances). Courts will consider (1) the purpose of the search; (2) the party who initiated the search; and (3) whether the police participated in the search or approved it. The mere presence of police with school officials isn’t enough to require the school to establish probable cause before initiating the search of the student or the student body. Courts will look at whether police dominated or directed the action of school officials to determine if it was the school action or a state action. If there is no state action, students have a lower expectation of privacy. Courts must balance that privacy interest against the school’s need to maintain order and discipline within a school environment.
What does this mean for the topic? It is something you need to unpack and think about, particularly since there are a number of district court cases that address this question. Most conclude that probable cause is not required, a few conclude that it is.
Can the Pro argue that probable cause should apply when police officers acting on their own conduct searches in schools? That is easier for the Pro to defend than arguing that it should apply when school employees just conduct the searches.
What if a principal is searching for a weapon, as opposed to searching for Tylenol, if students are not allowed to bring it to school?
How specific can the Pro’s advocacy be? If it can be specific, what is the least controversial approach the Pro can take? If the Pro has to defend the resolution as a general statement, how easy will that be? Can the Pro really defend that probable cause should be required for an assistant principal to search for a knife? A gun? ALL searches?
Allowing the Pro to defend the particulars seems unfair, but forcing them to defend the resolution as a blanket statement seems unworkable.
Pro Arguments
I will unpack these in more detail in a later essay, but the basic Pro approach is to argue that probable cause should be applied to school searches and argue that this protects the dignity and privacy of students.
Supreme Court Justice Stevens, 1983, New Jersey v. TLO, https://www.law.cornell.edu/supremecourt/text/469/325 DOA: 6-23-16
The search of a young woman’s purse by a school administrator is a serious invasion of her legitimate expectations of privacy.… But the majority’s statement of the standard for evaluating the reasonableness of such searches is not suitably adapted to that end. The majority holds that a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. This standard will permit teachers and school administrators to search students when they suspect that the search will reveal evidence of even the most trivial school regulation or precatory guideline for student behavior. The Court’s standard for deciding whether a search is justified “at its inception” treats all violations of the rules of the school as though they were fungible. For the Court, a search for curlers and sunglasses in order to enforce the school dress code [n16] is apparently just as important as a search for evidence of heroin addiction or violent gang activity. ….The majority offers no explanation why a two-part standard is necessary to evaluate the reasonableness of the ordinary school search. Significantly, in the balance of its opinion the Court pretermits any discussion of the nature of T.L.O.’s infraction of the “no smoking” rule. The “rider” to the Court’s standard for evaluating the reasonableness of the initial intrusion apparently is the Court’s perception that its standard is overly generous and does not, by itself, achieve a fair balance between the administrator’s right to search and the student’s reasonable expectations of privacy. The Court’s standard for evaluating the “scope” of reasonable school searches is obviously designed to prohibit physically intrusive searches of students by persons of the opposite sex for relatively minor offenses. The Court’s effort to establish a standard that is, at once, clear enough to allow searches to be upheld in nearly every case, and flexible enough to prohibit obviously unreasonable intrusions of young adults’ privacy only creates uncertainty in the extent of its resolve to prohibit the latter. Moreover, the majority’s application of its standard in this case — to permit a male administrator to rummage through the purse of a female high school student in order to obtain evidence that she was smoking [p382] in a bathroom — raises grave doubts in my mind whether its effort will be effective. [n25] Unlike the Court, I believe the nature of the suspected infraction is a matter of first importance in deciding whether any invasion of privacy is permissible.
Pro teams may also want to take advantage of literature that argues that minority, particularly Black and Latino, students are more likely to be targeted by the school disciplinary apparatus and that a tougher legal standard could forestall this trend.
Jason Nance, 2013, Random, Suspicionless searches of students’ belongings;: A legal, empirical, and normative analysis, University of Colorado Law Review, Nance — Assistant Professor of Law, University of Florida Levin College of Law. J.D., University of Pennsylvania Law School; Ph.D., M.A., Educational Administration, The Ohio State University, https://lawreview.colorado.edu/wp-content/uploads/2013/11/10.-Nance_Final_s.pdf DOA: 6-23-16
Empirical studies measuring the use of strict security measures in schools are scarce.201 The few studies that exist suggest that strict security measures are applied disproportionately to schools with high minority populations. For example, in another empirical study, I found that schools with higher percentages of minority students were more likely to use certain combinations of strict security measures than other schools, even after taking into account school crime, neighborhood crime, and school disorder.202 Similarly, Aaron Kupchik and Geoff Ward found that, after controlling for school crime, neighborhood crime, and school disorder, schools with larger proportions of minority students were more likely to use metal detectors than other schools.203 The findings from these empirical studies are consistent with many ethnographers’ experiences that directly observe schools.204 For example, Torin Monahan and Rodolfo D. Torres explain: Perhaps not surprisingly, racial minorities are disproportionately subjected to contemporary surveillance and policing apparatuses . . . . [That is,] students in poorer inner-city schools are subjected to more invasive hand searches and metal-detector screenings, while students in more affluent schools tend to be monitored more discreetly with video surveillance cameras.205 The disproportionate use of strict security measures to minority students is particularly harmful for at least two reasons. First, researchers observe that there already exist high levels of mistrust between minority students and educators.206 Thus, strict security measures, especially those that appear to be applied unfairly, may negatively impact the educational environment at schools with high minority populations in a particularly severe manner. Second, several leading social scientists and criminologists are concerned that the presence of strict security in minority schools perpetuates racial inequalities. 207 Loic Wacquant argues that poor inner-city schools have “deteriorated to the point where they operate in the manner of institutions of confinement whose primary mission is not to educate but to ensure ‘custody and control.’” As a result of this “custody and control” approach to education, low-income minorities often have very different educational experiences than affluent, white students.209 For example, Aaron Kupchik and Geoff Ward argue that strict security measures sour minorities’ attitudes towards the government and limit their future opportunities.210 They write: Marginalized youth are presumed to be young criminals and treated as such through exposure to criminal justice oriented practices (e.g., police surveillance and metal detectors), while youth with social, political and cultural capital are presumed to be well-behaved, treated as such, and empowered to be productive citizens. Furthermore, this disparity in school security can have profound consequences on students’ social mobility, since suspension, expulsion and arrest each limit their future educational and employment prospects.211 Similarly, Paul Hirschfield argues that the resulting disproportionate use of strict security measures prepares urban minority students for certain positions in the postindustrial order, “whether as prisoners, soldiers, or service sector workers.”While conceding that the purpose of these measures may be laudable—to prevent contraband from entering schools—strict security measures stand as a “daily reminder of how little power students have over those in whom they entrust their futures and, in turn, how powerless their trusted guardians are to secure for the students a dignified, timely, and safe passage into school (and adulthood).”
And there is evidence that a focus on security without attendant right’s protection will socialize individuals against rights in society, threatening positive citizenship and democracy.
Jason Nance, 2013, Random, Suspicionless searches of students’ belongings;: A legal, empirical, and normative analysis, University of Colorado Law Review, Nance — Assistant Professor of Law, University of Florida Levin College of Law. J.D., University of Pennsylvania Law School; Ph.D., M.A., Educational Administration, The Ohio State University, https://lawreview.colorado.edu/wp-content/uploads/2013/11/10.-Nance_Final_s.pdf DOA: 6-23-16
Strict security measures also skew students’ mindets about constitutional values and the role of government in their lives, causing students to discount important constitutional rights. As Betsy Levin explains, schools play a critical role in helping students learn skills and values that enable them to exercise the responsibilities of citizenship and benefit from participation in a free economy.176 Those values include the right to privacy.177 If schools do not honor students’ constitutional rights, schools cannot effectively teach students about those rights.178 This principle has been observed by the Supreme Court as early as 1943 when it stated: “That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” Furthermore, school officials’ treatment of students in schools socializes students to tolerate and expect similar treatment by government officials outside of schools. If students encounter drug sniffing dogs, metal detector checks, frisks, and authorities rummaging through their personal belongings on a regular basis, these practices will seem normal to them The citizenry now may have divergent views regarding individual privacy rights and the role the government should play in our personal lives, but as the rising generation becomes more accustomed to more intrusive invasions, it is possible that those healthy debates may shift towards greater acceptance of strict security measures or disappear altogether.
Finally, teams may wish to get a leg-up on the school security argument by claiming that intrusive security measures actually threaten school safety.
Jason Nance, 2013, Random, Suspicionless searches of students’ belongings;: A legal, empirical, and normative analysis, University of Colorado Law Review, Nance — Assistant Professor of Law, University of Florida Levin College of Law. J.D., University of Pennsylvania Law School; Ph.D., M.A., Educational Administration, The Ohio State University, https://lawreview.colorado.edu/wp-content/uploads/2013/11/10.-Nance_Final_s.pdf DOA: 6-23-16
In fact, empirical studies cast doubt on whether strict security measures effectively reduce school crime,17 and many researchers argue that implementing such measures increases misbehavior and crime.18 Rather than relying on coercive measures, research demonstrates that there are alternative, more effective methods for reducing school crime that maintain students’ dignity, do not degrade the learning environment, and teach students to value their constitutional rights.1
Con Arguments
Generally, Con teams will argue that the invasion of privacy is minimal, that minor students have a lower expectation of privacy in schools where school officials are responsible for them.
Benjamin Tiller, law student, 2014, The Problems of Probable Cause: Meneese and the Myth of Eroding Fourth Amendment Rights for Students, Saint Louis University Law Review, p. 589-90, https://www.slu.edu/Documents/law/Law%20Journal/Archives/LawJournal58-2/Tiller_Article.pdf
Ms. Bough’s most significant and seriously flawed argument is her assertion that reasonable suspicion will inevitably lead to the erosion of students’ constitutional rights.196 This contention, originally argued in the Dilworth dissent,197 requires careful consideration, and makes it necessary to examine the constitutional rights of students. It has long been established that “students do not shed their constitutional rights . . . at the schoolhouse gate.”198 At the same time, “students in school do not possess the same breadth of constitutional rights as parties in other settings.”199 Although students retain constitutional rights in school, those rights are “limited by the circumstances of [the school’s] special environment.”200 For example, students have reduced freedom of speech rights while in school.201 Similarly, students have reduced freedom of the press rights.202 While no student has brought suit asserting the right to assemble, it is unlikely that any court would give students the freedom to assemble in the hallway (or anywhere other than his or her assigned classroom) during the school day while classes are in session. Additionally, students have limited freedom of religion rights.203 In fact, the only First Amendment204 right that students seem to universally possess is the freedom to petition. As for the Second Amendment,205 it is without question that students enjoy no right to possess firearms while at school.206 Additionally, students have reduced Fourth Amendment207 rights in school,208 and have no Twenty-first Amendment209 right to possess alcohol in school.210 Finally, students, until they reach the required statutory age, are required to attend school, and thus lack the freedom to do as they please while school is in session.211 In short, it is accepted that students, as minors in a compulsory educational system, do not and cannot enjoy the same constitutional rights as their older counterparts. Applying the reasonable suspicion standard to school resource officers—the same standard that courts readily apply to school employees— does not erode the rights of students. Rather, the reasonable suspicion standard is entirely consistent with the other constitutional rights that students enjoy.212 It will not produce a slippery-slope or erode student rights, just as limiting the right of students to use abusive language in school has not produced a slippery- slope of silencing student speech or of eroding student rights.213 Instead, just as limiting abusive language in schools protects minor students from such language, applying a reasonable suspicion standard in schools protects children from violence and drug use that, unfortunately, so often accompanies public school systems.21
Furthermore, they will argue that the searches are necessary to maintain discipline, prevent school violence, and reduce drug use and trafficking in schools.
Benjamin Tiller, law student, 2014, The Problems of Probable Cause: Meneese and the Myth of Eroding Fourth Amendment Rights for Students, Saint Louis University Law Review, p. 589-90, https://www.slu.edu/Documents/law/Law%20Journal/Archives/LawJournal58-2/Tiller_Article.pdf
This Note does not seek to encourage the suppression of individual rights, liberty, or autonomy. There is no question that “students do not shed their constitutional rights . . . at the schoolhouse gate.”253 However, while society protects the rights of students, it must not forget to also protect their health and safety. American schools are experiencing substantial gun, violence, and drug problems that have no end in sight. It is the legal duty of schools and school resource officers to identify and resolve these problems—something they cannot do without the flexibility to quickly intervene and resolve dangerous situations. If probable cause were the standard, teachers and resource officers would be forced to apply for a search warrant to search students. Unfortunately, the time this would take could be the difference between life and death for students. With the reasonable suspicion standard, though, like what happened in In re Josue T. and In re William V., schools will be safer because teachers and resource officers will be able to respond quickly and prevent violence before it occurs.
Con teams will also exploit the difficulty of articulating the difference between RS and PC, arguing that school administrators will succeed in proving that their search was justified, even under a PC standard. Moreover, of course, a student would need to have the resources to initiate a court case and succeed.
There is a lot of literature that debates the workability of “probable cause.”
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After all, it’s not like it can be precisely defined, and judges and juries can always rationalize that school officials acted with “probable cause.”
There is related “critical legal studies” literature that makes the case that the law is indeterminant and that the interests of the powerful (in this case, the interests of the school administrators and the policy) will always be protected. While it is not advisable to run this as a full kritik in PF, the evidence can be used to make a well developed solvency argument
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Second, even if a school administrator’s actions are determined to be unconstitutional, they may be granted “qualified immunity,” meaning that the existence of any legal standard will not deter them from searching.
Erin P. Davenport, law student, 2014, “Stripped Bare: Students’ Fourth Amendment Rights, School Searches, and the Reasonableness Standard,” Tennessee Journal of Law & Policy: Vol. 4: Iss. 1, Article 6. Available at: https://trace.tennessee.edu/tjlp/vol4/iss1/6
Today, schools search for drugs, weapons, and evidence of drug use, and according to the courts, these searches do not violate students’ rights.” Even if the courts consider some searches unreasonable, qualified immunity protects teachers from liability because the law surrounding these searches often is not clearly established. Thus, school officials can act with impunity because courts will likely perceive the search as reasonable or grant school officials qualified immunity for their actions. If this pattern continues, students will retain no constitutional rights within school walls, and this deprivation of Fourth Amendment rights could extend beyond school walls into everyday citizens’
Third, there is a substantial body of literature that argues that using the law is “inherently racist” because questions of whether or not such things as “probable cause” exist will always be processed through the lense of racism — conciously or unconsciously, people will conclude the police have probable cause to search a minority. Although this is usually presented as a kritik in Policy and LD debate, it can be presented as a solvency argument in PF debate.
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There is also potential for Court disadvantages. As discussed in the essay, using Reasonable Suspicion to guide the appropriateness of school searches has been established in US law since 1983, based on the Court’s reading of what is required by its interpretation of the Constitution.
If the legislature(s) were to require the probable cause standard, this would not overturn TLO. Rather, it would simply provide clarification to what school officials need to do. Nonetheless, this would would mean that school administrators have to comply, but the Court’s interpretation of the Constitution would still stand, the decision would not be overturned.
If, however, the Court were to overturn its decision, this could threaten the legitimacy of the Court. Since school searches are probably politically popular (there is a widespread concern for school violence), this could result in Congress stripping the Court of some of its power, threatening judicial independence. It may also mean that the Court no longer defers to elected officials, undermining judicial minimalism and threatening democracy.
Anyhow, there are a number of disadvantages related to court action in this area and we have files here.
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So, an additional important question is, can the Pro argue for action by a particular branch of government (is this a plan?). If not, do we just assume TLO is overturned by the Affirmative’s advocacy?
Some Concluding Thoughts
Despite a few identified shortcomings, this is a pretty good resolution that introduces an important controversy that is relevant to all students.
Preparing for debates on the issue does involve some relatively complex legal research, but so would research on the off-campus social media resolution.
As you prepare for your debates, you need to consider a few things beyond the general subject matter –
(a) Does the search of a student refer to more than more than the search of a body of a student?
(b) What type of individual (assistant principal v. police officer) does the resolution address?
© Can the Pro argue for action by a particular branch of government?
Ultimately, answers to these questions will turn on interpretations of the resolution and there are arguments on both sides.
Furthermore, of course, you will need to prepare Pro and Con arguments, as well as answers to both. I have previewed these in this essay and I will develop them further in subsequent essays.
Other Relevant Court Cases
There are a few other Supreme Court cases that are particularly relevant to this resolution. It may have been best if I introduced them earlier, but I wasn’t sure if that would make the essay too long and complicated to keep your attention (if you are still reading, yay!). So, in this essay I will provide some materials on each of these –
Vernonia and Pottowatamie
Michael K. Jordan is Professor of Law at William Mitchell College of Law, 2010, From T.L.O to Safford: A Close Look at the Supreme Court’s Decisions on Searches and Principles that Emerge from These Cases, https://wmlawandpractice.com/2010/01/20/from-t-l-o-to-safford-a-close-look-at-the-u-s-supreme-court%E2%80%99s-decisions-on-searches-of-students-and-the-principles-that-emerge-from-these-cases/#Y DOA: 1-22-16
In the 1980’s, schools in Vernonia experienced a sharp increase in drug use among its students.[51] The drug use included both athletes and non-athletes, but the athletes were the leaders of a burgeoning drug culture.[52] The school district initially responded to the problem by offering classes and speakers designed to deter drug use but these efforts were to no avail.[53] A student athlete drug policy was adopted, which required that students who wished to play sports, and their parents, sign a form consenting to drug testing.[54] The program involved randomly selecting athletes to provide urine samples.[55] The samples were sent to an independent laboratory for testing to determine the presence of various drugs.[56] Positive test results led to a series of sanctions based upon whether it was the first, second or third positive test result.[57] All of the sanctions involved restricting the ability of the student to participate in athletics.[58] The school did not share the results with the police or anyone outside the school.[59]
The school district had evidence that there was a drug problem.[60] It also had evidence that narrowed the population of suspected users or leaders in the drug culture down to student athletes.[61] Quite reasonably, it adopted a policy designed to detect and deter drug use within the targeted population.[62] What it did not have was a policy that restricted testing based upon evidence of a specific individual using drugs and participating in athletics. Unlike T.L.O. there was no individualized suspicion. However, it quickly became apparent in the Court’s analysis that the validity of the drug testing would turn on its reasonableness under the circumstances in which the testing occurred and not simply on the absence or presence of individualized suspicion.[63]
The analysis began with the Court folding the T.L.O. decision into a broader category of cases involving the special needs of government officials beyond that of law enforcement.[64] Quite simply, these were instances where individuals subject to the restrictions of the Fourth Amendment conducted a search but the purpose of the search was for reasons other than crime detection.[65] Prior to Vernonia, the Court had applied this special needs moniker and analysis to drug testing of railroad employees and employees of the United States Customs service.[66] The question was whether the same special needs analysis that justified drug testing without individual suspicion in other contexts applied in schools. On the other hand, did T.L.O. impose a requirement of individualized suspicion on all searches in schools?[67] That is, was there something unique about the privacy interests of students in schools that required school officials to have individualized suspicion?
This question was answered rather quickly when the Court explicitly stated that the Fourth Amendment does not impose an absolute requirement of individualized suspicion on special needs searches.[68] Once again, the essential question was the reasonableness of the search; individualized suspicion was simply one factor bearing on this question.[69] The presence or absence of individualized suspicion was one more factor to consider in balancing the intrusion into an individual’s privacy against the governmental interest advanced by the intrusion.[70] While reasonableness generally requires a judicial warrant when law enforcement officials are searching to discover evidence of a crime,[71] a different balance may be struck in the special needs context which could result in constitutionally permissible searches conducted without a warrant; with less than probable cause; and no individualized suspicion.[72] Thus the fact that students were being drug tested did not require an analytical framework different from that applied outside of schools.
As with employee drug testing, the Court balanced three factors to assess the validity of the drug testing of student athletes.[73] The Court considered the nature of the privacy interest involved, the character of the intrusion, and the nature and immediacy of the governmental interest as well as the efficacy of the means chosen to meet that interest.[74] The Court had very little trouble finding that students generally and athletes in particular have reduced expectations of privacy.[75] The custodial and tutelary nature of the school’s authority allowed it to compel students to submit to various physical exams.[76] Moreover, athletes regularly undress and shower under circumstances that offer little, if any, privacy.[77] This reduced privacy expectation was outweighed by an intrusion (collecting a urine sample) that was viewed as negligible. The collection procedure was no more intrusive than the excretory function performed by these students everyday in the school bathrooms.[78] Finally, the state’s interest was important, perhaps even compelling. Detecting the use of drugs among school children was a significant enough interest to justify the use of drug testing without individualized suspicion.[79] In the context of high school athletes this assumed an added importance since drug use combined with athletics increased the possibility of harm to a student athlete.
Vernonia could be read as not opening the floodgates for drug testing in public schools under any circumstances. The school district had evidence that student athletes were at the center of the drug culture.[80] Individualized suspicion for testing was not present but the district could point to an identifiable group of students who were known to be involved in the drug culture and had created disciplinary problems.[81] Even though the school did not have evidence of specific students using drugs, those who were tested were members of a discrete group that was targeted based upon evidence of drug use within that group. Thus, the testing was based upon the previous experience of the district as opposed to hunches or general animosity toward athletes. The district’s testing program was arguably consistent with the purpose of the Fourth Amendment of preventing arbitrary invasion of the privacy and security of individuals by governmental officials.[82] So, should Vernonia be interpreted as requiring that a school may conduct drug testing only if individualized suspicion is present, or if there is evidence that the individual tested is a member of a group that the school, through previous experience, knows is involved in drug use? Pottawatomie helped to reduce, if not eliminate, doubts as to whether drug testing could be implemented with little evidence of an existent drug problem within a discrete group of students.[83]
In Pottawatomie the school district implemented a drug testing policy for participants in competitive extracurricular activities.[84] This policy would include members of the Future Farmers of America and Future Homemakers of America.[85] There was evidence of some drug use, but little, if any, evidence that a pervasive problem currently existed in the general student population or among students participating in all competitive extracurricular activities.[86] One contention advanced was that there may have been some evidence of a drug problem, but not enough to justify the breadth of the program adopted.[87] In response, the Court noted that there was evidence of a drug problem at the school; however, it also stated that a demonstrated drug use problem is not necessary in all cases.[88] Evidence of an existent problem would support the school’s assertion of a special need to conduct suspicion-less drug testing, but it was not absolutely necessary.[89] In addition, the Court noted that it had already held that government officials could drug test customs officials as a purely preventive matter when there had been no evidence of an existent drug-use problem among these officials.[90] Immediately after this observation the position of customs officials was equated with that of students because drug use by either group posed special dangers. The pervasive drug use problem in society justified the need for testing that detected as well as deterred drug use.[91] This was particularly true with students: a vulnerable population requiring protection because of the dangers posed by childhood drug use.[92]
These statements clearly suggest that even though the school in Pottawatomie may have had evidence of an existing problem, the result in the case did not turn on the existence of or amount of evidence the school possessed at the time the testing was implemented. This reading of the Court’s position is supported by how it applied its opinion in Vernonia to this case.[93] Vernonia was read as being consistent with special needs drug testing in schools where there may not have been evidence of an existent drug use problem.[94] This was achieved through the observation that a student’s privacy interest is generally lessened in public school because of the school’s custodial and disciplinary responsibilities.[95] Vernonia was not based solely upon the reduced privacy expectations of student athletes. Instead, privacy is reduced, in part, by the amount of control that schools exercise over all students.[96] By reducing all students’ privacy interest any balancing that is done would tend to tip the scale in favor of a school’s interests. For example, a member of the Future Homemakers of America would not disrobe in preparation for competition, as a student athlete would, but both athletes and homemakers are subject to the discipline, control and supervision of teachers. Members of both groups voluntarily participated with the knowledge that they would be subject to rules that limited their freedom.[97] All students would seem to have reduced expectations of privacy while some may have their privacy reduced even further by participating in specific activities while in school.[98]
After the Court explained why students have diminished reasonable expectations of privacy, it turned to the other side of the balance: the school’s interest.[99] Even though the school district in Vernonia had evidence of an existent drug problem within a discrete group of the students, that type of evidence did not appear to be necessary.[100] What is required is the identification of an important enough interest to justify the intrusion into a student’s privacy.[101] A school’s need to prevent and deter drug use among school children, given the known national drug problem, provides an important enough interest with sufficient immediacy to justify the drug testing policy implemented in Pottawatomie.[102] Certainly, a program that targeted a group known to be using drugs would have greater efficacy. However, this approach ignores the custodial responsibility of schools. Deterrence is as important as elimination of a problem.[103] The Court stated it made “little sense” to require a school to wait for a substantial portion of the school population to use drugs before it decided to act.[104] Whether the school had a great deal or little evidence of drug abuse, the existence of a societal drug problem was enough to establish the school’s interest in deterrence and that interest could be weighed in the balancing process.[105]
From T.L.O. to Vernonia there emerged some clear principles. Searches of students were placed into the larger category of special needs searches where the state’s interest in conducting the search was unrelated to crime detection.[106] The custodial and tutelary responsibilities of school districts were the special needs driving the Court’s analysis of the searches.[107] The Court was hesitant to second guess a school administrator’s assessment of the importance of the rule violation which served as the basis for initiating the search. The national drug problem was also pointed to as a major factor to consider when assessing the validity of drug testing.[108] It is a potential problem even in school districts that cannot identify an existent problem within the student population. The national drug epidemic became the backdrop against which a school’s responsibilities and actions were assessed.
Michael K. Jordan is Professor of Law at William Mitchell College of Law, 2010, From T.L.O to Safford: A Close Look at the Supreme Court’s Decisions on Searches and Principles that Emerge from These Cases, https://wmlawandpractice.com/2010/01/20/from-t-l-o-to-safford-a-close-look-at-the-u-s-supreme-court%E2%80%99s-decisions-on-searches-of-students-and-the-principles-that-emerge-from-these-cases/#Y DOA: 1-22-16
Savana Redding was in her math class when Assistant Principal Kerry Wilson came to the class and asked her to accompany him to his office.[111] Redding, who was thirteen years old at the time, was shown a day planner which contained knives, lighters, a permanent marker and a cigarette, all of which were contraband items under the rules of the school.[112] Redding acknowledged ownership of the planner but denied ownership of the contraband.[113] She explained that she had loaned the planner to a friend (Marissa Glines) a few days earlier.[114] Wilson then showed her four prescription strength Ibuprofen pills and one over-the-counter naproxen pill.[115] Both pills were banned under school rules without advance permission.[116] Wilson told her that he had received reports that she was distributing these pills to other students.[117] She denied distributing pills and agreed to a search of her belongings.[118]
The initial search of Redding’s backpack revealed nothing.[119] She was taken to the school nurse’s office where her clothes were searched for pills.[120] The search began with Redding being asked by the school nurse (a female) to remove her jacket, socks, and shoes.[121] She was then told to remove her pants and T-shirt.[122] Finally, she was directed to pull her bra out and pull out the elastic on her underpants.[123] Both her breast and pelvic area were exposed to some degree.[124] The search did not reveal any pills.[125]
As the Court had done in the previous cases, schools were acknowledged as falling into the special needs category of searches.[126] But was the analysis governed by Vernonia/Pottawatomie or T.L.O.? Wilson was searching for drugs that may have been legal, but their possession in school without prior permission was not allowed.[127] He was also searching Redding based upon specific evidence that pointed to her as the culprit.[128] This was a search based upon individualized suspicion and, therefore, T.L.O. was used rather than Vernonia.[129] In fact, in Part II of the opinion, where Fourth Amendment principles governing the case were summarized, the Court did not cite Vernonia or Pottawatomie.[130] It focused exclusively on cases addressing the question of when an official has sufficient information to support a belief that a search will uncover evidence of a crime.[131]
Given Wilson’s belief that Redding was secreting pills in her clothing, the questions before the Court were: (1) whether his belief was reasonable and (2) whether the scope of the search was reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and nature of the infraction.[132] Before addressing these questions the Court provided further guidance on the difference between reasonable suspicion and probable cause. Recall that T.L.O. did not give a precise explanation of the difference between the two, though one was clearly left with the impression that reasonable suspicion was a common sense notion of what one could conclude from any given set of facts.[133] In this case the Court equated the knowledge component of probable cause as raising a fair probability or a substantial chance that the known facts imply prohibited conduct.[134] Reasonable suspicion requires only a moderate chance of finding evidence of wrongdoing.[135] While this formulation may lack mathematical precision, it is consistent with the Court’s previous statements in T.L.O. that school administrators should not be compelled to educate themselves in the nuances of probable cause.[136] They ought to be held to a standard of reason and common sense.[137]
Did Wilson have a moderate chance of finding evidence of a rule violation at the time he conducted the strip search? This question cannot be answered without ascertaining what Wilson knew before he called Redding into his office. A week before Redding was searched a student told Wilson that some students were bringing weapons and drugs on campus.[138] At a later time the same student gave Wilson a white Ibuprofen pill that he said was given to him by Marissa Glines.[139] Wilson called Glines out of class and retrieved a day planner that was close to her.[140] The planner contained the contraband previously mentioned and a search of Glines uncovered blue and white pills and the admission that she was given the pills by Redding.[141] The blue pills were later identified as naproxen.[142] It was at this point that Wilson called Redding into his office and questioned her about the day planner and the contraband found in it.[143]
There were actually two searches that occurred. The first was Redding’s backpack and outer clothing.[144] Based upon what Wilson knew prior to this search he had information that created a moderate chance of finding evidence of a rule violation. There was contraband brought into the school, which Wilson discovered, and a student identified Glines as the source of the pills.[145] Wilson questioned Glines who then identified Redding. In effect, Wilson had two student informants who implicated other students in misconduct. The Court recognized the potential for complicating the T.L.O. analysis by requiring Wilson to assess the reliability of the student informants.[146] That is, should Wilson be required to make an independent investigation into the reliability of Glines and the other student who initially told him about drugs and weapons being brought on campus?[147] Instead of pursuing this approach, the Court simply noted that the reliability of information is simply one of the factors to be considered in assessing whether Wilson had reasonable suspicion.[148] Given the information possessed by Wilson, the initial search of the backpack and the outer clothing was reasonable. It was not excessively intrusive and was based upon reasonable suspicion.[149]
The second search, the strip search, was more troubling. Redding’s recounting of the search as embarrassing and humiliating was accepted by the Court as a reasonable response to the experience.[150] A search in which an adolescent is exposing her breast and pelvic area to school officials to some degree could cause serious emotional damage.[151] This does not, however, mean that the strip search presumptively violated the Fourth Amendment. Remember, T.L.O. is based upon a balancing of interests.[152] Wilson had reasonable cause to search for contraband (the pills) but the information he had and the interest he was vindicating justified a level of intrusion that stopped with Redding’s backpack and outer clothing.[153] This is apparently what the Court meant when it observed that a search which exposed an adolescent girl’s breasts and pelvic area to school officials was “…categorically distinct requiring distinct elements of justification on the part of the school authorities for going beyond a search of outer clothing and belongings.”[154] What this means is that even with a sufficient justification to commence some type of search, T.L.O. requires that the scope of Wilson’s search be commensurate with his objective of finding naproxen and/or Ibuprofen.[155]
Wilson’s search involved what the Court believed was an extremely intrusive search with insufficient suspicion that it would pay off.[156] What reduced the probability of a payoff? The heart of the problem was that Wilson was searching for specific drugs that violated the school policy but were commonly used pain relievers. These drugs only posed a threat if used in large numbers and he had no information suggesting that was occurring within the student body.[157] He also lacked any evidence that there was a general practice among students in the school of hiding contraband in their underwear.[158] So, even if one believed that Wilson should have been overly cautious and assumed an individual student might possess and consume large amounts of these pain relievers, he still did not have information to support a reasonable suspicion that large quantities would be kept in a student’s underwear.[159] Put another way, he did not have sufficient information to create a moderate chance of finding large quantities of these drugs in Redding’s underwear. Under T.L.O., an intrusion of this magnitude requires a reasonable suspicion of danger or specific information that evidence of wrongdoing was hidden in her underwear.[160] Both were lacking in this case.[161]
Arguably there are some inconsistencies between the Court’s observations in its T.L.O. decision and Safford. Previously the Court clearly stated that school officials are afforded a high level of discretion in assessing what rules were needed in schools to maintain discipline and order.[162] This point was reiterated in Safford.[163] The national drug problem continues unabated and presumably school administrators must still use their discretion to develop effective methods to detect and deter drug use in their schools. Safford is not necessarily inconsistent with any of these observations. It is consistent with what the Court said in many of its previous opinions. Every search is assessed within the specific context in which it occurred. The result is surprising if one assumes that the previous opinions were reducing a student’s reasonable privacy expectations to the point where any intrusion would be outweighed by the school’s interest, regardless of the nature of the intrusions. Clearly, Safford represents both a rejection of that notion and an affirmation of a point previously made by the Court.
School officials still possess a high degree of discretion in setting and enforcing rules designed to maintain order and safety in schools. There is, though, an outer limit on this discretion. The limitation begins at the point where some other competing constitutional protection is threatened.[164] In this case, that point is the privacy interest a student has in intimate parts of her body. As was seen in the previous cases, privacy interests are not absolute; however, the nature and level of an intrusion into intimate parts of a student’s body required a greater and more specific threat than was present. The decision affirms a principle that the Court has acknowledged in a variety of contexts. Children do not shed their constitutional rights at the school house door.[165]