The Live Wire – The Constitution and the Schoolhouse Door:  Students’ Rights in American Schools
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The Live Wire – The Constitution and the Schoolhouse Door: Students’ Rights in American Schools

September 10, 2019

(Instrumental music playing) Wills H. Citty: Good afternoon and welcome
to the Live Wire, UNC Charlotte’s forum for conversations with news makers from here
on campus and beyond. I’m Wills Citty. Nearly five decades have passed since the Supreme
Court famously remarked that, “Students do not shed their constitutional rights at
the schoolhouse gate.” Our Nation’s highest Court has heard only a handful of student
rights cases since then but litigation in lower courts has exploded. Each day school
officials struggle to balance the rights of students with the need to maintain a healthy
learning environment. The troubling reality for educators is the rules on how to do that
are not always clear. Among the most difficult judgement calls schools must make is whether
and how extensively to search a student. On today’s Live Wire, we look at how schools
handle the Fourth Amendment. My guest, Dr. Dunaway has taught law to feature teachers
for more than a decade. Prior to that, he spent 25 years in K-12 administration, including
three years as a superintendent. Dr. Dunaway, thanks so much for being here today.
Dr. Mickey Dunaway: My pleasure. Wills H. Citty: So, as an introduction, I’d
like to talk a little bit about the Fourth Amendment in general. And specifically about
its application in TLO versus New Jersey Dr. Mickey Dunaway: Uh-hum
Wills H. Citty: which is the case that is set the baseline for how the Fourth Amendment
is applied in schools. Dr. Mickey Dunaway: Well, the Fourth Amendment
came about after the British… had actually invaded citizens’ homes. And so the government,
the writers of the Constitution, the Bill of Rights, were intent on making sure that
peoples’ possessions were protected. And so the Constitution established that law enforcement
officials have to have a warrant and had to be sworn before a judge before they could
go into a person’s house. The case New Jersey versus TLO was a case that came out of a high
school. There were two girls who were discovered by a teacher with lit cigarettes in their
hands in a girls’ restroom. Now what’s interesting about that is that smoking per
se, in that high school was okay. So that the possession of cigarettes was okay but
it was against the rules to smoke in the restrooms. And so the teacher brought them to the Assistant
Principle, Mr. Choplick, I love that name. And one of the girls admitted that she was
smoking and she was assigned to like a Saturday school. A smoking cessation class. And the
other girl, who is just identified as TLO, said no that she wasn’t smoking and in fact,
she said didn’t smoke. The assistant principle asked to see her purse. He searched her purse
and found, first of all, a pack of cigarettes. He took, removed the pack of cigarettes and
continued to search and he found–an amount of Marijuana, he found a fairly large amount
of money, and he found the list of student names with some dollar signs or whatever behind
them. And so he suspended the girl, called the police, the police arrested her. She was
adjudicated as a delinquent in juvenile court. And she then appalled that verdict based on
the fact of what’s called the Exclusionary Rule; that he needed to have had a warrant
in order to search and therefore, that evidence should be excluded. The Exclusionary Rule
itself is basically our only protection. I mean if officials come into our house and
search and seize something, and do it illegally, if that evidence can be used in court then
we don’t have any protection. So she was arguing that that particular rule should apply
to schools. The case made its way up to the New Jersey Supreme Court and eventually to
the U.S. Supreme Court, where the U.S. Supreme Court ruled that number one, students did
have rights in school. That were, they were really just affirming the Tinker decision
earlier. And that the Fourth Amendment applied to schools, to students in school. And then
they went further to define how schools ought to know when they have enough suspicion to
search. Wills H. Citty: This articulates the framework
that the court came up with for schools to look at before they search a student. If you
can just take us through some of this. Dr. Mickey Dunaway: I will. They said the
search has to be reasonable under all circumstances. So the court is saying, “Let’s look at
this thing in total.” And you can know which reasonable, at least the first test of reasonableness
is, it has to be justified. The court said, “Justify that inception.” That means that
when the search or before the search began, you had to have enough evidence in order to
justify the search. So what is that amount of evidence? Well it is some amount of evidence
that the courts has said is more than a hunch, for instance.
Wills H. Citty: So a teacher couldn’t say, “This guy, he just kind of looks like a
druggie.” Dr. Mickey Dunaway: No.
Wills H. Citty: And search him. Dr. Mickey Dunaway: No.
Wills H. Citty: That’s out of line. Dr. Mickey Dunaway: But, if as a teacher of
as an assistant principle, I saw behavior, let’s say I saw as that teacher in TLO did,
I saw smoke coming out of the bathroom door. Then I have enough suspicion to go a step
further than that certainly would be enough. That would be reasonable at inception. Then
they said, “The scope of the search has to be reasonably related to the reason for
searching.” Wills H. Citty: And this is where a lot of
teachers get tripped up correct? Dr. Mickey Dunaway: It really is. Scope, a
synonym of scope is intrusiveness. I mean this is dealing with privacy. So how far the
search goes. That is are you asking a young man to empty his pockets? Or are you asking
him to take his wallet out of his back pocket? Now for instance for guys, taking a wallet
out of their back pocket may not be particularly intrusive. If you said to a girl, “I’m
going to search your purse.” She’s going to see that as a very intrusive act. Now if,
let’s say a student has, was wearing a coat this day and you ask them to take that coat
off and search the pockets of that coat. That’s a pretty intrusive search. If you then go
a step further and search the pockets of their jeans, that’s even more intrusive. The most
intrusive search, the search with the greatest scope would be a strip search. And TLO doesn’t
forbid strip searches. It just says you better have a lot of evidence before you strip search.
What I recommend to the students I teach is that before, first of all, don’t ever strip
search. Number two, if you even think about it you ought to have what would be equivalent
of probable cause. That’s a much higher standard. That’s a standard of where I can
go before an independent magistrate and convince him that what I’m looking for is where it
is. And if you have that much evidence then you need to call the police and they can get
the warrant and they can do the search. And then
Wills H. Citty: The other piece that fits in here, we’re talking about intrusiveness,
as in the effect of the student. But the scope is also related to what the violation of issue
is. Dr. Mickey Dunaway: Absolutely.
Wills H. Citty: So the more severe, the more intrusiveness is allowed.
Dr. Mickey Dunaway: And the thing that would come to mind at this particular stage would
be for instance, weapons in school. We hear about that all the time. We just experienced
the shooting in Charleston. And every time we hear about guns in school we want to know
well why, how did that get by? That, a kid with the potential of having a gun, that’s
probably a strip search that would be justified almost every time. Simply because of my duty
as a principle, my first duty is the safety of the kids in my care. Another thing that
has to be considered in terms of the scope is the age, the gender of the child. It seems
that almost any time that I read where a search has gone awry, a strip search has gone awry,
it tends to be with kids who are younger, and who are susceptible to school officials
just simply telling them to do something, and them doing it. The most recent case that
went to the Supreme Court was a case called Safford V. Redding. Which was a case of a
middle school girl who was strip searched because she was accused of having Ibuprofen.
That’s a pretty extensive kind of thing to do. And the emotional trauma that that
would bring to a 13-year-old girl is pretty significant. There’s another case, long
before that one that the Supreme Court did not hear called Doe versus Renfrow. Where
the school brought in dogs and the dogs went up and down the aisles of the school. And
the dog alerted to this girl who the court identified as Doe. They stripped search her,
eventually took her to the school nurse. She denied ever having any drugs and the school
nurse eventually stripped search her. And as it turned out, she had played with her
dog that morning before she came to school and her dog was in heat. That… that anybody
would go that far is pretty amazing. But obviously they are cases out there where it shows that
they have gone that far. So if we look at those three things again—it needs to be
justified at its inception, have enough evidence before even considering to do the search,
it needs to be the scope; the intrusiveness needs to be related to the violation you expect.
So it may be against school rules for the kid to have gum and I could technically search
him for that. But the possession of gum is not like the possession of a gun and I ought
not, and I should not go as far as I would otherwise.
Wills H. Citty: So, we’ve seen here that strip searches usually often times end up
being out of line, or require a high degree of defense, or high degree of evidence. I’m
going to go through with you just some closer calls to show
Dr. Mickey Dunaway: Okay. Wills H. Citty: how the court has applied
this in the past. And these are some examples cited by the Association for Supervision and
Curriculum Development. Four students huddle together, one with money in his hand, and
another with a hand in his pocket, does not provide reasonable suspicion. That sound right?
Dr. Mickey Dunaway: It would have to be more than that. For instance, I can think of a
situation that I was involved in personally, where there was a group of kids huddled together.
But there was like, kind of like in TLO, there was smoke coming up from the crowd that was
where the kids were huddled up together. The smoke would have provided enough suspicion
for that to be reasonable. But just the fact that kids are huddled, kid huddle together
all the time. They have their hands in their pockets. That’s not enough.
Wills H. Citty: An anonymous phone call advising an administrator that a student will be bringing
drugs to school, coupled with the student’s reputation as a drug dealer, creates reasonable
suspicion to search a student’s pockets and book bag. So educators are in a better
position when they have multiple pieces of evidence from different sources.
Dr. Mickey Dunaway: Yeah and you obviously have to be careful with the anonymous call.
But if the anonymous call is coupled with the fact that perhaps I have actually caught
this kid with contraband before. Then those two things give me enough suspicion, for instance,
to pull this kid into my office and to begin a search.
Wills H. Citty: And here’s another situation where educators or administrators sometimes
run into a little bit of trouble. The odor of Marijuana in the hall does not provide
reasonable suspicion to search all students’ book bags, purses, and pockets. What’s the
problem here? Dr. Mickey Dunaway: Well, the problem there
is that sweep searches, that is searching everybody. And generally sweep searches are
conducted in order to find out if there is any violation. And the Court, back at the
Fourth Amendment again says that the evidence has to be specific. I have to be able to know—where
it is, and what it is, and who has it, and this constituted a sweep search. Which meant
that, if again, it’s like the British government did with American citizens. They would go
in and search an entire neighborhood. This says no. This says the suspicion has to be
individualized. And that’s one of the things whether we’re talking about school searches
or searches on the street that pretty well have be established. There are few places
the Court has said its okay, for instance an airport, safety issue. Perhaps concerts
or ball games and again, that’s a safety issue. Where, but to search a classroom of
kids because you think you smell Marijuana has gone beyond the line.
Wills H. Citty: Let’s switch gears a bit and talk about the theories that underlie
the debate on these issues. Originally, prior to the TLO decision, the broad authority that
schools were given was based on a theory that they were acting on loco parentis or basically
as temporary parents Dr. Mickey Dunaway: Right.
Wills H. Citty: for these children. And they didn’t have the adversarial relationship
that police have with criminal suspects. How would you characterize the relationship between—teachers,
administrators, and their students? Dr. Mickey Dunaway: Well in loco parentis,
prior to TLO, was a frequently argued defense by schools when searches were brought to court.
The schools would say, “We were acting in place of the parent.” The Supreme Court
in TLO said, “No that is not a valid reason to conduct a search.” I mean it, it’s
not a reason to conduct a search. Does that mean that schools don’t still in many ways
act in the place of a parent? Yes, we’re called to be concerned about kids, to take
care of the kids… and it brings up a tough situation for us, I think. When we recognize
that we’re here to take care of the kids and it, that very doctrine, I think it is
probably the reason the Supreme Court struck it down, gets us in trouble because we think
we’re acting as a parent would. And really… the students in a school don’t have the
same Fourth Amendment rights they outside of school because the school environment is
unique. We got a lot of young, very young kids, or adolescence gathered together in
a small place and therefore, the Court has said they have Fourth Amendment rights. But
those rights are limited. However, they’ve also said that you just can’t just act willy-nilly
in terms of searching someone. You have to have an amount of care. And I think, you know,
their three step process that they identified to define reasonable suspicion is a pretty
good one. Wills H. Citty: Let’s talk about the other
side of the theoretical debate and that’s the people who say that we’re teaching young
kids to be citizens while they’re in school. And if that’s the case, we need to keep
their constitutional rights as close to what they will be when they become citizens. What’s
the merit to that argument? Dr. Mickey Dunaway: As a principal I would
frequently go into a senior government classes when they were teaching about the Constitution.
And spend two or three days, teaching the kids about the Constitution through the lens
of their rights as students. Until you do that, they just see it as an esoteric document.
But when you can talk to them about, these are the rights that you have in school. Now,
there may be, they will be somewhat different than the rights you’ll have when you get
out of school. I think the argument is not so much to get it as close to the line as
what they will look like when they step out on the street as citizens but, to make sure
that they understand that the Constitution and the Court is flexible according to the
situation. Just like we mentioned, we can do sweep searches in airports. The police
cannot do a sweep search in a school in order to find out whether or not one kid, let’s
go back to that anonymous call. The anonymous call was that a kid, we don’t know which
one it is, has brought Marijuana today and he’s in a seventh grade class. Does that
justify us in searching the entire class? No it doesn’t because the suspicion needs
to be individualized. But all of those situations are opportunities to teach kids about what
their rights are. What worries me more is when schools, and frequently school resource
officers, and sometimes the police, actually carry out what would be a clearly illegal
search. What does that teach the students? And that, those things happen because the
people who are supposed to know about the Fourth Amendment and how far it goes in schools,
have not educated themselves well enough to know how far that they can go and how far
they can’t go. Wills H. Citty: I’m interested specifically
in your opinion in the role of school resource officers in educating them and following the
rules as far as the Fourth Amendment goes. Dr. Mickey Dunaway: I think that, that’s
an emerging area of the law because the school resource officer–if they’re dressed in
uniform, and that uniform is the uniform of the Sheriff’s Department in Rowan County,
or Charlotte-Mecklenburg Police Department, or Cabarrus County, or any county, if they
are dressed in uniform, they are, in terms of the Constitution, are a police officer.
They’re not a school official. And there are situations where they are often treated
as school officials, as another arm of the administration’s discipline. And so where
as a school administrator can go in and search every locker in that school. They don’t
need any level of suspicion to search a locker because the lockers belong to the school.
A police officer could not do that and yet there are plenty of situations where they’re
doing it. The case that you were, you talked about a minute ago, about–emptying the classroom,
and searching the classroom, book bags, and things, was probably done with a police dog,
and either a resource officer, or a policeman there. That makes it no more legal than if
the school administrators had done it themselves. Wills H. Citty: And to highlight how this
relationship between police and school officials can sometimes go awry. We’re going to show
a quick clip of something that happened at a school district. And we’ll watch the clip.
And after Dr. Mickey Dunaway: Okay, will do.
Wills H. Citty: you can give us a little background about how this came about. What’s the background
here? Dr. Mickey Dunaway: Well, the background is
that there was a pretty significant amount of drugs coming into the school. The principle
explained that they were often times coming in with kids who had transferred. And they
seemed to be from the principle’s view point, kids were buying drugs and they were buying
them in this one particular hallway. And he engaged the Goose Creek Police Department
to come in after school had started, block off that hallway. And what you saw was, were
police officials–with guns drawn, putting kids on the floor face down, in some situations,
handcuffing them with zip ties. I’ve looked at this clip dozens of times. I use it in
my class as an illustration as to why school officials need to understand where the Fourth
Amendment goes because unfortunately, police officials don’t always know. And this went
awry. And so the last thing you saw was the dog coming through. And so if you take all
those things together–the police have blocked off a hall, they have put kids face down on
the floor, if a kid responded negatively to them, they handcuffed them, and then they
brought a dog in, and did a sweep search. That’s about as much illegality as you can
get in a 30 minute clip. And they paid dearly for it—the police chief lost his job, the
principle lost his job, the school system lost, I think a million-and–half dollars,
maybe a little bit more, from students who sued. You know, I put myself in the place
of a parent there and say, how would I feel if my son came home and told me, “Mom, this
is what, or Dad, this is what went on today at school.” I would be outraged. I would
want to do the same thing. And so that was that was as good a definition visually of
an unreasonable search as you’re likely to find. And it was 2003 so this wasn’t
something prior to TLO. And it was done, it was collaboration between police and the school
to make it happen and yet it still went awry. Wills H. Citty: So, when you see a clip as
shocking as that, it’s easy to have a visceral reaction and be angry at the teacher or administrator
that may have asked that search to be conducted. But I think we also have to look at how people
are being trained. What kind of training are teachers and administrators getting about
these kinds of issues? Dr. Mickey Dunaway: Great question. And I
can’t speak for South Carolina. I can speak for Alabama where I’ve been. I can speak
to North Carolina. A required course of all aspiring administrators is a course in school
law. That’s a three-hour semester course, that’s 15 weeks, about 45 hours. Now all
that’s not devoted to the Fourth Amendment but a good piece of it is devoted to the Fourth
Amendment. So school administrators have had at least that much time. They have looked
at the Fourth Amendment, they’ve probably read TLO, they’ve read some other cases.
Perhaps their professor gave them a situation and asked them to judge it. So they should
know. Ignorance obviously is not an excuse. Teachers, that’s another story. If you went
back and looked at the video again, you might see, I know there’s a longer version of
the clip, you will see some school officials. And they’re typically PE teachers, you can
tell because they’re in shorts and golf shirts, who are around as the police are working.
My guess is they had no knowledge of whether or not this was illegal or not. And the reason
I say that is because I have not been a participant in, or taught in a school of education, or
known any of the teachers that I’ve have hired through the years, who’s ever had
a course in school law. And I think that is a terrible mistake that we make. Our kids,
the kids in school need us to know that we understand their constitutional rights but
teachers are also vulnerable. When I was reading newspaper accounts or that where teachers
who potentially violated the student’s rights, often times it was simply done out of ignorance
and not understanding what the law is. And again, that won’t mean that that teacher
will keep their job. But it means that we ought to have enough concerns both at the
University and as administrators that we’re educating our teachers about what can and
can’t be done in schools. Wills H. Citty: In terms of the mechanics
of that training process, you’ve written in the past about the challenge of getting
teaches to understand the difference between personal reasoning and legal reasoning.
Dr. Mickey Dunaway: I call it school teacher logic.
Wills H. Citty: Right. Dr. Mickey Dunaway: And I talk to them about
coming over to the dark side, that’s the over to the lawyer side of things. But, we’re
in the, we, when I still put myself in that category as teacher and principle. But, we’re
in the caring business or else we wouldn’t be in schools, it’s too hard a job. I mean
there are a lot of jobs that are easier to do, than to work with 1200 kids on a daily
basis. And so we need to know what goes on. And teacher logic is logic that says, “Because
I believe or think this, I’m going to act on it.” And that can get you in big trouble
in Court because the Court is going to look at, we looked just a minute ago at the three
expectations of the Supreme Court related to the Fourth Amendment in schools, the Court’s
going to ask, “Did you do this, this, and this?” And if you didn’t do it and you
had ignorance of it, then that’s not going to be an excuse. Notice, if you use school
teacher logic, school teacher logic would go like this. I’m taking up or let’s say
I’m taking money for a field trip. And Johnny comes and says, “Miss, Dr. Dunaway, I brought
my twenty-five dollars for the field trip, I put it on my desk. When I went back to sharpen
my pencil, I came back it was gone.” My school teacher logic kicks in and says, “Somebody
in this room has Johnny’s twenty-five dollars.” And probably the next thing out of my mouth
is, “Nobody is going to leave this classroom until I get that twenty-five dollars.”
Wills H. Citty: It feels wrong because somebody did something wrong.
Dr. Mickey Dunaway: Because Johnny was wrong. Somebody did something wrong. And so I’m
going to, if I’m not careful, I’m going to find myself going the next step. And that
is okay, I’m going to look at all your book bags. Now book bags fall in the category of
they belong to the students. But the students have some rights related to whether or not
I can search that book bag. Now, if the book bag is in the desk or under a desk, I may
have a little bit more lead way. But if I go too far, and when I read cases in the newspaper
that have gone too far, they almost always start like this one. And they end up in the
boy’s or girl’s restroom where someone is strip searching the people to see if they
have twenty-five dollars on them. And it all started with good intentions. It all started
that I care about Johnny and the fact that he lost his twenty-five dollars. But as school
teachers and school officials we need to know, how far can we go? Can we do a sweep search
in that class to find the twenty-five dollars? You know, one of the things that I love teaching
about school law is that we’re constantly looking at decisions, bad decisions usually,
that people have made. And looking at them and questioning whether or not I could have
made that same decision. And it’s a fun course to tach because people began to see
themselves and say, “You know what? I thought about doing that same kind of thing.” Or,
if I ask them, “Have they ever been in a situation where you were told and your kids
were, students were told to leave their book bags on the floor, and come outside, and stand
in the hall? That we’re going to bring the dogs in and do a search? Almost universally,
the answer to that is yes. And so yes they can get that.
Wills H. Citty: And that’s about all the time we have for this week’s edition of
the Live Wire. Tune in next week, same time, same place. (Instrumental music playing)

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