Oppose H.R. 5295, the Student Teacher Safety Act of 2006 Because it Violates Students’ Fourth Amendment Rights and Their Right to Privacy.

Dear Representative:

On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nationwide, we write to express our opposition to H.R. 5295, the Student Teacher Safety Act of 2006 (“School Search Act”). H.R. 5295 would lead school officials to conduct searches that would be questionable under the standards set out by the Supreme Court in New Jersey v. TLO, 469 U.S. 325 (1985).  H.R. 5295 is scheduled to be on the Suspension Calendar and to be voted on by the House on Tuesday, September 19, 2006; we urge you to oppose this legislation.

This Legislation Will give Principals and Teachers the Authority to Violate Students’ Rights Against Unreasonable Searches and Seizures as well as Their Right to Privacy.

Maintaining safe schools is an important objective of school administrators and communities around the country. Although the most recent version of the Student Teacher Safety Act of 2006 attempts to assist teachers and school officials in their efforts to maintain discipline and keep children safe while attending school, its vague legislative language would lead school officials to believe that they have the authority to conduct searches that would be at odds with the standards set out by the Supreme Court in New Jersey v. TLO, 469 U.S. 325 (1985). The Supreme Court in TLO held that the Fourth Amendment prohibition against unreasonable search and seizures applies to public school officials. The TLO decision strikes a balance between a school district’s need to sustain an environment conducive to learning and a student’s right to privacy by requiring that school officials have only “reasonable suspicion” before searching students on school grounds.

H.R. 5295 is consistent with some of the requirements outlined by the Court in the TLO case to strike the balance between the two often-competing interests of student privacy and school discipline and safety.  The bill requires that school officials have “reasonable suspicion” before conducting a search of a student.  In addition, the bill includes language similar to that in the TLO decision, which would limit the measures used by teachers to search students to those considered “reasonably related to the search’s objectives, without being excessively intrusive in light of the student’s age, sex and the nature of the offense.” 

However, the bill describes too broadly the purpose and the scope of the search that school administrators can conduct.  The Student Teacher Safety Act would allow for school officials to search students “to ensure that classrooms, school buildings, school property and students remain free from the threat of all weapons, dangerous materials, or illegal narcotics.” While no one is debating the importance of keeping schools free of weapons, drugs and dangerous materials, this can not be done a in a manner that violates a student’s right to be free from unreasonable searches and their right to privacy.  The bill suggests that school officials can conduct random, wide scale searches of students without having any individualized suspicion that a particular student to be searched is participating in criminal activity or breaking the school rules.  Only general “reasonable suspicion” of crime would be required.  This would open a Pandora’s box.  For example, a student might tell a high school principal that drugs are being sold on school grounds by an unspecified person.  Under H.R. 5295, the principal could mistakenly believe that he has the authority to conduct a pat-down search of all students as they enter the building the next morning in an effort to keep the school “free from the threat of all weapons, dangerous materials, or illegal narcotics.”  Although, the TLO decision does not specifically decide the issue of whether school officials need individualized suspicion to search students, the Court does point out that an exception to the individualized suspicion requirement under the Fourth Amendment are only acceptable when the privacy interest at stake are minimal and protections in place to ensure a persons’ privacy is secure.[1] H.R.5295 does not ensuring that the privacy interests of students are protected to the extent that individualized suspicions is not necessary in the context of a school officials conducting searches.  Additionally, several courts around the country have held that school officials do need individualize suspicion in order to search a student or his or her personal effects.[2]

Wide Scale Round Ups of Students Turn Schools into Prisons.

Although the Supreme Court has not decided the issue of whether school officials need individualized suspicion before searching students, it is clear that requiring specific information about students participating in criminal activities or violations of school rules is good public policy. For instance on November 5, 2003, a police SWAT team raided Stratford High School in Goose Creek, South Carolina forcing 150 students, some as young as 14, to the ground in handcuffs as officers in uniforms and bulletproof vests aimed guns at their heads and led a drug dog to tear through their book bags.  The raid was initiated by the school’s principal based on his suspicion that a single student was dealing marijuana. The raid was carried out despite the fact that the suspected student was absent at the time.  No drugs or weapons were found during the raid and no charges were filed. While African Americans represented less than a quarter of the high school’s students, more than two-thirds of those caught up in the sweep were African American.  The raid took place in the early morning hours when the school’s hallways were predominantly populated by African American students whose buses arrive before those of their white classmates.  White students began to arrive during the raid and witnessed the hostile roundup and detention of their African American peers.  Many of the black students were humiliated and felt as if they were second-class citizens.  The ACLU filed a lawsuit and the Goose Creek school district settled out of court.  

The ACLU also filed a lawsuit on behalf of three students who attend Mumford High School in Detroit, Michigan who, along with their entire student body, were subjected to a mass physical search on February 18, 2004 pursuant to a Detroit School Board policy that allowed periodic "sweeps" without notice. The search included a pat down of the students, and inspection of the contents of their pockets, purses and school bags. Students were ushered into the school, lined up against the walls, and, under the close supervision of Detroit Police and the School Board's Public Safety Officers, marched to the end of the hall where they were physically searched. They were then taken to the school auditorium and not allowed to leave until the entire search was concluded, about one and one half hours later. No guns or drugs were found during this search of Mumford High School.  These searches were not based on any individualized suspicion of criminal behavior.  But, the students were treated like criminals, before they were even suspected of a crime. Allowing school officials to conduct mass searches of students with no particular or individualized suspicion turns our schoolhouses into jailhouses.

These ACLU cases cited above are good examples of the ineffectiveness of large-scale school searches that are not based on individual suspicion. When schools officials do not focus student searches on individuals who are suspected of violating the law or school rules, the results of the searches are often fruitless as in the case above.  School administrators will do more to improve children’s safety by concentrating on suspicious behavior and credible information from teachers and students that school rules are being broken, than by conducting widespread unsubstantiated searches. 

Over the last decade, we have witnessed the blurring of the lines between school systems’ methods of disciplining students and the punitive nature of the criminal justice system.  A “School to Prison Pipeline” can develop when school discipline policies that result in frequent suspensions or expulsions drive children out of the classrooms and onto the streets where they can become involved in the juvenile and criminal justice systems and eventually go to prison.  One aspect of this phenomenon is that school environments begin to mimic those in jails and prisons.  With the common presence of metal detectors and school security guards, many of our schools around this country are beginning to feel like jails.  Legislation like H.R. 5295 only serves to further create a jail-like environment by subjecting students to searches similar to those that would be conducted in prisons and jails. While maintaining discipline in schools is critical to the job of school administrators, it cannot be done at the expense of maintaining classroom environments that are conducive to learning.

The ACLU understands the need to create safe schools while protecting student rights, however, this legislation fails to achieve these objectives. Therefore, we cannot support H.R. 5295 and we urge you vote against it.

Sincerely,                          

Caroline Fredrickson                                                                                               
Director                         

Jesselyn McCurdy                                                                                                                        Legislative Counsel

[1] New Jersey v. T.L.O, 469 U.S. 325, 342 fn.8 (1985) “Exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal and where “other safeguards” are available “to assure that the individual's reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.’ ” Delaware v. Prouse, 440 U.S. 648, 654-655 (1979).  
[2] See Burnham v. West, 681 F.Supp 1160 (E.D. Va. 1987); In Interest of Doe, 887 P.2d 645 (1994).