A LOOK AT LEGALITY OF SCHOOL SEARCHES, QUESTIONING KIDS

In 1969, the U.S. Supreme Court said students don't give up their
rights to freedom of speech or expression when they walk through
school doors.

The decision came after Des Moines, Iowa, school officials penalized
students who wore black armbands to protest the Vietnam War. Students
won.

That case set a precedent that students maintain some rights, whether
it be freedom of speech or protection against unreasonable searches.
But school law has some gray areas, according to legal experts. Courts
have given schools broad latitude to maintain safety.

In Rockford, the local branch of the NAACP is "fact finding" regarding
the Flinn incident and has not ruled out a lawsuit, chapter President
Willie Bell said.

The legal issues are tricky. Experts contacted by the Rockford
Register Star, including the American Civil Liberties Union, said that
if the Flinn boys were questioned and not searched, the solution may
be as simple as talking it out or developing a clear policy.

Bill Modzeleski with the U.S. Department of Education's Safe and
Drug-Free Schools program says there are no simple legal answers. He
promotes clear policies. Rockford School District policy requires
parent notification once a student is disciplined, not before and not
if no punishment is handed out.

"If we want safe schools in this country, it's not schools working
independently. It's schools working with parents, students and law
enforcement," Modzeleski said.

Darrin Cypress is the stepfather of one of the boys questioned at
Flinn. He doesn't defend all Principal Marcia Strothoff's actions, but
he does defend her motive. He hopes many people walk away with a
lesson learned.

"The sad reality is that we have to deal with gang violence," Cypress
said. "Together, let's try to find solutions."

Here's a sampling of some issues that could crop up in school and what
courts have said about them:

Can a teacher or principal question a student?

Illinois state law places educators in loco parentis, a Latin term
that means in the place of a parent. Some attorneys say educators
could be viewed as neglectful if they did not ask questions.

An educator questioning a student does not violate any constitutional
right, although it could enter that realm if the questions relate to
constitutional issues, such as religion.

The ACLU advises students that if questions are about a criminal act,
students have the right to remain silent.

Can a school official search a student or personal belongings, like a
purse?

A search takes it to the level of a constitutional question. The
Fourth Amendment protects against unreasonable searches and seizures.

In TLO vs. New Jersey, the Supreme Court said students have rights,
but not as great as the typical adult on the street. School officials
must have reasonable suspicion. They do not have to meet the same
level of suspicion ---- probable cause ---- that police officers must
meet before conducting a search.

The search must be reasonable in scope. Every child in a school could
not be reasonably suspected of stealing a purse or some other
wrongdoing that would lead to a search.

Is it true that school officials have more leeway in searching
students than police do?

Yes. Along with proving probable cause, police officers typically must
obtain a warrant to search a student. School officials do not have
that requirement.

Are locker searches allowed?

Most schools have policies saying that lockers belong to the school.
Therefore, school officials can randomly look in lockers because there
is no expectation of privacy.

For school officials to search a bookbag within a locker, they would
need reasonable suspicion.

Are drug-sniffing dogs allowed?

Yes, and in some cases, school officials use drug-sniffing dogs to
obtain "reasonable suspicion." For instance, a trained dog indicating
the presence of an illegal substance in a locker would provide
reasonable suspicion to search.

Is drug-testing allowed?

In some cases. Schools more and more are testing athletes and other
students in nonathletic extracurriculars. The courts have upheld
drug-testing of these two groups when there is a pressing concern of
drug use. Students cannot be kicked out of school for a positive drug
test, and students must know that the drug-testing policy exists.
Again, the courts have not said it is OK to randomly test all students
in a school, just those participating in an extracurricular activity
or sport.

Would a school uniform policy eliminate incidents like what happened
at Flinn?

Maybe, but some parents and students do not like school uniforms and
have challenged them in court as a violation of freedom of expression.
Courts have upheld the right of school districts to require uniforms
if there is an opt-out clause for religious beliefs.

Sources: Attorney Melinda Selbee, legal counsel, Illinois Association of
School Boards; Tinker vs. Des Moines; TLO vs. New Jersey; American Civil
Liberties Union; U.S. Department of Education