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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
| | Privacy on Principal: Surveillance in Education and the Fourth Amendment. |
| | Although public institutions are subject to constitutional restrictions on state action, the supreme court has recognized limitations on how 4th Amendment protections should apply within the school context. In New Jersey v. T.L.O., the Court found that “probable cause” was not the correct benchmark for searching a 14-year-old girl suspected of smoking cigarettes in the school bathroom. Instead, the majority opinion applied a “reasonable suspicion” two-part standard that considers “whether the . . . action was justified at its inception," and “whether the search. . .was reasonably related. . .to the circumstances which justified the interference in the first place." The court opined that student rights should be limited given that teachers and administrators have a “substantial interest in maintaining discipline. . .on school grounds,” and that they play a role in loco parentis, in place of typical parental "custodial and tutelary" responsibilities. |
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You're discussing New Jersey v. TLO, but your ;l;inmk is to the opinion in Erles
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| | Scrutinizing the "Reasonable Suspicion" Test |
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< | In my view, the “reasonable suspicion” standard is unactionable and ill-founded. The language boils down to a generic evaluation of “reasonableness” and nearly boundless deference to the judgment of school officials. An upper threshold was established in Safford v. Redding, where a middle school girl was forced to remove her clothes and “[partially expose] her breasts and pelvic area” on suspicion of sharing over-the-counter pain relief medicine with a classmate, (a violation of school policy.) There, the court found the extent of the search did not meet “reasonable suspicion” given that the school’s only evidence was the girl’s classmate claiming she was distributing ibuprofen. An upper boundary as extreme as Safford does little to clarify the ambiguity of the “reasonable suspicion” test, and the thin rationale the court provides does not easily translate to an analysis of digital search or surveillance. |
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> | In my view, the “reasonable suspicion” standard is unactionable and ill-founded. The language boils down to a generic evaluation of “reasonableness” and nearly boundless deference to the judgment of school officials. An upper threshold was established in Safford v. Redding, where a middle school girl was forced to remove her clothes and “[partially expose] her breasts and pelvic area” on suspicion of sharing over-the-counter pain relief medicine with a classmate, (a violation of school policy.) There, the court found the extent of the search did not meet “reasonable suspicion” given that the school’s only evidence was the girl’s classmate claiming she was distributing ibuprofen. An upper boundary as extreme as Safford does little to clarify the ambiguity of the “reasonable suspicion” test, and the thin rationale the court provides does not easily translate to an analysis of digital search or surveillance. |
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< | Furthermore, I take issue with the basis on which a lower standard is justified, and how the scope of the lowered standard is derived. It is reasonable for the court to consider the school administrator’s special role in maintaining order and ensuring the safety of minor children, but stripping nearly the entirety of their 4th amendment rights on that basis seems unfounded and dangerous. Supreme Court rulings on 1st amendment rights have identified more pointed areas of rights restrictions--public schools have an interest in pursuing the educational goals of the state, and certain instances of speech can be impermissibly disruptive to that end. In T.L.O., the opinion does not specify the ways in which a probable cause can impair order and safety, and it does not limit the applicability of the rule to such situations. A general need to protect particular institutional interests is used to strip an entire group of people of their enumerated level of constitutional rights. |
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> | Furthermore, I take issue with the basis on which a lower standard is justified, and how the scope of the lowered standard is derived. It is reasonable for the court to consider the school administrator’s special role in maintaining order and ensuring the safety of minor children, but stripping nearly the entirety of their 4th amendment rights on that basis seems unfounded and dangerous. Supreme Court rulings on 1st amendment rights have identified more pointed areas of rights restrictions--public schools have an interest in pursuing the educational goals of the state, and certain instances of speech can be impermissibly disruptive to that end. In T.L.O., the opinion does not specify the ways in which a probable cause can impair order and safety, and it does not limit the applicability of the rule to such situations. A general need to protect particular institutional interests is used to strip an entire group of people of their enumerated level of constitutional rights. |
| | Rethinking "Probable Cause" in the Education Context |
| | If the rationale for diluting the threshold of constitutional search is tied to elements unique to minors and the primary school system, university students should at least receive the typical level of fourth amendment protections. Thus, the surveillance practices public universities are an ideal target for specific inquiries into 4th amendment violations, and the gathering of biometric data from mandatory exam software is one such case study. The Supreme Court has unquestionably held that the taking of a fingerprint is a search,” and it seems that capturing facial recognition data would fall under the same category of conduct. There is seemingly no probable cause, or even “reasonable suspicion” to make these ubiquitous searches in the first place unless every single student had already demonstrated a likelihood of committing violations. In Board of Education v. Earls, the Supreme Court tried a similar case where all high school athletes were subject to mandatory biometric search (urine tests for drugs.) The policy was found constitutional, but only because the court found that athletes had a significantly reduced expectation of privacy than other students, or even students in non-athletic extracurriculars. In tandem, I think these precedents present a compelling argument that public university biometric data gathering is unconstitutional. |
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I think this is a very strong draft, reflecting serious effort to come to grips with an important issue.
There are some technical improvements to make. You should link to the cases you discuss, for example. "I take issue with the Supreme Court" is not the best tone of legal analysis. Depersonalizing and not appearing to argue on the basis of personal authority is just routine.
Substantively, it makes sense to differentiate high school cases from the university situations that are your real subject on the basis of the age and maturity of the students: the inevitable tendency to devalue children's rights does not apply to voting-age citizens enrolled in public universities. As to them. I agree with you that there are going to be new classes of cases in the near future. Perhaps you will decide to make them part of your practice.
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |