By Talia Soglin
You can’t yell fire in a crowded theater. Our constitutional rights have nuance and boundaries — boundaries that often have to do with the exchange of rights for safety. As a society, we have agreed that it’s worth it to give up some speech, or some privacy, in exchange for security. But we have not–and perhaps never will–decided exactly where to draw that line.
Constitutional rights are especially curtailed in schools, under the legal responsibility of in loco parentis. This means that schools essentially have custody of students while they are on campus. Because of this, administrators are allowed to curtail rights in the interest of safety and in the case that students’ actions interfere with an educational environment.
Because these qualifiers are fairly open to interpretation, suspension of rights within schools has been a contentious issue for years.
In regards to free speech, schools are perfectly within their rights to ban derogatory language or clothing with swear words on it. They are also legally in the clear to search students’ property, sometimes without their consent.
Allison Goldberg, who teaches AP U.S. Government at AHS, says students in her classes have spent time examining Supreme Court cases dealing with issues of free speech and searches within schools. “We know that [Fourth Amendment rights on a campus] are fairly limited,” she says.
One of the cases her students examined was the 1985 Supreme Court case New Jersey v. T.L.O, wherein the Court reaffirmed the validity of in loco parentis. T.L.O was a high school student who was charged with marijuana possession after school officials searched her purse and found cigarettes and marijuana. The Court ultimately decided that when students are on campus, they do not have the same right to refuse searches that they do when off campus. The Court also decided upon regulations for searches, which require them to be reasonable and limited.
While Goldberg says that the Court has often sided with administrations, she notes that in the case of Safford Unified School District v. Redding — in which eighth grader Savana Redding was strip-searched at school without the knowledge of her parents based off of a tip of another student who said she possessed ibuprofen — the Court ended up siding with the defendant.
Goldberg says that in this case, the Court decided that “At the very least if you’re going to do a search you need to have a compelling governmental reason for why, and particularly for why you would not tell the mother.”
Oftentimes, students are unaware to what extent their rights are suspended or upheld while at school. Officer Mike Gandara is the school resource officer at Alameda High. His job includes teaching emergency procedures such as lock down drills, and generally ensuring safety for both staff and students around campus. And yes — he is involved with searches of backpacks and lockers.
Many students have an expectation of privacy for their lockers, but they are in fact school property. Gandara says he will only become involved with searches at the request of the administration. “A lot of the times I will go with them to a locker but I won’t physically search it, I’ll just stand by,” he adds.
While police officers must have probable cause in order to search property off of school grounds, school staff do not. Instead, the administration is held to the slightly lower standard of reasonable suspicion. Officer Gandara acts as a member of the administration for this purpose, not as a police officer.
Gandara explains, “Probable cause is kind of like if you believe that person did it based on all the evidence or facts that you have. So that could give you probable cause to go ahead and arrest somebody.”
However, “Reasonable suspicion is what a reasonable person would believe that that person is involved with something,” he adds, explaining that for example, if he believed a student appeared to be under the influence, that is enough reasonable suspicion to go and check.
With reasonable suspicion, Gandara says, “We can search a locker anytime we want to.” He adds that these searches can take place without notifying the student the locker belongs to.
Goldberg says of reasonable suspicion, “It’s sort of this balance of your Fourth Amendment privacy protection weighed against the compelling governmental interest that schools be safe and that administrators have the tools to pull that off.”
Backpack searches function in essentially the same way as locker searches do (although it would be difficult to search a backpack without the student’s knowledge). With reasonable suspicion, school staff can search students’ backpacks, and they do not need their permission.
While searches of backpacks and lockers have been the subject of debate and court cases for decades, the tricky issue of searches of students’ cell phones has only arisen in the past few years. As a school resource officer, Gandara chooses not to participate in searches of students’ phones. “I don’t feel comfortable searching a phone without either a search warrant or a court order,” he says. However, the administration can search a student’s phone, and if they find something in it, they can show it to Gandara.
Evidence found at school can be used in a court of law, Gandara says, although the school often tries to prevent students from going to court in the first place. “Juvenile law is a little different than adults, so a lot of the stuff that we deal with here, unless it’s something violent or a weapon or major drugs, we try to keep kids from going to court — we try to send them to a diversion so that way they’re not in the system.”
Goldberg notes that at AHS, “We are known, relative to some other schools, as being pretty student-centered and a little bit less heavy handed, whereas in some schools you feel like it’s a police state,” acknowledging that these schools are generally located in poorer, urban, areas, and tend to largely serve students of color.
Goldberg adds, “The best parent would be one that has good communication with the child…I hope that’s the relationship the administration has with students at our school.”