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School Power

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Teachers have more power than police

With the passage of the Gun Free School Zones Act of 1990, 23 the merging of school administrators and police as forces of law and order within schools led to complex arrangements, including the delegation and division of authority and labor. The result has been confusion among police and administrators that continues to this day. This confusion focuses on where administrators’ disciplinary roles stop and police powers begin, what conduct should be handled exclusively by school disciplinarians, and what conduct becomes an arrestable offense. Students, parents, teachers, the courts, and legislatures experience this confusion. Massachusetts is no different. Administrators were granted expansive authority, effectively the equivalent of police powers, in the name of safety, order, and discipline to conduct investigations and search students’ property and persons.24 This “Fourth Amendment lite” imposed no obligations on administrators to notify students that the information they collected would be provided to the police and that prosecution could follow.25 The advantage of this approach was that it increased the number of searches and neatly circumvented Miranda v. Arizona.26 Massachusetts’s highest court codified this approach in Commonwealth v. Ira I,27 holding that school administrators who conduct searches of students are not agents of the police—and whatever they obtain in the course of such a search may be turned over to SROs or police officers for prosecution.28 The court also declined the juvenile’s “invitation to overrule the portion of Commonwealth v. Snyder29 that concluded that the Miranda rule does not apply to a ‘school administrator who is acting neither as an instrument of the police nor as an agent of the police.’”30 The court came to this conclusion based on the absence of any record showing that “the police directed, controlled, or otherwise initiated or influenced” the school administrator’s conduct.31 This decision, like so many others across the country, rendered youth who are obligated to attend school by mandatory attendance laws, effectively without constitutional protection to object to a search by a school administrator. It empowered school administrators to serve in both roles—as police and as minister of justice at an intermediate or ultimate level of authority, depending on whether the case is passed off to the police or allowed to result in a school-based disciplinary action.

Criminals have more rights than students

Donald L. Beci, School Violence: Protecting our Children and the Fourth Amendment, 41 CATH. U. L. REV. 817, 835 (1992).

Many uphold the belief that children hold a special place in society and that they are in need of extra care and guidance; indeed, numerous precepts and doctrines in American law incorporate this assumption.99 Ironically, in an apparent attempt to protect children, the Supreme Court has, within the context of the school environment, reduced the threshold requirements necessary to justify a Fourth Amendment search."° As previously noted, the Court interprets the Fourth Amendment to permit some student searches to be justified by the lower standard of reasonable suspicion, but generally requires adult searches to be justified by probable cause. "' This suggests that the need for a student search outweighs the student's Fourth Amendment rights to a greater degree than the need for an adult search outweighs the rights of the general citizen. However, adult searches usually arise in the criminal context, while school searches generally do not. Thus, it is reason- able to infer that the Court interprets the Constitution as giving greater presearch protection to adult criminal suspects than to students searched within schools.

Teachers have more power than police

Urbonya, Kathryn R. (2001) "Determining Reasonableness under the Fourth Amendment: Physical Force to Control and Punish Students," Cornell Journal of Law and Public Policy: Vol. 10: Iss. 3, Article 1. Available at: http://scholarship.law.cornell.edu/cjlpp/vol10/iss3/1

In interpreting what constitutes Fourth Amendment reasonableness for searches in public schools, the Court drew upon its analysis in Terry v. Ohio,65 a case that established new boundaries for determining the reasonableness of police officers' stops and frisks. Under Terry, officers may forcibly detain a suspect if they have reasonable suspicion that the suspect is about to commit a crime, and they may frisk with reasonable suspicion that the suspect is "armed and dangerous." 66 The T.L.O. Court quoted the open-ended language of Terry to describe the reasonableness standard for school searches: Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the • . . action was justified at its inception"; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place. '67 Thus, the T.L.O. Court held that, in determining the reasonableness of Fourth Amendment searches by public school officials, courts must consider the suspicion underlying the search and the scope of the search in light of the basis for suspicion. Even though the Court applied the Terry doctrine, it hinted that it might later deviate from it. With the Terry decision requiring reasonable suspicion to justify a police officer's stop and frisk, the T.L.O. Court left open the question of whether reasonable suspicion is always required before school officials may conduct "reasonable" school searches,68 an ambiguity that the Court later used in Vernonia School District 47J. v. Acton,69 to justify the reasonableness of drug-testing student athletes. Perhaps even more significant is that, unlike Terry stops, school officials need not have reasonable suspicion as to a violation of criminal law; mere reasonable suspicion that the student violated a school rule is sufficient to justify a reasonable search. 70 In allowing searches for school violations, therefore, the Court gave school officials broader powers than those afforded police officers under the Terry doctrine, even admonishing courts that they should, "as a general matter," refrain from "distinguish [ing] between rules that are important to the preservation of order in the schools and rules that are not."'7' The Court did not decide whether its new standard would apply to searches conducted in concert with police officers.72 The standard announced in T.L.O. also differs from Terry with regard to its analysis of the reasonable scope of the search. The search must be "reasonably related to the objectives of the search. '73 In a Terry context, this means that the scope of the search must relate to the need to disarm the suspect. 74 Yet, in the school context, the T.L.O. Court specifically mentioned that school officials should consider the degree of intrusion "in light of the age and sex of the student and the nature of the infraction," 75 thus creating a potentially more open-ended standard for assessing the scope of a reasonable school search than for a traditional Terry stop and frisk.

Administration Biased

School administrators are biased

Amy Vorenberg, Indecent Exposure: Do Warrantless Searches of a Student's Cell Phone Violate the Fourth Amendment?, 17 Berkeley J. Crim. L. 62 (2012). Available at: http://scholarship.law.berkeley.edu/bjcl/vol17/iss1/2

A school administrator should therefore not be able to operate like a magistrate and render decisions on cell phone searches in school. The purpose of the warrant requirement is to have a “neutral and detached” magistrate, i.e., a disinterested party, draw reasonable inferences from evidence to determine if an individual’s Fourth Amendment protections can be justifiably waived.194 A judicial officer who reviews a warrant request should be severed and disengaged from the activities of law enforcement and have the capacity to determine probable cause.195 Any argument that a school administrator can make a decision as a neutral and disinterested party is without merit. Assuming that the school does serve in some capacity as a stand-in for a parent, it is hard to reconcile that status with someone who is also neutral and disinterested.196 More to the point, given that school administrators (or school resource officers) are enforcers charged with finding and punishing violations, their role could hardly be viewed as neutral.197 The principal or administrator who authorizes or conducts the search will likely be the one to impose the sanction on the student. Moreover, the administrator is tasked with reducing violations, and may even be under pressure to do so from a school board or parent group.

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