Strip-searches at school enter murky legal area Incidents like the one in Winslow must be decided on a case-by-case basis, a district attorney says. October 8, 2007  Michael Kaplan  Jim Evans/Blethen Maine News Services Terry Atwood, assistant principal at Winslow High School, said in court filings that the strip-search of a student was reasonable under the circumstances and constitutionally valid. WINSLOW — District Attorney Evert N. Fowle said in his 22 years in the legal profession, he had never heard of a school employee strip-searching a student -- until last month. Fowle said the strip-search of a Winslow High School girl, revealed by the Maine Civil Liberties Union on Sept. 27, never came across his desk. Sally Sutton, executive director of the Maine Civil Liberties Union from 1984 to 2001, said she never dealt with such a case during her tenure. A school official strip-searching a student is an act that deals with fundamental rights -- specifically, the Fourth Amendment, aimed at protecting citizens from unreasonable search and seizure. Did Winslow High School officials violate the rights of the then 16-year-old girl they strip-searched from the waist up? The settlement reached between the Maine Civil Liberties Union and Winslow High does not answer the question. Nowhere in the agreement does the high school admit to violating the civil rights of the student. The fact that the school paid a settlement of $15,000 -- $6,500 in attorney fees, $8,500 in damages to the girl -- and agreed to apologize for the incident in writing are proof of regret, but not an admittance of guilt. Winslow High School Vice Principal Terry Atwood said in court filings that the search was reasonable under the circumstances and, thus, constitutionally valid. At the same time, the school system has agreed to alter its policies to prohibit strip-searches of students by school employees. All of which points to the murky nature of the Fourth Amendment, particularly as it applies to the relationship between school officials and children in a school building. "Every case as far as its legality would have to be determined on a case-by-case basis," Fowle said. "There is not a cookie-cutter way that it can be judged." CONSTITUTIONAL IMPLICATIONS The Fourth Amendment to the Constitution offers protection against a government that threatens rights of privacy through search or seizure. A public school employee is considered a government official, according to Cabanne Howard, a professor at the University of Maine School of Law. "Schools are clearly the government," he said. "There is no issue about that at all." That means a public school official can be held accountable for violating the rights of a student by strip-searching that student. A private school, in contrast, would be exempt from the law. "If parents don't like it," Cabanne said, "they can take their child out of the school." That said, a strip-search of a student is a highly invasive action regardless of the constitutional implications and could bring legal action on other grounds, said Michael J. Steinberg, legal director of the American Civil Liberties Union of Michigan. Michael Kaplan, a lawyer with the Portland law firm of Preti, Flaherty, Beliveau & Pachios, put it in more blunt terms: "Strip- searches are particularly intrusive. And regardless of what one case or another says, you better damn well have good justification for it." PROBABLE CAUSE That gets to the issue of probable cause versus reasonable suspicion. In the legal world, there is great distinction between the two. "Suffice it to say," the ACLU's Steinberg said, "that (probable cause) is a higher standard than reasonable suspicion." Police are obligated to have probable cause, he said, before they consider strip-searching a suspect. And before they do so, they must go to court to obtain a search warrant. Public school officials, Steinberg said, do not need a search warrant, and they do not need the same level of evidence. Fowle said the first concern of school officials is the health and safety of all students and faculty in the school, a charge that, given certain circumstances, can override the civil rights of an individual. The rub is the nature of those circumstances, Steinberg said. The reasonable suspicion must first not be of a general nature, he said. For example, school officials cannot act simply on a rumor that somebody in the school is in illegal possession of prescription drugs. The magnitude of the possible violation also must be considered. To strip-search a student for stealing money, he said, would not be appropriate because the offense would not threaten the safety of other students. If the concern is a weapon, however, such an intrusive measure might be justified, he said. CASES BECOMING MORE COMMON Given the subjective nature of reasonable suspicion, as well as the intrusiveness of a strip search, Fowle argues that school officials should be extremely wary of taking such measures. "Police are probably better equipped and better trained to conduct the investigation than school officials are," he said. "I think it is probably wise for the school and local police agency to work in concert. The most important thing is to ensure the safety of everybody in the school." The ACLU's Steinberg, though, said that across the country the number of strip-searches by school officials is increasing. "I think it is more common," he said, "and it is part of a disturbing trend around the country of school officials turning schoolhouses into jailhouses. It is just one of many policies or practices of that nature that are becoming more common." "Strip-searches," he said, "just should not be conducted by school officials." Copyright © 2007 Blethen Maine Newspapers | |
Mr. Smith
7 comments:
Just click on comments to post.
Mr. Smith
Just click on comments to post.
Mr. Smith
Talking in class and reading this article, I have learned that in schools, students don't have all the rights that the Constitution grants them. We can be searched at any time without a warrant or even probable cause and we can be video taped on security cameras without our consent. The fact that we have fewer rights in school seems unfair. We basically spend almost our entire lives in school during the year. Think about it, we go to school 6 hours every day, five days a week not including all of the extra time we spend in school devoted to extra curricular activities. It seems very unjust that we are "stripped" of our rights in a place that we are in for so long every day. I don't quite understand the reasoning behind this.
Having reasonable suspicion is different than having a probable cause. A teacher could observe a student and notice the way they dress, who they hang out with, and the grades they get and make the assumption of whether or not they do drugs. If the teacher makes the judgment that the student is a "bad kid" and maybe notices that the student is acting a little funny then they might have a reasonable suspicion that they have pot with them. Basing their suspicion on these observations, the teacher may call to search the student for drugs and then discover that the student doesn't have any. Then discovers the reasoning behind the funny behavior is just that the student ate a lot of sugar that morning. Another example could be that a teacher maybe smells the stench of pot on a student and then therefore makes the plausible assumption that they have drugs on them.
Outside of school, police must have probable cause and a warrant based on evidence to search a person. In schools, no evidence is required to search a student. This seems a little unfair because students should have the right to their privacy. In some cases, though, it makes sense for a student to be searched, but in these instances, I'm sure that if something like this were to come up outside of school police would be able to get a warrant based on evidence.
I have heard of many instances where a student was searched and then nothing was found. This means that the students privacy was invaded for really no reason at all. It makes more sense for school officials to have at least some kind of evidence, even if it's just a little, to base their search on. Yes, we're teenagers and students, but we should at least be protected a little.
I definitely agree with Sydney. The idea of a strip search is just plain unreasonable to me and seems unconstitutional. Where in the Constitution did it give the government the power to do strip searches in order to find out whether a person has any illegal substances on them or weapons? If the people of a school suspect that their students bring weapons to school, then they should get guards and have them check or use metal detectors. And if the people think that the person is in possession of illegal substances then they should find a way of checking the person's possessions and go through the house if they get a warrant to search for the substances, not just search the person itself. There have to be other ways to get around the strip search.
The question about how far the school should be able to go in order to protect the other students also makes me think of our english class on Friday. We were talking about how much responsibility the schools should take over the schools (in this case the Portland school was giving condoms to middle-schoolers). We argued that, though the school does have some responsibility over the kids, they shouldn't take full responsibility and the responsibility should lie with the parents and guardians of the kids too. In the same way, if a kid is thought to be doing something unjust, wrong, or harmful, then it should be brought up to authorities that have other ways to find out if the kid really did the crime other than strip-searching. One way or another, there has to be a way to get around the strip-searches because that seems horrible and a violation of the rights given to us by the Constitution through the search and seizure amendment and other such laws and amendments.
First off I'd like to clarify that I think the strip-search of a minor by a school official is wrong, no matter what reasoning that official has, not to mention the fact that it raises some serious questions as to the staff member's intentions. There have been major problems in schools involving the inappropriate behavior between students and staff members. I feel that strip-searching falls into the catagory of very inappropriate. However, I do feel that it would be appropriate to bring in a trained law enforcment officer to conduct a search if probable cause is established. As Sydney said, as students we don't have the same rights as everyone else. While I don't particularly agree with that, I think everyone is just going to have to deal with it. We do have some rights though and I feel that those few rights need to be protected. Reasonable suspicion is not enough to violate these rights and I think many Law enforcment officials would agree.
After reading this article I find numerous things that could have been done differently in the situation to not encroach upon the student's individual rights as much.
I understand that in a public school each person and what he/she carries becomes the responsibility of the school and our rights as students are automatically encroached upon. In fact, most of those encroachments are even communicated to us in handbooks and guidelines, giving fair warning. However I think the particular instance at Winslow High was a case where the school employee had no authority or right to strip-search the girl.
I think that public authorities should be brought in to search suspicious individuals NOT school officials. I think the school employee & officials at Winslow rushed the situation. What could have been done was to call the student's parents and the police (preferably a female police officer). That way the girl's parents could get a lawyer, if necessary and the girl could then be searched by an authority who is trained & authorized to do the search properly. Evidence should need to be collected first and probable cause should be established before anyone's person is searched.
The Winslow search may not have even been necessary. Based on what I know from the article, I concluded that they most likely were looking for something small, like drugs. If it was a gun they wouldn't have to strip-search; a mere pat down search would be enough. Better yet, just wave a metal detector at the suspected student. Since they were probably looking for drugs, I also have to question what actual good came to the overall welfare of all the fellow classmates by searching this one girl. The only thing I see coming out of taking these measures is money out of the school's account and a girl who(if she even goes back to that school) will most likely suffer many further embarrassments and emotional troubles from having her privacy rights so severely violated. It seems that the employee overreacted in that instance and that there was absolutely no concern for the student in any of it.
I agree with what the others are saying when they say that strip searches are not necessary. First of all, if a student was suspected of having drugs, they should be questioned first. Later on, if there is more suspicion, the police may be brought in to search their bag or coat. Since drugs are illegal, a student should get their rightful punishment if they are found with them in their possession.
In the case that a student is suspected to be in possession of a weapon, the police should be called imediately, since there isn't too much a simple school employee could do to stop a student from hurting someone. In situations that students and employees are in danger, the police should be notified and safety measures should be taken until they arrive. There is no need of a strip search, and the police had other ways to find objects on a person than forcing them to remove their clothing.
I agree somewhat with what Sydney said about students having less rights while they are in school. But at the same time, we have more. Outside of school, people found with drugs are punished a lot worse than those who are found in possession in school. All that happens in school is some sort of out of school suspension, and if worse comes to worse they will be expelled. Others are simply arrested for possession, and whatever else follows.
Post a Comment