SUSPICION IN THE CLASSROOM

Critics Say School-Search Bill May Violate Students' Consitutional
Rights And Force Teachers To Act As Cops

Adopt a policy for searching students or lose federal funding. That's
the ultimatum associated with the Student and Teacher Safety Act,
which was passed by the U.S. House of Representatives on Sept. 19.

The legislation would require school boards to establish a policy
allowing full-time teachers and school officials, acting on
reasonable suspicion, to search any student they wish in order to
ensure that the school remains free from weapons, drugs or other
dangerous materials. Districts that fail to enact the guidelines
would become ineligible for federal funds through the Safe and Drug
Free School program, from which New York state received more than $7
million in the 2006-07 academic year.

Supporters of the Student and Teacher Safety Act argue that the
measure would increase safety in schools while alleviating
apprehension about liability for teachers and other school officials.
Opponents, although they echo the need to improve safety, question
the bill's potential to violate students' constitutional rights as
well as the appropriateness of expanding the role of educators.

In defining student searches, the Student and Teacher Act fails to
describe the scope of permissible searches, said Jesselyn McCurdy,
legislative counsel for the American Civil Liberties Union, which
opposes the legislation because of its broad language. This ambiguity
leaves wiggle room for school officials to construe the bill as
allowing for random, wide-scale searches of all students, even those
for whom there is no suspicion of wrongdoing.

"What we encourage school administrators to do is to have a
reasonable suspicion that an individual student or group of students
are participating in a violation of school rules or criminal law and
base their search on that," McCurdy said, offering an alternative to
broad searching policies.

Absent such a clause limiting the scope of searches to those students
for whom there is individualized suspicion, the ACLU has stated that
the Student and Teacher Safety Act may not stand up to constitutional scrutiny.

Students in public schools are protected by the Fourth Amendment,
which guarantees against unreasonable search and seizure, the United
States Supreme Court ruled in 1985. While affirming students' rights
against unreasonable searches, the court's decision in New Jersey v.
T.L.O. acknowledged that certain limits on this right are legitimate
because students are minors and in the temporary custody of the
state. Student searches, therefore, can be conducted without a
warrant and need only be based on "probable cause."

The text of the Student and Teacher Safety Act points to the 1985
decision as justification for the bill's legitimacy. However, that
decision is silent on the question of the constitutionality of
conducting random searches without suspicion. In another
student-search case from 2002, the Supreme Court that ruled random
drug testing of students who participate in extracurricular
activities was reasonable but again did not clarify whether
schoolwide searches constitute a violation of the Fourth Amendment.

Even though the Supreme Court has not handed down a definitive
answer, ACLU representatives argue there's enough evidence to
conclude that searches without individualized suspicion infringe upon
students' Fourth Amendment rights. They point to court decisions,
including language from New Jersey v. T.L.O., which indicate that
exceptions to the requirement of individualized suspicion are
acceptable only when the privacy interests at stake are minimal and
protections are in place to ensure the student's privacy.

Individualized suspicion also is simply good public policy, McCurdy
and ACLU director Caroline Fredrickson wrote last week in a letter to
the House of Representatives urging opposition to the bill.

Constitutional issues aside, the Student and Teacher Safety Act is
getting mixed reviews among education associations. The largest
teacher union, the National Education Association, has expressed its
support, while other teachers unions, including the American Teachers
Federation, have objected to the measure.

Many organizations critical of the legislation point to the increased
demand the legislation would put on teachers as the primary source of
their concern.

"We do not support putting teachers in that position," said Richard
Iannuzzi, president of New York State United Teachers, the state's
largest teachers union. "It's a role that really requires a
well-trained expert, who understands both the interaction with the
students and understands the law and the rights of the students."

Involving teachers in the bill would help keep drugs and violence out
of schools while affirming their control of the classroom, said Rep.
Geoff Davis (R-Ky.) in a press release from his congressional office.

"The teacher's role is as an educator, and the value of a good
teacher-student relationship is not going to be enhanced by students
viewing the teacher as a safety officer with respect to something as
significant as searches," said Iannuzzi in response to this argument.
"Teachers should clearly be part of making a parent and students feel
that a school is a safe place to be, but taking it to what I consider
to be the extreme by putting teachers in charge of searches would not
be an appropriate step."

Instead, Iannuzzi proposed addressing the root social causes that
compromise school safety. The bill is little more than a "diversion"
from real issues, Iannuzzi suggested, churned out by
mid-election-cycle politicians.

Davis, for example, is in the midst of a fight to retain his seat in
Congress. Pollsters show a nearly dead-even competition with his
Democratic challenger.

Election-time politics also may have motivated members of the House
when they opted for a voice vote on the measure as opposed to the
standard roll-call vote, which enables constituents to know how each
representative voted.

"I look at it as something that's going to make its mark prior to the
election process and is unlikely to follow the flow after that,"
Iannuzzi said of the chances this bill would also pass the Senate and
eventually become law.

The bill now moves to the Senate, which has referred it to committee.
The Senate did not have similar legislation on the table prior to
passage in the House.

Although it abides by case law from the Supreme Court and the New
York State Court of Appeals, New York's Department of Education has
no state-mandated policy about student searches. Local districts are
free to develop their own policies as long as they satisfy criteria
established by the courts.