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West Coast Publishing Probable Cause in Schools Public Forum Sept-Oct 2016

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WEST COAST DEBATE

Public Forum Sept-Oct 2016

Probable Cause in Schools

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WEST COAST DEBATE..............................................................................................................................2

Resolved: In United States public K-12 schools, the probable cause standard ought to apply to searches of students............................................................................................................................5

Definitions...............................................................................................................................................7

Public K-12 Schools..............................................................................................................................8

Probable Cause Standard.....................................................................................................................9

Apply..................................................................................................................................................10

Searches............................................................................................................................................11

Pro.........................................................................................................................................................12

Pro Case 1/5......................................................................................................................................13

Pro Case 2/5......................................................................................................................................14

Pro Case 3/5......................................................................................................................................15

Pro Case 4/5......................................................................................................................................16

Pro Case 5/5......................................................................................................................................17

Rebuttal to “Education Outweighs Privacy” Arguments....................................................................18

Reubuttal to “Reasonable Suspicion Standard Checks Abuse” Arguments........................................19

Rebuttal to “Legal Protections Exist for Students” Arguments..........................................................20

Rebuttal to “Probable Cause Won’t Solve” Arguments.....................................................................21

Rebuttal to “Unsafe Schools Hurt Poor and Minority Students” Arguments.....................................22

Rebuttal to “Students Have Fewer Rights” Arguments......................................................................23

Rebuttal to “Schools are Unsafe” Arguments....................................................................................24

Rebuttal to “Searches Necessary for Effective Educational System” Arguments...............................25

Rebuttal to “Students Don’t Care about Rights” Arguments.............................................................26

Rebuttal to “Illegal Drugs” Arguments...............................................................................................27

Con........................................................................................................................................................28

Con Case 1/4......................................................................................................................................29

Con Case 2/4......................................................................................................................................30

Con Case 3/4......................................................................................................................................31

Con Case 4/4......................................................................................................................................32

Rebuttal to “Right to Privacy” Arguments.........................................................................................33

Rebuttal to “Authority to Search is Abused” Arguments...................................................................34

Rebuttal to Racism and Classism Arguments.....................................................................................35

Rebuttal to “No Safety Threats in Schools” Argument.......................................................................36




Rebuttal to “Schools Are Safe” Arguments........................................................................................37

Rebuttal to “Need the Courts to Solve Abuse” Arguments................................................................38

Rebuttal to “Searches Alienate Students and Parents” Argument....................................................39

Rebuttal to “Searches and Privacy Violations Hurt Education” Argument.........................................40

Rebuttal to “Privacy Outweighs Security” Arguments.......................................................................41




Resolved: In United States public K-12 schools, the probable cause standard ought to apply to searches of students.

The Fourth Amendment to the U.S. Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This resolution invites debate on whether strict adherence to tough legal standards is the best way to realize that constitutional goal for students under the age of 18. Should they receive the full benefit of constitutional protections as adults do? Is such granting of full rights compatible with the stated objectives of public education?

The affirmation of this resolution entails the argument that we ought to tighten already existing standards for searching students in school. The standard that exists now is “reasonable suspicion,” which is a step lower, a looser standard, than the resolutional one (probable cause). Reasonability merely requires a moderate likelihood that the investigation would yield evidence of wrongdoing or illegal/unauthorized activity on the part of the student. Probable cause requires more than that—it requires that the agent performing the search is confident that they will find something, or that finding something is probable. Why implement a higher standard? Because the current looser standard marginalizes students, removing them from the realm of constitutional protections available to all other actors in society. This not only disenfranchises students from citizenship (which hurts their development and undermines democracy), but it also criminalizes the administration of education—feeding the criminalization of the rest of society, and exacerbating what experts have called the “school-to-prison pipeline.”

Opposition to the resolution begins with the assumption that school authorities (administrators and teachers) are on the same side, have the same interests as, students. Legalistic emphasis on the protection of privacy violates this assumption: It instead assumes that there is an adversarial relationship between students and authorities. But even if students perceive such a relationship, the truth is that, given the underlying purpose of mandatory and universal public education, the interests of the students in learning and development are the same as the interests of the school employees. In fact, this is why schools are better arbiters of rights and responsibilities than the courts. Their intimate involvement in day-to-day education means they must act fast and decisively to quell disruptive behavior, something the reasonability standard allows them to do, but which would be too cumbersome under a probable cause standard. Those practical day-to-day realities include the safety and security that is a prerequisite to any successful educational endeavor.

The pro side in rebuttals has many options for answering potential con arguments. The pro team can argue that widespread searches undermine education (which turns the tables on many con arguments about the necessity of searches. The pro side can also argue that criminalization of society and schools undermines racial and class equalities, that it actually makes schools less safe (again turning the tables on a main opposition strategy), and it even makes it more likely that students will do the very things




they are suspected of doing, as shown by evidence suggesting that drug tests in schools make drug use more likely.

The con side in rebuttals also has a wide array of approaches to take, depending on the arguments in the propositional case. Opps can argue that there is no privacy enumerated in the Constitution (if the pro side makes this a constitutional debate); they can and should argue that there are other checks and remedies for abusive searches. They can argue that racial minorities and economically disadvantaged students are the ones who are hurt the most from unsafe schools. There are a variety of specific scenarios for safety, including both guns (a surprising number of students—as high as ten percent—take weapons to school every day) and cyberbullying. And finally, opps can argue that security is necessary for privacy, inverting the implied value hierarchy of the pro case.

Finally, here are two key weighing mechanisms:

1. What guarantees the best education? Proponents of the resolution should argue that education is a civic, self-defining, developmental experience for students. As such, undermining students’ civil rights under the justification that schools must be made safer is like destroying the inside of a house in order to save it from fire. Arbitrary security measures make education less successful. Opponents of the resolution should argue that some minimum level of safety--and in particular, perception of that safety by students and parents--is necessary for public schools to exist at all. In both instances, teams are appealing to the general benefits of education, as a good in itself that is universally assumed to achieve certain social goods.

2. What is necessary to protect students’ rights? Opponents aren’t going to argue that students should have no rights. Instead, they will argue that a probable cause standard is not necessary to realize and protect those rights. Instead, internal administrative policies, community and parental involvement in shaping rules, and deference to administrators will all guarantee students are adequately protected. However, proponents of the resolution will argue that such protections are too inconsistent and fleeting, and that a tougher, legally-sanctioned standard is necessary to truly acknowledge students as citizens and subjects of an American rights regime.




Definitions




Public K-12 Schools

Public schools are paid for at public expense and provided for free to children in the communities where they reside—and include primary and secondary schoolsDictionary.com, 2016"Public School," Dictionary.com, http://www.dictionary.com/browse/public-school (accessed 8/19/2016)Public Schools: (in the U.S.) a school that is maintained at public expense for the education of the children of a community or district and that constitutes a part of a system of free public education commonly including primary and secondary schools.

K-12 means the grades prior to collegeWhatis.com, April 2005"K-12," Whatis.com, http://whatis.techtarget.com/definition/K-12 (accessed 8/19/2016)K-12, a term used in education and educational technology in the United States, Canada, and possibly other countries, is a short form for the publicly-supported school grades prior to college. These grades are kindergarten (K) and the 1st through the 12th grade (1-12).

Public schools may include home schools and are models of the civil communities where they functionWikipedia, August 19, 2016"State School," Wikipedia.org, https://en.wikipedia.org/wiki/State_school (accessed 8/19/2016)State education is inclusive, both in its treatment of students and in that enfranchisement for the government of public education is as broad as for government generally. It is often organized and operated to be a deliberate model of the civil community in which it functions. Although typically provided to groups of students in classrooms in a central school, it may be provided in-home, employing visiting teachers, and/or supervising teachers. It can also be provided in non-school, non-home settings, such as shopping mall space. State education is generally available to all.




Probable Cause Standard

Probable Cause requires a warrantLegal Information Institute, No Date"Probable Cause," Cornell Law School, https://www.law.cornell.edu/wex/probable_cause (accessed 8/19/2016)Probable cause is a requirement found in the Fourth Amendment that must usually be met before police make an arrest, conduct a search, or receive a warrant. Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search). Under exigent circumstances, probable cause can also justify a warrantless search or seizure. Persons arrested without a warrant are required to be brought before a competent authority shortly after the arrest for a prompt judicial determination of probable cause.

Probable cause is a showing of justified suspicion of individualized criminal wrongdoingNational Juvenile Defender Center, 2013"Defending Clients Who Have Been Searched and Interrogated at School: A Guide for Juvenile Defenders," National Juvenile Defender Center, http://njdc.info/wp-content/uploads/2013/11/Defending-Clients-Who-Have-Been-Searched-and-Interrogated-at-School.pdf (accessed 8/18/2016)Probable Cause is a “practical, non-technical evidentiary showing of individualized criminal wrongdoing that amounts to more than reasonable suspicion, but less than proof beyond a reasonable doubt.”




Apply

Apply means having to do with or related to, particularly in the application of rulesCambridge Dictionary, 2016"Apply," Dictionary.Cambridge.org, http://dictionary.cambridge.org/us/dictionary/english/apply (accessed 8/19/2016)Apply: (esp. of rules or laws) to have to do with someone or something; relate

Apply means to be pertinent and relevant toLegal Dictionary, 2016"Apply," Free Dictionary by Farlex, http://legal-dictionary.thefreedictionary.com/apply (accessed 8/19/2016)Apply: (Pertain), verb affect, be applicable, be concerned with, be connected with, be pertinent, be proper to, be relevant, bear upon, belong to, concern, deal with, have a connection to, have bearing on, have reference, have relation, involve, pertain, refer, regard, relate, touch.




Searches

Legally, a search is an investigation intruding on privacy seeking evidence of wrongdoingFindlaw Legal Dictionary, 1996"Search," from Merriam-Webster's Legal Dictionary, reposted at Dictionary.FindLaw.com, http://dictionary.findlaw.com/definition/search.html (accessed 8/19/2016)Search: an exploratory investigation (as of an area or person) by a government agent that intrudes on an individual's reasonable expectation of privacy and is conducted usually for the purpose of finding evidence of unlawful activity or guilt or to locate a person.

Search means to look for someone or somethingOxford Dictionaries, 2016"Search," OxfordDictionaries.com, http://www.oxforddictionaries.com/us/definition/american_english/search (accessed 8/19/2016)Search: An act of searching for someone or something.




Pro




Pro Case 1/5 When we sacrifice freedom for security, we usually end up undermining both. Because students are people too, we stand for the proposition that in United States public K-12 schools, the probable cause standard ought to apply to searches of students.First, our definition: Probable cause requires a likelihood, rather than a mere possibility, that a search will turn up evidence of unauthorized or illegal activity—it is distinct from reasonable suspicionSusan Price, Senior Legislative Attorney, Connecticut General Assembly Office of Legislative Research, December 31, 2009"Searching Students for Drugs," OLR Research Report, https://www.cga.ct.gov/2009/rpt/2009-R-0465.htm (accessed 8/18/2016)Unlike searches in other situations, school officials can search students when they have reasonable suspicion that the search will uncover evidence of wrongdoing. Reasonable suspicion is a lower evidentiary standard than probable cause. The difference between the two is that reasonable suspicion means that the facts known before initiating a search make it moderately likely that the search will find evidence of wrongdoing. In contrast, probable cause requires that the facts known make it probable that the search will turn up evidence of the commission of a crime.

We argue this higher threshold is better for students, the education system, and the world students enter into when they graduate. Contention One: Student Privacy Violations Feed the Criminalization of Society

A. Contemporary school policy allows virtually unlimited invasions of student privacy and immunity for school officials, marking a trend towards total loss of constitutional rights

Erin P. Davenport, Minneapolis Attorney with Juris Doctor from University of Tennessee, 2007"Stripped Bare: Students' Fourth Amendment Rights, School Searches, and the Reasonableness Standard," Tennessee Journal of Law and Policy, vol. 4, http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1061&context=tjlp (accessed 8/18/2016)Today, schools search for drugs, weapons, and evidence of drug use, and according to the courts, these searches do not violate students' rights." Even if the courts consider some searches unreasonable, qualified immunity protects teachers from liability because the law surrounding these searches often is not clearly established. Thus, school officials can act with impunity because courts will likely perceive the search as reasonable or grant school officials qualified immunity for their actions. If this pattern continues, students will retain no constitutional rights within school walls, and this deprivation of Fourth Amendment rights could extend beyond school walls into everyday citizens' lives.




Pro Case 2/5 B. These policies criminalize ordinary student misbehavior, making the

administrator-student relationship adversarial and undermining juvenile justice Catherine Y. Kim, Assistant Professor of Law, University of North Carolina School of Law at Chapel Hill, 2012"Policing School Discipline," Brooklyn Law Review, vol. 77, http://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1148&context=blr (accessed 8/18/2016)As a result of these policy developments, schoolchildren today are more likely to be arrested and prosecuted for school-based misconduct than they were a generation ago. According to the Federal Advisory Committee on Juvenile Justice, the number of referrals to the juvenile justice system for relatively minor school-based conduct is on the rise. Given this shift toward criminalization, the administration of school discipline appears to be increasingly adversarial.

C. School discipline has been criminalized, exacerbating the general criminalization of all of society

Jason P. Nance, Associate Professor of Law at University of Florida, 2015"Students, Police, and the School-to-Prison Pipeline," Washington University Law Review vol. 93, http://www.americanbar.org/content/dam/aba/administrative/diversity/Jason%20Nance.authcheckdam.pdf (accessed 8/18/2016)The reasons behind the criminalization of school discipline are complex. Several scholars have observed that the criminalization of school discipline has emerged parallel to and in connection with the criminalization of social problems generally in the United States. For lawmakers, declaring a “war on drugs” and “getting tough on crime” proved to be politically-popular positions in response to the unstable economic and social conditions that plagued urban environments . During the last three decades, legislative bodies throughout the country passed harsh laws such as mandatory minimum prison sentences laws, habitual offender laws (“three

strikes” laws), and truth in sentencing laws. These policies resulted in a dramatic increase of the prison population and time served in prison, especially among urban minorities, while also providing an economic stimulus in certain communities. When violent crime rates for juveniles increased from the mid-1980s to 1994, particularly among minority youth in the inner cities, elected officials felt political pressure to

respond in a fashion similar to how they responded to the increase in adult crime. In addition, although juvenile crime rates have steadily declined since 1994, a series of recent, high-profile school shootings further propelled lawmakers to act. Consequently, lawmakers passed a series of harsh laws against juveniles who committed offenses at school and against juvenile offenders generally. Indeed, focusing on ways to remove dangerous and disruptive students from school was a less expensive and more politically feasible alternative to hiring more teachers, counselors, and mental health professionals to help troubled students succeed in school. Unfortunately, many school officials appear to have adopted the same punitive mindset as politicians when crafting disciplinary policies for their districts and schools.




Pro Case 3/5 D. Introducing a probable cause standard solves the criminalization of schools,

provides increased clarity to administrators, and ensures constitutional protections

Michael Pinard, Assistant Professor, University of Maryland School of Law, 2003"From the Classroom to the Courtroom: Reassessing Fourth Amendment Standards in Public School Searches Involving Law Enforcement Authorities," Arizona Law Review, vol. 45, http://arizonalawreview.org/pdf/45-4/45arizlrev1067.pdf (accessed 8/18/2016)The Article concludes that the current standards which govern the Fourth Amendment’s application in public school searches need to be revamped in light of the increased interdependency between school officials and law enforcement authorities in the years following New Jersey v. T.L.O. This convergence has greatly altered the methodologies and philosophies of school discipline processes. Most significantly, it has led to increased use of the juvenile and criminal justice systems to monitor and punish a broadened array of student conduct. As a result, there is a widening gulf between the more expansive use of law enforcement personnel in school discipline, along with the broadened categories of behaviors that could potentially introduce students to the criminal justice system, and the narrow (and narrowing) protections afforded students under the Fourth Amendment. Therefore, this Article recommends that the more protective probable cause standard govern whenever law enforcement authorities are involved in student searches, whether through their physical presence during the search or through policies which require school officials to turn over evidence of any criminal violation to the authorities. In addition, the probable cause standard should govern those situations where school officials conduct searches on their own for the purpose of discovering evidence of criminal activity.

Contention Two: The Reasonable Suspicion Standard Blurs the Line between Schools and Cops

A. The two-tiered system of reasonable suspicion-probable cause gives administrators the incentive to act as surrogates for law enforcement, creating constitutional violations by proxy

Michael Pinard, Assistant Professor, University of Maryland School of Law, 2003"From the Classroom to the Courtroom: Reassessing Fourth Amendment Standards in Public School Searches Involving Law Enforcement Authorities," Arizona Law Review, vol. 45, http://arizonalawreview.org/pdf/45-4/45arizlrev1067.pdf (accessed 8/18/2016) In this scenario, assuming that the line between school officials and law enforcement officers is clearly demarcated, the danger exists that the school official would conduct the search on behalf of the officer, and that the officer would then benefit from the fruits of the search. Likewise, in the school context courts have virtually ignored the deepening interdependency and interconnectedness between school officials and law enforcement authorities, which has led to broader reporting requirements by school officials to law enforcement authorities. However, given these developments, the relational dynamics between law enforcement authorities and

school officials have shifted to such an extent that it is no longer possible to distinguish clearly between the law enforcement and public school contexts. Indeed, the increased placement of law enforcement officers—or other officers under the direct control of law enforcement authorities—in public schools, along with the broader reporting requirements imposed upon school officials, has in many ways melded the criminal justice system with school disciplinary processes, at least in those schools that have implemented these measures.




Pro Case 4/5 B. This conflation gives students fewer rights than adult criminal suspects; courts

allow violations of the 4th amendment even when police are present because the lines between administrators and police are so blurred

Catherine Y. Kim, Assistant Professor of Law, University of North Carolina School of Law at Chapel Hill, 2012"Policing School Discipline," Brooklyn Law Review, vol. 77, http://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1148&context=blr (accessed 8/18/2016)Courts routinely defer to school officials in cases involving the investigation and punishment of students. A schoolchild accused of bringing a water pistol to school or tearing a page out of a book does not enjoy the same constitutional rights as an adult or child suspected of a criminal act on the street . School officials may search the youth’s backpack

without a warrant or probable cause and question the youth without first providing Miranda warnings. Moreover, courts impose these restrictions on rights regardless of the relative seriousness of the offense or even the prospect of criminal prosecution. Indeed, some courts have denied these criminal procedural guarantees to youth in schools even where a uniformed police officer participated in the investigation.

C. Current search jurisprudence is on a slippery slope to group strip-searches and other violations with immunity. This trend will spread outside schools and undermine privacy rights in society at large

Erin P. Davenport, Minneapolis Attorney with Juris Doctor from University of Tennessee, 2007"Stripped Bare: Students' Fourth Amendment Rights, School Searches, and the Reasonableness Standard," Tennessee Journal of Law and Policy, vol. 4, http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1061&context=tjlp (accessed 8/18/2016)Beard has far-reaching future implications. First, Beard demonstrates that teachers can conduct unreasonable and unconstitutional searches with little fear of liability. The decision allows teachers to see how far they can tread on students' rights because liability will not result thanks to qualified immunity. Second, if schools continue to conduct strip searches, the courts may eventually consider them reasonable in all situations. For example, the courts may find a school's actions reasonable enough to allow strip searches in group situations without individualized suspicion. Third, Beard demonstrates that a clearly defined standard on student searches must exist to prevent students from "shed[ding] their rights at the school house gate." If students have no rights in school searches, then the trend will spread from schools into society at large.




Pro Case 5/5

D. Arguments about educational value are flawed: administrators can’t make objective decisions about student interests or safety when forced into adversarial legal relationships with them

Amy Vorenberg, Professor of Law, University of New Hampshire School of Law, 2012"Indecent Exposure: Do Warrantless Searches of a Student's Cell Phone Violate the Fourth Amendment?" Berkeley Journal of Criminal Law, vol. 17, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1092&context=bjcl (accessed 8/18/2016)Any argument that a school administrator can make a decision as a neutral and disinterested party is without merit. Assuming that the school does serve in some capacity as a stand-in for a parent, it is hard to reconcile that status with someone who is also neutral and disinterested. More to the point, given that school administrators (or school resource officers) are enforcers charged with finding and punishing violations, their role could hardly be viewed as neutral. The principal or administrator who authorizes or conducts the search will likely be the one to impose the sanction on the student. Moreover, the administrator is tasked with reducing violations, and may even be under pressure to do so from a school board or parent group.




Rebuttal to “Education Outweighs Privacy” Arguments Privacy violations undermine education—school officials are more concerned with crime prevention than teaching the students—this threatens all our democratic systemsErin P. Davenport, Minneapolis Attorney with Juris Doctor from University of Tennessee, 2007"Stripped Bare: Students' Fourth Amendment Rights, School Searches, and the Reasonableness Standard," Tennessee Journal of Law and Policy, vol. 4, http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1061&context=tjlp (accessed 8/18/2016)Fourth, this decision demonstrates that schools have become more concerned with crime prevention and safety than educating students. Teachers conduct unconstitutional searches under the guise of protecting students. The courts deem these searches unconstitutional, but the teachers still receive qualified immunity for their actions because the courts believe that today's schools are unsafe. If teachers must evaluate reasonableness, conduct a search, and prove that the law was not clearly established, when do they educate students? Teachers spend more time policing students and defending their actions than educating students. Without education, our government, judicial system, and society in general will suffer from ignorance.

Better, more engaging educational methods solve safety issuesJason P. Nance, Associate Professor of Law at University of Florida, 2015"Students, Police, and the School-to-Prison Pipeline," Washington University Law Review vol. 93, http://www.americanbar.org/content/dam/aba/administrative/diversity/Jason%20Nance.authcheckdam.pdf (accessed 8/18/2016)Perhaps the most effective way to enhance school safety is to improve the quality and strength of the educational program schools offer. When teachers have well-planned lessons, employ a varied instructional approach that includes hands-on learning activities to target different learning styles and student needs, establish clear behavioral expectations, and help students understand how the material is useful, teachers engage students and behavioral problems dissipate. Such a learning environment provides students with a sense of purpose, commitment, and personal responsibility. Students want to be in the classroom and fully participate in the educational experience offered to them. They feel that the educational process will work for them if they commit themselves and establish positive relationships with other members of the school community.

Students are not cattle—the “must keep order” paradigm is flawed.People need to feel valuable for policies to work. Many schools already have better policies in place making intrusive police tactics unnecessary and inappropriate.




Reubuttal to “Reasonable Suspicion Standard Checks Abuse” Arguments

Reasonable suspicion fails as a standard—it’s too ambiguous and cannot be legally analyzedKate R. Ehlenberger, Assistant Executive Director, Commonwealth Educational Policy Institute, December-January 2002"The Right to Search Students," ACSD Educational Leadership, http://www.ascd.org/publications/educational-leadership/dec01/vol59/num04/The-Right-to-Search-Students.aspx (accessed 8/18/2016)Although the legal standard for reasonable suspicion is clear, the application of it in different contexts is not always as clear. The Court has even noted that "articulating precisely what reasonable suspicion means . . . is not possible. Reasonable suspicion is a commonsense, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." (Ornelas v. United States, 1996, at 695)

Reasonable suspicion can’t be defined, is circular, and leads to unauthenticated information being used that wouldn’t meet probable cause standardsMichael Pinard, Assistant Professor, University of Maryland School of Law, 2003"From the Classroom to the Courtroom: Reassessing Fourth Amendment Standards in Public School Searches Involving Law Enforcement Authorities," Arizona Law Review, vol. 45, http://arizonalawreview.org/pdf/45-4/45arizlrev1067.pdf (accessed 8/18/2016)Defining reasonable suspicion and probable cause has been challenging, even for the Supreme Court . See Ornelas v. United States, 517 U.S. 690, 695 (1996) (“Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible.”). However, the Court has described probable cause as “a flexible, common-sense standard [that] merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief’ that certain items may be contraband or stolen property or useful as evidence of a crime.” Texas v. Brown, 460 U.S. 730, 742 (1983) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). The Court has explained that reasonable suspicion exists “when there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual’s privacy interest reasonable.” United States v. Knights, 534 U.S. 112, 121 (2001) (citation omitted). For an example of a situation where the Court declared that the facts which led to a search would most probably not constitute probable cause, but did constitute reasonable suspicion, see Griffin v. Wisconsin, 483 U.S. 868, 878 (1987) (“To take the facts of the present case, it is most unlikely that the unauthenticated tip of a police officer—bearing, as far as the record shows, no indication whether its basis was firsthand knowledge or, if not, whether the firsthand source was reliable, and merely stating that Griffin ‘had or might have’ guns in his residence, not that he

certainly had them—would meet the ordinary requirement of probable cause.”).

Probable cause is a better standard because courts and authorities know the right questions to ask. Administrators and/or police can ask: Would we need a search warrant for this? Is the evidence of wrongdoing strong, or just a hunch? The reasonability standard is just too unpredictable and subjective.




Rebuttal to “Legal Protections Exist for Students” Arguments School officials coerce students into voluntary searches, making any legal protections mootKate R. Ehlenberger, Assistant Executive Director, Commonwealth Educational Policy Institute, December-January 2002"The Right to Search Students," ACSD Educational Leadership, http://www.ascd.org/publications/educational-leadership/dec01/vol59/num04/The-Right-to-Search-Students.aspx (accessed 8/18/2016)School officials and sworn law enforcement officers may conduct a search without reasonable suspicion or probable cause if the student voluntarily consents to the search. Voluntariness is determined on the basis of the circumstances—including the student's age, education level, and mental capacity—and the context of the search. When consent is granted, officials may conduct the search only within the boundaries of the consent. If a student consents to the search of her purse, for example, an administrator may not search her locker unless the search of the purse provides probable cause or reasonable suspicion to search the locker. School officials and law enforcement officers are not required to advise students that they have a right to refuse to give consent to search. Some school policies or state regulations, however, may require that they advise students of

their rights. Some school policies require students to provide consent to a search or risk discipline. In at least one federal circuit, the court has upheld this policy (DesRoches v. Caprio, 1998). In this case, all but one student consented to a search of their personal belongings. The search of the consenting students revealed nothing. Pursuant to school board policy, DesRoches was suspended for 10 days for failure to consent to the search. The student claimed that his Fourth Amendment rights were violated because the administrator did not have reasonable suspicion to search him. The court held that when the search of all other students in the class failed to reveal the stolen item, the administrator had reasonable, individualized suspicion to search DesRoches. Therefore, his discipline for failing to consent to a legal search was upheld.

Despite the rhetoric of student rights, school officials can conduct warrantless surveillance, search without individualized suspicion, and bring in police without constitutional protections in placeJason P. Nance, Associate Professor of Law at University of Florida, 2015"Students, Police, and the School-to-Prison Pipeline," Washington University Law Review vol. 93, http://www.americanbar.org/content/dam/aba/administrative/diversity/Jason%20Nance.authcheckdam.pdf (accessed 8/18/2016)For example, over the last few decades, courts have weakened students’ Fourth Amendment rights in schools in order to support school officials in their efforts to promote safety and discipline within schools. This movement in

the law has emboldened school officials to rely on intense surveillance methods to maintain control. Before conducting a search,

school officials need not obtain a warrant, show probable cause, or have an individualized suspicion that a student violated a school rule. Consequently, school officials may rely on a host of suspicionless search practices in schools to uncover violations of school rules. For instance, school officials may use metal detectors, search through students’ lockers, conduct random sweeps for contraband, and install surveillance cameras in the hallways and public rooms throughout the school. In fact, many schools throughout the country routinely rely on these strict measures to monitor students. In addition, school officials may interrogate students without providing Miranda warnings,

regardless of how serious the suspected offense might be or the possibility that the student might be referred to law enforcement for wrongdoing. Some courts have even held that it is unnecessary to provide these constitutionally-based protections when a police officer participates in the investigation. These methods, especially when coupled with the zero tolerance policies, end up pushing more students out of school or directly into the juvenile justice system.

Our evidence suggest violations of students’ integrity happen every day.Our authors point to instances of police-administrator conflation, coerced consent, and strip-searches—often with impunity and legal immunity. Clearly, the system is being abused.




Rebuttal to “Probable Cause Won’t Solve” Arguments Extending probable cause beyond direct police presence solves the criminalization of schoolsMichael Pinard, Assistant Professor, University of Maryland School of Law, 2003"From the Classroom to the Courtroom: Reassessing Fourth Amendment Standards in Public School Searches Involving Law Enforcement Authorities," Arizona Law Review, vol. 45, http://arizonalawreview.org/pdf/45-4/45arizlrev1067.pdf (accessed 8/18/2016)In light of the entangled interdependency that now exists between school officials and law enforcement personnel, strict reliance on the physical presence of law enforcement officers as the sine qua non for their involvement in school searches is misplaced. Indeed, the physical presence of law enforcement officers should not always be the indispensable requirement that must be proved for probable cause to be the standard by which the legality of the search is to be assessed. Rather, school officials can act “in conjunction with or at the behest of law enforcement agencies,” and law enforcement authorities can be actively involved in school searches, even when law enforcement personnel are not physically present during the search. Outside the school context, the Supreme Court has recognized that the physical presence of law enforcement officers is not necessarily a prerequisite for law enforcement involvement in searches by state actors.

Constitutional violations are a greater threat than safety issues in schoolsRandall R. Beger, associate professor in the Department of Sociology at the University of Wisconsin in Eau Claire, 2004"Increased School Security Measures Violate Students' Rights," Gale Opposing Viewpoints in Context, http://ic.galegroup.com/ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?failOverType=&query=&prodId=OVIC&windowstate=normal&contentModules=&display-query=&mode=view&displayGroupName=Viewpoints&limiter=&currPage=&disableHighlighting=false&displayGroups=&sortBy=&search_within_results=&p=OVIC&action=e&catId=&activityType=&scanId=&documentId=GALE%7CEJ3010340207&source=Bookmark&u=san59205&jsid=b54ee7c3af88a4bea6d0d812f1680d8a (accessed 8/18/2016)Because the school setting demands "constant submission to authority" [in the words of Mai Linh Spencer] and is imposing harsher criminal penalties on students who misbehave, the legal rights of schoolchildren ought to be given the highest legal protection afforded by the nation's courts. Regrettably, the opposite is true .

Bowing to public fears and legislative pressures, trial and appellate courts have reduced the Fourth Amendment rights of students to an abstraction. The nation's courts no longer seem interested in scrutinizing the specific facts surrounding the search of a

student to determine if police had probable cause or even reasonable suspicion. Instead, courts search for a policy justification—

e.g, minimizing disruptions to school order or protecting the safety of students and teachers—to uphold the search, even when police use evidence seized under lower and increasingly porous search standards to convict minors in adult criminal court. Given the current atmosphere of widespread fear and distress precipitated by the

September 11, 2001, tragedy there is little reason to expect courts will impose any restrictions on searches in schools. Ironically, children are unsafe in public schools today not because of exposure to drugs and violence, but because they have lost their constitutional protections under the Fourth Amendment .

The point of probable cause is that it’s the standard applied to all people. Probable cause is what adults would get if they were stopped driving their cars. These kinds of protections are integral to the notion of the whole citizen. Kids should be included in that circle.




Rebuttal to “Unsafe Schools Hurt Poor and Minority Students” Arguments

Lack of probable cause standard increases criminalization of schools, disproportionately harming poor and minority studentsMichael Pinard, Assistant Professor, University of Maryland School of Law, 2003"From the Classroom to the Courtroom: Reassessing Fourth Amendment Standards in Public School Searches Involving Law Enforcement Authorities," Arizona Law Review, vol. 45, http://arizonalawreview.org/pdf/45-4/45arizlrev1067.pdf (accessed 8/18/2016)Commentators also warn that law enforcement presence in public schools, particularly when combined with zero tolerance policies, creates an acute risk of utilizing the criminal justice system to handle incidents and behaviors that had been previously dealt with through school disciplinary processes. Such policies disproportionately affect lower-income students and students of color, because the majority of schools that have adopted these security measures are located in urban and poorer communities, and because both the juvenile and criminal justice systems disproportionately punish those who are economically disadvantaged and of color.

Criminalization of schools is based on the profit motive, not objective problems in schoolsRandall R. Beger, associate professor in the Department of Sociology at the University of Wisconsin in Eau Claire, 2004"Increased School Security Measures Violate Students' Rights," Gale Opposing Viewpoints in Context, http://ic.galegroup.com/ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?failOverType=&query=&prodId=OVIC&windowstate=normal&contentModules=&display-query=&mode=view&displayGroupName=Viewpoints&limiter=&currPage=&disableHighlighting=false&displayGroups=&sortBy=&search_within_results=&p=OVIC&action=e&catId=&activityType=&scanId=&documentId=GALE%7CEJ3010340207&source=Bookmark&u=san59205&jsid=b54ee7c3af88a4bea6d0d812f1680d8a (accessed 8/18/2016)Increasingly, the search efforts of police officials stationed in public schools mirror the actions of prison guards. For example, to create a drug-free environment, schools are allowing police officers to conduct random preemptive searches of students' lockers and personal property using specially trained sniff dogs . Over

1,000 schools in 14 states use drug-sniffing dogs supplied by a Texas company called Interquest Detection Canines. The profit motive is a powerful incentive to expand canine searches to schools that have no demonstrable drug problems. One school board has even formed a partnership with the U.S. Customs Department to send dogs into classrooms for drug-detection training exercises.

The harms of criminalization are systemic—worse than school behavior issues.Criminalization entrenches racism and classism into society as a whole.




Rebuttal to “Students Have Fewer Rights” Arguments No justification for considering students exceptional to constitutional protectionCatherine Y. Kim, Assistant Professor of Law, University of North Carolina School of Law at Chapel Hill, 2012"Policing School Discipline," Brooklyn Law Review, vol. 77, http://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1148&context=blr (accessed 8/18/2016)As a purely doctrinal matter, however, this alternative justification proves less than satisfactory. While few would contest that the state interest in providing a functional educational environment is significant, the Court has not attempted to explain why this interest would outweigh the individual student’s interest if those interests are in fact in conflict. Outside the school context, the state interest in preventing violent street crimes is of course significant, yet it does not outweigh the individual interest in receiving full procedural protections. It is not at all clear why this calculus balancing competing interests between state and individual should not apply in the school context as well.

Aggressive searches and law enforcement involvement undermine trust, increase disorder, undermine education, and make schools less safeCatherine Y. Kim, Assistant Professor of Law, University of North Carolina School of Law at Chapel Hill, 2012"Policing School Discipline," Brooklyn Law Review, vol. 77, http://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1148&context=blr (accessed 8/18/2016)Some scholars have reasoned that, by creating adversarial and distrustful relationships between law enforcement and school authorities on the one hand, and the student body on the other, coercive police-like interventions may actually increase school disorder. Education scholars Matthew Mayer and Peter Leone analyzed data from the National Crime Victimization Survey to assess the relationship between coercive school security measures and educational climate and found that restrictive measures such as the use of security personnel, metal detectors, and locker searches were not only associated with higher levels of school disorder, but also possibly caused that disorder. Based on these findings they concluded, “creating an unwelcoming, almost jail-like, heavily scrutinized environment, may foster the violence and disorder school administrators hope to avoid.” Similarly, one

criminologist recently expressed concern that “aggressive security measures produce alienation and mistrust among students” and such measures “can disrupt the learning environment and create an adversarial relationship between school officials and students,” while another criminologist suggested that the use of aggressive law enforcement tactics in schools “may cause students to distrust educational and law enforcement authorities which could motivate students to engage in greater delinquency.”

There’s no textual justification for limiting student rights.The Constitution makes no distinctions in rights between adults and kids—the provisions of the Bill of Rights all belong to “the people,” not adults exclusively.




Rebuttal to “Schools are Unsafe” Arguments

Schools are safer than everScott Neuman, digital news writer & editor at National Public Radio, March 16, 2012"Violence in Schools: How Big a Problem is it?" National Public Radio, http://www.npr.org/2012/03/16/148758783/violence-in-schools-how-big-a-problem-is-it (accessed 8/18/2016)Dewey Cornell, a clinical psychologist and education professor at the University of Virginia, says incidents like the one in Chardon, Ohio, and the infamous mass shootings at Columbine High School in Colorado and at Virginia Tech have reinforced a perception that schools are dangerous places. "But that's just not true," says Cornell, who has been examining school violence for decades. "I know on the heels of any school shooting, there's the perception that violence is on the rise. It's not. In fact, there's been a very steady downward trend for the past 15 years."

Theft, violence, and homicides have decreased across the board in public education; non-intrusive anti-violence programs workNational Institute of Justice, May 14, 2016"School Crime and Safety," National Institute of Justice Office of Justice Programs, http://www.nij.gov/topics/crime/school-crime/pages/welcome.aspx (accessed 8/18/2016)The good news is that theft, violent crime and student homicides in American schools (with children in grades K-12) have declined over the past decade. A growing body of evidence shows that violence prevention programs can help to reduce opportunities for criminal behaviors and effectively instruct young people on other ways to resolve conflict and express their feelings safely. Schools and communities can work together to make these programs available and prevent violence before it occurs.

This effectively answers any reason to conduct intrusive searches without due process.Not only are schools safer than ever, but anti-violence and other programs are working in the schools, demonstrating that police-like searches are unnecessary and potentially counterproductive.




Rebuttal to “Searches Necessary for Effective Educational System” Arguments

Privacy violations destroy self-esteem and entrench inferiority in studentsSarah Jane Forman, Assistant Professor of Law at the University of Detroit, 2011"Countering Criminalization: Toward a Youth Development Approach to School Searches," The Scholar, vol. 14, file:///C:/Users/Matt/Downloads/STMU_TheScholarStMarysLRev_v14i2p0301_Forman.pdf (accessed 8/18/2016)In many of America’s public high schools, a dangerous lesson is being taught. It is not in any textbook or lesson plan, nor is it the subject of a pop-quiz or standardized test, yet it is reinforced every day in the hearts and minds of students as they are patted, frisked, and searched by school police, sniffed by drug-detecting dogs, or confined by fences topped with barbed wire. It is a lesson in inferiority, in lowered expectations of privacy, and in second-class citizenship. It is a lesson that perpetuates the social norms that criminalize youth. It is a lesson that stays with them for life.

These practices undermine trust in the law, destroy democratic participation, and feed the school-to-prison pipelineSarah Jane Forman, Assistant Professor of Law at the University of Detroit, 2011"Countering Criminalization: Toward a Youth Development Approach to School Searches," The Scholar, vol. 14, file:///C:/Users/Matt/Downloads/STMU_TheScholarStMarysLRev_v14i2p0301_Forman.pdf (accessed 8/18/2016)What kind of message is conveyed when students are subjected to pats, frisks, sniffs, and searches on a regular basis? Children, particularly adolescents, who are subjected to these searches under the very low bar of reasonable suspicion, may feel that the law is unfair and question its legitimacy because they have been treated with distrust and disrespect by adults in positions of authority. Even if they do not understand the vagaries of reasonable suspicion and how it differs from probable cause, young people can appreciate basic concepts of fairness, dignity and respect. Repeated experiences with legal actors who seem to abuse their authority contributes to a sense of humiliation, rejection, and alienation that eventually leads students to seek acceptance and recognition in other, less “mainstream” venues. The constant suspicion with which students are regarded under the current paradigm pushes them into a defensive posture that hinders their ability to become active and engaged citizens of their community and nation. Disengaged from the “fundamental values necessary to the maintenance of a democratic political system,” youth salvage their dignity by plugging into an oppositional culture born in despair and steeped in violence, decreasing the legitimacy of the rule of law, and, in some instances, feeding the school-to-prison pipeline.

Students need to feel invested in the process.These authors indicate that searches and an overbearing administration make students feel alienated, not empowered, and this becomes the way young people feel about the law in general.




Rebuttal to “Students Don’t Care about Rights” Arguments

Students do care about their privacy rights even if they don’t have the maturity to articulate themAmy Vorenberg, Professor of Law, University of New Hampshire School of Law, 2012"Indecent Exposure: Do Warrantless Searches of a Student's Cell Phone Violate the Fourth Amendment?" Berkeley Journal of Criminal Law, vol. 17, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1092&context=bjcl (accessed 8/18/2016)Teenagers’ behavior should not dictate the limits of their own zone of privacy for precisely the same reason that young people’s rights are subjugated: because of their lack of maturity. It is a mistake to conclude that teenagers don’t care about their privacy based on their choice to share intimate data about themselves with their friends via digital devices.

School administrators should model good citizenship—requiring probable cause achieves thisAmy Vorenberg, Professor of Law, University of New Hampshire School of Law, 2012"Indecent Exposure: Do Warrantless Searches of a Student's Cell Phone Violate the Fourth Amendment?" Berkeley Journal of Criminal Law, vol. 17, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1092&context=bjcl (accessed 8/18/2016)School administrators are faced with tremendous social pressures and their need to maintain order should not be underestimated. Nevertheless, the primary mission of schools is to educate. This mission would be better served if adults in the school community modeled respect for student privacy. Requiring administrators to get a warrant to search the contents of a cell phone balances the legitimate safety concerns of school administrators with a student’s right to privacy.

We care about privacy.The argument that we don’t care just because we send emails and text messages, or because we’re young, is ridiculous. We’re here to tell you we don’t want to be unreasonably searched!




Rebuttal to “Illegal Drugs” Arguments

Reasonable suspicion standard leads to generalized searches like drug testingAmy Vorenberg, Professor of Law, University of New Hampshire School of Law, 2012"Indecent Exposure: Do Warrantless Searches of a Student's Cell Phone Violate the Fourth Amendment?" Berkeley Journal of Criminal Law, vol. 17, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1092&context=bjcl (accessed 8/18/2016)School-wide searches of lockers and backpacks are increasingly routine in public schools, as is random drug testing. These searches are not targeted at any one individual, but instead seek to root out contraband by searching all students.

Drug testing risks increased hard drug use and otherwise has no positive effectChristopher Ingraham, formerly of Brookings Institution and the Pew Research Center, April 27, 2015"School drug tests: Costly, ineffective, and more common than you think," Washington Post, https://www.washingtonpost.com/news/wonk/wp/2015/04/27/schools-drug-tests-costly-ineffective-and-more-common-than-you-think/ (accessed 8/19/2016) But in the years since the Supreme Court ruling, numerous studies have shown little evidence of effectiveness among these programs. To wit: A 2013 study looked at 14 years of data on student drug use and found that school drug testing was associated with "moderately lower marijuana use," but increased use of other, more dangerous illicit drugs. A 2014 study concluded that drug testing was "was not associated with changes in substance use." A 2013 study comparing drug use rates among schools with and without drug testing programs found some short-term deterrent effect among students who were tested, but no effects among students who weren't tested, and no long-term effects on either drug use or intention to use drugs in the future.

Our evidence is better on this question.Ingraham reviews three major studies on the question of whether testing decreases—or increases—drug use in schools.




Con




Con Case 1/4 Because students and teachers aren’t legal adversaries, we stand against the resolution: In United States public K-12 schools, the probable cause standard ought to apply to searches of students.Our initial definition: Probable cause is a strong standard usually reserved for police searchesLegal Information Institute, No Date"Probable Cause," Cornell University Law School, https://www.law.cornell.edu/wex/probable_cause (accessed 8/19/2016)Probable cause is a requirement found in the Fourth Amendment that must usually be met before police make an arrest, conduct a search, or receive a warrant.

Contention One: Deference to School Authorities Best Fulfills Purpose of SchoolsA. Courts should defer to school officials—particularly in high-crime areas

Kendell L. Coker, Assistant Professor of Psychology at University of New Haven, 2011"The Application of the Fourth Amendment in the School Context May Create a Safe Learning Environment for Some but Creates the School-to-Prison Pipeline for Others: The Challenges of Inner City School Violence," Loyola University of Chicago Web Site, http://www.luc.edu/media/lucedu/law/centers/childlaw/childed/pdfs/2011studentpapers/coker_fourth_amendment.pdf Some commentators argue that there should be a requirement for individualized suspicion prior to searching a student. However, requiring individualized suspicion may not provide school officials working in high crime schools with the broad disciplinary powers they need to adequately protect their students . Although I echo the concerns raised by Judge

Allen, I applaud Judge Allen’s opinion and many similar decisions to err on the side of safety in the school context. In the context of schools, children do not have a choice to attend school and there must be a safe learning environment for educational goals to be met. Therefore, courts have and must continue to defer to school officials by considering the prevalence and seriousness of violence in their respective school and the need for administrative action to further the goal of maintaining school discipline and order .




Con Case 2/4 B. Administrators are better than courts at determining the correct application of

rules; the teacher-student relationship is non-adversarial—a legalistic model is inappropriate

Anne Proffitt Dupre, Assistant Professor of Law at the University of Georgia, November 1996"Should Students Have Constitutional Rights? Keeping Order in the Public Schools," George Washington Law Review, vol. 65, http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1541&context=fac_artchop (accessed 8/18/2016)In essence the T.L.O. Court signaled that at least in the school search context, it trusted those who worked in schools every day to better discern the importance of school rules than judges in far-off courtrooms.

The reproduction model once more found its strongest voice in Justice Powell, whose concurrence again stressed that, unlike the

adversarial picture presented in the reconstruction model, teachers and students share in the institutional mission: "the education and training of young people." Because maintaining order is essential to both school and student in this shared enterprise, it is in both the student's and the school's interest . Like Justice Powell, Justice Blackmun's focus on the school as a "special" institution with a "special need for flexibility" reveals his affinity for the reproduction model. Significantly, Justice Blackmun observed that within that "special" institution, teachers did not act as adversaries of the student but instead focused on the nonadversarial tasks of "teaching and helping" students.

C. Fear of legal repercussions undermine teachers’ and administrators’ ability to address classroom problems—court involvement prevents educational excellence

Anne Proffitt Dupre, Assistant Professor of Law at the University of Georgia, November 1996"Should Students Have Constitutional Rights? Keeping Order in the Public Schools," George Washington Law Review, vol. 65, http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1541&context=fac_artchop (accessed 8/18/2016)A teacher who hopes to avoid trouble will not always respond right away to problems in the classroom. Rather than dealing with a problem immediately, careful teachers will either spend time trying to ascertain whether a court would find their suspicion reasonable or, more likely, will avoid the problem altogether to avoid any controversy. Faced with the Court's mixed feelings regarding reconstruction and reproduction, its uncertain standards, its implied encouragement to challenge school decisions and the possibility of a damage action, the logical reaction by teachers and principals is to overcompensate, with the result that even the "modicum of discipline and order" that the Goss Court allowed was essential cannot be consistently maintained. Indeed the discretion that due process restrains may well be a "prerequisite to the maintenance of institutional excellence.” As then-

Professor Wilkinson predicted, "[t]he further entry into school discipline of so formidable a force as the courts and the judicial process may simply discourage some school officials from taking firm disciplinary action."




Con Case 3/4 D. The reasonability standards best reflects the balance between schools as

mandatory spaces of learning and development and the privacy rights of students; school authorities need the space to consider the totality of circumstances

Justice Byron White, United States Supreme Court, January 15, 1985New Jersey v. T.L.O., 469 U.S. 325 (1985), majority opinion, https://en.wikisource.org/wiki/New_Jersey_v._T.L.O./Opinion_of_the_Court (accessed 8/18/2016)Schoolchildren have legitimate expectations of privacy. They may find it necessary to carry with them a variety of

legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items by bringing them onto school grounds. But striking the balance between schoolchildren's legitimate expectations of privacy and the school's equally legitimate need to maintain an environment in which learning can take place requires some easing of the restrictions to which searches by public authorities are ordinarily subject. Thus, school officials need not obtain a warrant before searching a student who is under their authority. Moreover, school officials need not be held subject to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating

the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a determination of whether the search was justified at its inception and whether, as conducted, it was reasonably related in scope to the circumstances that justified the interference in the first place. Under ordinary circumstances, the search of a student by a school official will be justified at its inception where there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. And such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search, and not excessively intrusive in light of the student's age and sex and the nature of the infraction.

Contention Two: Strong Privacy Protections Undermine SafetyA. Students need safe climates to learn, free of bullying, weapons, and drugs

National School Boards Association, 2013"School Safety," NSBA Issue Brief, http://www.nsba.org/sites/default/files/School%20Safety%20Issue%20Brief%203-21-13.pdf (accessed 8/19/2016) NSBA believes that students must have safe and supportive climates and learning environments that support their opportunities to learn and that are free of abuse, violence, bullying, weapons, and harmful substances including alcohol, tobacco, and other drugs. NSBA urges federal, state, and local governments, as well as parents, business, and the community, to cooperate fully with local school boards to eliminate violence, weapons, and harmful substances in schools and to ensure safe, crime-free schools.




Con Case 4/4 B. More than ten percent of high school students carry weapons to school

Child Trends, August 2014"High School Students Carrying Weapons," Child Trends Data Bank, http://www.childtrends.org/?indicators=high-school-students-carrying-weapons (accessed 8/18/2016)The proportion of students reporting that they carried a weapon in the past 30 days decreased from 26 percent in 1991 to 17 percent in 1999. Since then, the percentage has not strayed far from the current figure of 18 percent (as of 2013). However, among whites, there was an increase in students carrying weapons between 2011 and 2013, from 17 to 21 percent.

C. Strong privacy protections will cause administrators to hesitate on safety--we need a rational balance

Jason E. Yearout, attorney in Alabama with J.D. from William and Mary, 2002"Individualized School Searches and the Fourth Amendment: What's a School District to do?" William and Mary Bill of Rights Journal, Vol. 10, http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1339&context=wmborj (accessed 8/19/2016)Now more than any time in recent history, both educational administrators and parents of schoolchildren are concerned greatly about the safety of students in public schools at all levels of K-12 education. Indeed, the recent school shootings at high schools in Santee, California and El Cajon, California, in March of 2001, have once

again heightened these grave concerns. As statistics differ on the proximity between the perceptions of danger in American schools and the relatively safe reality, school boards and administrators concomitantly fear the legal ramifications of overzealous preventative tactics in response to the "perceived" threat, particularly in the area of search and seizure. In theory, the concerns for student safety and prevention of litigation might make for a workable counterbalance in which a prototypical school district could function rationally, inevitably settling on the individual search policy that works best for that school or district.

D. Good order and safety are indisputable prerequisites for good education, after controlling for all other variables—keeping order is necessary for public education to continue to exist at all

Anne Proffitt Dupre, Assistant Professor of Law at the University of Georgia, November 1996"Should Students Have Constitutional Rights? Keeping Order in the Public Schools," George Washington Law Review, vol. 65, http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1541&context=fac_artchop (accessed 8/18/2016)Public schools--if they are to continue as an institution--simply must be allowed to keep order . Studies have

reinforced what many already believed: that students simply learn better in private and parochial schools than in public schools. Most important, even after controlling for student backgrounds, the study determined that the most significant difference between public and private schools was the presence of a safer, more disciplined, and more orderly learning environment. Recent reports also reveal that a majority of parents would send their children to a private school if they could afford it.




Rebuttal to “Right to Privacy” Arguments There is no intrinsic right to privacy in the Constitution, and its construction is mostly imaginativeHarold R. DeMoss, Judge at 5th U.S. Circuit Court of Appeals, January 15, 2006"Constitutional Right to Privacy a Figment of Imagination," Houston Chronicle, http://www.chron.com/opinion/outlook/article/Constitutional-right-to-privacy-a-figment-of-1640537.php (accessed 8/19/2016)The advocates of a constitutional right of privacy speak as though that right were expressly stated and enumerated in the Constitution. But the text of the Constitution does not contain the word "privacy" or the phrase "right of privacy." Consequently, in my view, a constitutional "right of privacy" could only be unenumerated and is therefore a figment of the imagination of a majority of the justices on the modern Supreme Court.

The Constitution neither authorizes nor prohibits regulation of privacyHarold R. DeMoss, Judge at 5th U.S. Circuit Court of Appeals, January 15, 2006"Constitutional Right to Privacy a Figment of Imagination," Houston Chronicle, http://www.chron.com/opinion/outlook/article/Constitutional-right-to-privacy-a-figment-of-1640537.php (accessed 8/19/2016)The Constitution does not delegate to the Supreme Court (or any other branch of the U.S. government) any power to define, apply, or enforce whatever may be the right of privacy retained by the people. Similarly, the U.S. Constitution does not prohibit any state in particular, nor all states in general, from defining, applying or enforcing whatever the people of that state may choose as the right of privacy.

Our evidence is better on the question of a constitutional right to privacy.This evidence comes from a sitting judge who has studied legal interpretations of the Constitution.




Rebuttal to “Authority to Search is Abused” Arguments Courts have proven they can check constitutional abuses of student search policyMark Walsh, law and education writer at School Law, June 25, 2009"Analysis: Strip-Search Decision Adds Clarity for Students and Schools," Education Week: School Law, http://blogs.edweek.org/edweek/school_law/2009/06/do_not_publish_safford.html (accessed 8/18/2016)Justice Souter and the majority today essentially agreed with Savana that school officials had no reason to believe that dangerous quanities of the drugs were being hidden in the girl's clothing . "In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear," Souter wrote. "We think that the combination of these deficiencies was fatal to finding the search reasonable." While today's decision is a defeat for school districts, which argued for greater leeway in searching students, it seems unlikely it will really turn over the operation of the schools to the students, as Justice Thomas suggested.

Probable cause standard is unworkable and requires warrants, which are inappropriate to the rapid response needs of school authorities; the standard isn’t necessary for constitutional protection anywayJustice Byron White, United States Supreme Court, January 15, 1985New Jersey v. T.L.O., 469 U.S. 325 (1985), majority opinion, https://en.wikisource.org/wiki/New_Jersey_v._T.L.O./Opinion_of_the_Court (accessed 8/18/2016)How, then, should we strike the balance between the schoolchild's legitimate expectations of privacy and the school's equally legitimate need to maintain an

environment in which learning can take place? It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment: requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools . Just as we have in other cases dispensed with the warrant requirement when "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search," Camara v.

Municipal Court, 387 U.S. at 532-533, we hold today that school officials need not obtain a warrant before searching a student who is under their authority. The school setting also requires some modification of the level of suspicion of illicit activity needed to justify a search. Ordinarily, a search — even one that may permissibly be carried out without a warrant — must be based upon "probable cause" to believe that a violation of the law has occurred. See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973); Sibron v. New York, 392 U.S. 40,

62-66 (1968). However, "probable cause" is not an irreducible requirement of a valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, . . . in certain limited circumstances neither is required.

The probable cause standard is highly specialized—remember there are other protections available.The resolution demands that our opponents defend raising the current standard to probable cause—it doesn’t demand that we reject any kind of standards or remedies for abusive searches. We simply say there are better methods.




Rebuttal to Racism and Classism Arguments Parents don’t keep their kids in public schools because of constitutional rights—they keep them there because of safety and order, and a collapse of public schools hurts poor families the mostAnne Proffitt Dupre, Assistant Professor of Law at the University of Georgia, November 1996"Should Students Have Constitutional Rights? Keeping Order in the Public Schools," George Washington Law Review, vol. 65, http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1541&context=fac_artchop (accessed 8/18/2016)Indeed, parents and children have not flocked to public schools because students have greater constitutional rights there than in private schools. Many parents know that school children need an ordered environment to obtain a serious education. They will stay with public schools if an ordered environment exists, but will leave-if they can afford to-when it does not. As usual, the poorer children suffer the most. Poor children are left in a system that is not working, but that will not be repaired because the rich and the powerful have moved their children elsewhere and have no further incentive to help the public school system.

Academic achievement is key to success and quality of life—and key to overcoming racial disparitiesJohanna Lacoe, Postdoctoral Research Associate at the USC Price School of Public Policy, March 2, 2012"Too Scared to Learn? The Academic Consequences of Feeling Unsafe at School," Robert F. Wagner Graduate School of Public Service, New York University, http://www.aefpweb.org/sites/default/files/webform/Lacoe_School%20Safety_3.2012.pdf (accessed 8/19/2016)Academic achievement is a first critical step toward future success in adult life, increasing employment and earnings and the probability of other stabilizing life events such as marriage. Studies show that early childhood test scores are positively correlated with future labor market outcomes (Currie & Thomas, 1999), and racial disparities in test scores are linked to future disparities in health outcomes (Freudenberg & Ruglis, 2007). Yet, black and Hispanic students consistently underperform on standardized tests compared to white and Asian students (U.S. Department of Education, NCES, 2003). These racial gaps persist even as test scores have risen for all students. Gaps in achievement extend to college enrollment and completion rates and as a result, whites are more than twice as likely to earn a bachelor’s degree as blacks (Western, 2006). Lower educational attainment is associated with an increased probability of arrest and incarceration, and the risk of imprisonment is greater for black men with no college degree, at 32 percent incarceration rate over the life course, compared to a 6 percent for white men with the same level of education (Lochner & Moretti, 2004; Western, 2006).

Our evidence takes into account how families actually feel.Abstract arguments about whether the school system or the legal system are racist and classist are interesting, but the more important question is what families actually want for their children.




Rebuttal to “No Safety Threats in Schools” Argument

Theft and violence are increasing in public schoolsAllie Bidwell, education reporter for U.S. News & World Report, June 10, 2014"Report: School Crime and Violence Rise," U.S. News & World Report, http://www.usnews.com/news/articles/2014/06/10/incidents-of-school-crime-and-violence-on-the-rise-for-students-and-teachers (accessed 8/18/2016)Parents worried about their children's safety while at school might not just be over-protective. While the number of school-related deaths are starting to decrease, incidents of theft and violence – including student violence against teachers – are on the rise in America's schools, according to a federal report released Tuesday. And schools are beefing up security, including video cameras and armed security guards, as a result.

Students are caught with guns nearly every day—firearms are carried in backpacks, jackets, and cars in urban, rural, and suburban areasJennifer Mascia, editorial staff at New York Times, November 16, 2015"Kids are Bringing Guns to School on an Almost Daily Basis this Academic Year," The Trace, https://www.thetrace.org/2015/11/guns-in-schools-united-states/ (accessed 8/18/2016)Since the start of the school year roughly three months ago, students from kindergarten through high school have been caught bringing guns onto campus at least 77 times, according to a survey of media reports. Excluding weekends, that works out to once every 29 hours. Firearms are entering school property through the knapsacks, jackets, and cars of students in cities, suburbs, and rural towns across America, as the map below shows.

The evidence on firearms and other weapons is overwhelming.There is no reason to protect the privacy of students carrying firearms in schools. The impacts of school shootings are just too big, and the normal arguments for privacy don’t apply.




Rebuttal to “Schools Are Safe” Arguments

Searches are justified to prevent cyberbullyingLou Ann S. Cyrus and Michael Dunham, attorneys at Shuman, McCuskey & Slicer in West Virginia, March 2015http://www.naesp.org/communicator-march-2015/legal-matters-combating-cyberbullying%20 (accessed 8/18/2016) Moreover, the Fourth Amendment would allow for searches of a student’s belongings if there is reasonable suspicion that a crime has occurred. Currently, an overwhelming majority of states have laws against anti-bullying. Thus, administrators and teachers are within their rights to identify acts of cyberbullying and punish the responsible students.

Cyberbullying causes suicidesMarie Hartwell-Walker, psychologist and author of Unlocking the Secrets of Self-Esteem, February 2, 2010"Cyberbullying and Teen Suicide," Psych Central, http://psychcentral.com/lib/cyberbullying-and-teen-suicide/ (accessed 8/18/2016)Tragically, this is leading to increasing numbers of suicides among our teens. In 2006, suicide was the third leading cause of death for young people ages 15 to 24, just behind car accidents and homicide. It’s estimated that for every completed suicide, there are 5 or more attempts; attempts that could have been fatal but for the luck of miscalculation about the means or the luck of someone walking in on time.

Cyberbullying and abuse scenarios happen fast and evidence might be lost.Finding the evidence of cyberbullying quickly is critical to stopping these tragic impacts.




Rebuttal to “Need the Courts to Solve Abuse” Arguments

Written policies solve abuseDiana R. Donahoe, Professor of Legal Research and Writing, Georgetown University Law Center, 2010 "Strip Searches of Students: Addressing the Undressing of Children in Schools and Redressing the Fourth Amendment Violations," Missouri Law Review, vol. 75, http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3900&context=mlr (accessed 8/19/2016)Second, written policies will help protect students from an abuse of discretion by school officials . For example, in Watkins v. Millennium School, the school had a policy that the school's chief executive officer perform any search of a student. The court refused to grant qualified immunity when a teacher searched third-grade students because the school's policy put her on notice that she was not permitted to perform the search. The Watkins court cautioned that noncompliance with policies subjected students to the teacher's sole discretion, which is exactly what T.L.O. sought to avoid. Likewise, the court in H. Y. specifically mentioned the policy against group searches, although it did not specifically state it was

relying on that policy, when it denied the defense of qualified immunity. Similar policies can help both parents and school officials determine and understand what is appropriate within the school district and protect students from the abuse of discretion by teachers and administrators.

Written policies protect teachers and students and provide training and guidelines to staff better than court decisionsDiana R. Donahoe, Professor of Legal Research and Writing, Georgetown University Law Center, 2010 "Strip Searches of Students: Addressing the Undressing of Children in Schools and Redressing the Fourth Amendment Violations," Missouri Law Review, vol. 75, http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3900&context=mlr (accessed 8/19/2016)In promulgating such written policies, school boards can protect both the teachers and the students . First,

school officials would have clear guidelines regarding the permissibility of strip searches and the parameters for such searches. The T.L.O. Court wanted to "spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause." By providing clear rules directly to the school officials, school boards can educate the officials. School officials are much more likely to read these guidelines promulgated by their school boards than to research, read, and understand the nuances of T.L.O., Safford, and other conflicting cases to understand the

rules on strip searching within a particular school district. School boards can also create training programs for the school officials within their respective systems.

Written policies are more beneficial than court-imposed standards.The Donahoe evidence suggests that written policies are more democratic—they are grassroots and so families and students will feel more involved in school policy by participating in making their own rules.




Rebuttal to “Searches Alienate Students and Parents” Argument

Bullying alienates students worseAmerican Osteopathic Association, 2016"Cyber-Bullying and its Effect on our Youth," Osteopathic.org, http://www.osteopathic.org/osteopathic-health/about-your-health/health-conditions-library/general-health/Pages/cyber-bullying.aspx (accessed 8/18/2016)“Kids that are bullied are likely to experience anxiety, depression, loneliness, unhappiness, and poor sleep,” explains Jennifer N. Caudle, DO, an AOA board-certified family physician in Philadelphia. Making the issue worse is the fact that such

negative effects of bullying often go unnoticed, as many victims feel the need to conceal the fact that they are being bullied because they are embarrassed or afraid of further bullying. More often than not victims respond passively to bullying. They tend to act anxious and appear less confident. They may become quieter in class and, as a result, the bullying can become a hindrance on their academic success. Therefore, bullying is a problem that, if left unattended, can become a significant hurdle in a child’s development.

Written policies provide clarity and invite community and parental involvement Diana R. Donahoe, Professor of Legal Research and Writing, Georgetown University Law Center, 2010 "Strip Searches of Students: Addressing the Undressing of Children in Schools and Redressing the Fourth Amendment Violations," Missouri Law Review, vol. 75, http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3900&context=mlr (accessed 8/19/2016)Written policies provide notice to courts, school officials, parents, and students regarding the types of situations that would warrant strip searches in a school. If the policies are not acceptable to parents and students, they can work with the school board to make modifications. Because school board members are elected officials, parents retain some control over the policies implemented in the school district. Community involvement would help educate both the school officials and the parents in understanding and shaping the students' rights within the school systems.

This evidence suggests that a probable cause standard isn’t necessary. Even if privacy is important, even if some searches have the risk of going too far, the solution to that is not a stepped-up court standard, but local control and administration that can prevent bullying and write coherent, locally-accountable policies.




Rebuttal to “Searches and Privacy Violations Hurt Education” Argument

Unsafe schools hurt education worseJohanna Lacoe, Postdoctoral Research Associate at the USC Price School of Public Policy, March 2, 2012"Too Scared to Learn? The Academic Consequences of Feeling Unsafe at School," Robert F. Wagner Graduate School of Public Service, New York University, http://www.aefpweb.org/sites/default/files/webform/Lacoe_School%20Safety_3.2012.pdf (accessed 8/19/2016)Students who report feeling unsafe in the classroom experience consistent, negative effects on test scores. The findings are robust to school, classroom, and student fixed effects models. The instrumental variables model finds results consistent with the OLS models. Multiple robustness and validity checks provide support for the central findings.

Lack of safety exacerbates racial achievement gaps and undermines academic achievement of all studentsJohanna Lacoe, Postdoctoral Research Associate at the USC Price School of Public Policy, March 2, 2012"Too Scared to Learn? The Academic Consequences of Feeling Unsafe at School," Robert F. Wagner Graduate School of Public Service, New York University, http://www.aefpweb.org/sites/default/files/webform/Lacoe_School%20Safety_3.2012.pdf (accessed 8/19/2016)This study provides the first large-scale estimate of the impact of feeling unsafe in the classroom on academic achievement, and indicates that the effect is non-trivial – a 0.03 standard deviation decrease in the most

controlled, student fixed effects model. Given prior evidence of racial disparities in feelings of safety in the classroom, it is likely that feelings of safety contribute to racial and ethnic gaps in educational performance. To put this estimate in context, the achievement gap between black students and white students widens by about 0.10

standard deviations a year (Fryer & Levitt, 2004). Differential feelings of safety in the classroom may contribute to almost a third of the gap in test scores between whites and blacks. Ensuring that each student feels safe in the classroom is a critical first step in improving educational attainment and reducing racial and ethnic achievement gaps.

We can more easily solve privacy violations than save failing schools. Even if there’s a risk of violative searches, these can be fixed by tinkering with local rules. Once you destroy academic achievement, though, you can’t recover it for those students.




Rebuttal to “Privacy Outweighs Security” Arguments

No privacy is possible when security threats are overwhelmingKenneth Einar Himma, professor of philosophy at Seattle University, 2007"Privacy Versus Security: Why Privacy is Not an Absolute Value or Right," San Diego Law Review, vol. 44, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=994458 (accessed 8/19/2016)The basic point here is that no right not involving security can be meaningfully exercised in the absence of efficacious protection of security. The right to property means nothing if the law fails to protect against threats to life and bodily security.

Likewise, the right to privacy has little value if one feels constrained to remain in one’s home because it is so unsafe to venture away that one significantly risks death or grievous bodily injury. This is not merely a matter of describing common subjective preferences; this is rather an objective fact about privacy and security interests. If security interests are not adequately protected, citizens will simply not have much by way of privacy interests to protect.

Collective security outweighs individual securityKenneth Einar Himma, professor of philosophy at Seattle University, 2007"Privacy Versus Security: Why Privacy is Not an Absolute Value or Right," San Diego Law Review, vol. 44, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=994458 (accessed 8/19/2016)My individual security, construed to include my interests in life, safety, health, and general well-being, are seriously threatened by threats to the collective security. A riot or a war being waged in my neighborhood poses serious risks to me that I would not accept for the sake of information privacy and thus I could not reasonably reject a principle that sacrifices comparable interests in my information privacy to protect the collective security—regardless of the extent to which my own individual security is threatened. A reasonable person motivated to reach agreement on such principles could not fail to realize that social insecurity that threatens her individual security interests outweighs, other things being equal, her interests in information privacy and would hence not be in position to reasonably reject principles that protect security over comparable threats to information privacy.

If this becomes a debate about values, our value subsumes theirs. Security is a prerequisite for any real privacy, any individual development and emancipation whatsoever. Lack of security in schools means students won’t even have a chance to develop the values that would stem from their privacy and individual development.



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