A Rock, a Hard Place, and a Reasonable Suspicion: How the United States Supreme Court Stripped School Officials of the Authority to Keep Students Safe

Author:Thomas R. Hooks
Pages:269-312
SUMMARY

I. Introduction - II. Teachers, don‘t leave them kids alone - A. America’s Most Important Function - B. Strip Searches - C. The United States Constitution Places Strict Constraints on the Strip Search of a Student - D. New Jersey v. T.L.O.: A Student’s Rights Under the Fourth Amendment - E. Challenging a Search of a Student’s Person: 42 U.S.C. § 1983 and Qualified Immunity - III. Safford unified... (see full summary)

 
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A Rock, a Hard Place, and a Reasonable Suspicion:
How the United States Supreme Court Stripped School
Officials of the Authority to Keep Students Safe
The schoolroom is the first opportunity most citizens have
to experience the power of government. Through it passes
every citizen and public official, from schoolteachers to
policemen and prison guards. The values they learn there,
they take with them in life. One of our most cherished
ideals is the one contained in the Fourth Amendment: that
the government may not intrude on the personal privacy of
its citizens without a warrant or compelling circumstance.
1
I. INTRODUCTION
On any given weekday, nearly 50 million students file through
schoolhouse doors,
2
and each time nearly four million teachers are
there to greet them on the other side.
3
For seven hours a day, 180
days a year, teachers are entrusted with these children.
4
They
educate them and protect them from harm, eat with them and
watch them play during recess. They see them develop as years
pass. It is no wonder that a child‘s teacher has been described as
his ―third parent.‖
5
From time to time, however, we are reminded that teachers do
not enjoy the extensive powers of a parent. One such reminder
came this past year in Safford Unified School District No. 1 v.
Redding,
6
in which the United States Supreme Court held that the
strip search of a 13-year-old middle school student was
unconstitutional.
7
For many people, learning that schools could
strip search students came as a shock.
8
Such searches, however, are
not wholly foreign to the schoolyard. Over the past 30 years, quite
Copyright 2010, by THOMAS R. HOOKS.
1
. New Jersey v. T.L.O., 469 U. S. 325, 38586 (1985) (Stevens, J.,
concurring in part and dissenting in part).
2
. Fast Fa cts, NATL CENTER FOR EDUC. STAT., http://nces.ed.gov/
fastfacts/display.asp?id=372 (last visited Feb. 5, 2010).
3
. Id.
4
. See LA. REV. STAT. ANN. § 17:154.1 (Supp. 2010).
5
. CAROL VANDERHEYDEN, A TOUCH OF CLASS 2 (2003) (attributing
―Teacher: The child‘s third parent‖ to Hyman Maxwell Berston).
6
. 129 S. Ct. 2633 (2009).
7
. Id.
8
. See, e.g., David Andreatta, Strip Sear ch Shock—School’s Bizarre
Policy, N.Y. POST, Feb. 1, 2005, at 27; Joe Robertson, Lawsuit Filed over
Alleged Strip Search of Third-Grader s in Kansas City, KANSAS CITY STAR,
Mar. 25, 2002, at B1.
270 LOUISIANA LAW REVIEW [Vol. 71
a few courts have debated whether the strip search of a student was
reasonable, and the results have varied.
9
Why schools would resort to such a measure is not a mystery:
Teachers are receiving mixed signals. On the one hand, parents and
government officials put immense pressure on schools to play a
central role in the fight against student drug use and violence.
10
On
the other hand, they express shock at the mere mention of student
strip searches and condemn schools for even considering such
tactics.
11
These mixed signals will result in the paralysis of school
officials. Obligated to protect students from harm, but afraid of
impending liability, these officials are in desperate need of
guidance. Currently, however, Louisiana law does not address the
strip search of a student.
12
This Comment proposes an amendment to the Louisiana law
governing the search of a student‘s person.
13
Part II of this
Comment addresses the prevalence of drug use, violence, and theft
in schools and the pressures placed on school officials to combat
these problems. It then provides examples of student strip searches
and analyzes the harmful psychological effects associated with
such measures. An analysis of the Supreme Court‘s historic
decision regarding students‘ rights, New J ersey v. T.L.O.,
14
follows. Part III examines the Court‘s most recent decision—
Redding.
15
Part IV reveals the dangers of Louisiana‘s silence on
this issue before critiquing the legal framework that underlies the
student strip search. Part V proposes that a warrant requirement
will benefit both students and school officials, protecting the
former from frivolous strip searches while shielding the latter from
liability. Finally, Part VI urges the Louisiana Legislature to quickly
adopt appropriate measures.
II. TEACHERS, DONT LEAVE THEM KIDS ALONE
16
The strip search of a student is not an issue that can be dealt
with in a vacuum. Before delving into a constitutional analysis, it
is first necessary to examine the confluence of factors leading to
such a searchthe value of an education, the obstacles in the way
9
. See discussion infra Part II.E and accompanying notes 11719.
10
. See discussion infra Part II.A and acco mpanying note 28.
11
. See supra note 8.
12
. LA. REV. STAT. ANN. § 17:416.3 (2001).
13
. Id.
14
. 469 U.S. 325 (1985).
15
. Safford Unified Sch. Dist. No. 1 v. Redd ing, 129 S. Ct. 2633 (2009).
16
. See PINK FLOYD, Another Brick in the Wa ll, P art II, on THE WALL
(Capitol Records 2000).
2010] COMMENT 271
of its attainment, and the pressures placed upon school officials to
overcome these obstacles. With these factors in mind, examples of
student strip searches and research regarding their harmful
psychological effects provide an understanding of the context
within which these searches occur.
A. America’s Most Important Function
17
Educating America‘s youth is a national imperative.
18
To carry
out this pervasively important task, public school officials must be
empowered to maintain order and discipline in their schools.
19
Justice Powell of the United States Supreme Court recognized this
need, writing that ―[t]he primary duty of school officials and
teachers . . . is the education and training of young people.‖
20
He
continued: ―A State has a compelling interest in assuring that the
schools meet this responsibility. Without first establishing
discipline and maintaining order, teachers cannot begin to educate
their students.‖
21
In recent years, however, a school official‘s
ability to maintain discipline and order has been significantly
hampered by almost insurmountable obstaclesdrug use,
violence, and theft.
The prevalence of these obstacles is well documented and
poses a significant threat to the educational experiences of students
throughout the nation.
22
Because drug use, violence, and theft
17
. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 493 (1954) (―Today,
education is perhaps the most important function of state and local
governments.‖).
18
. Educa tion, THE WHITE HOUSE, http://www.whitehouse.gov/issues/
education/ (last visited Feb. 5, 2010).
19
. ROBERT WHEELER LANE, BEYOND THE SCHOOLHOUSE GATE 7 (1995).
20
. New Jer sey v. T.L.O., 469 U. S. 325, 350 (1985) (Powell, J.,
concurring). Louisiana law also recognizes this ―compelling interest,‖ declaring
that ―[e]very teacher is authorized to hold every pupil to a strict accountability
for an y disor derly conduct in school o r on the playground of the scho ol.‖ LA.
REV. STAT. ANN. § 17:223(A) (2001).
21
. T.L.O., 469 U.S. at 350 (Powell, J., concurring).
22
. See, e.g., NATL CTR. FOR ADDICTION & SUBSTANCE ABUSE AT
COLUMBIA UNIV., NATIONAL SURVEY OF AMERICAN ATTITUDES ON SUBSTANCE
ABUSE XII: TEENS AND PARENTS (2007), a va ilable at http://www.casacolumbia.
org/download.aspx?path=/UploadedFiles/vilf5lvw.pdf. In 2007, 80% of high
school students and 44% of middle school students personally witnessed drug
dealing, use, or possession. Id. at 1. Not surprisingly, students in these drug-
infested schools were more likely to use drugs themselves. Id. at 12; see also,
e.g., NATL CTR. FOR EDUC. STATISTICS, INDICATORS OF SCHOOL CRIME AND
SAFETY: 2008 (2008), available at http://nces.ed.gov/pubs2009/2009022
REV.pdf. In the 20052006 school year, violent crimes occurred in 78% of
public schools. Id. at 20. In 2007, 6% of students in grades 9 through 12

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