The Fourth Amendment to the U.S. Constitution guarantees the right to be free from unreasonable searches. Made applicable to the states by the Fourteenth Amendment, the Fourth Amendment also applies to searches of students in school by school officials (New Jersey v. T.L.O., 1985).
New Jersey v. T.L.O.
In the case of New Jersey v. T.L.O., a teacher discovered a student smoking in the bathroom, in violation of school rules. The student denied smoking, so the teacher took the student to the vice principal, who opened the student's purse. Inside, the vice principal found a pack of cigarettes and a package of rolling paper normally associated with marijuana use. The vice principal then searched the purse thoroughly and found marijuana, a pipe, plastic bags, a large sum of money, an index card with names of people who owed the student money, and two letters that implicated the student in drug dealing. Based on this evidence, the student was charged with a criminal drug violation, but she moved to suppress the evidence claiming that the search violated her Fourth Amendment right.
In response to the student's claim, the school board argued that the Fourth Amendment does not apply in schools because school officials act in the place of parents while children are at school. The Court, however, held that school officials act as the representative of government, not as parental surrogates, thereby affirming the Fourth Amendment's application to students in public schools. Even so, the Court ruled that the unique need to maintain a safe learning environment requires a lessening of the restrictions normally imposed for public officials to conduct searches. Therefore, school officials need not have probable cause to search students, only reasonable suspicion.
Reasonable suspicion exists if the search was justified at its inception and reasonably related in scope to the circumstances that justified the search initially. A search is justified at its inception if reasonable grounds exist to suspect that the search will reveal evidence that the student violated the law or school rules. A search is permissible in scope if the measures used are reasonably related to the objectives of the search and not excessively intrusive in light of the student's age, gender, and the nature of the offense. Based on this standard, the Court held that the searches conducted by the vice principal were constitutional.
New Jersey v. T.L.O. is an important case because it establishes the right of school officials to search students based on reasonable suspicion, not probable cause. Although the case also recognizes the student's right to privacy, the Court balanced that right against the school's need to provide a safe learning environment. Though the standard set by New Jersey v. T.L.O. remains the law today, the following cases, all decided since New Jersey v. T.L.O., debate what constitutes reasonable suspicion.
- The presence of four students huddled together, one with money in his hand and another with his hand in his pocket, does not create reasonable suspicion (A.S. v. State of Florida, 1997).
- 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 the student's pockets and book bag (State of New Hampshire v. Drake, 1995).
- A report made by two students to a school official that another student is in possession of a gun at school constitutes reasonable suspicion to search the student and his locker (Commonwealth v. Carey, 1990).
- An experienced drug counselor's observation of a student who appears distracted and has bloodshot eyes and dilated pupils justifies a physical assessment (considered a search) of the student's blood pressure and pulse (Bridgman v. New Trier High School Dist. No. 203, 1997).
- The fact that the search of all but one student in a class fails to reveal allegedly stolen property gives school officials reasonable suspicion to search the remaining student (DesRoches v. Caprio, 1998).
- The odor of marijuana in the hall outside the cafeteria does not provide reasonable suspicion to search all student backpacks, purses, and pockets (Burnham v. West, 1987).
Although the legal standard or test is clear, the application of the test to specific facts is not always so clear. The Court has even noted that “articulating precisely what reasonable suspicion means . . . is not possible. . . . Reasonable suspicion is a commonsense, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (Ornelas v. United States, 1996).
Policy Considerations
Law Enforcement Assigned to Schools
Law enforcement officers assigned to schools (often called school resource officers or SROs) must have probable cause to search students in school, just as they would need outside of school. A problem arises, however, when school officials ask law enforcement to search students on behalf of the school administration or vice versa. Which standard applies to that search: reasonable suspicion or probable cause? Currently, little case law exists on this point, though some cases have attempted to address the issue, including the following examples:
- The mere presence of a law enforcement officer while a school official conducts a search does not trigger the need for probable cause (Florida v. D.S., 1996).
- At least one court has held that police officers who perform searches at the request of a school administrator are subject to the lower, reasonable suspicion standard (In the Interest of Angelia D.B., 1997).
- A Florida state appellate court applied the reasonable suspicion standard to a law enforcement search in school, stating that the lower standard applies because a school administrator initiated the investigation (State of Florida v. N.G.B., 2002).
- At an off-campus location for an auto shop class, the school liaison officer from the city police department searched a student. The court applied the reasonable suspicion standard rather than the probable cause standard to this search even though the search was conducted by a police officer and took place off campus (Shade v. City of Farmington, 2002).
- Searches conducted by school officials acting as agents of the police because the police lack the higher standards of probable cause are unconstitutional (State of New Hampshire v. Heirtzler, 2000).
One way for law enforcement to avoid the potential problem of making school officials their agents, and therefore subject to the higher standard of probable cause, is to have students, teachers, or others report information directly to school officials. This direct reporting removes the possibility of school officials becoming agents of law enforcement. However, school officials should not hesitate to have law enforcement present during a search or have them conduct the search in order to maintain safety and order.
Consent
Any time a school official or law enforcement officer lacks the necessary legal standard to search (reasonable suspicion or probable cause), he or she may ask the student for his or her consent to search. Consent, to be valid, must be voluntary. With this in mind, prior to asking for consent, the administrator or law enforcement officer should consider the student's age and mental capacity, and the context. If a student gives consent to search, the search must be conducted only as far as the student has consented. For example, if a student consents to a search of her locker, you may not search her purse without gaining additional consent (unless, of course, the search of the locker provides reasonable suspicion or probable cause).
Discipline or Conviction?
Even when a search is unconstitutional, the school administration may still use the fruit of the search as evidence in a disciplinary hearing, although it will be inadmissible in a criminal trial. However, if a school official knowingly and willfully conducts an illegal search, he or she may lose immunity from suit. All too often, school officials are confronted with decisions that pit the preservation of school safety against the individual's right to privacy. Increasingly, and in light of several recent school tragedies, courts are expanding the right of school officials and SROs to conduct searches at school in order to maintain a safe environment that is conducive to learning.
Practical Considerations
As the principal, Wayne has the responsibility to provide a safe environment for all students. Consequently, he must balance the rights of one student against those of hundreds of other students and faculty members who work in the building. As usual, Wayne does not have long to think about his response to a crisis; therefore, he must quickly prioritize his steps.
Wayne first must understand his school board's policy regarding student searches. If he has dealt with this sort of situation frequently, he should be well aware of his legal and procedural parameters. If he has not conducted a search or had related training, he should get in touch with the central office to seek advice from the contact for student discipline, or simply call another principal who has experience and respect. A seasoned principal's experiences and advice frequently provide the best crash course on a difficult issue. After obtaining advice, however, Wayne must realize that, ultimately, the decision is his; a school cannot be administered from a manual, the central office, or by a colleague. Wayne might also think through a mental or written checklist:
- Where is the student now and what will his/her schedule be when he/she arrives?
- Who in the building needs to be informed about this situation?
- Who will initially approach the student and bring him/her to the office?
- Where will the student be placed and who will supervise him/her?
- Who will call his/her parents?
- What will our response be if the parents do not want the student searched or try to check him/her out of school?
- Should the sequence of searches be (1) locker, (2) backpack, and (3) personal?
- What specifically am I looking for?
- Will a police officer be present when the searches are conducted?
- Do I have reasonable suspicion to search this student?
- Am I acting as an agent of the police or of the school?
- How far am I willing to go in conducting a personal search?
- What will I do if contraband is found?
- What administrative action is dictated by student codes of conduct?
- What legal action is required if potentially illegal items are found?
- How will I respond if there are questions from parents or the media?
- What intervention strategies are available to help this student and his/her family?
Although Wayne's personal checklist may include many other items, the key for any principal is to plan ahead. In this particular case, Wayne may want to search the locker before talking with the student. The findings at that stage will dictate the course of the conversation leading up to the backpack and personal search. The principal should always use his or her rapport with the student to try to get to the truth. If the student refuses to talk or denies any fault, then he or she may be requested to remove coats and other outer garments. A “pat down” may be deemed appropriate and, if this is the case, an observer should be present. Although he or she may not conduct the search without probable cause, a police officer is a great resource in these situations. If parents or the student object to the search, the principal has the right to conduct it with reasonable suspicion. He or she should avoid a strip search and turn the situation over to the police if there is fear of imminent harm. The principal should also distinguish between administrative and criminal action. Though the student's behavior may not rise to the level of criminality, it may certainly warrant suspension or a recommendation for expulsion.
Postscript
Given the legal standards and policy considerations, should Wayne search Johnny? Sergeant Murphy does not have probable cause to search Johnny. Does Wayne have reasonable suspicion to search him? The best approach in this instance would be for Wayne to talk directly to Johnny's friend, either by phone or in person. If this information leads Wayne to believe that searching Johnny and/or his belongings will reveal evidence of the bomb threat, then Wayne has reasonable suspicion to conduct the search. In addition, Wayne or Sergeant Murphy could ask for consent to search Johnny. As always, it is entirely permissible for the SRO to be present during the search if Wayne feels there is a possible threat to life or limb. Once again, given the heightened interest in school safety, Wayne should err on the side of conducting a good faith search.
Crisis Management and Planning
The hurricane season is in full swing for Elk Ridge Elementary's area. Frequently there are no big storms at all, but occasionally a Fran or Bertha hits and causes millions of dollars in damage that reaches far beyond the coast. Though the summer has been mild and the Friday of the opening week of school seems ideal, there are warnings of late afternoon storms and potentially heavy rain due to the hurricane currently swirling well south of the school, which houses grades K-5—a total of more than 500 students.
Debbie Olson, Elk Ridge's principal, is supervising the cafeteria when Vera Samson, the school secretary, brings her a note indicating that she has heard on the radio that the hurricane is turning in their direction. Debbie returns to her office and makes a call to the district administrative building to see if they've received any current information on the weather. The public information officer indicates that they are in touch with public safety personnel and will let her know if there is any other news.
Debbie periodically monitors the weather channel while working with the normal flow of students, parents, and teachers. Around 2:15 p.m., with the 3 p.m. closing bell approaching, some of the buses start to roll in. At 2:20 p.m. Debbie receives a call from the central office public information officer informing her that the National Weather Service has released a bulletin calling for a severe weather watch in their area. Included in the bulletin is a warning for heavy rains, high wind, and potential tornadoes touching down between 2:45 p.m. and 4:15 p.m. As soon as Debbie hangs up the phone, she steps out of her office to greet parents who are coming to get their children. Some have already heard the news and are spreading it quickly to others. Bus drivers are gathering near the front loop; several of them comment that they will not drive in such conditions. Meanwhile, teachers passing through the front office begin to get the news, and word travels quickly through the building.
It is 2:45 p.m. and Debbie has storms on at least two fronts: outside and inside the building. Should she hold the buses? What should she do with the students? What should she tell parents? What must be done to ensure the safety of both students and adults? What is the plan that must be implemented in the next 15 minutes?
Background Discussion: Schools and Crisis
The Columbine school shootings and the numerous other tragedies that have plagued schools in recent years have generated an avalanche of material, policies, training, and equipment designed to make schools more secure and safe. Although the outcome may differ, the planning required for handling these events varies little from what is necessary following a breakout of a potentially deadly disease, a fire in or around the school, a hostage incident, a gas leak, an escaped prisoner from the local detention center, an explosion in the chemistry lab, an estranged parent taking a child from school, or a bank robbery taking place down the street.
Crisis management and planning in school must be a constant process and priority, even with the knowledge that the steps designed will be applied to an as-yet-unknown event or circumstance. This is not a new phenomenon for schools. The grandparents of today's students remember the drills taught during and after World War II. Civil defense systems were in place to warn school administrators of potential attacks, and students were taught to line up, move quickly to designated areas, and assume safe positions. Today, schools are typically required to administer bus evacuation drills. Where weather is a factor, hurricane or tornado exercises are practiced on a routine basis. In one area, flash flooding may be a potential problem, and in another, the threat of an avalanche may loom; whatever the crisis, the common thread is the need to plan ahead and to be fully aware of how a response plan will be executed if the need arises.
Legal Considerations
Students who attend public school typically are not there because it is a legal privilege, but rather because it is a requirement. States, through compulsory attendance laws, require young people to be in school. This requirement creates an added degree of responsibility for students' safety and welfare. Although “in loco parentis,” at least in the courts, has become a less readily accepted concept, schools' liability for prudent preparation and action has only grown. A case of meningitis or tuberculosis must be confronted with a swift response that includes health officials, the media, and any community organizations where there may have been contact with the involved students, as well as messages to school patrons that are both specific and protective of the rights of those students. On a more common note, a fight in the cafeteria at a middle school can escalate into a real crisis. What is the principal's legal responsibility to control the potential variables in a crisis within the building, on the campus, and possibly even within the community?
Federal Law
The Environmental Protection Agency, Occupational Safety and Health Agency, Communicable Disease Center, and Federal Emergency Management Agency are all examples of federal agencies that may respond to a crisis. These specific-purpose departments also assist the work of federal, state, and local law enforcement agencies. In the reauthorization of the Elementary and Secondary Education Act and related federal legislation specific to schools, the Safe and Drug Free Schools provision (20 U.S.C.S. §7114, 2002) requires funding for a “‘crisis management’ plan for responding to violent and traumatic incidents on school grounds.” A center shall compile information about the “best practices in school violence, intervention, and crisis management, and shall serve as a clearinghouse for model school safety program information” (20 U.S.C.S. §7138, 2002).
State Law
State codes, regulations, and policies contain an ever-increasing number of provisions for crisis management and planning. For example, in California (Cal. Ed. Code §32239.5), the code related to the “school violence and response task force” calls for membership consisting of people with expertise in crisis management. In Florida (Fla. Stat. Ch. 229.8347, 2001), the code outlines strategies to maintain schools that are safe and secure, including faster coordination among schools through the use of law enforcement personnel and “crisis management teams.” In Illinois (20 ILCS 4027/25), the Safe to Learn Program requires a component in crisis management.
In Virginia (Va. Code 22.1-279.8), the code dictates that each local school board shall require every school it supervises to have a written school and emergency management plan. The law defines the plan as “the essential procedures, operations, and assignments required to prevent, manage, and respond to a critical event or emergency, including natural disasters involving fire, flood, tornadoes, or other severe weather; loss or disruption of power, water, communications, or shelter; bus or other accidents; medical emergencies; student or staff member deaths; explosions; bomb threats; gun, knife, or other weapons threats; spills or exposures to hazardous substances; the presence of unauthorized persons or trespassers; the loss, disappearance, or kidnapping of a student; hostage situations; violence on school property or at school activities; and other incidents posing a serious threat of harm to students, personnel, or facilities.”
Policy Considerations
Planning, preparation, and practice are the three major components of crisis management. Realizing that the specific event to be confronted is unknown, the planning must be flexible enough to adapt to many different conditions, yet specific enough to provide direction for all who may be involved. Preparation includes the identification and acquisition, if necessary, of resources, both human and material, that will be essential in dealing with the emergency. Practice is the training and internalization of the plan that is critical for eliminating the “panic factor” and carrying out the plan as designed. The emotion brought on by a crisis is obvious and understandable; however, a well-conceived, rehearsed, and implemented plan brings order to a potentially chaotic situation. The following is a checklist of questions to consider when forming a crisis management plan:
- Does your district have a prototype crisis management plan?
- Do you have guidelines for crisis planning?
- Do you have easily accessible manuals that provide important phone numbers and clearly defined steps to take?
- Does your school board have policies related to crisis management and planning?
- Do you have maps of the building and grounds and do staff members know their individual responsibilities in the event of a crisis?
- How do you communicate a crisis to the staff?
- Who is to be notified when there is an emergency?
- What are the state and federal guidelines related to crisis management?
- Do you have different requirements based upon the nature of the crisis?
- What community agencies are critical partners in any crisis?
- Do you address crisis management in teacher and student handbooks?
- Do you know when to refer or defer to someone else?
- What are your sources of information and advice before, during, and following a crisis?
Practical Considerations
As the principal, you are much like the ringmaster in the middle of a circus. Your strength lies not in trying to be all of the acts, but rather in knowing exactly what acts are under your “tent.” Even though emotions may run high—fear, apprehension, loss—the crisis management plan provides the security that is necessary to minimize panic and enhance safety. Commit as much of the plan as possible to memory, but also write down the steps to be taken and contact numbers on an index card and put it in your pocket or purse. Every pilot uses a written checklist to pre-flight the plane, no matter how many times a day he or she may fly. Pilots also acknowledge that most of the errors in flying are made on the ground, before the plane ever gets into the air, so prepare and use your checklist and be faithful to your plan to avoid errors.
In reality, Debbie Olsen's first decision is to determine where students and staff will be safer, on the road or at school. She will likely want to make this decision in consultation with a designated staff member at the central office; however, if there is no such designated staff member or the conditions do not permit this contact, then she must make the decision alone. She cannot stop parents from taking their children out of school, but she can ask them to stay in the building until the crisis has passed. It is also critical to quickly get to the bus drivers, who can act as additional resources to work with parents and students, or, if left out of the loop, can be a conduit of misinformation to those coming in and out of the building. Debbie needs to have key staff members carry the best, most up-to-date information that she has to others and provide periodic updates as conditions change. A clear and honest one-minute briefing disseminated through key people or the intercom can save hours of rumors and rancor.
Debbie may also want to enlist some of the arriving parents to help teachers and staff comfort and support students. Everyone should be moved to those areas in the building that have been designated as safest in the event of a tornado or hurricane. If possible, items that could potentially become flying objects should be secured and glass should be avoided. Via a previously designated news outlet (usually a radio station), parents should be notified if the decision has been made to keep students at school beyond the normal hours. When the storm has passed, Debbie should contact the police or fire department to determine if it is safe to release students and the buses. The conditions in the community may dictate that students stay at the school for a much longer period of time. In cases where the school literally turns into a shelter, the plan must also reflect coordination with community emergency groups that focus on public safety, shelter, and aid.
Postscript
Debbie's first and primary objective is safety. Parents and bus drivers may offer a variety of opinions about what to do, but the principal must focus on two areas: if parents want to sign out their children, then she should permit it, and the decision that she makes is for the school, not an individual. In her 15 minutes, she should try to get in touch with the police department to get a firm recommendation regarding traffic and highway safety. This call alone may provide a decision. She should also notify staff and teachers to take young people and other adults in the building to places designated as safe during storms. If all of her sources, including the central office, have not provided adequate information to make a decision, Debbie should act prudently by holding everyone and letting the buses be late. A concrete building is a much lower risk than rolling buses in difficult traffic. Remember, you don't make a “bomb threat” decision by committee.
Relationship with Law Enforcement
It is Saturday and Al Shelton, the principal of Apple Valley High School, hears his phone ring shortly before midnight. The call is from the deputy chief of police, who informs the principal that two of his students have been shot and killed at a party in a nearby community. A 15-year-old sophomore girl and a 17-year-old junior boy were hit by bullets randomly fired from an AK-47 by a student from a neighboring school district who was upset that he had not been admitted to their party.
The parents who live in the home stated that they were having a birthday party when a carload of students arrived and were turned away. Students at the party indicated that there were about 200 attendees and that each person had been asked to pay a $2 cover charge. When the new arrivals were turned away for refusing to pay the fee, one of them—a 16-year-old boy—went back to the car, pulled out an AK-47, and sprayed the house with bullets. The boy and his companions then jumped into the car, later determined to be stolen, and fled the scene. Approximately one hour later, police found the car and arrested the boys. When the 16-year-old was asked why he had fired into the house, his only response was, “It's my gun, and I'll do what I want with it.”
While the community mourns and tries to overcome its shock, Al Shelton and his staff spend Sunday afternoon and evening preparing for school to open on Monday morning. With counselors, social workers, and psychologists manning tables in the library and cafeteria, hundreds of students start arriving in search of answers as to why two of their classmates lost their lives in such a senseless manner. Even though the party was not a school-related activity, its tragedy has come to the front halls of Apple Valley High.
Background Discussion: Schools and Law Enforcement
The development of a strong relationship between schools and law enforcement agencies does not begin with a midnight call from the local precinct. Police have always been in and around schools—supervising at ball games, speaking to students, and dealing with crises. A new breed of policemen and women—the school resource officers (SROs) mentioned earlier in this chapter—continues to shape this relationship. Some schools hire guards or security personnel and others have their own “police force,” but most schools in America rely on the strong communications and trust established with their local police or sheriff's department.
Customary discussions between police and schools have included the issues of search and seizure, visibility on school grounds, communication of student arrests and charges, handling of potential evidence, response time to critical incidents, and reasonable suspicion/probable cause. This dialog must now also include community policing, shared responsibility on campus, prevention, “intelligence gathering,” joint community responses, and collaborative policies such as zero tolerance-based initiatives. Police leaders now understand that large numbers of their citizens are housed daily in one kind of institution: schools. In turn, educational leaders, having recognized the value of the training police have in prevention techniques, are looking more and more to the police as a resource.
With these more complex components and responsibilities, law enforcement agencies and schools must also begin to develop written “memoranda of understanding.” These statements of roles and responsibilities can highlight the obvious, such as laws and regulations, as well as the typically gray areas associated with administrative style and interpretation. Clearly delineated responsibilities and an open communication system permit law enforcement personnel and school administrators to focus jointly on problems rather than getting hung up on procedures.
Legal Considerations
Federal and State Laws
Depending on the nature of the allegation, a variety of federal agencies that have law enforcement units could be engaged with a school. The U.S. Department of Justice, for example, has broad police powers and has provided leadership for numerous prevention and intervention programs. The Department of Justice's Community Operated Policing Services (COPS) has developed grants for police agencies and organizations, awarding $5 million in 2002 to 69 agencies in 27 states to increase school safety. This “Secure Our Schools” funding has provided for metal detectors, locks, lighting, and other supportive technologies. COPS also awarded $670 million to hire 5,900 SROs. In 2002, COPS Director Carl R. Reed stated in the release of funds, “Creating the safest schools possible is a priority shared by the law enforcement community, educators, and the public.”
A graphics student who creates bogus $20 bills as a class project may bring a visit from the Treasury Department, but any number of government agencies, from the U.S. Customs Service and U.S. Postal Inspectors Service to the FBI, ATF, or Secret Service, may be involved with schools as well. In the fall of 2002, two snipers in the Washington, D.C., area took the lives of several people and threatened that “children [were] not safe.” Local, state, and federal agencies in Virginia, D.C., and Maryland worked together to catch the suspects. They also held briefings for school superintendents regarding the progress of the case and provided information that might influence their decisions. School divisions in the Richmond, Virginia, metropolitan area, for example, were closed on a Monday following a Sunday afternoon briefing with state and local police.
The decisions of school administrators, however, were not made simply because of a public safety directive, but rather because of honest, open communication predicated by longstanding relationships and structured plans developed prior to the crisis. A testimony to the value of agreements between police and educational leaders followed this tragedy when Penny Berg-Nye, a principal in Charles County, wrote to the Washington Post thanking the state and local police of Maryland on behalf of all of the principals of Charles County Public Schools.
State initiatives have raised the importance of school/police partnerships by placing language specifically addressing those partnerships into codes and regulations. California is a particularly good example of this trend. There, the Department of Education and the attorney general's office created the School Community Policing Partnership Program. Further, in 2002, as established by Education Code Section 32296.3, the state awarded $10 million in grants to school districts that demonstrated collaboration among schools, police, and community patrons. Each grant included a provision for a “letter of agreement” signed by each of the involved parties. Also in California, the California Safe Schools Assessment compiled data about drug and alcohol offenses, crimes against persons, possession of weapons, and property crime. California, however, is by no means the only state with such initiatives. In New York, the state police, governor, and legislature worked to establish a network of school/community outreach coordinators whose primary purpose was to raise the level of communication between key stakeholders. Such initiatives demonstrate the importance currently being placed on joint planning and the sharing of information as critical components of crisis prevention.
Policy Considerations
The responsibilities of law enforcement officers assigned to schools are reviewed earlier in this chapter. However, the larger operational context for school/police relations is forged through public policy and the aforementioned memoranda of understanding. Perhaps the greatest challenge to a strong working relationship between law enforcement and school administrators is the failure to understand who is responsible for what. In Pinellas, Florida, for example, a conflict arose from a disagreement between a principal and an SRO over an incident involving a teacher. The principal considered the issue administrative, whereas the SRO perceived it as criminal. The principal faced obstruction of justice charges until the state attorney general decided that he should not be charged. The St. Petersburg Times reported on June 27, 2001, that, as a result of this challenge, a committee of “lawyers, principals, educators, and law enforcement officers” had been charged with writing a “memorandum of understanding.” The article also included a comment from a sergeant in the Pinellas County sheriff's office regarding the situation: “You have two professions that have to come to terms with each one's responsibility.” The director of operations for the school district also noted, “The principal really has no direct authority over the SRO, but it needs to be a collaborative relationship.”
Although the wording of a memorandum of understanding may be broad and encompassing, the results are likely to be very specific. In Alexandria, Virginia, for example, police and school officials were concerned about school bus safety, particularly the operation of vehicles around buses. In an attempt to address this concern, the superintendent of schools and the chief of police drafted a joint letter to go out to the community containing tips for motorists. Following the shooting in Littleton, many communities joined together, as in Hamilton, Ohio, to share “what-if” scenarios and to come up with possible policy changes to address them. The Rocky Mountain News (January 1, 2003) reported that because of the Columbine incident, the legislature would close a loophole in Colorado law by introducing a measure that would permit police to share information with school officials.
Policy concerns of this nature are so pervasive that our neighboring countries have also addressed the issue. In 2000, the Canadian Hastings and Prince Edward District School Board added a policy on police involvement stating that “the Board recognizes its responsibilities to the students enrolled in its schools and the lawful authorities.” Clearly, state and local policies are starting to reflect the need for school officials and police departments to strengthen the ways they work together.
Practical Considerations
Unfortunately, schools cannot be protected from the potential of criminal activity; consequently, there must be systems in place that serve to detect the activity when it occurs and complement rather than compromise any resulting investigation and prosecution. At the same time, however, principals, teachers, and superintendents are responsible for protecting the rights of their students. If not approached carefully, these dual responsibilities can potentially create conflict. In order to avoid such discord, the leadership of the school and the police department should work to determine who is responsible for what prior to facing a critical incident. The following questions may help administrators and law enforcement officers make these determinations.
- Does the school district have a memorandum of understanding with the police department?
- Are the legal responsibilities of law enforcement and school personnel clearly defined?
- If law enforcement officers are assigned to the building, what is their role in non-criminal areas such as discipline?
- Has the district developed standard operating procedures for dealing with potentially criminal activity?
- Has training been provided for school personnel?
- Has training been provided for police personnel?
- Has a communications system been established with the courts?
- Have judges and police been invited to the school to speak to students about criminal behavior and its consequences?
- Have police and school personnel met with community groups to discuss their joint efforts?
- Has the school board or board of education put into policy their intent regarding school/police cooperation?
- Do state laws and local ordinances permit schools and police to share information?
- Does the school have a code of conduct that has been reviewed by the police department?
- Does the school consistently refer to the police all incidents that may be illegal?
- Does the police department consistently refer to the school district any administrative issues that may be detected in their investigations?
- Do school and police officials meet regularly to review and analyze data that may be of common interest, such as juvenile arrest statistics, truancy, dropouts, weapon possession, drug and alcohol use, and assaults?
Postscript
Even though the incident that Al Shelton, his students, and his staff members are dealing with did not occur in the building or on school grounds, it is still something that they must confront. Because Al has a good working relationship with the police department, he was notified immediately about the tragedy, giving him time to plan for the emotional and psychological distress that would come to school on Monday. He was correct in pulling his team together on Sunday afternoon to form such a plan, and he accurately anticipated the need for counselors, psychologists, social workers, and professionals from the community who could provide students and staff with a sympathetic ear and words of encouragement. Al's job is hardly over, however. He also will need to assist the police with information that might help them to determine the “who and why” of the crime.
Relationships of the kind Al shares with the police department and his staff members are rarely forged in the middle of the night when a terrible, unexpected incident occurs. Al and his colleagues planned well. And even though their preparation could not offset a tragic loss, it proved critical for those left to deal with the incident's aftermath.
Random Drug and Alcohol Testing
Asheville is a small, rural county with about 1,000 public school students. About a year ago, the chair of the school board became concerned about drug use among the local high school's students and young teachers. The chair's concern was based on a sudden rise in alcohol- and drug-related disciplinary offenses and the local sheriff's report that a new designer drug had hit the county and was very popular among teenagers and young adults. Also, the chair's daughter reported to him that several of her friends had begun experimenting with drugs.
Based on this information, the school board passed a random, “suspicionless” alcohol and drug testing policy that went into effect for the current academic year. The policy requires random alcohol and drug testing of all high school students—though not middle school students—and all candidates for employment. All was going smoothly, and the community seemed to support the policy, until Lawrence Hegel, the high school principal, randomly selected Mary Wharton, a 10th grade student, and Karen Jordan, a potential drama teacher, for the test.
As dictated by policy, Mary and Karen were called to the school nurse's office where they were asked to provide a urine sample. The nurse explained that she would wait outside the door and listen for the sound of urine, but that she would not be present in the bathroom stall with Mary or Karen. The nurse further explained that the urine would be sent to a lab to test for illicit substances only. Additionally, in accordance with school policy, the nurse gave Mary and Karen the opportunity to confidentially disclose any prescription or non-prescription medication they might be taking that could affect the results of the test. Mary refused to urinate in the cup and was consequently suspended for five days. Karen took the test, but later talked to the local education association about suppressing its results.
During the suspension, Mary's parents filed suit against the school board for violation of their daughter's Fourth Amendment right to be free from unreasonable searches. The school board attorney, Derrick Bayliss, advised the board chair to settle the case. Derrick had informed the school board a year ago when the policy was first drafted, and tells the members again at an emergency meeting to discuss the Mary Wharton case, that the policy is flawed and will not pass constitutional muster. Derrick, unsolicited, advises the board to “tell the employee that the test results will be trashed.” Is the school board policy constitutional?
Background Discussion: Student Alcohol and Drug Testing
The type of testing at issue in this section is random or “suspicionless” testing of students via a urine sample for alcohol and/or illicit drugs. Testing urine for drugs or alcohol is considered a search under the Fourth Amendment. This type of search is highly controversial because it involves a bodily fluid, is legally complex, and does not involve individualized suspicion of wrongdoing, something usually required for a search to be deemed reasonable under the Fourth Amendment. However, just because the search is suspicionless does not mean it is unjustified; exceptions are warranted when special needs exist, beyond the normal need for law enforcement.
Legal and Policy Considerations
Federal Law
In 1985, the law recognized that school children have lower expectations of privacy than adults because of the need to protect and educate them, and because they are already subject to routine health screenings such as immunizations and scoliosis checks.
The Fourth and Fourteenth Amendments to the U.S. Constitution provide students the right to be free from unreasonable searches and seizures. However, as discussed in the “Search and Seizure” section, the standard for searches of students in schools is “reasonableness.” The T.L.O. case held that the unique need to maintain a safe learning environment requires a lessening of the restrictions normally imposed for public officials to conduct searches. Therefore, school officials can search students based on reasonable suspicion. This analysis also applies to individual students suspected of being under the influence of alcohol or drugs.
Until 1995, the U.S. Supreme Court had not addressed suspicionless drug testing in schools. That year, the Court gave schools the ability to randomly drug test student athletes based primarily on the fact that the school policy “was undertaken in furtherance of the government's responsibility, under a public school system, as guardian and tutor of children entrusted to its care” (Vernonia School Dist. 47J v. Acton, 1995). The Court did not authorize all school drug testing, but rather embarked upon a fact-specific analysis of the intrusion upon the student's Fourth Amendment right and the promotion of a legitimate government interest. The Court held that the Vernonia school district drug testing policy was constitutional because the invasion of the student's privacy was minimal compared with the compelling government interest to protect students by deterring drug use. This determination was based on the following facts:
- The students were participating in a voluntary, optional activity, that is, sports.
- Student athletes' activities are already highly regulated.
- Student athletes had lower expectations of privacy because they dressed and showered communally.
- Athletes performing under the influence of drugs would pose an increased risk of injury.
- The student athletes were role models for the other students and known drug ringleaders.
- The testing procedures were minimally intrusive and fair.
- The test detected only specific illicit drugs rather than unrelated medical facts, such as pregnancy.
- The policy provided a confidential process for disclosing the use of prescription drugs or other medication that might affect test results.
- The consequences of the test were not punitive, but rather rehabilitative. Law enforcement was not notified of positive results and no school discipline was imposed.
Based on these specific facts, school districts across the country began to implement drug testing for athletes. However, some districts attempted to extend Vernonia to other extracurricular activities as well.
Until 2002, the courts were split over suspicionless drug testing of students other than athletes. That year, the Supreme Court expanded the right of school boards to drug test not only student athletes, but also all students participating in extracurricular activities. The decision clarified some of the Court's earlier Vernonia rulings by stating that a history of a serious drug problem or epidemic, and communal undress are not essential for a constitutional suspicionless drug testing program. Rather, the most important factor in determining whether a blanket drug testing program is legal is the “schools' custodial and tutelary responsibility for children” (Board of Education of Independent School Dist. No. 92 of Pottawatomie City v. Earls, 2002).
The Court held that “testing students who participate in extracurricular activities is a reasonably effective means of addressing the school district's legitimate concerns in preventing, deterring and detecting drug use.” The local school policy required students to take drug tests before participating in extracurricular activities and to submit to random drug testing while participating in that activity. As a matter of practice, the policy was only applied to students in competitive extracurricular activities. The Court deemed the policy constitutional, asserting that the most important part of the case, as in Vernonia, was that the “policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care. . . .” The Court went on to state, “When the government acts as guardian and tutor, the relevant question is whether the search is one that a reasonable guardian and tutor might undertake” (Board of Education of Independent School Dist. No. 92 of Pottawatomie City v. Earls, 2002, p. 6). Further, the policy met many of the conditions already established in Vernonia, including:
- The test detects only the use of illegal drugs, not medical conditions or authorized prescription medication.
- The student's privacy interest is diminished by virtue of being in a public school context where the state is responsible for maintaining student discipline, health, and safety.
- The privacy interest is diminished because students are regularly subject to physical exams and immunizations.
- Participation in communal undress or athletic physicals was not essential to the Vernonia holding.
- All of the extracurricular clubs have their own regulations regarding membership that do not apply to the whole student body.
- The collection of the urine sample is minimally intrusive because the monitor waits outside the stall door and listens for the sounds of urination.
- Test results are confidential and kept separate from other educational records. Such results are released only on a need-to-know basis.
- The test results are not disclosed to law enforcement.
- Positive results do not result in disciplinary or academic consequences. The only consequence is the denial of the privilege to participate in the extracurricular activity.
- A demonstrated history of drug abuse is not necessary to validate a drug testing regime. However, some documented history of a drug problem does shore up an assertion of “special needs” for a suspicionless general search policy.
- The role model effect mentioned in Vernonia is not essential to the constitutionality of the policy.
The Court concluded that the students who are subject to the testing have a diminished expectation of privacy. Second, the Court noted that the test is minimally intrusive, and its results are used on a limited basis, making the invasion of privacy insignificant. Third, the Court held that the government interest in the need to prevent and deter drug use provides the special needs necessary for the testing policy. “It would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use.” Although safety does factor into the “special needs” analysis, the safety interest promoted by drug testing is “undoubtedly substantial for all children, athletes and non-athletes alike.”
It is fairly clear that school boards may adopt policies requiring suspicionless or random drug testing of students who participate in extracurricular activities and sports, if done according to the standards set forth by the Vernonia and Earls rulings. What remains unclear is how far suspicionless drug testing of students can be expanded. Can schools test all students? Can schools test students who drive or park on school property? Can schools test students involved in certain disciplinary infractions? The following pre-Earls federal cases address some of these questions:
- Willis v. Anderson (1998). A policy requiring students suspended for more than three days to be drug tested was invalidated. The court held that the lack of individualized suspicion created the constitutional flaw in the policy. No special needs existed to warrant a search of such students and they were not participating in a voluntary activity. Further, there was no evidence of a nexus between drug or alcohol abuse and these disciplinary problems. The court also noted that this category of students had a greater expectation of privacy than athletes or those participating in other extracurricular activities.
- Tannahill v. Lockney Independent School District (2001). A school policy to test all students attending school was deemed unconstitutional. The court held that “general concerns about maintaining drug-free schools or desires to detect illegal conduct are insufficient” to justify such a policy.
State Law
Some suspicionless drug testing policies have been challenged under state constitutional provisions:
- Odenheim v. Carlstadt-East Rutherford Regional School District (1985). A comprehensive medical examination policy included “drug screening for detection of the presence of controlled dangerous substances.” The state court struck down this policy because it violated the state and federal constitutions. The court held that the policy was “not reasonably related in scope to the circumstances which initially justified the interference.” The “medical test” had punitive consequences (exclusion from class) without affording due process. Therefore, the policy violated both the due process clause and the state and federal right to be free from unreasonable searches.
- Joye v. Hunterdon Central Regional High School Board of Education (2002). The school passed a policy requiring students involved in extracurricular activities and students permitted to park on campus to submit to drug testing. A student sued, based on the policy's violation of the New Jersey state constitution. After the Earls decision, all parties agreed that there was no violation of federal law. The policy also passed state constitutional muster. The New Jersey Superior Court noted that the lower court erred in determining that the state constitution gives greater protection than the U.S. Constitution: “Unless the state court can show from an examination of the textual language of the two constitutional provisions, the legislative history of the state constitution or the state's tradition that the matter is of particular state interest or concern, it should not expand federal constitutional rights under an identical state constitutional provision.” The court also opined that requiring a school's drug problem to exceed the national norm and requiring the targeted students to use drugs more than the general population before a policy can be considered legal is “bad law, bad policy and impractical.” The court concluded that even if the search were not consensual, the policy meets the special needs test because the goal of deterring drug use outweighs the minimal intrusion of a confidential urine analysis.
Employee Drug and Alcohol Testing
Like students, adults who are applying for employment in, or who are already employed by, a school may be subject to random, blanket, or suspicionless drug and alcohol testing.
The Fourth Amendment protects school employees' rights but, as with students, these rights can be abridged in the employment context based on special needs. Though they did not specifically deal with school employees, three Supreme Court decisions set the standard for such drug testing:
- Skinner v. Railway Labor Executives' Assn. (1989). The Supreme Court upheld drug testing of railroad employees because of the high level of attention necessary for the job and the great potential for harm. The Court noted that there are exceptions to the individualized suspicion of wrongdoing requirement when special needs, beyond the normal need for law enforcement, exist. “[I]n limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.”
- National Treasury Employees Union v. VonRaab (1989). The Court upheld a drug testing program for customs agents, as they are armed and drug interdiction is one of their duties.
- Chandler v. Miller (1997). The Court struck down a state law requiring candidates for public office to certify that they had tested negative for drug use. The Court determined that there was no documented drug problem among public officials and no compelling interest to test that particular group because safety was not genuinely jeopardized. Promoting an anti-drug image or setting a good example is not a sufficient need to justify suspicionless drug testing. “When such special needs . . . are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context specific inquiry, examining closely the competing private and public interests advanced by the parties.”
Cases specific to school employees are split on the constitutionality of drug testing programs:
- Knox County Education Association v. Knox County Board of Education (1998). The school board adopted a policy requiring suspicionless drug testing for all individuals applying for or seeking transfer or promotion to safety-sensitive positions. According to the policy, teaching and administrative positions were designated as safety sensitive. No evidence existed of a drug problem among the staff. The court balanced the school board's interest in testing against the teacher's privacy interest and upheld the policy because teachers are on the front line of school safety and security. The court also found that the teacher's privacy interests were diminished by working in a highly regulated industry and by the nature of the job.
- United Teachers of New Orleans v. Orleans Parish School Board (1998). A school board policy required drug testing of teachers and other employees injured in the course of employment. The court invalidated the policy because the school could not demonstrate a sufficient link between suffering an injury and drug use.
- Aubrey v. School Board of LaFayette Parish et al. (1998). Under a policy designed to eliminate drug use from the workplace, a janitor was selected as a safety-sensitive employee for drug testing. According to the school board, its program was “designed to prevent drug users from obtaining a safety sensitive position and to aid in detecting those employees in such positions who use drugs so that they may undergo treatment as a prerequisite to keeping their jobs.” The court held that, as part of its role as guardian, the school must protect children from themselves and from adults who may cause harm, creating the special need required to make the policy constitutional.
For some school employment positions, drug testing is required by federal statute. According to 49 U.S.C. § 2717, the Omnibus Transportation Employee Testing Act of 1991, bus drivers and other employees required to hold a commercial driver's license are subject to pre-employment, random, post-accident, and reasonable suspicion drug testing.
Practical Considerations
“Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing school children. In upholding the constitutionality of the policy, we express no opinion as to its wisdom” (Board of Education of Independent School Dist. No. 92 of Pottawatomie City v. Earls, 2002). The need for—or in the parlance of the court, the wisdom of—implementing a drug testing policy for employees and/or students should be a primary consideration. If such a need does exist, consider the following:
- Who will be tested? What is their risk of harm? What is their privacy expectation? What is the intent of the policy: punitive or rehabilitative?
- Who will have access to the test results and how will the results be used and stored? Minimize the invasiveness of the privacy intrusion.
- Have parents and the community participated in identifying the need for a drug testing program and, if so, have they helped design the program?
- Require that parents and students sign the drug testing policy at the beginning of each school year.
- Train employees.
- Allow for confidential disclosure of prescription and non-prescription medicine that could affect test results.
- Design a neutral process for random selection of subject students or test all subject students.
- Discuss the need for testing with the community, law-enforcement, mental health professionals, and physicians.
- Analyze the cost of instituting such a program.
- Determine whether the employees to be tested hold safety-sensitive positions.
Postscript
Understandably, the school board attorney is concerned about the legality of Asheville's policy. Although the Supreme Court has given much-needed guidance of late, the legal boundaries of suspicionless drug testing are still emerging, and the Asheville school board has extended its drug testing policy beyond any established parameters. However, just because the policy is untested does not mean it is unconstitutional. Rather, the school board, its attorney, and the superintendent must ensure that the policy satisfies the legal standards set forth in the federal case law discussed above.
With regard to both employees and students, the board must demonstrate special needs that justify the privacy invasion. In terms of the policy's application specifically to students, the board must consider that the students subjected to testing in this case are not engaging in a voluntary activity, but rather compulsory school attendance. Further, any disciplinary or punitive consequences of the test results, as opposed to a counseling/rehabilitative approach, pose a potential problem. Regarding employees, the facts of the case are very similar to Knox. Therefore, it may be unnecessary to disregard Karen's test results. The school board must balance the financial burden of any potential litigation with the long-term benefits of implementing the policy.
Zero Tolerance Policies
The year was off to an amazing start. The first six-week period of school had ended without a single drug- or weapon-related disciplinary infraction. This time last year, there had already been 10 expulsions or suspensions for these types of offenses. The superintendent shouts to his secretary, “Those zero tolerance policies the board adopted last year have made a real difference; I haven't had to expel or suspend anyone for drugs or weapons all year!”
His secretary wisely replies, “Don't count your chickens before they're hatched.”
On the school bus the next day, LaMar Jackson, an 8th grade honor student, discovers that his best friend, Donna Perry, wants to commit suicide. In fact, Donna has a gun in her backpack. LaMar is able to talk Donna out of her plan to commit suicide and takes the gun away. They arrive at school and LaMar puts his backpack, with the gun inside, in his locker. Word of the incident gets out, and LaMar is regarded as a hero for taking the gun away from his suicidal friend. The principal, however, doesn't share that opinion and immediately suspends LaMar. Further, in accordance with school board policy, he recommends LaMar's expulsion to the superintendent. Donna is also suspended and is recommended for expulsion for bringing the gun on the bus. When the superintendent finds out about the incident, he scratches his head and says to his secretary, “There goes my clean discipline record. How can I suspend LaMar for saving someone's life?”
The superintendent, troubled by this seeming injustice, calls the school board attorney. “How do I suspend LaMar?” he asks. “He did the right thing. I only wish he had taken it directly to the school counselor. He said he didn't want to embarrass Donna or get her in trouble.”
Background Discussion: Definition, Effectiveness, and Student Rights
School safety is a critical issue. Without safe schools, learning and teaching cannot occur effectively. Horrific incidents in Littleton, Jonesboro, Springfield, West Paducah, and Pearl have brought the threat to school safety into the public consciousness. In response to a seeming increase in school violence in the '80s and early '90s, policymakers turned to zero tolerance policies to address issues involving weapons, drugs, and fighting. In fact, such policies were often statutory or policy responses to specific incidents of violence. The majority of schools now have zero tolerance policies for a variety of behaviors: 94 percent for possession of firearms, 91 percent for possession of non-firearm weapons, 88 percent for possession of drugs, 79 percent for violence, and 79 percent for possession of tobacco (National Center for Education Statistics, 2000). The definitions of zero tolerance vary, but generally, a zero tolerance policy requires predetermined punishment for specific acts, leaving little or no discretion to the school administrator.
Although good in theory, the application of zero tolerance has not escaped criticism. Few disagree with the purpose of such policies, namely, eliminating certain dangerous behaviors from schools in order to promote teaching and learning, but some unintended consequences have emerged as a result of their implementation. First, schools have expelled students for seemingly minor or harmless infractions. For example, a 10-year-old honor student was suspended when she accidentally brought to school her mother's lunch box, which contained a paring knife (Insley, 2001). Other examples include a 6th grader suspended for bringing a squirt gun to school; a 5-year-old suspended for wearing a five-inch plastic ax as part of his Halloween firefighter costume; and a 6th grader suspended for bringing a steak knife to school to cut the chicken in her lunch (Skibba & Peterson, 1999).
Another objection to zero tolerance policies is their potential infringement on student rights. Concerns include due process, free speech, and discrimination. For example, the Harvard Civil Rights Project and the Advancement Project report concluded that zero tolerance policies have a disparate impact on minorities (LRP Publications, 2000).
Conflicting data exist on the effectiveness of zero tolerance policies at preventing prohibited behavior. For example, statistical and anecdotal evidence simultaneously supports opposite conclusions about the effectiveness of the Gun-Free Schools Act (GFSA), passed by Congress in 1994, at reducing the number of weapons in schools. The following sources would seem to indicate a definite reduction:
- “School districts . . . continually educate children about the zero tolerance for weapons in schools . . . [a]nd officials say the policy has reduced the number of infractions” (Emily, 2000).
- The percentage of students carrying weapons on school property fell 28 percent between 1993 and 1997 (Brener, Simon, Krug, & Lowry, 1999).
- The number of student expulsions for bringing a firearm on school property dropped four percent from the 1997–98 to the 1998–99 school year (National Center for Education Statistics, 2000).
The problem with such statistics is that no one knows for sure whether the seeming decrease in weapons is due to zero tolerance policies or under reporting. To add to the confusion, schools that reported no crime were less likely to have zero tolerance policies for violence than schools that reported one or more serious crimes (National Center for Education Statistics, 1997). In the end, true numbers are elusive and the modest research conducted thus far does not indicate whether zero tolerance policies affect behavior.
Legal Considerations
Federal Law
Congress passed the GFSA to combat weapon possession in U.S. public schools. As a condition of federal funding, the GFSA demands that states do the following:
Require local educational agencies to expel from school attendance for a period of not less than one year a student who is determined to have brought a weapon to a school under the jurisdiction of the local educational agency in that state, except that . . . the chief administrative officer of such local educational agency [may] modify such expulsion based on a case by case basis. (20 U.S.C. §8921)
This federal zero tolerance policy was passed because Congress felt that the United States needed “a national standard that says no guns in school and no excuses” (Congressional Record, 1994). Congress also stated, “If, as a Nation, we are committed to school reform and [committed to] meeting the education goals by the year 2000, we must be equally committed to providing students and teachers . . . with safe schools” (Congressional Record, 1993).
State Law
As a result of the federal GFSA, each state adopted its own version of the act that included, at a minimum, the federal definition of weapon. However, some states included a broader definition of firearm/weapon, or expanded zero tolerance to cover other offenses such as drugs or violence. For example, the Virginia definition of weapon, for the purposes of the GFSA, includes a shotgun, whereas other states specifically exclude sporting weapons. Other examples of state GFSA policies include:
- Virginia: Gun and Drug-Free Schools Act. § 22.1-277.08 and 22.1-277.07. If the school board determines that a student has brought drugs or weapons onto school property, that student shall be expelled unless special circumstances exist to warrant another disciplinary action.
- Washington: ARCW §28A.635.090. When any student interferes by force or violence with any “administrator, teacher, classified employee, person under contract with the school or school district, or student” then grounds shall exist for immediate suspension or expulsion.
- Tennessee: Tenn. Code Ann. §49-6-3401(g). A student “committing battery upon a teacher, principal, administrator, any other employee of a local education agency, or school resource officer, or possessing any drug . . . shall be expelled for a period of not less than one calendar year, except that the director or superintendent may modify this expulsion on a case by case basis.”
Case Law
The federal GFSA serves explicitly as the minimum that states must include in order to receive federal funding; as demonstrated by the above examples, it does not prohibit states from creating a more expansive, state-specific GFSA. Generally, zero tolerance statutes are upheld, even in states that have expanded the federal law. Courts usually defer to local school boards when it comes to disciplinary authority, as in the following examples:
- Ratner v. Loudon Co. Public Schools (2001). The court ruled that the suspension of a student for possessing a knife he had taken from a suicidal friend, though severe given the circumstances, was constitutional because the student and his parent had notice of the school's weapons policy and an opportunity to be heard. In other words, the school provided procedural due process.
- Seal v. Morgan et al. (2000). A mandatory expulsion policy for students possessing weapons violated the Fourteenth Amendment because the policy allowed sanctions without finding that a student knowingly possessed the weapon.
- D.G. and C.G. v. Independent School District Number 11 of Tulsa Co., Oklahoma (2000). A zero tolerance policy on threats was challenged on First Amendment (speech) grounds. On the question of whether a student could be suspended for writing a threatening poem about a teacher, the judge wrote:
It is impossible to have a “no tolerance” policy against “threats” if the threats involve speech. A student cannot be penalized for what they are thinking. If those thoughts are then expressed in speech, the ability of the school to . . . punish the speech will be determined by whether it was (1) a “true” threat, or (2) disruptive of the normal operation of the school.
Policy/Practical Considerations
- Check your state's laws and your local school board's manual for zero tolerance policies.
- Consider whether the application of zero tolerance policies increases delinquency in your state, school division, or school.
- Train staff in the legality and practical application of all zero tolerance policies.
- Plan for the education of those suspended/expelled, if required by law or policy.
- Implement a follow-up plan to monitor whether zero tolerance is having its intended effect. Also use monitoring to ensure that the policies are fairly and consistently applied.
Postscript
Under the federal GFSA, the superintendent has the discretion to recommend a case-by-case exception to the mandatory expulsion called for in the zero tolerance policy. The facts presented in the opening hypothetical situation seem to warrant invoking this statutory exception, at least for LaMar, if not Donna. Zero tolerance does not, and should not, replace common sense. Administrators and board members still must consider fairness and facts when implementing zero tolerance policies. Much of the criticism surrounding zero tolerance lies in its application, or misapplication, rather than its existence. In short, zero tolerance policies do not replace the judgment of administrators and the school board.