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Criminal Justice Magazine
Summer 2001
Volume 16, Issue 2

Freedom from Fear
Balancing the Fourth Amendment with Kids, Guns, and the Rule of Reason

By L. Richard Walton

Editor's Note: L. Richard Walton, a law student at Georgetown University Law Center in Washington, D.C., is the 2001 winner of the William W. Greenhalgh Student Writing Competition, sponsored by the Criminal Justice Section in honor of the late Georgetown University law professor whose special interest was Fourth Amendment issues. The topic was "School Violence and the Classroom: Balancing Constitutional Rights of Students and the Need for Safe Schools." The entries were judged by Richard A. Ginkowski, chair of the magazine editorial board, and board members Hon. Sandra I. Rothenberg, Professor Andrew Taslitz, and prosecutors Kate McMahon and I. Matthew Campbell. Walton receives a $2,000 cash prize, plus a year's free membership in the Section. He will be honored at the Section luncheon August 4, during the ABA's Annual Meeting in Chicago. Walton is a member of the Class of 2003.


My name is Tommy Duncan, and I've got nothing to lose. Mom works three jobs, and I never knew my dad. My last report card gave Mom's boyfriend an excuse to "make a man of me." At least this time I made his knuckles bleed.

The only thing I ever cared about was Loretta, but yesterday she broke up with me-said she's found somebody who isn't a "loser."

A loser? Not anymore. Mom's at work. The boyfriend's still passed out. Jammed under his mattress is a Norinco M1911 .45-caliber pistol. Today I am powerful. I'll show Rockville High who the real losers are.

My name was Tommy Duncan. I died today.

So did five other people, gunned down by Tommy in a morning of violence that led the national news. The chance TV shot of a bloodstained mother being wrenched from the gurney of her 15-year-old daughter became the symbol of a country's despair. As national grief melted into national rage, America collectively said "never again." Senate Bill 2875, requiring routine searches of all public school students above sixth grade, sailed through Congress. At last, perhaps, America's schoolyards would be safe. But would they? Or had something else also died at Rockville High?

The other victim

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (U.S. CONST. amend. IV.)

At the heart of our constitutional system lie two competing imperatives. One is our desire for personal liberty; the other is our desire for security. Each is unimaginably powerful. Sometimes, as at Rockville High, they collide-and then we must balance our idealism against fears that have moved out of the twilight into our daily lives.

In the aftermath of the Oklahoma City bombing, people openly discussed surrendering constitutional liberties in exchange for a safer country. One letter to the editor put it this way: "We've already lost the greatest freedom, and that's freedom from fear." (Letter to the Editor, U.S. NEWS & WORLD REP., May 8, 1995, at 4.)

Seldom does that argument seem more compelling than after a tragedy in a schoolyard. Each new Columbine adds to the public conviction that something must be done, and tough new search and seizure rules seem tempting. In one case alone, searches of students turned up over 2,000 weapons in a single school year. (People v. Dukes, 580 N.Y.S.2d 850 (1992).) It is not hard to argue that 2,000 tragedies were thus averted.

But how high a price are we willing to pay for security? "The price of a modern education is not the waiver or surrender of constitutional privileges," said one court in the turbulent 1960s. "One does not salvage a democratic society by adopting undemocratic techniques." (People v. Cohen, 292 N.Y.S.2d 706, 707 (1968).) Put another way, in our quest for freedom from fear, might we find ourselves paying in the coin of the Fourth Amendment?

Constitutional issues

In a landmark decision, the Supreme Court held that Fourth Amendment guarantees extend to schoolchildren. (New Jersey v. T.L.O., 469 U.S. 325, 333-40 (1985).) Between that right and its application, however, much is sometimes lost in the translation. Consider, for example, a 13-year-old girl subjected to a strip search when drug-sniffing police dogs paid her inordinate interest-not, as it turned out, because she was carrying drugs, but because she had earlier played with her female dog who was in heat. (Doe v. Renfrow, 631 F.2d 91 (1980).)

Consider another group of schoolgirls who were individually forced to squat over urine collection tubes in the girls' bathroom while a teacher looked on. (Anable v. Ford, 653 F. Supp. 22 (W.D. Ark. 1985).) Not surprisingly, there was "some spillage and the tube had to be wiped off," and the court describes (perhaps needlessly) how "humiliated" the girls were. (Id. at 27.) One can only wonder how those young women reacted when their civics teacher tried to explain the Bill of Rights.

No rational commentator would shackle school administrators with unreasonable constraints, but if we decide to pay for security by abridging liberty, the school campus is a uniquely poor place to do it. Constitutional rights should have "scrupulous protection" in schools if we are not to "teach youth to discount important principles of our government as mere platitudes," said the Supreme Court in West Virginia State Board of Education v. Barnette. (319 U.S. 624, 637 (1943).) More recently, another court put it this way: "We must live with a certain amount of discomfort, even danger, if we are to maintain constitutional protections." (Acton v. Vernonia School Dist., 23 F.3d 1514, 1527 (9th Cir. 1994), rev'd, 515 U.S. 646 (1995).)

But can the archaic rhetoric of the Fourth Amendment be applied to a society of semiautomatic pistols and media-inspired violence? Although a strictly libertarian interpretation of the Fourth Amendment is naïve, any legal fiction that seeks to circumvent its splendidly simple statement of American thought is blind. It is blind to the psychological impact of subjecting students to overly invasive searches. It is blind to the societal implication of confessing to an entire generation of young people that they are not trusted. Worse, it is blind to the practical usefulness of a technique that, as we will see, probably will not work. So how do we effectively balance the Fourth Amendment with kids, guns, and the rule of reason?

Practically speaking

The Fourth Amendment protects people from unreasonable searches and seizures. The key thus lies in a public policy decision: Exactly how much intrusion are we willing to tolerate as "reasonable"?

In reality, this often hinges on just how frightened people are. Internment of Japanese-Americans during World War II was sanctioned by the courts-as were penalties against school children who, for religious reasons, refused to salute the flag. (Korematsu v. United States, 323 U.S. 214 (1944); Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940), rev'd, 319 U.S. 624 (1943).) Public policy is a creature of the felt urgencies of the moment. Even the courts, when defining constitutional issues, have often reflected that. One can but wonder what policy decision we are likely to make if, in the aftermath of a few more Columbines, school safety is weighed against an abstraction such as personal privacy.

Courts have often shown a willingness to scale down the Fourth Amendment to fit a child's size-partially because of a child's minority, and partially because the rights of students have been balanced against the need for schools to maintain order. (New Jersey v. T.L.O., 469 U.S. 325 (1985).) As such, reasonableness has hinged on a variety of factors such as a student's age, school record, and the urgency of the problem faced by the school. (In re Ronald B., 401 N.Y.S.2d 544 (1978).) This approach is highly pragmatic-and, as the cases show, highly unpredictable.

Some courts have, for example, found locker searches an objectionable infringement of Fourth Amendment rights. (Commonwealth v. Snyder, 597 N.E.2d 1363 (Mass. 1992); S.C. v. State, 583 So. 2d 188 (Miss. 1991).) Others have upheld them as a necessary part of school discipline. (In re Isiah B., 500 N.W.2d 637 (Wis. 1993).) Even though strip searches have sometimes been held unconstitutional, there are notable exceptions. In one case, for example, the bulging crotch of a male student led a teacher's aide to the conclusion that he was "too well endowed," and the resulting strip search was upheld. (Cornfield v. Consolidated High School Dist., 991 F.2d 1316, 1319 (7th Cir. 1993).)

In another search, a public high school student was forced to strip to her underwear-the elastic of which was then pulled by the female assistant principal, "to see if anything would fall out." Nothing did, but the search was held to be reasonable. (Williams v. Ellington, 936 F.2d 881, 883 (6th Cir. 1991).) Throughout such cases one sees the courts groping as if to navigate along a jagged ridge that separates individual rights from public security-and if the results are not always consistent, they collectively reveal that the Fourth Amendment may just be the most imperiled provision of the Bill of Rights.

Inevitably, such judicial groping leads to public uncertainty. Uncertainty leads to excess. And excess leads to some spectacular abridgments of personal liberty. Perhaps the most noteworthy example is a 1977 incident in which an entire fifth grade class was required to strip to their undergarments while school officials painstakingly went through their clothes. A whole classroom of middle school kids was kept waiting, in their underpants, for two hours in the school lavatories. The issue? A missing $3 that was never found. (Bellnier v. Lund, 438 F. Supp. 47 (N.D.N.Y. 1977).)

But it would be easy to make a one-sided case for students' privacy rights without recognizing that the problem leading to their abridgment is very real. "With the proliferation of weapons and drugs," one commentator has said, "school officials have increasingly found themselves conducting searches of students in an effort to maintain a safe environment." (31 A.L.R. 5th 229, 258.) Indeed, one California court opined that such searches were not only permissible, but that school officials would be derelict had they not performed them. (In re William G., 709 P.2d 1287 (Cal. 1985).) Public school students are, after all, required to be there; having demanded their presence on campus, officials are required to protect them-even, one supposes, from themselves.

A recent New York case adds perspective. A 15-year-old male student arrived at high school in the Bronx without his required student ID card. He was told to leave his book bag with the security officer while he went to the school office. In what appears to have been mindless bravado, he cavalierly tossed his bag onto a metal shelf-which might have had no significance had he not been carrying a .38-caliber Titan Special pistol in the bag. Gravity and acoustics took over: The bag made a heavy metallic thud as it landed. Intrigued by the sound, the security officer ran his fingers over the outside of the bag. Immediately, he felt the gun. (In re Gregory M., 627 N.E.2d 500 (N.Y. 1993).)
At this point, the average ironworker could recognize the issues. His (or her) analysis might go something like this: The kid had a gun inside a thin cloth bag. He should have known it would clunk when the bag hit the shelf. The guard is obviously going to wonder what is inside and take some kind of action. So why is the student complaining? And besides: what's he carrying a gun to school for anyway? (If the ironworker were also from New York, chances are he'd round out the opinion with a one-word analysis such as "stoopid.")

Which, in more elegant language, is pretty much what the New York Court of Appeals did. The court found that Gregory M. had only a minimal expectation of privacy when carrying something easily felt through a cloth container. Under those circumstances, even reasonable suspicion is not required when there is "governmental interest of the highest urgency." Personal rights must be balanced against "urgent social necessities." (Id. at 581 (quoting People v. Scott, 315 N.E.2d 466 (N.Y. 1974)).)

All of which means, of course, that the more urgent the necessity, the greater the sacrifice we will tolerate-particularly when the person involved is an armed juvenile delinquent with a gun in a school building. But what if the victim is a 13-year-old girl whose only mistake was to pet her female dog the morning the drug dogs came to school? How does one really define a "reasonable" invasion of a child's rights?

"Reasonable" violation

The courts have struggled with this issue, and have produced no easy formula. One attempt was a "two-pronged" test: There must be some reasonable ground to believe that a search will disclose a violation of law, and the search must not be excessively intrusive, taking into account the student's age, sex, and behavior. (D.I.R. v. State, 683 N.E.2d 251 (Ind. Ct. App. 1977).) But such a subjective case-by-case test has left us with the wide diversity of opinions seen today, and has given us little guidance in deciding just how far we are willing to relax constitutional protections in a crisis. To formulate a guiding strategy, our first task must be to decide what we mean by "reasonable," and that definition should be drawn not from our fears, but from a deep respect for the Constitution.

I propose a starting point: We should decide that in a constitutional sense, some things are inherently unreasonable. At a minimum, these should include the following:

o something that doesn't work;
o something that robs another constitutional right in order to accomplish its goal; and
o an overreaction that destroys the very thing it is supposed to protect.

First, something that does not work is by its very nature unreasonable. It is, for example, unreasonable to demand payment for defective merchandise. With that in mind, assume a social policy that promises security but demands, as its price, significant abridgment of the Fourth Amendment. Assume, further, that after exacting such a price it fails to deliver the security it promised. That is an unconscionable exchange.
Yet might we be at risk of making it? If, under stress, we ultimately react to school violence with a garrison mentality, have we really bought anything? Or will increasingly security-savvy youngsters simply find a way to circumvent the devices designed to protect them? Far from rhetorical, the question was hauntingly answered in the recent shooting at a New Orleans middle school, where two eighth-grade boys shot and wounded each other with the same gun after someone slipped it to one of the youths through the fence. Shortly afterwards, one mother said, "They need more security guards here." (Alan Clendenning, Two N.O. Teens Shoot, Wound Each Other at School, THE ADVOCATE (Baton Rouge, La.), Sept. 27, 2000, at 4-B.) In fact, the school did have security guards-and a metal detector. (Id.)
To have prevented this tragedy, the school would probably have needed double fences topped by concertina wire and guard towers-in other words, the same layout used for a prison. But could even this high level of security guarantee the safety of our children?
A tragic event at the CIA provides an answer. Probably no installation in America has heavier layered security, yet in 1993 a terrorist-unable to gain access through the well-guarded entrance to its Langley compound-merely moved off a short distance to Route 123, where he shot five agency employees and contractors on their way to work. (Douglas Jehl, Search Is Widening in CIA Shootings, N.Y. TIMES, Feb. 11, 1993, at A19.) Shootings from a distance have also happened in at least one American school. (Sam Verhovek, Bloodshed in a Schoolyard: The Overview, N.Y. TIMES, March 27, 1998, at A1.)

We cannot possibly subject our schools to the same level of security as does the CIA-where, in the end, safety could not be guaranteed. For a determined shooter, even the tightest campus controls would only relocate the threat a short distance. In plain language, they wouldn't work. I suggest that this makes them inherently unreasonable.

Second, is it reasonable to prop up one liberty at the expense of another? If our answer to school violence is a major erosion of the Fourth Amendment, it is worth remembering that we are, at this point, treating the symptoms, not the disease. When kids kill kids, the culprit is not privacy; it is, instead, the mindset that has made killing acceptable. Ironically, that mindset may have been fostered by an industry heavily protected by the First Amendment.

In a radio news report on campus violence, Washington, D.C., Police Chief Charles Ramsey was quoted as saying, "Kids go from an argument right to a gun." He blamed media violence for the epidemic. (Kids in the Crossfire (WTOP radio broadcast, Sept. 5, 2000).) It is difficult to conclude otherwise when the average high school student may have seen 18,000 television murders by the time he or she graduates. Yet the medium by which this entertainment reaches the young mind is strongly protected by the First Amendment.

We should never consider abridging First Amendment rights. But neither should we protect the First Amendment by gutting the Fourth-especially when the Fourth Amendment is not the source of the problem. To sacrifice one right for the sake of another is definably unreasonable. The Constitution, which elected officials are sworn to uphold, which military personnel take an oath to defend, and which we send troops into harm's way to protect, can be endangered from within by a temporary majority that perceives a crisis more compelling than constitutional rights.
Therein lies our greatest risk. The Constitution is intended to keep us from marginalizing the rights of the individual. The real remedy is not to reduce the scope of the Constitution, but to seek societal remedies that preserve it. To put it another way, the best security for the classroom begins in a child's living room.

Finally, overreaction is inherently unreasonable. Frightened people tend to revert to a primitive herd mentality, in which the long-term effects of a decision are eclipsed by short-term fears. But dare we risk teaching our kids that safety is more important than liberty? If so, one wonders how we will explain to them why past generations laid everything on the line when faced with challenges like Adolph Hitler.

Were we to make that mistake, there would be a supreme irony: The problem on today's campuses is largely self-caused. We have gloried in a world of make-believe, where disagreements are settled at gunpoint and violence has become the social norm. Too often that ethic has been the babysitter for our young. If there is a price to be paid for that mistake, it is we who should pay it-not the Constitution.

As darkness does not come all at once, neither does oppression. There is a twilight, a time when everything remains seemingly unchanged. But it is in such times that we must be most aware of change-lest we become unwitting victims of the darkness.

-Justice William O. Douglas


L. Richard Walton, a law student at Georgetown University Law Center, is from Bakersfield, California


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