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The Fourth Amendment Goes back to High School…the Return of Law Week


The Fourth Amendment Goes back to High School…the Return of Law Week

by Debra A. Newby

Privacy. Such a basic concept yet it takes many a complex turn. Our forefathers imbibed the jest of this concept when they drafted the fourth of the first ten Amendments (the Bill of Rights) to our Constitution…the right to be free from unreasonable searches and seizures. “Everyman” knows just from watching reruns of NCIS or Boston Commons that if the “officials” (typically the police) suspect criminal activity, they need “probable cause”, and a warrant in most cases, to search your home, person or belongings.  But how does the Fourth Amendment play out on school campuses? Can a teacher search a student’s back pack upon a “suspicion” that the student brought drugs to school? Can the principal confiscate a student’s cellphone and start downloading pictures, texts, and other data upon thinking that the student is affiliated with a gang? 

The Fourth Amendment takes living form in Sonoma County high schools with the return of “Law Week” from March 30th through April 10th. Over 90 legal professionals volunteer their time each year by showing up in local high school classrooms to educate and engage the students on the parameters of a timely legal topic, typically one involving legal history or the complexities of the world’s greatest living document—the United States Constitution. This year is no different, as legions of judges, volunteer attorneys, our District Attorney, Jill Ravitch, and our Public Defender, Kathleen Pozzi, sign into the guest ledger of our local high schools to present the topic and interact with high school students and their teachers. 

Each year the topic is different. Last year’s topic was “cyber-bulling”—a tragic and complex issue that measures the right of Free Speech (the First Amendment) against the realities of when bad manners and plumb meanness wreck an innocent life. This year, the Sonoma County Bar Association (SCBA) is once again partnering with the Sonoma County Office of Education (SCOE) to enlighten our future leaders on the intricate balance between the right of the government ( typically the police or school officials) to protect our school community versus the right of the individual high school student to be free from unreasonable searches. 

The case law is as complex as the teenager. The bright-line test for Fourth Amendment issues is that law enforcement agents need probable cause for a legal search. If there is no probable cause and an illegal search is conducted, than any evidence collected during that search cannot be used at trial. The textbook term for this concept is called the Exclusionary Rule. During Law Week, the lawyers and students will be discussing whether students have the same Fourth Amendment rights at school. 

Suzanne Babb, local attorney and SCBA Chair of Law Week, notes that the experience is as rewarding for the volunteers, as it is for the high school teachers and students.  Ms. Babb notes, “Law Week is part learning, part reflection, part career day. When you have nearly a hundred busy Judges and attorneys, as well as the District Attorney and Public Defender, volunteering scarce time—and more classrooms participating every year—I like to think we have a good thing going.  It is a conversation both sides want to have.  Turns out, it is a lot of fun too.”  

By the end of Law Week, high school students may discover that their Fourth Amendment rights differ slightly from the population’s general right to be free from unreasonable searches and seizures.  Although students do enjoy privacy protections on campus, our courts have ruled that this protection is afforded a different and arguably “lower” standard.  In essence, our courts have ruled that because the school has a legitimate need to maintain a safe environment for the task at hand—learning---that the search restrictions can be eased. As first expressed in a 1985 U.S. Supreme court case, New Jersey v. TLO, the “probable cause” standard was loosened to a “reasonable suspicion” standard.  California courts have gone further in interpreting the “reasonable suspicion” standard by determining that a search is justified at inception if reasonable grounds for suspecting that the search will reveal evidence that the student has violated the rules or policies of the school or is in imminent danger of injuring himself or herself, or another person on school premises.   

One teaching tool that may be used during Law Week (which is parallel to the teaching tools used in Law School) is that the students will first be briefed on the law relating to their Fourth Amendment rights on school premises. The students will be given factual scenarios and then asked to apply the legal principles to determine whether the search would be considered legal. Perhaps a Perry Mason or Erin Brockovich will be shaped during Law Week, as the students look at issues such as,

1) whether a school can authorize the search of all student lockers upon receiving a treat that a weapon is on campus;

2) whether a teacher can search a student’s purse upon noticing what appears to be a marijuana; and

3) whether school officials can confiscate and search a student’s cellphone upon noticing depressive or suicidal tendencies, coupled with the student texting between school classes.

Law Week would not be as successful, year after year, without the support of our dedicated and skilled teaching professionals in our community. Joe Ellwood, the Director of Athletics at Analy High School (Go Tigers!) has once again invited Law Week participants to his American History classroom. Mr. Elwood comments, “Any time we can add authenticity to our curriculum it is a great benefit to our students.  Having a conduit between centuries-old original documents, such as the Constitution, and the world in which our young people live today creates an environment of awareness and citizenship that is vital to our society. Law Week acts as that conduit.”

Indeed. We should never take for granted the threads that connect our past to our future. Perhaps our founding fathers (and the women who inspired them) summarized it best in the Federalist Papers, penned by Alexander Hamilton, John Jay, and James Madison, when they scribed, “If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this:  you must first enable the government to control the governed; and in the next place oblige it to control itself.”