School Tragedy; Hardened Schools; and the Fourth Amendment: Can We Keep Our Children Safe?

In an age of the Columbine, Virginia Tech, Sandy Hook and now Douglas High School tragedies, students fundamentally have a right to demand safe schools and school officials have an obligation to keep their students safe. 

But what legal tools are out there to make schools safe? And more importantly, what limit does the constitutional place on the use of such efforts to guarantee security?

As a general proposition, school officials have a wide ability to take actions necessary to secure a school campus. These actions can include the use of metal detectors (See New Jersey v. T.L.O., 469 U.S. 325 (1985)); sniffer dogs in common areas (Doe v. Renfroe, 475 F. Supp. 102 (N.D. Ind. 1979)); and student drug screens where reasonable and compelling justifications exist (Dominic J. v. Wyoming Valley West High School, 362 F. Supp. 2d 560 (M.D. Pa. 2005)). Finally, where individualized suspicion or special needs exists, students and their property may be subjected to a search by school personnel.(J.P. ex rel. A.P. v. Millard Public Schools, 830 N.W.2d 453 (2013)). Such searches can also extend to the abandoned or “lost” property of students (i.e. book bags, gym bags, and the like) (State v. Polk, 78 N.E.3d 834 (2017)).

However, with all of these capabilities possessed by school officials, the Fourth Amendment still applies to searches and seizures on school campuses to protect students from unreasonable and unauthorized intrusion into student privacy. For instance, while suspicionless drug screens may be mandated for students for participation in extracurricular activities, the school must first establish that there is a special need and a compelling government interest for such drug screens or the drug screens will be held unconstitutional. See Board of Education v. Earls,536 U.S. 822 (2002) . Likewise, while special needs searches and seizures may occur on school grounds, this right significantly diminishes when the search occurs off campus or after normal school hours. (See Webb v. McCullough, 828 F.2d 1151 (6^th Cir. 1987)). Finally, efforts to arm teachers, though such efforts would harden schools against violent intruders who view schools as “soft targets” suffer from the fact that there have been long standing prohibitions against guns on school grounds, prohibitions that have even been noticed by the U.S. Supreme Court. District of Columbia v. Heller, 554 U.S. 570 (2008).

With the tension that exists between creating a secure learning environment and preserving student civil liberties, school officials have a difficult task in balancing two mutually antagonistic objectives. More to the point, even when school officials successfully negotiate this balancing act, the question continues to remain one that has been aptly put by one commentator, “. . .[W]hile we harden the schoolhouse gate, practice new drills, and coordinate response times and active shooter tactics. . . are these efforts sufficient? (Todd A. Demitchell, Locked Down and Armed: Security Responses to Violence in Our Schools, 13 Conn. Pub. Int. L.J. 275 (2014).

The horrible news headlines of recent days quite clearly answer this question in the negative. 

If there is to be a solution, for the reasons just provided, the government will not likely be able to provide it, either through policy or legal practice. Rather, if any solution is to be had, it must in large part come from the citizenry at large, and most particularly those parents of school-age children whose mantra must increasingly be that “if one knows something, one must say something”. While no one can know everything at any given time, the aggregate of students and parents at a school can know quite a lot. Such crowd sourcing of data can be the source of information about a potential shooter, about a plot or scheme designed to bring harm, or even whether drugs are being sold in the school. Knowledge can be power but only if that knowledge is passed along to people who can act.

If those in society wish to keep children safe, the time has come for active engagement in our schools, providing school officials the information they need to minimize the problems that so often plague schools in the present day. Talk to your children; talk to other adults; if you know something that might be important, if you know of harm that can come to someone else, pass it along. Such active engagement might be the one thing that can prevent another tragedy.