9/11/2003

Teaching Public Schools the ABCs of the Constitution — Part VI

"Zero Tolerance" Policies and School Searches

(Read Part I: The Rights of Religious Student Groups in Public Schools)

(Read Part II: Students' Free Speech Rights in Public Schools)

(Read Part III: Religious Expression at Graduation Ceremonies and Assemblies)

(Read Part IV: Non-Student Expression on School Property)

(Read Part V: Teachers’ Rights in Public Education)

(Read The Rutherford Institute's legal memorandum to public school superintendents) (PDF)



"Zero Tolerance" Policies and the Constitution

The Columbine High School shootings in Colorado in 1999 produced a climate of fear and near-hysteria among school administrators around the country. Many public school systems responded by imposing disciplinary policies calling for "zero tolerance" for weapons possession, drug use and threatening speech, in some cases creating absurd and tragic results. School authorities justified these "zero tolerance" policies under a Clinton-era federal law, the "Gun-Free Schools Act of 1994" (1) that required as a condition of receiving federal funds (as all state educational systems do) that states enact laws mandating one-year expulsions for any student who brings a "weapon" to school.

A "zero tolerance" policy is one that enacts harsh punishment for any violation of school rules, without exceptions and without any consideration of mitigating circumstances. The Rutherford Institute has been on the forefront of opposition to such policies, challenging arbitrary and unfair suspensions and expulsions imposed in the name of "zero tolerance." For example, a 15-year-old girl, Tawana Dawson, was expelled for bringing a nail file to school. A middle-schooler in Indiana was expelled for having a bottle of diet aids in his locker. And in New Jersey, school districts have banned the playing of the children’s game "Cops and Robbers," suspending several first-graders for playing it and calling their "gunplay" behavior "violent" and "dangerous." (2) One New Jersey school system called the police after two first-graders played the game with a paper gun and had the children charged with "Terroristic Threatening."

Perhaps the most outrageous example of the inevitable harshness of "zero tolerance" policies is the case of Ben Ratner, a Loudoun County, Virginia eighth-grader who was expelled for an entire semester for "weapons possession" after he took a knife away from a suicidal friend and put it in his locker for safekeeping. (3) Although the school district called his actions "heroic" and "noble," it nonetheless insisted that its policy had to be followed to the letter. A federal trial court threw out the case challenging Ratner’s expulsion, holding it presented "no federal constitutional issues." On appeal, the court of appeals upheld the decision; but one judge filed a remarkable separate opinion in which he admitted that Ratner was a victim of "good intentions run amuck" and issued this caution to public school authorities seeking to impose "zero tolerance" policies:

The panic over school violence and the intent to stop it has caused school officials to jettison the common sense idea that a person's punishment should fit his crime in favor of a single harsh punishment, namely, mandatory school suspension. Such a policy has stripped away judgment and discretion on the part of those administering it; refuting the well established precept that judgment is the better part of wisdom. The facts do not offer even the hint of a suggestion that Ratner ever intended to personally possess the knife or harm anyone with it. (4)

Disciplinary action imposed without record to a child’s behavioral record or mitigating circumstances violates the constitutional rights of due process and equal protection. "Of course, school officials cannot impose student punishment in a completely arbitrary and capricious manner," one federal appeals court has said. (5) Conduct is arbitrary and capricious if there exists no rational basis for the decision or the decision is motivated by bad faith or ill will. (6)

A good example of a proper constitutional analysis of a "zero tolerance" policy is the Sixth Circuit Court of Appeals’ decision in Seal v. Morgan, (7) which held that students have constitutional claims of equal protection and/or substantive due process for school disciplinary decisions that are arbitrary and capricious. Seal involved an expulsion of a student for "possession" of a knife in the glove compartment of his mother’s car that he had driven to school, despite the fact that the student did not know the knife was there (it had been put there by friends). (8) The student’s parents sued, alleging deprivations of right to due process. The Sixth Circuit reversed the trial court’s dismissal of the case, holding, "As a matter of federal constitutional law... [a school] Board may not expel students from school arbitrarily or irrationally." (9) The Sixth Circuit concluded that "suspending or expelling a student for weapons possession, even if the student did not knowingly possess any weapon, would not be rationally related to any legitimate state interest." (10)

While certain Zero Tolerance policies are required by state law, individual school districts may have more stringent guidelines. For a listing of these, see The Rutherford Institute’s Freedom Resource Briefs, "Zero-tolerance and school discipline policies."

School Searches of Students and Their Belongings

The Supreme Court has held that in the context of Fourth Amendment searches, school officials are considered agents of the government; therefore, searches of students conducted by school officials qualify as searches under the Fourth Amendment and must adhere to the reasonableness standard. (11) The Fourth Amendment does not protect against every conceivable search, but only those that implicate a person’s legitimate expectation of privacy. (12) Consequently, when a school official searches a student or his property, the first issue is whether or not the student had a legitimate expectation of privacy in what was searched. (13) The Supreme Court has held that students do have a legitimate, though somewhat limited, expectation of privacy while at school. (14) However, it is generally held that routine searches of student lockers are not unconstitutional, at least where the school system has not turned over control of lockers to the students. (15) Likewise, routine metal detector scans are permissible. (16)

There are two different types of searches for constitutional purposes. The first involves individualized suspicion that a particular student is guilty of wrongdoing, and the second involves a more generalized search of a large group of students absent any suspicion that a particular student has engaged in wrongdoing. Although school officials do have a wide latitude to conduct searches of students while at school, the Supreme Court held in New Jersey v. T.L.O. (17) that in order for a school official to search a particular student he must have reasonable suspicion that the student had violated a law or school rule. T.L.O. also requires that the search be reasonable based on all of the circumstances. The Supreme Court has established a two-part test to determine if a student search is constitutional. (18) First, the search must be justified at its inception, i.e., the school official has to have a reasonable suspicion that a particular student has broken a particular rule. (19) Second, the search must be reasonably related in scope to the particular rule which the student is suspected of breaking. (20)

The Supreme Court has twice addressed general searches without individualized suspicion, both times in the context of school drug testing programs, and has upheld such programs in limited circumstances. In Vernonia School Dist. 47J v. Acton, (21) the Supreme Court upheld a school program that tested every student who tried out for athletic teams. The court reasoned that in view of the special needs of the school because of a history of drug abuse among student athletes, and the minimal intrusion of privacy, this program was reasonable. (22) Recently, in Board of Educ. v. Earls, the Supreme Court expanded the constitutional authority to conduct drug testing to students involved in extra-curricular activities generally. (23)

If your rights to free expression of your religious beliefs at your public school graduation ceremony are threatened, please contact The Rutherford Institute at 434-978-3888 or fill out our online form.

ENDNOTES

1) 20 U.S.C. § 8921.
2) See S.G. v. Sayreville School Dist., 333 F.3d 417 (3rd Cir. 2003).
3) 2001 U.S. App. LEXIS 16941 (4th Cir. 2001).
4) Id.
5) Jordan v. O’Fallon Twp. High School Dist. No. 203, 302 Ill. App. 3d 1070, 1080, 706 N.E.2d 137, 143 (5th App. Dist. 1999), citing Robinson v. Illinois High School Ass’n, 45 Ill. App.2d 277, 286, 195 N.E.2d 38, 43 (1963) and Peterson v. Indep. School Dist. No. 811, 999 F.Supp. 665, 673 (D. Minn. 1998).
6) Hines v. Rinker, 667 F.2d 699, 703 (8th Cir. 1981). Cf. Lyons v. Penn Hills School Dist., 723 A.2d 1072 (Commonwealth Ct. of Pa. 1999) (upholding circuit court’s reversal of expulsion for possessing pen knife on ground that "Zero Tolerance" policy denied Superintendent discretion to modify discipline).
7) 229 F.3d 567 (6th Cir. 2000).
8) 229 F.3d at 571.
9) 229 F.3d at 579.
10) Id.
11) New Jersey v. T.L.O., 469 U.S. 329, 334 (1985).
12) Katz v. United States, 88 S. Ct. 507, 512 (1967).
13) Id.
14) New Jersey v. T.L.O., 469 U.S. 329 (1985)
15) In Interest of Isiah B., 500 N.W.2d 637, 638 (Wis. 1993).
16) State v. J.A., 679 So.2d 316, 318 (Fla. Cir. Ct. 1996), In the Interest of S.S., 680 A.2d 1172, 1176 (Pa. Super. Ct. 1996) (court upheld a search where all students had to be searched when they entered school one day, after the metal detector alerted on the defendant, a pat down was done where a box cutter was found), People v. Pruitt, 662 N.E.2d 540, 547 (Ill. App. Ct. 1996) (held to be a reasonable search where everyone had to go through a metal detector into school where a gun was found on a student), People v. Dukes, 580 N.Y.S.2d 850, 853 (N.Y. Crim. Ct. 1992) (held that metal detector search on random days was reasonable).
17) New Jersey v. T.L.O., 469 U.S. 329 (1985).
18) Id. at 341.
19) Id.
20) Id.
21) 515 U.S. 646 (1995).
22) Id. at 664-65.
23) 536 U.S. 822 (2002).