Finding Middle Ground in K-12 Education
And we like Chapter 3 to give you a sense of the flavor and the contents…
Being a teacher, administrator, board member, school employee, parent, or even a student is tricky business these days. Never before have there been so many issues to contend with.
Today there are more laws, more rules, more regulations, more mandates, and more pressures. Equally as perplexing, it seems that these days the art of discussing an issue has been replaced with formal negotiations, legal intervention, and threats of third-party involvement. It also seems that schoolhouse discipline is more often at odds with home discipline, and that some families resent or reject the old concept that the school is, in fact, entitled to act in place of the parent.
It also seems that technology, media, the Internet, and things such as “MySpace” have made life more confusing and conflicting. Only a few years ago kids would be happy to sneak a peak at Playboy, whereas today hard core porn is widely obtained at disgustingly young ages. And it is well documented that girls mature at a younger age than they used to, while boys mature later, confusing established and traditional expectations. No wonder parents struggle with control and discipline and schools are conflicted in their roles as well.
We all know that the rights and obligations of anyone and everyone, and the protection of those rights and obligations, make education more legal and litigious than at any time in history. And it’s not just the schools. One only needs think of the “HIPAA” rules in hospitals that prevent even members of families from learning why someone was admitted or what is happening. Or how about the plethora of mailings and information sent to everyone who has a credit card or business account that outlines the privacy acts, rate changes, and other legal minutia that we would guess few ever read. It seems we have all gone a bit crazy covering our proverbial rear ends at the cost of common sense and simple talk.
So when two exceptional warriors on today’s educational battlefield—who have worked together for many years, each in differing roles but both working to improve our schools for kids and everyone else involved—agreed to share their experience and thoughts on paper, to add some light to this half-legal, half common sense mayhem, we jumped at the possibility of sharing their thoughts with you!
But what to call this much needed book? The term “middle ground” kept reappearing, as a place where the best of all actions and results might be found. So we decided to focus on how education leaders can, through their actions, help us define “Middle Ground” as a place rather than a concept. A place where two (or more) sides can come together and solve problems without going ballistic, without unnecessary craziness, rather with some sense of balance and resolution.
We want to look at the two elements of solving problems: the practical side and the legal side. Neither can be consistently successful by itself. Ignore the legal ramifications of most issues and you walk on thin ice. This ice may break and you drop quickly into cold and costly water. Ignore the common sense of resolving a conflict and there is a good chance that you will do it at the cost of sound and positive relationships. You may win the lawsuit but in the long term lose the game. So Middle Ground is our collective goal on these pages—common sense resolutions based on sound legal thinking and advice—brought by two veterans well trained in the groves of resolution.
As a retired superintendent and an educator who has been going to schools for 58 years (starting in kindergarten), Jim Burgett has proven to be a sensible leader and a trusted mentor for many educators. He has always maintained a philosophy of working with school attorneys, getting their direction, advice, and input. He selected lawyers who were more eager to find common sense resolutions than encourage legal action. He depended on their wisdom and expertise.
In addition, you know Jim as the author of Teachers Change Lives 24/7, as well as the co-author, with Drs. Jim Rosborg and Max McGee, of What Every Superintendent and Principal Needs to Know and The Perfect School.
Brian Schwartz is an education lawyer and
an excellent communicator. He is an author (of The
Law of Homeschooling) and a speaker who
presents his thoughts and legal advice in English, not legalese. Well respected
by educators throughout the
They have found the Middle Ground in writing this book. The format is simple. Each chapter contains a comprehensive overview of a specific topic, followed by one or several case studies reflecting actual situations (altered to protect the parties involved). Once a case study is presented, Jim will share some resolution strategies and Brian will give his ideas, suggestions, warnings, and legal concerns. Then the two authors help the reader think through situations in search of that Middle Ground.
This is not a template for legal advice or educational strategies. Nor is this book intended to be a set of legal guidelines or a textbook on management. It is a tool to help teachers, administrators, parents, and others associated with schools think through complex and difficult situations. The purpose is to give assistance to those who want to do a better job of recognizing legal concerns and managing successfully. It is written in a simple, conversational tone, but with the intent of providing inspiration and guidance to make schools a better place for kids and a good place to work and learn.
We don't expect you to agree with their opinions in every case. And, of course, we all know that there are other, valid opinions and suggestions, too.
Here are Jim and Brian’s best thoughts, plus the concept of seeking a Middle Ground to draw from the legal and practical the very best resolutions to keep the school systems safe, sane, solvent, and their primary attention on the very best ways of educating today’s kids—tomorrow’s leaders
Welcome to the Middle Ground!
Publisher, Education Communication Unlimited
Search and Seizure:
Stripping Away the Misconceptions
Brian D. Schwartz
Throughout much of history, it has been unclear whether or not there were any parameters on schools and school personnel about searching students and students’ possessions. Many legal scholars of the time opined that school officials, who stand in loco parentis, may search students and their possessions with or without suspicion. The legal reasoning behind this argument was as follows: Parents do not need any reason to conduct a search of their child, so neither do school officials who stand in place of the parent while the child is at school.
In 1985, the United States Supreme Court set the record straight and clearly defined the role and authority of school officials to conduct student searches. The case, New Jersey v. T.L.O., involved a high school age female student who was suspected of smoking cigarettes in a school bathroom. T.L.O. claimed that she had never smoked cigarettes in her life, so she was taken to the assistant principal for further investigation. The assistant principal confiscated T.L.O.’s purse and opened it, finding cigarettes. When the assistant principal removed the cigarettes, he also saw rolling papers, which he believed were indicative of drug use. Upon further inspection of the purse, the assistant principal found a small amount of marijuana, a pipe, a large amount of money and an index card that appeared to contain the names of people who owed T.L.O. money. T.L.O. was taken to the police station where she was charged with delinquency.
T.L.O., through her parents, challenged the authority of school authorities to search her purse, claiming that their actions violated her Fourth Amendment right to be free from unreasonable search and seizure. Critical to her argument was the fact that school officials did not possess a warrant prior to initiating the search of her purse.
In resolving T.L.O.’s claim, the high Court recognized the fact that the Fourth Amendment does not forbid all searches; it only prohibits “unreasonable” searches. The Court went on to recognize that while students retain their constitutional rights while at school, these rights are not the same rights enjoyed by adults in other settings.
In a 6-3 decision, the Court held that school officials are not required to have probable cause or a warrant before searching students, but that school officials must possess “reasonable suspicion” before engaging in searches of students and student property. Furthermore, the Court held that school officials must have reasonable suspicion at the inception of the search and reasonable suspicion to expand the search beyond its original scope.
In the T.L.O. case, the Court ruled that the assistant principal had reasonable suspicion to search the student’s purse. Specifically, there was strong evidence that the student had been smoking and it was reasonable to believe that evidence of smoking—the cigarettes—could be found in her purse. The Court also ruled that the expanded search of the student’s purse for drug contraband was also reasonable in scope. When the assistant principal pulled the cigarettes out of the student’s purse, the rolling papers were in plain view. Given the assistant principal’s experience and expertise, it was reasonable for him to believe that the rolling papers were indicative of drug use and that further evidence of such drug use might be found in the student’s purse. Hence, the search was reasonable at its inception and reasonable in scope.
Since 1985, the courts have heard a myriad of student search and seizure cases; however, all cases go back to the core pronouncements of T.L.O. Searches of students and their possessions must be reasonable at their inception and reasonable in scope. No matter what the issue, no matter what the subject of the search, these are the questions that must be addressed.
In determining whether a search is reasonable at its inception, courts have looked at a litany of factors. An examination of case law suggests that the primary factors that courts weigh in determining whether school officials are justified in initiating a search are (1) the nature of the infraction, (2) the invasiveness of the place to be searched, (3) the quality and quantity of informant information, and (4) individualized suspicion. I like to call these the “Four ‘I’s of Inception”: Infraction, Invasiveness, Informant information and Individualized suspicion.
In examining the above indicators, the most important factor is the nature of the infraction or, more specifically, what school officials are looking for. Courts are willing to grant school officials considerably more latitude and require considerably less evidence if the search is for a weapon or drugs. A good rule of thumb appears to be that the more dangerous the subject of the search, the less evidence that is needed. The less dangerous the subject of the search, the more evidence that is needed. However, it is important to recognize that some evidence will always be needed before a search can be initiated. Searches based on a hunch or mere speculation will generally be deemed unreasonable and therefore a violation of the Fourth Amendment.
In looking at the second factor—the invasiveness of the place to be searched—courts generally require more evidence the closer the search is to the student. For example, in order for a search to be reasonable, a school official would need more evidence to search a student directly and less evidence before searching a student’s backpack or purse. For this reason, it is again a good rule of thumb to begin the search as far away from the student as possible and gradually move toward the student. In terms of a practical example, we can again turn to the T.L.O. case. Here, the assistant principal first searched the student’s purse rather than initiating a more obtrusive search of the student directly.
Good informant information is also a key factor in determining whether or not reasonable suspicion exists to initiate a search. Because school officials generally do not see the infraction take place directly, they must investigate the situation and rely on the observations of others. In doing a thorough investigation, a school official must determine the credibility of the individuals supplying the information. The less credible the source, the more information that must be gathered before conducting a search.
Lastly, courts also want to see some degree of individualized suspicion before school officials initiate a search. Take, for example, a typical school classroom. Suppose that as the teacher turns her back to write on the board, her cell phone goes missing. It would be improper and a violation of the Fourth Amendment for the teacher to search all of the students in the classroom. The teacher would be required to investigate and obtain information from the students in order to significantly narrow the list of suspects. When the investigation points to one or two students, a search may be justified.
In order to bring the above factors into
perspective, consider the following situation. During a passing period at
Based on these facts, there probably is not reasonable suspicion to immediately proceed with searching Alex’s pockets for evidence of the suspected infraction. The principal must investigate to obtain better information. This may involve talking to Alex’s friends or even talking to Alex himself. Once the principal has better evidence and has reasonable suspicion that Alex possesses the contraband in question, the principal should start the search in the least obtrusive place that the marijuana could reasonably be found. Under this approach, the search may start at the locker, proceed to a book bag, and finally end up with a search of Alex himself.
Now suppose that the unidentified student indicated that Alex has a gun. Assume that all other facts in the above scenario are the same. In this case, despite the weak informant information and the invasiveness of the place to be searched, the nature of the infraction (an immediate threat to student safety) would generally justify an immediate search of Alex without the need for additional evidence. The search would be reasonable given the overriding need for school officials to protect life and property.
One last point is important to note. If the student who is the subject of the investigation authorizes you to conduct a search, then you may do so without additional evidence. Authorization by the person subject to the search takes the search out of the context of the Fourth Amendment, with the possible exception of automobile searches, which will be discussed later in this chapter. Hence, it is always a good practice to talk to the student in question in order to attempt to secure permission to conduct a search. Doing so may save a great deal of time and effort otherwise required in order to obtain reasonable suspicion.
So far, we have discussed the factors that determine whether or not school officials can initiate a search of a student or student property. The second prong of the test delineated in T.L.O. requires that a search be reasonable in scope. Again, courts take several factors into consideration in determining the depth in which a search can proceed. However, an analysis of case law suggests that the two most important factors are (1) the search objective and (2) the seriousness of the allegation. I like to call these two factors the “Two ‘S’s of Scope”: Search objective and Seriousness of the allegation.
The search objective, put simply, means that school officials must only search in those places where it is reasonable to believe that the object of the search can be located. For example, if school officials are searching for a five-inch knife, it would be unreasonable to search in a small zippered compartment of a purse where a five-inch knife would not reasonably fit.
The second criteria, the seriousness of the allegation, means that the search should not be excessive given the item being sought and should not be inappropriate given the age and sex of the student. Again, in terms of an example, it would be inherently unreasonable to conduct a strip search of a student to look for a stolen five-dollar bill. Here, the means for recovering the stolen property are abhorrently excessive given the nature of the suspected activity. In terms of the age and sex of the child, special considerations should be made to protect the child’s dignity and privacy. In cases where a strip search may be reasonable, it is important to make sure the search is done by someone of the same sex as the child as well as to provide the child with alternative clothing so as not to unnecessarily embarrass the child.
With this basic framework in place, let’s take a look at specific types of searches. In particular, we will examine locker searches, vehicle searches, metal detector searches, dog-aided searches, police-assisted searches, and random drug testing.
Specific Types of Student Searches
Locker Searches: It is important for school officials to consult their state’s law and school district policy before engaging in a locker search. In general, locker searches are generally among the least invasive types of searches. Students have a diminished expectation of privacy in their lockers, mainly because lockers are school property.
Vehicle Searches: Vehicle searches are somewhat tricky due to the fact that the vehicle may be owned by a party other than the student. Vehicles owned by a student’s parents may generally only be searched by police pursuant to a warrant. Again, state law governs vehicle searches. However, one common practice is for school officials to require a copy of a vehicle’s registration and a written consent to search from the student and the vehicle’s owner before a student is allowed to park on school property.
Metal Detectors: Metal detector searches are minimally invasive in that a machine or device screens the person who passes through it. Individuals subject to the search are not required to remove items of clothes or be searched directly by a person. Given the heightened need for school safety, metal detector searches are generally legal as long as they are done in a completely random manner or everyone, including school employees and visitors, are required to undergo the search before entering the school building.
Dog Searches: Dog searches are generally legal, as long as the dog is in the public areas of the school. A dog’s heightened sense of smell, special training, and lack of bias make dog searches inherently reasonable. However, dogs should not be used to search students directly, as this type of search may be unreasonable in scope and may therefore violate the Fourth Amendment.
Police-Aided Searches: In general, police officers may assist school officials in conducting a search, as long as officers are acting under the direction of school authorities. When police officers act on their own initiative, probable cause supported by a warrant is generally required. One exception may exist for police liaison officers who, in certain states, are considered school officials and are therefore allowed to conduct searches with only reasonable suspicion.
Random Drug Testing: The ability of school districts to
impose random drug testing was addressed by the United States Supreme Court in
Seizure of Students
To this point we have only discussed student searches. The Fourth Amendment also requires reasonableness when a student is seized or restrained. A seizure under the Fourth Amendment occurs any time a student’s movement is restricted either by physical force or exercise of authority. This would include a school official standing in front of a door and refusing to let a student leave or threatening a student with disciplinary consequences if the student leaves the room. If a student is free to walk away, the Fourth Amendment is not implicated.
In determining if a student seizure is reasonable, courts generally look at the “circumstances then existing and apparent,” or the nature and urgency of the circumstances at the time that school officials needed to seize a student. Courts also generally consider the same types of factors as they do with student searches. The more compelling the reason that school officials have for detaining a student, the more likely that the seizure will be deemed reasonable. For example, the detention of a student suspected of having a weapon or drugs will be allowed with significantly less evidence than would ordinarily be required if the student were suspected of possessing a stolen library book.
When it comes to seizing or restraining a student for safety reasons, a short-term seizure is generally reasonable if the school official who is restraining the student does not use excessive force and releases the student as soon as it is safe to do so. However, sometimes it is necessary for school officials to restrain students for an extended period of time in order to assure the safety of that student and others. In these cases, many states require school officials to have specialized training. This specialized training then makes the long-term restraint reasonable.
Consequences for Improper Searches and Seizures
At this point, the reader may ask why conducting an appropriate search or seizure is so important. The answer is that evidence obtained pursuant to an improperly conducted search or seizure cannot generally be used to discipline a student. Furthermore, law enforcement personnel may also have their hands tied when attempting to follow up on criminal activity in cases where the underlying search or seizure by school officials was not conducted properly. Also important to note is the fact that lawsuits involving violations of student constitutional rights are brought in federal court, where there are fewer immunities and defenses available to school defendants and monetary judgments tend to be higher than in state court.
Whenever school officials undertake a search of a student or a student’s possessions or attempt to restrain a student’s movement (seizure), they must have reasonable suspicion to do so. The courts have generally given school officials considerable latitude to conduct searches or detain students in situations where there is an imminent threat to health or safety. The courts have also made it clear, however, that searches and seizures cannot take place based on a hunch or mere speculation. It is critically important that school officials conduct school searches and seizures in a “reasonable” manner in order to protect themselves and others and to preserve evidence.
In conducting searches, a good reference is the “Four ‘I’s of Inception” (Infraction, Intrusiveness, Informant information, and Individualized suspicion) and the “Two ‘S’s of Scope” (Search objective and Seriousness of the allegation).
Case Study #3:
Matt Mischief and the Blundered Search
Lynne is a freshman student at
This case study certainly gives us a lot of material with which to work! Before we look at the facts, however, I think it is important to make two general observations. First, I want to point out a bit of a red herring in the above scenario. The fact that no knife is ever found is irrelevant to the situation. What is important is that the search itself is conducted properly. If a proper search is conducted, the fact that the contraband in question is not located does not invalidate the search or increase the liability of the party who conducted the search.
Second, it is important to remember that the Fourth Amendment is only implicated if the student in question does not consent to the search. If the student allows the school official to search or agrees to empty out his or her pockets, the student has forgone Fourth Amendment protections. Hence, it is critical for a school official to first ask the student to consent to the search. If consent is obtained, Fourth Amendment concerns are mitigated.
Okay, now on to the facts of this specific case study.
As we discussed above, searches of students at school must be reasonable at their inception and reasonable in scope. Both of these elements are required in order for a search to withstand Fourth Amendment scrutiny. In terms of being reasonable at its inception, it is important to determine if the principal has enough information or evidence to search Matt’s backpack. Here, it is important to remember the four “I”s of inception. Again, these are the primary factors that a court will look at to determine if the search was properly initiated and include the following: (1) the nature of the infraction, (2) the intrusiveness of the place to be searched, (3) the quality and quantity of informant information, and (4) individualized suspicion.
In this case, the nature of the infraction is quite serious: we have a student potentially with a knife at school. Likewise, we have individual suspicion: there is only one suspect. In terms of informant information, it is important for the principal to access and document the credibility of Lynne. Due to the seriousness of the infraction, the search can probably proceed if Lynne is at all credible. In other words, given the seriousness of a knife potentially being at school, there probably is not time to conduct a full-scale investigation, including interviewing other students. However, had Matt been bragging about having a stolen library book, it would be advisable to get additional information before conducting the search.
In turning our attention to the scope of the search, it is again important to remember the two “S’s” of scope: (1) the search objective, and (2) the seriousness of the allegation. With respect to the search objective, we need to assure that the object of the search (the knife) could reasonably be found in the places that are being searched. Here again, it is reasonable to believe that a knife could be in the student’s backpack. However, it may or may not be reasonable to believe that the student could hide the knife on his person in areas that would require him to remove almost all items of clothing.
Where this search probably fails, however, is in the second prong of the scope test, or the seriousness of the allegation. Although a knife is certainly a serious matter, the manner in which the student was strip-searched was most likely excessive. I am not suggesting that a well-executed strip search would be deemed unreasonable. However, the manner in which the principal executed this particular strip search appears, on its face, to be clearly excessive. The principal could probably have let the student keep a majority of his clothing in tact during the search. At the very least, the student should have been given an article of clothing to put on for every article of clothing he was asked to remove.
Lastly, it is worth mentioning that the principal should, for his own protection, have had another person in the room at the time the search was being conducted. Additionally, both the principal and the observer should be the same sex as the student being searched to further assure student privacy.
I now turn to Jim, who will certainly have some good advice regarding the practicality of how the search was handled by the principal.
As a school administrator one of my primary jobs is to protect the safety of everyone: students, staff, visitors, stray dogs, and even myself. Can they be too safe? That’s a hard one to answer, but we all agree, especially in this day and age, that safety is paramount in the operation of any public activity or gathering. So when Lynne comes to my office and, with some reluctance, offers the suggestion that Matt has a knife, my focus becomes directed toward safety. Everything else is on hold.
Let’s go three ways with Lynne’s report. Let’s first assume we know Lynne, trust her judgment, and have no qualms about her report. That was easy. On the other hand, let’s assume we don’t know Lynne, don’t know her relationship to Matt, don’t know if she is sure about what she heard, and we aren’t convinced that her story is reliable. We just aren’t sure. And finally, let’s assume we know Lynne has some issues. She has been in trouble and a lot of her problems revolved around her various interpretations of the truth. And, we remember a verbal fight that Lynne and Matt were in recently. We think they dated once and now are no longer friends. So the question is this: what do we do based on which of the Lynnes we are talking to?
For me, there is no choice—because of the knife. Lynne #1 makes it easy. Find Matt; locate and remove the knife. Lynne #2 makes me think a little more on the way to find Matt and locate/remove the knife. Lynne #3 will really make me mad if I can’t find the knife when I find Matt. Do you hear what I am saying? You have been told a kid has a knife. You have no choice but to find Matt, then try to find the knife.
What Brian says about the quality and quantity of information when it comes to a weapon or a bomb or an attempt to kill or injure doesn’t really matter in my mind. Even if Lynne were stark raving mad, foaming at the mouth, and spinning six hula hoops while she reported that Matt had a knife, I would still go and find Matt to see if a knife exists. You can’t take threats or situations like this lightly. This is probably why I cancelled school fairly quickly when ice or snow or dangerous roads were forecast. My heart and my head always agreed that it was pretty hard to slide a bus into a ditch or into the lane of another vehicle in May, but why take the chance in January?
So far I agree with the principal in his assessment that Matt needs to be located and a search for the knife needs to begin. However, we differ from this point on. The principal seems to have a little Inspector Clouseau in him. I like to think I have watched enough Law and Order, and attended enough sessions with Brian, to know that the accused have rights and that I am subject to great scrutiny if I screw up the investigation. So, step one, find another male administrator or teacher to go with me as I search for Matt.
Let’s assume Matt is in class. So as not to draw undo attention or cause a stir, I ask my counterpart to stand in the doorway as I enter the room and quietly call the teacher aside and tell her I need to talk to Matt for a moment. I then walk over to Matt and tell him I need to talk with him briefly in the hall. I walk with Matt to the hall, and then the three of us find an area that is private and yet close to the hall to talk. One needs to prepare for the worse case options while still being fair and prudent. My first comment would be that it has come to our attention that Matt announced he had brought a knife to school and we would like to take possession of it. At that point I would ask for his cooperation in telling us where the knife is. When he says he does not have a knife, I would then ask for his backpack and tell him I am going to search for the knife. I would do so with Matt and the teacher present. I would then ask the teacher to search the backpack if I could not find the knife, just to make sure I didn’t somehow miss it.
Next I would ask Matt if he has a weapon on his person. When he says he does not, I would then inform him I need to search him to make sure there is no weapon on his body. I would ask him once more if he has the weapon and if he understands what we are doing and why.
First, in the privacy of an office, I would ask Matt to remove his shirt and empty all his pockets. I would then return his shirt and ask him to remove his shoes. Finally I would ask him to remove his pants. Unless he was wearing unusually bulky underwear that could conceal a knife taped to his leg or thigh, I would give him his pants back. If there was any chance that Matt might have a knife concealed under his underwear, I would inform him I was going to call the police and have them continue the search unless he wanted to remove his underwear quickly. As I mentioned, it would probably not be necessary to go this far with the search, but if my partner and I both felt it was necessary, we would do it.
Finally, we would walk Matt to his main locker and his gym locker. We would also contact his teachers to see if Matt has any storage areas (art cabinet, shop locker, football duffle bag), and we would proceed with a search of these areas as well. If Matt has a car, I would probably call our attorney for guidance with the search of the vehicle, after checking the school policy as it relates to cars on campus.
If, after all of this, including the responses from Matt, we feel he does not have a knife, we then begin the discussion of why he said he did. Matt can go two ways here: he can deny saying it or give us a reason. If he denies saying anything about a knife, I would hold him in a secure room and interview Lynne again. If I am sure he said it, then it is my turn to play inspector and get down to the truth. When I finally get Matt to admit he was being stupid when he joked about the knife, that is when we have a phone call to the parents about the entire situation and determine what discipline will be appropriate for the action.
Brian’s test of the 4 “I”s is helpful and important. I would like to suggest four other thoughts when it comes to weapons and/or a suspected or possible threat to safety.
§ Err on the side of safety. Very few people will be upset with you if you are insuring the safety of their lives or their children’s lives. If they are upset with you, too bad.
§ Kids are smart, but you are smarter. Don’t let them fool you and don’t give up at first blush if you are trying to find something or get some information. Think beyond the obvious.
§ Don’t be super-administrator, super-teacher, or super-anything. Don’t venture alone and don’t take unnecessary chances. Be careful at every corner and with every step.
§ “Kids will be kids” does not hold water when it comes to threats or dangerous situations. There is nothing funny about pretending to have a weapon, threatening to blow the place up, or telling someone you are going to kill them. Take these situations seriously and act appropriately.
I bet there are few teachers or administrators who have not been involved with a situation similar to this one, especially if they deal with kids in the intermediate and older ages. Many years ago we could, and did, take these things less seriously, and most of the time we were right. Not anymore. Columbine and other events have changed the way we think and the way we act, and it should also have changed the way that kids think and act, too. Kids are not oblivious to the ramifications of making threats or acting in a threatening manner, nor should we give them much leeway when they cross the line. Act fair, act quickly, but act—and then discipline.
Case Study #4:
This One Has a Nice Ring to It
Tammy Teacher recently purchased a new cell phone with all the bells and whistles. The cost of the phone was over $600, but Tammy believes that the money was well spent. One morning, Tammy showed her new phone to a group of ten students who were assembled in the classroom before the start of the school day. When the bell rang signaling the beginning of first hour, Tammy placed the phone in the top drawer of her desk. Later, in that first hour, Tammy opened her top desk drawer to get a pen and noticed that the phone was missing. Tammy suspected that one of the students to whom she was talking before class stole her phone. When the bell rang to end class, Tammy required the ten “suspects” to remain. Tammy asked if anyone took the phone, but none of the students came forward. Tammy therefore conducted a massive search for the phone by searching all ten of the students and their purses, backpacks, coats, and other effects. The phone was eventually located.
This case study is a bit vague, so let’s make a few general assumptions before we criticize Tammy Teacher. My first assumption is that Tammy is a bit light in the cranium. Who brings a $600 phone to school and puts it in her desk drawer when the bell is ringing and kids are in the room? Who buys a $600 phone in the first place? My second assumption is that there are two groups of students involved, the ten she spoke to before class and the kids in her class who may or may not have seen her put the phone away when the bell rang.
No matter, Tammy doesn’t have any proof or even reasonable evidence of who it was that took the phone. She assumes it was one of the kids she showed the phone to before class, but that is more of a hunch than an evidentiary deduction. Tammy is just guessing, and, thus, she has no right to search anything or anybody based on a simple guess.
I would have done things differently. I would have asked the ten students to stop by for just a minute after school. Then, when they came by on their own, and not because they had to, I would share with them that my phone went missing sometime after I showed it to them, and that I noticed it gone before the end of first hour. I would ask that if anyone knows anything about it, would he or she please be kind enough to help me solve the mystery. I would also tell them that I have called the police since the phone was very expensive and I learned that if anyone stole the phone he or she might be guilty of a felony. I would then proceed to call all ten of their parents and ask if they would encourage their son/daughter to talk to their friends and see if we can solve this crime outside of the police investigation, which has already been started. A little parental and peer pressure is often all you need to find the culprit—and the very expensive phone.
When a student throws a spitball at the blackboard (or is it a whiteboard or a Smartboard?), you don’t keep every student after school for thirty minutes hoping someone will nark on a friend. Group punishment for the actions of one student is as wrong as group searches when you have no idea who is even a suspect.
So, Tammy, I can summarize my thoughts on this case study rather quickly. First, you have a screw loose for bringing a $600 phone to school and putting it in your desk drawer in front of a class of kids and for even showing it to kids. Next, you can’t just assume someone is guilty of stealing the phone. Remember, even educators, who have more latitude than the police when it comes to solving school crimes, must have some evidence before they start conducting searches of property or persons. Finally, did you ever think of just calling the phone and listening for it to ring?
Tammy, I’m trying to tell you that you blew this one. Can you hear me, Tammy? Can you hear me now?
I can hear you, Jim. The case certainly is vague, but, in fact, it’s based on an actual situation that I am presently dealing with as I write this response. Only the names have been changed to protect the guilty. Clearly, Tammy’s search methods are not ideal. My comments are therefore directed at how the situation should have been handled from a legal perspective.
The first thing that Tammy Teacher should have done is attempt to solve the mystery without engaging in a search, where the students are protected by the Fourth Amendment. To do this, Tammy could certainly call the phone to see which student starts ringing or vibrating. (After all, how many of us have done this to locate our own cell phones that we misplaced!) Tammy could also ask the remaining students if she can search their bags or purses or whatever before they leave, in order to eliminate them as suspects. If a student consents to the search, it is not protected by the Fourth Amendment. However, note that in trying these methods, Tammy can only detain the students for a reasonable amount of time. If Tammy requires the students to remain for too long, it may implicate Fourth Amendment seizure concerns.
Assuming that calling the phone and searching the students who consent do not turn up the phone, Tammy should determine if she has reasonable suspicion to conduct a search of the remaining students by examining the four “I”s of inception. (Let me discuss these in a slightly different order.)
Nature of the infraction: I would say that the infraction here is not overly serious. We are not looking for a weapon or drugs. Although theft is a somewhat serious infraction, the cell phone can be replaced and no permanent damage will result if the phone is never located.
Informant information: Here, we have absolutely no informant information. No student has come forward to provide relevant information.
Individual suspicion: Likewise, we have relatively weak individual suspicion. We have a group of suspects, as opposed to a single suspect.
Intrusiveness of the place to be searched: The instant search would hopefully start with student backpacks and purses, but could quickly lead to a search of the students themselves.
Based on the above, I do not believe that there is reasonable suspicion to search any or all of the student suspects. The closer the search gets to the students themselves, the weaker the case becomes. I believe that Tammy needs to bolster the informant information by talking individually to the students in the class to determine if anyone saw anything suspicious. Second, Tammy needs to narrow the field of potential suspects. If these two things can be successfully done, there may be reasonable suspicion to conduct a search. If not, Tammy may need to eat the cost of buying a new phone.
In closing, two points are critical to make. First, if reasonable suspicion does exist to search a student, the search must also be reasonable in scope. Here, the searcher may only look in those places that it is reasonable to believe that the missing cell phone might be found. Also, Tammy must be careful that her search is not overly aggressive. A search where students are required to have private areas of their bodies examined is significantly overbroad when it comes to searching for a missing cell phone.
Second, and equally as important, the fact that Tammy Teacher eventually found the phone in the above scenario is absolutely irrelevant to whether or not the search was conducted properly. Sure, Tammy will get to keep her phone, but the manner in which the phone was recovered will probably make it impossible to punish the thief, as improperly obtained evidence can generally not be used as a basis for discipline. Additionally, Tammy may personally be liable for civil damages sought by parents of the students who were illegally and improperly searched.
Want to see the book’s Table of Contents?
Education Communication Unlimited