TRI In The News

Schools Dance Around Civil Rights

4/29/2011

TRI IN THE NEWS: SCHOOLS DANCE AROUND CIVIL RIGHTS

From The Statesman-Journal
Original article available here.

In this age of locker-sniffing drug dogs and backpack searches, it was only a matter of time before more constitutional protections for students were ignored.

Quietly, and with little fanfare, the school community of Mill City seems to have been doing just that for more than a decade.

Santiam High School, about 45 minutes east of Salem, has been testing its prom-going students with a Breathalyzer for at least 14 years, as long as principal David Plotts has been at the school.

Plotts credits the testing for keeping the annual event free of alcohol-related incidents. He said no student has ever tested positive on the device, which detects or measures blood alcohol content. He admits, though, that there has been some trouble with drinking after the dance.

"We try to protect the freedoms of our students, but we're going to err on the side of safety every time," said Plotts, who offers no apology for school officials presumably violating the Fourth Amendment and 14th Amendment rights of juniors and seniors attending Santiam's proms.

"The testing has been very successful," Plotts said. "We've not had anyone killed or injured, and we pray it stays that way."

Rock, meet hard place.

On one hand, as the parent of 18- and 20-year-olds, I am all for preventing underage drinking. Ensuring the safety of young people while they are in the presence of other creative kids bent on drinking and driving is not an easy or quick job, and parental vigilance and mentoring are required. But that does not mean parents should surrender their children's rights when they send them to school.

The 14th Amendment declares it unconstitutional to treat someone differently based on his or her race, gender, age, religion, national origin, marital status or physical ability. The Fourth Amendment — part of the Bill of Rights — guards against unreasonable searches and seizures, those without probable cause.

Santiam High School is subverting a teaching opportunity. What its students learn by being forced to submit to Breathalyzer tests is that the Constitution doesn't apply to them, or the government can't be trusted to apply it equally.

Santiam High is not alone.

In the Medina City School District in Medina, Ohio, superintendent Randy Stepp told me that his high school implemented breath testing for its Valentine's Day sweetheart's dance this year despite parents and students protesting and launching a counter-dance at a local country club.

"I think they were more upset with our restrictions on dress and forms of dancing (no grinding) than having to be Breathalyzed," Stepp said.

He said he thinks the school is on solid legal ground because the dances are extracurricular activities and students aren't required to attend.

"It's not a right to attend a dance. It's not part of the school day. They have the option to stay home if they don't want to be tested," Stepp said.

Salem-Keizer schools do not use Breathalyzers, said Jay Remy, a spokesman for the school district.

David Fidanque, the executive director of the American Civil Liberties Union of Oregon, said he gets calls fairly regularly from school districts interested in using Breathalyzers. The ACLU, he says, typically counsels against it.

"Oregon's Constitution is even more protective against search and seizure than the federal Bill of Rights," Fidanque said. "For instance, Oregon can't do drunken-driving roadblocks because of the lack of reasonable suspicion. We tell them (the districts) we are opposed to such testing because we think it's a bad idea to treat all students as if they are guilty and must prove their innocence."

But school districts in Connecticut and Massachusetts are apparently disregarding any such legal advice they might be getting.

The Milford, Conn., school board recently expanded its policy to include breath testing at any school function, and it is considering testing for sporting events and before graduation.

These schools are operating in a near police state.

John W. Whitehead, a 30-year constitutional lawyer and president of the Rutherford Institute, which defends civil liberties and human rights, agreed that something needs to be done about underage drinking, but violating students' civil rights is not the answer.

"The Supreme Court of the United States has ruled specifically that Breathalyzing is a search, which means schools can't routinely Breathalyze every student attending a prom or dance," Whitehead said. "If conducted by school officials at a school event, the official must have reasonable suspicion to conduct a Breathalyzer test."

That means they should be testing only students who have glassy eyes, smell of alcohol, slur their speech, stagger or toss their cookies all over Mrs. Smith's Jimmy Choos.

Breath testing "is an easy solution to a much bigger problem, but you can't just treat all students like they're all suspects," Whitehead said. "Mistakes will be made even when steps to protect their rights are taken. What about the child on medication whose behavior might be similar to one under the influence of alcohol?"

Whitehead said there must be suspicion first, but he cautions that it does not mean schools should abandon all attempts to keep kids safe and help them to avoid drinking and using drugs.

He said schools can develop policies that allow the use of Breathalyzers — and still follow the Constitution. He has drafted a sample policy, which he offered to Santiam High School (find it online at StatesmanJournal.com) to use for free.

Fidanque said no parent or student in Oregon to his recollection has contacted the ACLU for representation. He said the nonprofit would be interested in talking to a sophomore or junior who hadn't been drinking but submitted to the Breathalyzer test.

"We've found it's hard to represent a student in a case when they disappear right after graduation," Fidanque said. "But we think our schools should be trying to teach their students to be good citizens. You can't solve this problem with technology that treats everyone as if they're guilty. That just fuels more resentment than trust. We need to do a better job of talking to our kids. Change will happen when the community defines what is acceptable."