On November 18 at the Library in Traverse City, the ACLU of Northwest Michigan presented a lecture on the “school-to-prison pipeline.” The speaker was Mark Fancher, a staff attorney and director of the ACLU of Michigan Racial Justice Work Group which in 2009 issued a report entitled, “Reclaiming Michigan’s Throwaway Kids: Students Trapped in the School-to-Prison Pipeline.”
After the lecture, I was approached by a parent of a student at Traverse City Central High School on a related subject. I was asked if I had heard about the “drug sweep” that had taken place at the school the day before. I had not. The man said that though his daughter had not been “busted,” he wondered whether such a sweep, conducted with drug-sniffing dogs, was legal.
Reading about it in the paper the following morning, I guessed that this parent’s question might be one on the mind of many other parents, students, and interested members of the community. Here is the answer.
Searches of students by school officials on school property are governed, like all searches, by the Fourth Amendment to the U.S. Constitution. That Amendment does not prohibit all searches, only those that are “unreasonable.” An illegal search occurs “when an expectation of privacy that society is prepared to consider reasonable is infringed.” The starting point, of course, is that there must be what the courts consider to be an actual “search.”
The current state of the law is that a dog sniff of an inanimate object is not a “search” under the Fourth Amendment. For example, the Supreme Court has held that the use of a trained canine to sniff unattended luggage is not a search. It is different, however, when dogs are used to sniff a person’s body, mainly because the level of intrusiveness is greater (as everyone knows, dogs often sniff parts of the body that cause personal embarrassment, and some persons have an irrational fear of dogs). Moreover, people naturally consider their own bodies to be private — private to them — and they feel that expectation of privacy should be respected by others, most certainly by government authorities (including police and school officials).
Many “drug sweeps” conducted in school buildings are thus permissible under the Constitution because they are conducted by drug-sniffing dogs of school lockers, previously detached backpacks, and cars parked in school parking lots, and not of a student’s person. With respect to student lockers, courts have generally held that they belong to the school and therefore students do not have a legitimate expectation of privacy for items stored in them. And with respect to backpacks, students cannot be ordered to remove them from their person in order that the dogs can sniff them; that would violate their Fourth Amendment rights.
That’s a general statement of the law: the drug sweep at Central High School was probably legal. But was it a good idea?
As Mark Fancher made clear in his talk last week, the “school-to-prison pipeline” is a disorder in our educational system, currently of epidemic proportions, that is the result of a number of factors, one of which is the criminalization of students. Many persons my age and younger went through their entire 12 years of public education without ever experiencing the presence of police officers in the school building; today, that experience is commonplace and, as the ACLU report indicates, the police are often called in to handle what were once considered routine disciplinary matters. As Traverse City police Captain Steve Morgan told the Record-Eagle, “Usually the schools will request [a drug sweep] once or twice a year. We never go unless the school officials request us. We’ve probably been to all the area secondary schools at one time or another.”
But what exactly is the effect on the students, whether or not they are busted? Does it encourage trust and respect between students and teachers, between students and administrators, between young people and the police? What does it feel like when you’re 16 years old to be treated much like a criminal — which is to say, to be ordered around by police officers and to have your locker, your backpack, or your vehicle randomly searched without your permission?
Apart from the anger and resentment it likely caused, was the drug sweep cost effective? At Central High last week there were police officers and police dogs from three counties effecting a lock down, disrupting classes and interfering with other activities — for what? The paper reported that the sweep netted one arrest: one student was charged with possessing about two grams of marijuana. Though the belongings of every student may not have been searched, it still amounted to one arrest in a student body of 1,500. One out of 1,500 (an arrest percentage of 0.067%) is not a particularly good effectiveness indicator, is it? Now I’m not so naive to assume that none of the students at Central High ever uses marijuana, but it’s also clear that the school does not have a widespread, over-the-top drug problem on its hands either. Simply put, it was not a good use of taxpayer money.
Nelson Mandela said: “There can be no keener revelation of a society’s soul than the way in which it treats its children.” Think about it, administrators, teachers, and parents at Central High School. You can bet the students are.
[Note: The 74-page report of the Racial Justice Work Group of the ACLU of Michigan is available for downloading at www.aclumich.org.]
