Privacy or Protection: The Administrative Dillema

Jason Fasano, Writer

The Fourth Amendment protects US citizens from unreasonable search and seizure at the hands of the government, however in the modern era of terrorist attacks, mass shootings, and other threats to our safety, this respect for privacy must be weighed against the government’s duty to protect us from harm.

In the wake of the terrorist attacks that rocked our nation on 9/11, Congress passed the USA PATRIOT Act, a law intended to protect US citizens from future attacks. But by expanding the government’s powers to protect us, the law also expanded the government’s power to invade our privacy, authorizing such tactics as wire tapping telephone communications, access to financial records, and warrantless searches. Opponents of the law argue that it intrudes on civil liberties and violates the Bill of Rights, making it unconstitutional. “If anyone takes time to read the Patriot Act, there’s no question that our First Amendment rights are being eroded” said James Geisler, treasurer of the Brewster Taxpayers Association, just one of many organizations that have publicly condemned the Patriot Act.

As this constant struggle between privacy and protection takes place on the national stage, a similar, struggle is being waged in public school across America, as administrations seek to find a compromise between protecting their students, and respecting their privacy.

TLO Case

So far we have been discussing the rights of a United States citizen, not of a student in a public school. Although it may sound ridiculous, the two are actually very different when it comes to privacy rights.

In the 1985 case of New Jersey v T.L.O., the Supreme Court ruled that a “school official may properly conduct a search of a student’s person if the official has a ‘reasonable suspicion’ that a crime has been committed,” allowing school administrators a loophole around the 4th amendment requirement of “probable cause” in order to conduct a search.

In 1980, a teacher at New Jersey’s Piscataway High School caught two girls smoking in the bathroom; a school designated no smoking zone. The court documents refer simply to the student as ‘TLO’; her identity remains protected due to the fact that she was a minor at the time of the incident. The other student admitted to school officials that they two had been smoking, however TLO denied that she had been.

After taking her to his office, a vice principal then searched TLO’s purse, which turned up a pack of cigarettes, rolling papers, a pipe, marijuana, a wad of bills, and two letters which, along with the rest of the evidence, indicated that TLO had been dealing marijuana at school.

After being taken to the police station, TLO admitted to selling marijuana at school and was sentenced to a year of probation by the trial court. The New Jersey Supreme Court then overturned this ruling, agreeing with TLO’s appeal that her 4th amendment rights to be protected from search and seizure had been violated.

The State of New Jersey then appealed this ruling to the United States Supreme Court, who then overturned the New Jersey Supreme Court’s ruling, stating that the search had in fact been justified because the vice principle had “reasonable suspicion” to believe a crime had occurred based on the other student’s confession.

Significance of TLO Ruling

The US Supreme Court’s ruling in New Jersey v T.L.O. set a precedent for public school across the nation dealing with the issue of student privacy rights. School officials are only required to have “reasonable suspicion” in order to conduct any form of search, be it a locker, a bag, a student’s person, a car parked on school property, or anything else. This differs from the 4th amendment requirement for “probable cause” in order for a police officer to conduct any form of search.

According to the American Civil Liberties Union the definition of probably cause and reasonable suspicion vary as follows:

Probable Cause– “A reasonable ground to suspect that a person has committed a particular crime or that a place contains specific items connected with a crime. Under the Fourth Amendment, probable cause – which amounts to more than a bare suspicion but less than legal proof – must be shown before an arrest warrant or search warrant may be issued”

Reasonable Suspicion– “A carefully considered presumption, based on specific facts and circumstances, that a person is probably involved in criminal activity. Before an officer can act on this level of suspicion, he must have enough knowledge to lead any reasonably cautious person to conclude that a crime has been (or is about to be) committed by the suspect”

If you think the difference is merely a matter of wording, that’s because it is. It is not these definitions themselves that actually matter, but instead the understanding and legal precedents we have chosen to attach to them over the years, which give them meaning.

And over the years, these meanings have become developed. The result is that when dealing with student privacy, a school administrator actually has far more leeway than a police officer. Therefore, in the case of issues that concern both the school and the police, such as drugs or weapons, it is actually in the best interest of both for the school officials to do the evidence gathering, because they are not bound to the same laws a police officer is regarding the students privacy rights.

“Any time a school issue comes up; it’s our job to deal with it. We have a partnership with the police. We handle things as a school and we make the determination if we need police involvement or not,” said Franklin Vice Principal Mr. Schmidt.

“A lot of us are adults already in the eyes of the law, I don’t really understand how anyone can logically say that we have different rights walking down the street than we do walking down the halls, but it sounds like that’s what they are saying,” said Franklin Senior Jared Linne.

However, many challenges have been raised against the Constitutionality of the TLO Case. The Supremacy Clause of the Constitution states that “This Constitution… shall be the supreme law of the land; and the judges in every state shall be bound thereby.” This has been interpreted to mean that the Constitution will reign supreme over all other law. This would therefore imply that since the TLO ruling redefined students rights under the Fourth Amendment, the ruling itself was unconstitutional. The argument cannot be made that the Supreme Court had the right to do so, because the Constitution clearly states that the Constitution will be the supreme law of the land and that judges can’t make rulings that contradict it. Therefore, the only way to legitimately change a student’s privacy rights would be through a Constitutional Amendment to alter the Fourth Amendment, not through a Supreme Court ruling.

Modern Dilemma

Despite claims against the TLO Case’s legitimacy, no legal action has yet been taken to enforce any of these claims, so legally speaking- until a court system rules otherwise- the reasonable suspicion precedent will remain in place. But for students concerned about increased administrative power under this ruling, the current state of affairs needs to be taken into account.

At the time the founding fathers wrote the Constitution, the government’s duty to protect the citizens amounted to protecting 13 states from Native American tribes wielding bow and arrows. However, as the threats against American safety grew overtime, the government’s protective power inevitably had to as well, meaning so would the extent to which it intruded into the citizen’s lives. In our modern era of both external and internal threats to our safety, the American government has to find an appropriate balance between respecting our privacy and protecting us. To put it bluntly, your privacy is going to be useless to you if you are killed by a terrorist, and conversely your life is going to be meaningless if you have absolutely no liberty. The only plausible solution is to create a government that operate somewhere in between these two extremes.

And this struggle for a reasonable middle ground is mimicked in the school halls across the nation. Administrations struggle to respect the rights of their students, while at the same time protecting them. However, the fact of the matter remains that in order to protect, privacy must be infringed, and vice versa.

“Privacy is important, but these are scary times were living in, if giving administration a little more power is going to make the school safer, then I think I’m okay with that. There is a reasonable compromise between keeping order and respecting privacy, it’s just a matter of finding that middle ground,” said Franklin Senior Jake Handel.

From an administrative standpoint, the top priority is maintaining the safety of the school environment, and privacy issues often come along in the process. According to Mr. Schmidt, “It’s always a question of safety. Anytime an administrator makes a determination were always dealing with school safety. One of our biggest concerns is to make sure that school is safe and students are safe in the school, and that’s our number one priority.”

“I fully support granting the school more rights when it comes to keeping us safe, especially given recent events in the news. But I think the issue a lot of us have is with what exactly they believe they are keeping us safe from. For me keeping us safe would mean these searches focused primarily on weapons or other credible threats to the safety of the school. Yes, of course drugs don’t belong at school, and they are illegal, but their presence does not pose a significant threat to students and faculty the same way a gun or a knife does,” commented one Franklin student who asked not to be named, “Like I said, I fully support giving the school more power to keep us safe, but only as long as that is what these powers are actually being used for. I think the issue a lot of students have, even if they are afraid to voice it, is that the school receives expanded powers to deal with matters of school safety, but then abuse that power by using it to conduct searches that have nothing to do with keeping people safe. If the school wants to search for drugs, they have every right to, but they should have to follow the Constitutional standards for searches, just like a police officer would.”

The issue is clearly one that both students and faculty on both sides of the issue feel passionately about, and may very well end up before the Supreme Court again someday. Until then, the standard set by TLO v New Jersey will stay in place, allowing school officials to circumvent the Fourth Amendment so long as they have “reasonable suspicion” of a crime.

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