Pubdate: Sun, 12 Sep 2004 Source: Rockford Register Star (IL) Copyright: 2004 Rockford Register Star Contact: http://www.rrstar.com/ezaccess/contactus/lettertotheeditor.shtml Website: http://www.rrstar.com/ Details: http://www.mapinc.org/media/370 Author: Carrie Watters, Rockford Register Star Bookmark: http://www.mapinc.org/youth.htm (Youth) A LOOK AT LEGALITY OF SCHOOL SEARCHES, QUESTIONING KIDS In 1969, the U.S. Supreme Court said students don't give up their rights to freedom of speech or expression when they walk through school doors. The decision came after Des Moines, Iowa, school officials penalized students who wore black armbands to protest the Vietnam War. Students won. That case set a precedent that students maintain some rights, whether it be freedom of speech or protection against unreasonable searches. But school law has some gray areas, according to legal experts. Courts have given schools broad latitude to maintain safety. In Rockford, the local branch of the NAACP is "fact finding" regarding the Flinn incident and has not ruled out a lawsuit, chapter President Willie Bell said. The legal issues are tricky. Experts contacted by the Rockford Register Star, including the American Civil Liberties Union, said that if the Flinn boys were questioned and not searched, the solution may be as simple as talking it out or developing a clear policy. Bill Modzeleski with the U.S. Department of Education's Safe and Drug-Free Schools program says there are no simple legal answers. He promotes clear policies. Rockford School District policy requires parent notification once a student is disciplined, not before and not if no punishment is handed out. "If we want safe schools in this country, it's not schools working independently. It's schools working with parents, students and law enforcement," Modzeleski said. Darrin Cypress is the stepfather of one of the boys questioned at Flinn. He doesn't defend all Principal Marcia Strothoff's actions, but he does defend her motive. He hopes many people walk away with a lesson learned. "The sad reality is that we have to deal with gang violence," Cypress said. "Together, let's try to find solutions." Here's a sampling of some issues that could crop up in school and what courts have said about them: Can a teacher or principal question a student? Illinois state law places educators in loco parentis, a Latin term that means in the place of a parent. Some attorneys say educators could be viewed as neglectful if they did not ask questions. An educator questioning a student does not violate any constitutional right, although it could enter that realm if the questions relate to constitutional issues, such as religion. The ACLU advises students that if questions are about a criminal act, students have the right to remain silent. Can a school official search a student or personal belongings, like a purse? A search takes it to the level of a constitutional question. The Fourth Amendment protects against unreasonable searches and seizures. In TLO vs. New Jersey, the Supreme Court said students have rights, but not as great as the typical adult on the street. School officials must have reasonable suspicion. They do not have to meet the same level of suspicion ---- probable cause ---- that police officers must meet before conducting a search. The search must be reasonable in scope. Every child in a school could not be reasonably suspected of stealing a purse or some other wrongdoing that would lead to a search. Is it true that school officials have more leeway in searching students than police do? Yes. Along with proving probable cause, police officers typically must obtain a warrant to search a student. School officials do not have that requirement. Are locker searches allowed? Most schools have policies saying that lockers belong to the school. Therefore, school officials can randomly look in lockers because there is no expectation of privacy. For school officials to search a bookbag within a locker, they would need reasonable suspicion. Are drug-sniffing dogs allowed? Yes, and in some cases, school officials use drug-sniffing dogs to obtain "reasonable suspicion." For instance, a trained dog indicating the presence of an illegal substance in a locker would provide reasonable suspicion to search. Is drug-testing allowed? In some cases. Schools more and more are testing athletes and other students in nonathletic extracurriculars. The courts have upheld drug-testing of these two groups when there is a pressing concern of drug use. Students cannot be kicked out of school for a positive drug test, and students must know that the drug-testing policy exists. Again, the courts have not said it is OK to randomly test all students in a school, just those participating in an extracurricular activity or sport. Would a school uniform policy eliminate incidents like what happened at Flinn? Maybe, but some parents and students do not like school uniforms and have challenged them in court as a violation of freedom of expression. Courts have upheld the right of school districts to require uniforms if there is an opt-out clause for religious beliefs. Sources: Attorney Melinda Selbee, legal counsel, Illinois Association of School Boards; Tinker vs. Des Moines; TLO vs. New Jersey; American Civil Liberties Union; U.S. Department of Education - --- MAP posted-by: Derek