School Surveillance and the Fourth Amendment

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline. Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students’ rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students’ constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students’ educational interests. This Article maintains that in these circumstances students’ Fourth Amendment rights should not be abridged, but strengthened

Students, Police, and the School-to-Prison Pipeline

Since the terrible shootings at Sandy Hook Elementary School in Newtown, Connecticut, lawmakers and school officials continue to deliberate over new laws and policies to keep students safe, including putting more police officers in schools. Yet these decisionmakers have not given enough attention to the potential negative consequences that such laws and policies may have, such as creating a pathway from school to prison for many students. Traditionally, only educators, not law enforcement, handled certain lower-level offenses that students committed, such as fighting or making threats without using a weapon. Drawing on recent restricted data from the US Department of Education, this Article presents an original empirical analysis revealing that a police officer’s regular presence at a school is predictive of greater odds that school officials refer students to law enforcement for committing various offenses, including these lower-level offenses. This trend holds true even after controlling for: (1) state statutes that require schools to report certain incidents to law enforcement; (2) general levels of criminal activity and disorder that occur at schools; (3) neighborhood crime; and (4) other demographic variables. The consequences of involving students in the criminal justice system are severe, especially for students of color, and may negatively affect the trajectory of students’ lives. Therefore, lawmakers and school officials should consider alternative methods to create safer learning environments

Implicit Racial Bias and Students\u27 Fourth Amendment Rights

Tragic acts of school violence such as what occurred in Columbine, Newtown, and, more recently, in Parkland and Santa Fe, provoke intense feelings of anger, fear, sadness, and helplessness. Understandably, in response to these incidents (and for other reasons), many schools have intensified the manner in which they monitor and control students. Some schools rely on combinations of security measures such as metal detectors; surveillance cameras; drug-sniffing dogs; locked and monitored gates; random searches of students’ belongings, lockers, and persons; and law enforcement officers. Not only is there little empirical evidence that these measures actually make schools safer, but overreliance on extreme security measures can create prisonlike environments that are inconsistent with students’ best interests. Specifically, overreliance on intense surveillance measures often engenders distrust and discord among members of the school community in the long term, leading to increased disorder and dysfunction. Extreme security measures also play a role in pushing more students out of school and into the criminal justice system, which can have devastating consequences on students and their families. Although all schools do and should monitor students to some extent, empirical evidence demonstrates that not all students experience these intense, prisonlike conditions. Rather, schools serving higher concentrations of students of color are more likely to rely on coercive surveillance measures than schools serving primarily white students. Furthermore, the evidence suggests that legitimate safety concerns do not fully explain these racial disparities, but that implicit racial bias influences school officials’ decisions to rely on intense surveillance methods to some degree. Indeed, empirical studies repeatedly document that many people unconsciously and unfairly associate minorities, particularly African Americans, with aggression, violence, crime, and danger. Recognizing that our current constitutional jurisprudence establishes prime conditions for these racial disparities to develop, this Article proposes a reformulated legal framework to evaluate the constitutionality of coercive surveillance methods that is firmly grounded in the U.S. Supreme Court’s current Fourth Amendment jurisprudence. Applying this reformulated framework in connection with other strategies will ameliorate the effects of implicit racial bias,help address the disproportionate application of coercive security measures on students of color, and motivate school officials working in majority-minority schools to rely on alternative, evidence-based methods to enhance school safety without harming the learning climate

School Security Considerations after Newtown

On December 14, 2012, and in the weeks thereafter, our country mourned the deaths of twenty children and six educators who were brutally shot and killed at Sandy Hook Elementary School in Newtown, Connecticut. Since the horrific massacre, parents, educators, and lawmakers have understandably turned their attention to implementing stronger security measures in schools. This essay provides important points for policymakers and school officials to consider before embarking on a new phase of school security upgrades

Dismantling the School-to-Prison Pipeline: Tools for Change

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system, such as excluding them from school. This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color. But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately support and implement. Further, it suggests initial strategies aimed at addressing implicit racial bias, which appears to be one of the primary causes of the racial disparities relating to the school-to-prison pipeline. The implementation of these tools will create more equitable and safe learning environments that will help more students become productive citizens and avoid becoming involved in the justice system

Rethinking Law Enforcement Officers in Schools

A recent event that occurred in a South Carolina classroom illustrates why there should be concern about assigning law enforcement officers to work in public schools. In October of 2015, a teacher called a law enforcement officer into a classroom to handle a student behavior problem. A female student was using a cell phone in violation of school rules. Other students in the classroom captured what happened next by video. The videos show that when the student refused to exit the classroom, the officer grabbed her by the neck, flipped her and her desk to the floor, and then forcibly dragged her across the classroom to restrain and arrest her. This event was not an isolated incident of a law enforcement officer, sometimes referred to as a school resource officer (“SRO”), mishandling a student discipline problem. Indeed, evidence of law enforcement officers mishandling student disciplinary problems abound. These incidents alone should give us pause. However, this Essay presents below a simple cost benefit analysis of SRO programs that I hope will be used by policymakers, school officials, parents, and members of our community to evaluate whether law enforcement officers belong in schools at all

Students, Security, and Race

In the wake of the terrible shootings in Newtown, Connecticut, our nation has turned its attention to school security. For example, several states have passed or are considering passing legislation that will provide new funding to schools for security equipment and law enforcement officers. Strict security measures in schools are certainly not new. In response to prior acts of school violence, many public schools for years have relied on metal detectors, random sweeps, locked gates, surveillance cameras, and law enforcement officers to promote school safety. Before policymakers and school officials invest more money in strict security measures, this Article provides additional factors that should be considered. First, drawing on recent, restricted data from the U.S. Department of Education, this Article presents an original empirical analysis revealing that low-income students and minority students are much more likely to experience intense security conditions in their schools than other students, even when taking into account neighborhood crime, school crime, and school disorder. These findings raise concerns that such inequalities may continue or worsen as policymakers provide additional funding for security measures. Second, this Article argues that strict security measures do not support long-term solutions needed to effectively prevent school violence. Indeed, strict security measures exacerbate the underlying problems by creating barriers of adversity and mistrust between students and educators. In addition, this Article offers recommendations to address the disproportionate use of security measures on low-income and minority students and to curb violence more effectively. It urges school officials and policymakers to support programs that build trust and collective responsibility instead of providing grants for strict security measures. Further, it recommends that the Department of Education’s Office of Civil Rights play a more active role in addressing the disproportionate use of strict security measures on minority students

Random, Suspicionless Searches of Students\u27 Belongings: A Legal, Empirical, and Normative Analysis

This Article provides a legal, empirical, and normative analysis of an intrusive search practice used by schools officials to prevent school crime: random, suspicionless searches of students’ belongings. First, it argues that these searches are not permitted under the Fourth Amendment unless schools have particularized evidence of a weapons or substance problem in their schools. Second, it provides normative considerations against implementing strict security measures in schools, especially when they are applied disproportionately on minority students. Third, drawing on recent restricted data from the U.S. Department of Education’s School Survey on Crime and Safety, it provides empirical findings that raise concerns that some public schools may be conducting unconstitutional searches of students’ belongings. In addition, it shows that these potentially unconstitutional searches are more likely to take place in schools with higher minority populations than in schools with lower minority populations. Finally, it argues that the Supreme Court should resolve any ambiguity in its jurisprudence by expressly requiring school officials to have particularized, objective evidence of a substance abuse or weapons problem before permitting these schools to perform these intrusive searches

Implicit Racial Bias and Students\u27 Fourth Amendment Rights

Tragic acts of school violence such as what occurred in Columbine, Newtown, and, more recently, in Parkland and Santa Fe, provoke intense feelings of anger, fear, sadness, and helplessness. Understandably, in response to these incidents (and for other reasons), many schools have intensified the manner in which they monitor and control students. Some schools rely on combinations of security measures such as metal detectors; surveillance cameras; drug-sniffing dogs; locked and monitored gates; random searches of students’ belongings, lockers, and persons; and law enforcement officers. Not only is there little empirical evidence that these measures actually make schools safer, but overreliance on extreme security measures can create prisonlike environments that are inconsistent with students’ best interests. Specifically, overreliance on intense surveillance measures often engenders distrust and discord among members of the school community in the long term, leading to increased disorder and dysfunction. Extreme security measures also play a role in pushing more students out of school and into the criminal justice system, which can have devastating consequences on students and their families. Although all schools do and should monitor students to some extent, empirical evidence demonstrates that not all students experience these intense, prisonlike conditions. Rather, schools serving higher concentrations of students of color are more likely to rely on coercive surveillance measures than schools serving primarily white students. Furthermore, the evidence suggests that legitimate safety concerns do not fully explain these racial disparities, but that implicit racial bias influences school officials’ decisions to rely on intense surveillance methods to some degree. Indeed, empirical studies repeatedly document that many people unconsciously and unfairly associate minorities, particularly African Americans, with aggression, violence, crime, and danger. Recognizing that our current constitutional jurisprudence establishes prime conditions for these racial disparities to develop, this Article proposes a reformulated legal framework to evaluate the constitutionality of coercive surveillance methods that is firmly grounded in the U.S. Supreme Court’s current Fourth Amendment jurisprudence. Applying this reformulated framework in connection with other strategies will ameliorate the effects of implicit racial bias, help address the disproportionate application of coercive security measures on students of color, and motivate school officials working in majority-minority schools to rely on alternative, evidence-based methods to enhance school safety without harming the learning climate

To Report or Not To Report: Data on School Law Enforcement, Student Discipline, Race, and the \u27School-to-Prison Pipeline\u27

The “school-to-prison pipeline” wreaks havoc on the lives of thousands of students each year, particularly with respect to students of color. While the effects of the COVID-19 pandemic on the school-to-prison pipeline remain unclear, the eventual return to full in-person teaching nationwide undoubtedly will renew this long-festering problem. The presence of law enforcement officers in schools is a key component of the school-to-prison pipeline and has generated considerable recent national attention, especially after George Floyd’s tragic death in the spring of 2020. Indeed, several robust empirical studies document that the increased presence of school resource (and/or police) officers in a school corresponds with an increased likelihood that a school will report various types of student disciplinary incidents to law enforcement agencies. This trend is troubling. Empirical studies demonstrate that when students become involved in the criminal justice system there are potentially severe implications.This Article furthers the school-to-prison pipeline scholarly literature in at least two critical ways. First, the current literature’s understandable focus on school reporting behaviors entirely ignores school decisions to not report student incidents to law enforcement agencies. We address this gap by comparing determinants of schools’ decisions to report and to not report student disciplinary matters to law enforcement agencies. In so doing we provide greater clarity on how schools exercise their institutional discretion in the student disciplinary context. What we find, on balance, is that schools with a comparatively greater SRO/police presence are systematically more inclined to report than exercise discretion and not report student disciplinary incidents.Second, this Article provides greater insight into the complexities associated with race, student discipline, and the context for which the pernicious effects of implicit racial bias may have the greatest influence on student disciplinary outcomes. Troubling racial inequalities in the public school system abound — particularly with respect to student discipline. Yet, we find that the overall concentration of students of color in a school largely does not influence the rate at which schools report students to law enforcement or when schools decide to exercise institutional discretion and not report. On its face, this finding is inconsistent with the prominent normative literature. However, it comports with our general understanding of how implicit racial bias operates and its nuanced effects in the school disciplinary context. Specifically, when disciplinary incidents require school officials to subjectively characterize student behavior (e.g., defiance, disrespect, disruption), the effects of implicit racial bias are more pronounced, often producing significant inequitable outcomes. In contrast, when less characterization is required, (e.g., possession of drugs or weapons, fighting, theft), which is the basis for most student referrals to law enforcement, the effects of implicit racial bias are often mitigated, resulting in fewer racial equity concerns