Jason Shade was a student at the Apple Valley Alternative Learning Center,1 an alternative high school in Minnesota.2 On the way to an off-campus shop class, Shade’s teacher stopped at Burger King so the students could buy breakfast.3 Back on the bus, Shade had trouble opening the orange juice that he bought to have with his breakfast, so he asked the other students if anyone had something he could use to open it.4 A nearby student handed Shade his folding knife, which Shade used to open his orange juice before passing it back.5 Shade’s teacher, who was also driving the bus, saw Shade with the knife in his hand, but did not see the surrounding events.6 Three police officers, two of whom served as school resource officers (SROs),7 were contacted and came to search the bus and the students.8 The knife’s owner admitted to the police that he had a knife and turned it over.9 For his brief use of the knife on the bus, Shade was charged with and pled guilty to felony possession of a dangerous weapon on school property.10
Shade’s story is not particularly unusual. In recent years, the connection between schools and police departments has become ever closer. As a result, not only are children “being treated like criminals in school, but many are being shunted into the criminal justice system as schools have begun to rely heavily upon law enforcement officials to punish students.”11 While the Supreme Court has extended limited Fourth Amendment rights to students in public schools, it has yet to acknowledge the rise of heavy-handed policing in schools, the costs of such a system, and how either factor might impact the determination of the scope of students’ rights. In trying to follow the Supreme Court’s limited precedent in this context, most courts hold that reasonable suspicion that a student is violating a law or school rule is constitutionally sufficient to search. This is true even if the search involves a police officer, so long as the officer doesn’t initiate the search independently from school officials or a concern for school safety. This Chapter argues that such a standard ignores the current criminalization of student behavior in public schools and allows for discretion that may exacerbate the unequal distribution of the costs of such criminalization. A better standard would require all police officers to have probable cause to believe that a law has been violated before searching students, and would require the same of school officials where the officials are required to report evidence found to law enforcement.
Section A of this Chapter describes the Court’s handling of Fourth Amendment rights in schools and how lower courts have filled the gaps left in the doctrine. Section B reports on the rising criminalization of student behavior in schools, and how that rise has led to increasingly severe outcomes for misbehaving students. Section C explains why the current reasonable suspicion standard for school searches, which is used even when police are closely involved, is doctrinally problematic. Section D evaluates proposed alternate standards for school searches and suggests that all school searches involving the police or school officials obligated to report to police should be subject to a probable cause standard.
1. The Supreme Court’s School Search Doctrine. — Until 1985, it was not clear that students had any Fourth Amendment rights in school. Although it was evident that the Fourth Amendment applied to civil authorities,12 some courts had relied on the common law doctrine of in loco parentis to hold “that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over schoolchildren.”13 The Supreme Court in New Jersey v. T.L.O.14 rejected this rationale as “in tension with contemporary reality.”15 Courts applying the doctrine of in loco parentis had understood school officials to be exercising the parents’ power, rather than the state’s,16 meaning they could “claim the parents’ immunity” from the Fourth Amendment.17 The Court found that this reasoning conflicted with the reality of laws compelling minors to go to school.18 That school officials were subject to Fourth Amendment constraints also better aligned with precedent extending some First Amendment and due process protections to students.19
The T.L.O. Court, however, also found that the special concerns of educators justified limiting students’ Fourth Amendment protections. In order to “strike the balance between the schoolchild’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place,”20 the Court found that school officials could search students without a warrant or probable cause,21 needing instead only reasonable suspicion “that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.”22
The Court believed that violence and drugs in schools had led to disorder23 and that schools had a corresponding interest in having “freedom to maintain order.”24 This interest has since become an example of what the court has termed “special needs.”25 Where there are needs other than ordinary law enforcement,26 the Constitution may require less than a warrant supported by probable cause for a search.27 If a court finds that there is a special need, its inquiry becomes simply whether the search was reasonable, as determined by weighing the government interest in executing the search against the individual’s legitimate expectation of privacy.28 In Vernonia School District 47J v. Acton,29 the Court explicitly incorporated the special needs test into the public school setting.30 The Court reaffirmed this standard in Board of Education v. Earls.31 Finally, in Safford Unified School District No. 1 v. Redding,32 the Court explained that the standard of reasonable suspicion applies to a school administrator’s search of a student.33
2. Lower Courts’ Restriction of Students’ Fourth Amendment Rights Post-T.L.O. — T.L.O. specifically reserved the question of what would be the appropriate standard for a search of a student “conducted by school officials in conjunction with or at the behest of law enforcement agencies,”34 and the Supreme Court has not since answered the question. Numerous lower courts have addressed the issue, though — given the significant increase in police presence in schools since T.L.O.,35 it is not surprising that this issue arises with some regularity in juvenile and criminal court proceedings. The majority of lower courts to have faced the question have converged around the standard originally set forth by the Illinois Supreme Court in People v. Dilworth.36 There, the court defined three general categories of school search cases involving the police: “(1) those where school officials initiate a search or where police involvement is minimal, (2) those involving school police or liaison officers acting on their own authority, and (3) those where outside police officers initiate a search.”37 The court found that courts usually applied the reasonable suspicion test to the first and second categories, but required probable cause for the third category.38
In Dilworth, an SRO empowered to discipline students under the school’s rules initiated and carried out a search on his own.39 The court held that the search fell into the second category and should be subjected to the reasonable suspicion standard.40 Although the Dilworth court seemingly defined that category by the identity of the searcher, in holding that the reasonable suspicion standard should apply, the court emphasized the SRO’s school-oriented, rather than law enforcement–oriented, purpose: he had conducted the search to further “the school’s attempt to maintain a proper educational environment.”41
Many courts that adopted the Dilworth test (whether explicitly or not)42 have, like Dilworth, found significant the distinction between searches conducted “to obtain evidence of a crime”43 and those done “to maintain discipline, order, or student safety.”44 Since the relationships between schools and police officers vary, courts have been reluctant to rely on factors such as who pays the officer’s salary.45 Focusing on the officer’s purpose allows the court to avoid the complicated line drawing between SROs and outside law enforcement officers.
Because courts are particularly worried about drugs and weapons in schools,46 when determining an officer’s purpose, they almost always find that it involved school discipline or safety,47 even where there is an evidence-seeking bent to the search — for example, in situations where the school will report any contraband found to police48 or the search is related to a crime that has already taken place.49 Other courts simply treat SROs as equivalent to school officials without investigating the purpose of the search.50 Some of these courts have, however, investigated the officer’s role in the school to determine whether he was an official of the school or an official of the police department.51 Though these two treatments of the Dilworth categories could lead to opposing outcomes on the same facts,52 in practice, courts tend to apply the reasonable suspicion standard to searches conducted by SROs under either treatment.
Cases where courts find that a search of a student required probable cause are rare and usually involve either an outside police search only tangentially related to the school setting, or an SRO who has a purely law enforcement role.53 In an example of the former, a South Carolina court held that probable cause was required where a police officer, on the request of the student’s mother, drove the student to school and searched him before releasing him.54 In an example of the latter, the New Hampshire Supreme Court found that probable cause was required where an SRO was assigned to the school “to investigate criminal activity on school grounds,”55 and the SRO admitted that he had an understanding with school officials where he would “pass[] information to the school when he could not act,” and they would “gather evidence otherwise inaccessible to [the SRO] due to constitutional restraints.”56
1. Public School Discipline Has Become Increasingly Criminalized. — Many scholars have reported on the rise of zero-tolerance policies and police presence in schools in reaction to “[c]oncern about school safety, fueled by high-profile shootings” like the tragedy at Columbine57 and, more recently, Sandy Hook,58 and as part of the “get-tough” reaction to rising crime and drug rates in the 1980s.59 There has since “been a massive increase in the police and security presence in schools,”60 with 42.8% of public schools reporting a weekly security presence, including SRO and non-SRO law enforcement officers, in the 2009–2010 school year,61 compared to 10% of schools in the 1996–1997 school year.62 From 1997 to 2007, the number of police officers in schools rose by 55%.63
In addition, many school districts have expanded the zero-tolerance policies originally enacted to focus on “truly dangerous and criminal behavior by students” to include “infractions that pose little or no safety concerns.”64 State laws also increasingly require schools to report various infractions to law enforcement agencies, with forty-three states so requiring in 2000.65 While the majority of referrals are for criminal conduct, school districts interpret these laws broadly, often reporting students to law enforcement agencies for noncriminal infractions.66 Further, even where limited to criminal conduct, some jurisdictions have specifically criminalized behavior in school that is far less threatening than drug use or weapon possession — for example, in Toledo, Ohio, it is illegal to disrupt a class,67 and in Texas it is a crime for a child age twelve or older to miss three days of school within a four-week period.68
In addition, the expansion of strict school rules directly implicates students’ Fourth Amendment rights. Because the reasonable suspicion standard does not even require the school officer to have a reasonable suspicion that the student is breaking the law, but only that the student is violating a school rule,69 evidence found because of a reasonable suspicion that a student is, for example, eating Certs70 or hiding a cell phone71 could be admitted against him in a criminal proceeding.
Together, these changes show that much behavior in schools that would have previously been handled internally “through school disciplinary processes” is now handled by law enforcement authorities.72 Police are both more involved in the searching of students, and more likely to be involved in the resulting discipline via the criminalization of student behavior. This increased policing of students has serious consequences for students and their communities.
2. The Increased Policing of Public Schools Subjects Students to Considerably More Severe Punishments. — The most fundamental consequence of the increased policing of schools is that a disturbing number of children73 are being pushed out of school and into the criminal justice system.74 This is troubling in light of the Supreme Court’s recent jurisprudence on the reduced culpability of youthful offenders75 and the significant amount of science supporting such reduced culpability,76 as these students are now being punished in courtrooms and juvenile prisons instead of principals’ offices, and the punishments for delinquent behavior are often quite severe.
The severity takes several forms. First and most basically, many students are tried and sentenced as adults.77 Second, when students are charged as juveniles, they are afforded fewer procedural rights.78 This can have an escalating impact, as the majority of jurisdictions allow juvenile offenses to count toward three strikes–type laws,79 even though critics of such policies have noted, inter alia, the “prevalence of pleas,” “lack of a jury trial,” and “lack of zealous advocacy in juvenile proceedings.”80
Third, the experience of juvenile prison in most states81 is at least as unpleasant as that of adult prison82: There is rampant violence83 and sexual abuse between wards and at the hands of guards.84 Solitary confinement is frequently imposed.85
Fourth, time in juvenile prison can have a devastating impact on the course of a child’s life. Juvenile incarceration makes a person significantly more likely to end up in the adult criminal justice system later.86 For example, one study of 35,000 juvenile offenders “found that those who were incarcerated as juveniles were twice as likely to go on to be locked up as adults as those who committed similar offenses and came from similar backgrounds but were given an alternative sanction or simply not arrested.”87 In addition, students who spend time in juvenile prison are significantly less likely to graduate from high school.88 Even for students who are not charged, simply being arrested reduces the odds that they will graduate.89 Such a system should trouble even those who prefer a “tough on crime” approach, as there is no evidence it is making schools or communities safer.90
The Supreme Court and lower courts following its guidance have largely ignored the effects of the rising police presence in public schools when limiting Fourth Amendment rights for students. The resulting reasonable suspicion standard required for the majority of searches of students is problematic both doctrinally and in effect.
1. The Reasonable Suspicion Standard Interacts Problematically with Criminalized Schools. — As many scholars have described, the burdens of increasingly criminalized public schools fall most heavily on racial minorities, children with disabilities, and children from low-income families.91 Studies show that racial disparities are largest where the offense — be it a violation of a school rule or a law — requires a subjective determination, that is, something like “Disturbing Schools” rather than weapon possession.92 That subjective violations are disproportionately enforced against minority students could very well indicate that police in schools are more likely to have their “reasonable suspicion” raised against such students. If police are more likely to view a particular action as disruptive if it is performed by a minority student than if it is performed by a white student, then police may be more likely to view behaviors exhibited by minority students as suspicious, even if no conscious racism is involved.93 Additionally, minority students are more likely to feel the full weight of student searches’ practical harms because those students are more likely to face criminal charges for anything found incident to those searches.94
Limiting the Fourth Amendment rights of students in public schools also disproportionately impacts students of lower economic status. Although private schools “exercise only parental power over their students,” and are therefore “not subject to constitutional constraints,”95 in practice, private schools are much less likely than public schools to employ police officers.96 If private schools did institute search policies that led to a significant number of their students being imprisoned, it is unlikely parents would keep sending their children to those institutions. Not only do public schools generally have a higher police presence than private schools, but public schools with higher percentages of students receiving reduced-price lunch have a higher daily police presence than other public schools.97 Additionally, failing schools lead to higher levels of delinquency,98 so those too poor to avoid a bad public school may end up in the criminal justice system at least partially because of their school’s failure to meet acceptable standards. And while Justice Thomas suggested in Redding that parents could “send their children to private schools or home school them; or . . . simply move” if they don’t like the school’s rules,99 low-income families may not have those options.100 Because of compulsory education laws, parents who cannot afford to move or to send their children to private schools have no choice but to send their children to their local public school,101 where they will be part of “perhaps the most ‘policed’ group in the country.”102
2. The Reasonable Suspicion Standard Is Doctrinally Problem-atic. — The doctrinal argument against the reasonable suspicion standard highlights weaknesses in the standard that, when joined with its troubling practical impacts, demonstrate that a different standard would be more appropriate. The reasonable suspicion standard is built upon a special needs premise that, when applied to public school searches as they function today, is inconsistent with broader Supreme Court doctrine. First, when school officials are police officers, or are required to report infractions to law enforcement, their non–law enforcement special need for a search becomes indistinguishable from the law enforcement purposes of the search. Second, even if there is still a special need present beyond law enforcement, student privacy interests are far more weighty, and government interests are less so, than courts typically acknowledge.
The Supreme Court clarified in 2001 that the special needs doctrine cannot be used to uphold “the collection of evidence for criminal law enforcement purposes.”103 As one scholar has pointed out, this limitation is problematic for the lower courts’ application of T.L.O. to school searches where “school administrators have, in effect, become agents of law enforcement authorities.”104 In schools where students are being searched by police officers, or where school officials are required to report what they find to law enforcement, the non–law enforcement interest in school safety becomes so entangled with the law enforcement interest that the former cannot be viewed as primary105 or even distinct.106 The non–law enforcement interests should not be viewed as “special,” and the reasonable suspicion test should not apply.107
Even if there is a distinct special need108 to maintain school safety and order justifying use of the balancing test, courts generally fail to accord proper weight to students’ privacy interests and generally overvalue the government’s interests. The weight courts give to students’ privacy interests does not rely on or even consider the likely consequences of the search109 — school discipline or criminal prosecution.110 Such a consequence-blind weighing may at first seem to align with the Court’s tendency to focus on the immediate context of the physical search in determining whether someone had a reasonable expectation of privacy.111 In fact, this weighing conflicts with the Supreme Court’s acknowledgment in Ferguson v. City of Charleston112 that the identity of who uses the result of a search does bear on the seriousness of the privacy intrusion.113 There, the Court found that while one might not have a reasonable expectation of privacy against medical personnel, one would still retain a reasonable expectation of privacy against law enforcement, even where both groups use the same search result.114 Similarly, in the school context the Court in Earls, when deciding whether public schools could constitutionally require drug testing of students participating in extracurricular activities, considered the fact that the drug “test results [were] not turned over to any law enforcement authority” and that the only consequences of the policy were to limit students’ participation in extracurricular activities, in determining the students’ privacy interest.115 The Court’s analysis implies that students have a strong expectation that their persons will be free from intrusion by law enforcement, even if they have a very limited expectation that their persons will be free from intrusion by school officials. Where students are searched by police, or where the results of the search must be turned over to law enforcement, the students’ privacy interest should therefore weigh more heavily.
The Supreme Court has also recently broadened its consideration of the reasonable expectation of privacy to include significantly more than just the context of the search. For example, in Riley v. California,116 in determining whether a police officer could search a cell phone incident to arrest, the Court found that the warrantless search was not justified117 because the nature of a cell phone implicated much greater privacy interests.118 In another example, the Court in Maryland v. King,119 in determining whether police officers could collect DNA samples from arrestees detained in custody, did not just consider the privacy interests at the moment of the intrusion; rather, the Court considered the kind of testing performed, explaining that “[i]f in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease[,] . . . that case would present additional privacy concerns.”120 The Court has thus been willing to broaden the context for determining an individual’s privacy interests.121
Finally, courts tend to overweigh the government’s interest in searching students. First, because the government’s interest in law enforcement is subsumed into its interest in maintaining safety, courts implicitly and impermissibly weigh the law enforcement interest as part of the government’s interest.122 Second, the government’s interest in maintaining safety in schools, while certainly important, is undermined in this context by evidence that heavily policing schools, and subjecting students to criminal rather than administrative punishments, may have long-term negative effects on the most heavily policed communities, as well as on society as a whole.123 Thus, the government’s interest should be defined more broadly as an interest in creating safer schools and communities in the long term.
The doctrine therefore does not require courts to apply a reasonable suspicion test to searches in public schools. Thus the unwelcome effects of this test — the erosion of students’ Fourth Amendment rights due to unchecked searches by school officials or law enforcement officers with assault rifles124 — are not inevitable.
Because the problematic practical outcomes of a weakened Fourth Amendment standard in schools arise from the interplay of many factors,125 there are many potential correctives. While a modification of the judicial approach to the Fourth Amendment rights of students can go only so far in alleviating the harms of the confluence of the above factors, there are critical reasons why such a modification is necessary, even if not sufficient.
Section 1 argues that probable cause should be required where an officer is involved, even if a school official initiates or performs the search. Section 2 proposes that the underlying suspicion for either the reasonable suspicion or probable cause standard should be suspicion of a violation of law, not just of a school rule. Section 3 suggests modifying the balancing of interests test to incorporate the societal harms that school searches might create. Finally, section 4 argues that school officials acting independently from police should also be held to a probable cause standard whenever they are required to disclose any evidence found to law enforcement agencies.
1. Dictating the Standard According to Police Involvement, Regardless of Role Played by School Officials. — Searches should be held to a probable cause standard where law enforcement officers, no matter their relation to the school, search students when tasked to do so by school officials or when they are present during the school officials’ search of the student.126 Such a standard would reflect the reality of police involvement in public schools and the law enforcement nature of that involvement, even where the officer works with a school official or is employed by the school. This standard would still sufficiently protect schools’ safety interests because officers could still take the same actions that they take on the street127 — including frisking students who are stopped because of suspected criminal activity — where the officer has reasonable concern for his own or others’ safety.128 And because possession of guns in schools is outlawed in the vast majority of states,129 an officer or school official who reasonably suspects a student has a gun on school grounds would be justified in stopping and frisking the student.130
Furthermore, when, as in the above examples, a police officer is involved in the search, this standard would not implicate the T.L.O. Court’s concern about school officials having to learn the legal intricacies of probable cause.131 Finally, this standard finds legal support in the Court’s previous acknowledgment of the import of the law enforcement context on the special needs doctrine,132 as well as the Court’s willingness in some cases to consider the broader context when weighing privacy interests.133
2. Requiring Suspicion of More Than a School Rule Violation. — Whether a search requires reasonable suspicion or probable cause, the suspicion should have to be of a violation of law, not simply of school rules. Because of the breadth of school rules134 and the threat of pretextual searches,135 the suspicion hurdle for either reasonable suspicion or probable cause would be quite low absent such a requirement. This suggestion departs from that proposed by Professor Michael Pinard, who would allow a reasonable suspicion standard where there is no law enforcement involvement and “the purpose of the search is to uncover evidence of a school rule violation that does not impose independent criminal liability.”136 While this exception would allow school officials greater flexibility in maintaining order, it could still allow for pretextual searches, as Pinard concedes, whereby school officials “would conduct searches for suspected school rule violations under the more flexible reasonable suspicion standard as a pretext to search for indicia of criminal activity,” which they could then give to the police.137 Because in many instances school officials not only can, but also must, hand any evidence over to police, the problem of pretextual searches may carry significant weight. Changing the standard to depend on law rather than school rules would also diminish the potential disparities between school districts in the kinds of behavior that could trigger a constitutionally permissible search, which could alleviate some of the disparate socioeconomic impacts of the reasonable suspicion standard.138
3. Altering the Balance of Interests to Include Society’s Civic Interest. — The balance of interests should incorporate society’s interest “in the development of future citizens”139 by having it diminish the government’s interest in searching students. There is reason to believe that heavily policed and searched students, from communities with significant distrust of law enforcement,140 are socialized negatively to distrust governmental authority.141 While Professor Sarah Jane Forman has proposed that the incorporation of society’s interest in future citizens take the form of weighing a distinct “development interest,”142 such a formulation seems unlikely to be adopted because it is supported by little legal authority. Though the Court has, in certain instances, broadened its consideration of the privacy interests at stake,143 it has yet to add a separate, third interest to the balancing equation. This idea could be conceptualized as adding weight to the privacy interest instead, but incorporating a search’s impact on a student’s perception of their place in democratic society requires a change of much broader scope than incorporating the law enforcement purpose or the impact of the search.144
In addition, the Supreme Court has repeatedly emphasized the importance of allowing schools the flexibility to do the complicated work of educating children while keeping them safe.145 Adopting a standard that holds teachers who suspect students of a school rule violation, no matter how insignificant, to the same standard as police officers, seems unlikely to entice the Court. Therefore, incorporating the civic interests on the government’s side of the scale and having it diminish the government’s interest in searching students would be a better move. Where government searches threaten to harm schools and communities more broadly,146 that harm should diminish the weight of the interest in performing searches.
4. Shifting Focus to Mandated Disclosure. — The current doctrine does not acknowledge that even where school officials search students independently of any police officers, students’ privacy interests might be implicated by requirements that school officials report evidence to police. Thus, probable cause should apply where school officials search students without a law enforcement presence, but are required to report the evidence found to police, potentially “lead[ing] to the student’s arrest.”147 This suggestion acknowledges the practical reality that student discipline is not just criminalized because police officers are in schools, but also because schools often report student misbehavior to law enforcement authorities.148 School officials who lack discretion are far from the ideal of educators whose interests align with those of students, an ideal that was part of the rationale for lower search standards in schools. Furthermore, though the T.L.O. Court’s worry about holding school officials to probable cause standards149 is implicated here, this hurdle should not be dispositive. With increasingly close ties between law enforcement and schools, it would not be difficult to offer training to school officials regarding the requirements for meeting the probable cause standard, and the burden does not seem great enough to justify the continued incursion on students’ Fourth Amendment rights.
School officials should additionally be held to a probable cause standard even for searches based on a suspected violation of school rules, where the policy of the school is to turn over any evidence of criminal activity found to the police. Such a requirement would, of course, mean that more evidence would be excluded from criminal cases. Though the exclusionary rule is often criticized for preventing valuable evidence from being introduced at trial,150 this criticism has less force when applied to children, who are considered less culpable for their crimes by both courts and legislatures. The criminal justice system has proved incapable of rehabilitating juveniles, and may indeed fate children who would otherwise have grown out of an unruly period to be forever connected with the system.151 In addition, the Supreme Court has “repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials,”152 which means that evidence recovered without probable cause could still be used in school disciplinary proceedings.153 Schools would therefore not be without recourse to protect their students and maintain order if an official were to find evidence of a rule violation. Where the exclusionary rule leads to children being disciplined and taught to reform their behavior outside, rather than inside, the criminal justice system, it is more adequately serving justice.154
More troubling than the potential exclusion of evidence from criminal proceedings, however, would be school officials’ expanded liability under 42 U.S.C. § 1983.155 The problem is nevertheless not sufficiently serious to weigh against expanding students’ Fourth Amendment rights. First, as noted above, school officials could be trained in the requirements of probable cause; since the majority of cases involve searches by either police officers working in schools,156 who would already be trained in assessing probable cause, or by assistant principals or other school officials with a key role in the school disciplinary system,157 the pool of officials needing to be carefully trained would in fact be quite small. Second, the doctrine of qualified immunity was developed for just such a purpose — “to protect [public officials] ‘from undue interference with their duties and from potentially disabling threats of liability.’”158 The Court made clear in Redding that the qualified immunity defense has significant teeth. There, the Court found that a strip search of a thirteen-year-old honors student in an effort to find “the equivalent of two Advils”159 was unreasonable, but that the searching officials had qualified immunity,160 even though Justice Stevens described it as “a case in which clearly established law meets clearly outrageous conduct.”161 For a school official to be held liable, the case law would have to define “[t]he contours of the right . . . sufficiently clear[ly] that a reasonable official would understand that what he is doing violates that right.”162
Bolstering students’ Fourth Amendment rights will ameliorate some of the problems caused by policing in schools. However, a constitutionally founded solution, even if perfectly designed, can go only so far, especially where, as here, a multitude of factors contribute to the problem. Advocates should therefore take note of the policy solutions adopted by several jurisdictions. For example, a North Carolina county instituted a pilot program in 2014 that encourages police “to refer first-time offenders” to the program, “where they attend classes and mock sentencing to show the penalties they could have faced” without actually getting a record.163 In Texas, a law came into effect in September 2013 prohibiting school police from issuing citations to students for school offenses,164 and since then “misdemeanor tickets issued for school-related violations [have fallen] 37%.”165 Missouri has developed probably the most humane juvenile prison system in the country and has had significant improvement in outcomes for children in the system.166 And because failing schools lead to delinquency,167 education reform in the public schools could play a vital role in addressing the problems of policing in schools.
That a constitutional solution is not sufficient to address the normative problems of policing in schools is not a reason to reject the attempt. This is especially true here because of the fundamental role schools play in preparing young people to contribute to society. As the Supreme Court has repeatedly noted, the fact that the schools “are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”168
To teach students in poor communities that the Constitution allows their privacy to be invaded by the police because they have writing on their backpack,169 or a bandana in their pocket,170 or because the school was told that the police received an anonymous tip that they violated a law,171 or because they are standing in an area rumored to be the site of a forthcoming fight,172 is troubling, but perhaps not an inaccurate lesson for what they can expect from the government.173 There is little evidence to suggest that heavy policing, more frequent searching, and zero-tolerance rules actually increase school safety.174 If anything, it is likely these policies exacerbate students’ disdain for the police, and presumably, for the government.175 This suggests that Justice Jackson’s warning in West Virginia State Board of Education v. Barnette176 was prescient — our system of policing in the public schools is in fact “teach[ing] youth to discount important principles of our government as mere platitudes.”177