TEST CASE ON SAFETY VS. RIGHTS AT SCHOOL

SJC To Weigh In On Student's Search.

His eyes weren't red from suspected drug use, nor did his clothes
bulge with a possible hidden gun. No informant had tipped off school
officials that he had done anything wrong.

But the Boston English freshman had skipped classes twice within a few
days and lied about his whereabouts. He ignored orders to bring a
parent to a disciplinary hearing.

School officials were suspicious enough to search him, telling him to
empty his pockets and then patting down his legs. Finding nothing more
than a cigarette lighter, they told him to take off his shoes and socks.

''No, man, not my shoes,'' he reportedly said.

When he complied, the assistant headmaster discovered a bag of
marijuana hidden in an extra sock inside one shoe. The student, known
only as V.H. in court papers, was promptly arrested.

The state Supreme Judicial Court will consider his case May 7, and its
decision could alter the fragile balance of students' rights and
school safety. Was the school search a necessity of the post-Columbine
era, a prudent and legal response to widespread fears about school
violence? Or was it another slide in the continuing erosion of
students' rights, an illegal stab at vigilance based on nothing more
than a hunch?

''I think the mindset is, `Better to search than be sorry,''' said
Kenneth King, V.H.'s lawyer from the Suffolk Law School Juvenile
Justice Center.

The SJC's decision could have far-reaching implications for students.
Not only will the court decide whether the Boston English search
violated the federal standard for school searches - set 16 years ago
by the US Supreme Court - but it also will consider whether to become
the first state court to make it more difficult to search students.

In the years since that 1985 Supreme Court decision, 19 states have
weighed in on the student search standard, and all have affirmed it.

King and lawyers from two legal groups, the Committee for Public
Counsel Services and the Children's Law Center, are urging the SJC to
use the state's Bill of Rights to offer students more protection
against school searches.

The SJC has strayed from previous US Supreme Court decisions, relying
on the Massachusetts Constitution to adopt more liberal
interpretations of the Fourth Amendment, which offers protection from
unreasonable searches.

The Supreme Court ruled that police who make traffic stops may order
passengers to exit the car; in 1999, the SJC ruled that officers may
do so only if there is a safety threat.

On Fourth Amendment matters, states do have some flexibility. Although
no state could lower the standard and allow students to be searched
more easily, states can decide to offer students greater freedom from
searches.

Advocates say this is a tough climate in which to win such
protection.

''Certainly, there's an increased tendency toward zero tolerance,''
said Brigid Kennedy-Pfister of the Children's Law Center. ''We do see
significant numbers of searches that come through our door that we
think are questionable.''

Students' rights were curtailed by the landmark 1985 US Supreme Court
case, New Jersey v. T.L.O. In that case, a student's purse was
searched against her will after a teacher saw her smoking in the
bathroom. School administrators discovered cigarettes in the purse.

While police must usually have probable cause to conduct a search, the
Supreme Court ruled that searches of students only need meet a lower
standard: that they are reasonable.

Although the SJC has heard other cases on school searches, the court
has never ruled whether the state Constitution could make it harder to
search students.

Joseph Ditkoff, the Suffolk assistant district attorney who will argue
that the search was legal, said that the US Supreme Court rightly
allowed students to be searched more easily.

''We require parents to send their children to these schools,'' he
said. ''They don't have any choice about that. That means we have a
duty to make sure they're safe.''

For that reason, Ditkoff said, the state has more of an obligation to
protect a student than a man walking down Tremont Street. While the
man could take other routes, the student cannot avoid school.

In the years since school shootings have seemed a national epidemic,
pundits and scholars have debated the safety of schools. In their
briefs to the SJC, King and the other lawyers argue that children are
statistically safer in schools than anywhere else.

But Ditkoff counters that the perception of how safe schools are is as
important as the reality. And studies show, he said, that students and
parents alike fear school violence. If students don't feel that
schools are safe, he said, they won't learn as much.

And, he argues, schools need to be more vigilant.

''The rash of gun violence and shootings in schools is an all-too
familiar reality,'' Ditkoff wrote. ''Searches of students acting
suspiciously ... might well have prevented a tragedy such as Columbine
from occurring in Massachusetts.''

This is not the first time the SJC is entering the emotional fray of
school safety. Earlier this year, the court ruled that a student who
drew pictures of himself shooting his teacher had illegally threatened
her. Noting the ''climate of apprehension'' that has followed
well-publicized school shootings, the court decided that even a
child's drawing could be considered a criminal act.

But student rights' advocates argue that fears about safety shouldn't
shrink protections from illegal searches.

''That climate is not a reason to change the protections and it's
never been that way,'' Kennedy-Pfister said. ''Horrible incidents have
happened, and the law doesn't suddenly become more loose. That's the
difference between us and some other legal systems.''

V.H. was upset, King said, that he was frisked by a female
administrator. In 1999, V.H. asked a judge to throw out the evidence
of marijuana, arguing that he was searched illegally. The judge
declined, and another juvenile court judge found V.H. delinquent and
sentenced him to six months' probation. He was ordered to attend drug
counseling and obey a curfew set by his mother.

Boston English also expelled V.H. for the remainder of the year, and
he attended an alternative school. He then returned to regular classes
- - but not at Boston English.