Restoring Fourth Amendment Rights in Public Schools

 /  Feb. 18, 2019, 11:23 a.m.

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Cullen328 by Jim Heaphy

With shootings, peer pressure, drugs, and other issues in schools jumping to news sites’ main pages and making headlines, it appears America’s public schools need to crack down now more than ever. While schools were historically considered a safe haven, the Columbine school shooting in 1999 shook Americans’ belief in the safety of schools. That tragedy launched American schools towards a new level of heightened security aimed at ensuring student safety. Since then, more than four hundred people have been killed on school grounds. In response, sales of security equipment and services in the education sector have reached 2.7 billion dollars in value, with expenses ranging from school resource officers to metal detectors.

Perhaps the most intrusive form of security implemented in America’s public schools has been the reasonable suspicion standard for school searches. In 1985, the Supreme Court ruled in New Jersey v. T.L.O that schools could implement a new standard for student searches. The ruling established that rather than employing a Fourth Amendment standard, where an individual is entitled to refuse a search unless an officer has probable cause, students in public schools can be searched under a lower standard called reasonable suspicion. The Court rationalized the lower reasonable suspicion standard by explaining that students must have a lower expectation of privacy in schools in exchange for their safety.

Reasonable suspicion is satisfied when two criteria are met. First, there must be reasonable ground to suspect that a search will reveal evidence that a student is violating the law or school rules. Second, the search must not be overly intrusive and must be reasonably related to its objective. In New Jersey v. T.L.O, a teacher spotted two students in the bathroom possibly smoking. When T.L.O denied that she had been smoking in the bathroom, the teacher searched her bag and found evidence that she was selling marijuana at school. While the teacher did not have any evidence that T.L.O was selling marijuana on school grounds before the search, she used the evidence found in the search to bring charges against T.L.O.

The subjectivity and vagueness of reasonable suspicion makes the standard the lowest legal threshold required to search without consent. If Fourth Amendment rights were applied in schools, T.L.O could only be punished for smoking in school because the evidence that proves she had been dealing marijuana would have been recovered illegally. Reasonable suspicion criminalizes students and fuels the school-to-prison pipeline, a process in which marginalized students are pushed out of schools and into incarceration due to disciplinary policies in schools that intertwine law enforcement with education.

Administrators’ license to search students under reasonable suspicion is both unethical and counterproductive to education. American schools need to restore students’ Fourth Amendment rights and return to the probable cause standard, which accomplishes the dual goal of protecting students’ safety and their rights as citizens significantly better than reasonable suspicion does.

School Resource Officers

The number of school resource officers (SROs) in public schools has been increasing throughout the nation. As sworn police officers, SROs can punish students to the full extent of the law, unlike school security guards. There are fourteen to twenty thousand officers working in 30 percent of America’s schools. The number of active SROs rose sharply after the Columbine school shooting. To combat the new perception that schools are danger zones, administrations now rely heavily on law enforcement officials like SROs to discipline students. Indeed, with the lower search standard, schools have decided to hire SROs to handle disciplinary issues in general, which shifts discipline enforcement responsibilities away from teachers.

SROs feed the school-to-prison pipeline in two ways. First, the reasonable suspicion standard allows SROs to conduct more searches under the guise of school safety, which inadvertently criminalizes students. The increase in searches causes students to preemptively feel like they have engaged in criminal acts. Sarah Forman, a researcher and psychologist at Washington University in St. Louis, shows that forcing students to submit to pats, frisks and searches creates a narrative that students are criminals by putting them under constant suspicion and labeling them as suspects. Children subjected to searches under reasonable suspicion can begin to feel that the law is unfair and then question the law’s legitimacy; they also try to regain their dignity through other violent methods, such as fighting, drug abuse, and breaking the law.

Second, SRO searches turn minor disciplinary infractions into serious crimes by empowering law enforcement authorities to administer punishment themselves. Unfortunately, SROs are trained to uphold the letter of the law, not to help foster a positive educational environment. SROs frequently administer overbearing punishments that can funnel students into the prison system. Small disciplinary infractions, like a student walk out or talking back to a teacher, might lead to students being charged with disrupting higher education, possibly resulting in jail sentences, suspensions, house arrests, and other forms of legal punishment. Empirically, schools with SROs have higher rates of suspension and expulsion.

Michael Wornow of the Harvard Political Review reports that schools with SROs experience nearly 400 percent more arrests for minor offenses compared to schools without SROs. SRO schools also helped increase the number of referrals to the juvenile system from 89 to over 1400 per year in just a single Georgia county. Over 90 percent of these offenses are as small as misbehaving in class. SROs and school administrators have every intention of making schools more safe, but they are doing exactly the opposite by imposing excessive punishments. Rachel Johnson of the American University Washington School of Law concludes that when juveniles are involved in student searches that they perceive to be unjust, they are four times more likely to commit delinquent behavior than juveniles without such encounters.

SROs are far from the only mechanism that fuels the school-to-prison pipeline. Even in schools without SROs, there has been low trust between students and school faculty because of searches conducted under reasonable suspicion. When students believe that they are being unjustly searched by their teachers, they begin to develop a sense of mistrust. Rather than getting excited about working with their teachers and one another at school, they instead perceive school as an oppositional us-versus-them situation. While the sense of trust between students and their school faculty might seem trivial, protecting and nurturing that trust will undoubtedly enhance American school safety better than SROs acting under reasonable suspicion protocol.

Reasonable Suspicion and Probable Cause

Supporters of the reasonable suspicion standard contend that a lower standard for searches is necessary to keep schools safe. They claim that increased searches deter students from stepping out of line out of fear of being caught, lead to more weapons and drugs confiscation, and allows for administration members to address dangerous situations more swiftly. However, each of these arguments fall short when looking at how the reasonable suspicion standard manifests itself in the status quo. In truth, probable cause is a better standard than reasonable suspicion in terms of both fairness and safety.

First, increased searches do not have a positive deterrent effect against student misbehavior. Studies have found no evidence that increased likelihood of searches is associated with a reduction in offensive conduct. Those who have a healthy respect of the law are unlikely to break the law regardless of the search standard in place. However, those who view the law as an illegitimate tool that humiliates them have no personal incentive to follow the law. Instead, they seek to establish their dignity and worthiness among their peers by breaking the law. Empowering students with Fourth Amendment rights will mold them into engaged citizens better than reasonable suspicion ever could.

Second, the notion that more searches result in more contrabands and weapons being found is simply untrue. While it is true that more searches are conducted under reasonable suspicion, the lower search standard makes them less accurate and they often fail to deliver evidence. Cleansing the school system of the reasonable suspicion standard will cut the number of unsuccessful searches by requiring the higher standard of probable cause. As previously mentioned, the probable cause standard is grounded in the Fourth Amendment itself. Statistically, warrantless searches, such as ones committed under reasonable suspicion, find evidence only about 12 percent of the time; about 80 percent of searches with warrants recover evidence.

As a corollary, searches under reasonable suspicion can also be compromised by implicit racial biases, which victimizes students of color and prevents searches from effectively finding contraband. Statistically, schools with more than 50 percent minority students are 7.7 times more likely to be searched compared to schools with less than 50 percent minority students. As a whole, the reasonable suspicion standard might result in more searches, but it is clearly less effective at pinpointing dangers: the standard substitutes precision, efficiency and school safety for a needle-in-a-haystack approach.

Third, probable cause reduces response times without sacrificing safety better than reasonable suspicion. Response time is the time period needed for an individual to identify a threat and contact relevant authorities. Under the imminent danger clause of the Fourth Amendment, warrants are not required to carry out a search given probable cause. The imminent danger clause provides an exception where an individual has a right to act if he or she believes that someone else could be killed or injured. Thus, the probable cause standard does not hinder one’s ability to react in a life or death situation, despite the fact that it is a higher standard than reasonable suspicion.

The probable cause standard will decrease the amount of unwarranted searches for petty crimes, such as possession of cigarettes and marijuana, and demand that there be significant reasoning to justify a search. America’s schools should not continue to adhere to the reasonable suspicion standard when a higher bar can be set without compromising school security.

Changing the Narrative

The criminalization characterization in schools pushes students into a defensive posture and hinders their ability to become active and engaged citizens. The reasonable suspicion standard is a self-fulfilling prophecy: students who are treated like suspects begin to view the law as illegitimate and eventually become criminals. Improving the standard and granting students their Fourth Amendment rights will not put America’s youth at risk but rather restore their faith in the legal system. Implementing the probable cause standard and returning Fourth Amendment rights to students will help students feel that they are innocent until proven guilty.

The reasonable suspicion standard encourages subpar searching policies and terrorizes students instead of making their learning environments safer. The standard allows haphazard search conduct without increasing school safety and criminalizes student behavior. Today, though, pro-reform voices on youth criminalization outweigh anti-reform voices. With mainstream media becoming more supportive towards America’s youth, it is time for a more fundamental reform to occur, like fully restoring students’ Fourth Amendment rights.

Policymakers need to act now to change how Americans perceive their students and how students are treated in the American public schooling system. A rational discourse about the reasonable suspicion standard can diminish the current school-to-prison pipeline that is inhibiting America’s youth. Upholding the Fourth Amendment for each and every student will give them all the chance to be seen not as budding criminals but as the future scientists, artists, lawyers, writers and more that they have the potential to become.

The image featured with this article is used under the Creative Commons Attribution-Share Alike 3.0 Unported License. The original was taken by Cullen328 by Jim Heaphy and can be found here.

Sophia Lam

Sophia Lam is a third year chemistry and political science major from New York City. On campus, she’s a member of Phi Alpha Delta and a debate teacher at Debate It Forward. She’s previously worked as an intern at Boies Schiller and Flexner and at Pfizer Inc.


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