Do Detroit Public School Students Deserve 4th Amendment Protection?
Got into a passionate exchange with a good friend over this.
Our argument wasn't over whether the Detroit Public Schools are indeed conducting random, mass searches of the student body at Mumford High School. (For its part, the district denies the allegations. For our part, my friend and I think the allegations probably have merit.) The debate also wasn't about whether the searches would, in fact, represent a violation of the students' Fourth Amendment rights, if proven true. Neither of us question that.
But as far as my friend's concerned, the constitutionality of the searches is beside the point. She thinks these sorts of dragnets are necessary--critical even--to maintaining order and safety at a school that has been hit hard by violence and administrative tumult. She pointed out that there have been guns fired in hallways at Mumford, students stabbed, regular gang fights, all in only the first four months of school. She pointed out that political consultant Mario Morrow, named principal of Mumford just before the school year started, lasted only until October, when he quit out of frustration over repeated violence at the school.
Given this, she said, she can't believe that anybody outside of the American Civil Liberties Union would honestly make the argument that, if real, these searches are wrong and should stop.
And yet there I was, arguing just that.
Of course, I don't take this position without a profound respect for--and real-life experience with--what our schools are up against. I get that conditions are often horrid and downright dangerous for many students, probably worse than at any time in the city's history in many respects. And I get why some people argue that, on a certain level, the debate isn't about constitutionality but about whether these schools are going to do something, anything, to prevent more bullets from flying around our city's campuses and ripping through our kids' bodies.
But these children at Mumford are already going through metal detectors to get to class each day. And DPS has already contributed to and agreed to abide by a 2006 court-ordered settlement that addresses policies for searching students (and which prohibits school officials from going through students' backpacks, purses, etc., at random and en masse). And nobody, not me, not the ACLU, is arguing that the schools can't--and shouldn't--go after any individual student who has raised reasonable suspicion of criminal activity.
Just as importantly, given all that's happened in Detroit schools already, I'm pressed to how whatever measures have been enacted, legal or not, are truly and consistently keeping our public school students safe.
Ultimately, though, there's just something about casting the pall of criminal suspicion on all of these kids, even honor students, even under the guise of trying to "protect" them, that just doesn't sit right with me. Seems like a slippery slope to be headed down. I mean, if you're going to say it's OK to toss out the Constitution at Mumford because of violence there then how can you not make the same argument for, say, the very neighborhoods where most of these conflicts begin? How do you not leap to the notion that it's fine for cops to conduct random searches of everyone who lives off of Clark Street or Fenkell Avenue or East Grand Blvd. because those places too have seen bloodshed?
Detroit has been the so-called "Murder Capital" off and on for decades now. Mumford High ain't got a damn thing on the city as a whole when it comes to violence. So if you suspend the Constitution at one school, how does it not become acceptable to do so for an entire city? Or, for that matter, a metropolitan area?
But that's just my bleeding-heart anxieties, I guess. I'm no constitutional expert by any stretch, and I'm not the one arguing this case. So I called the person who is. I rang up Mark P. Fancher, the staff attorney for the Racial Justice Project for the ACLU of Michigan and the lawyer representing the Mumford students named in the suit. I asked him to explain to (and, I guess, for) me what people like my friend may be missing about the group's stance.
"The misconception is that the ACLU isn't concerned about school safety and security," he said, "and that we are meddling in matters we have no business. (The misconception is) that the school district is in the best position to know what needs to be done to keep schools safe and how dare we, as 'outsiders,' tell them how to maintain safety. But that's not what we are doing at all. In fact, we're doing the opposite.
"The case was resolved in 2006 with a consent judgment that includes detailed policy on search and students. Much of it was developed by DPS, and and they agreed to all of it. That includes guidelines on how to search backpacks and everything else. The difference is that the procedure requires that security personnel have individualized reasonable suspicion that a particular student is carrying contraband, whether it's a weapon or narcotics, before they start looking in backpacks. Those kinds of searches aren't prohibited--but there are limits so you don't get involved in searching back packs of students who haven't caused any trouble."
I asked him whether he understood the contention that these alleged measures, constitutional or not, were seen as necessary because of the threat of violence that looms over Mumford and some other Detroit schools--because these kids face the very real risk of being shot to death by a gun-toting peer. Fancher acknowledged that there were grave dangers facing many of the students, but he questioned how much dragnets really help.
"By lining up every single student and making all of them go through these searches and making good students go through this, they are taking time and energy from focus on students who are creating problem," he said. "The more time on this, the less time on students who you have reason to believe are bring contraband and creating disruptions."
Are all Mumford students suspected of wrongdoing, Fancher asked? "If (school officials) are not able to credibly and legitimately say they suspect every student of bringing contraband," he said, "then that answers the question. Why are they searching them if they have no reason to do this? Are they trying to appease raw emotion? Is someone trying to win political points?"
Fancher also worried outright that illegal searches are seen as more acceptable at urban, predominantly black schools like Mumford: "Why is this regarded as acceptable in this particular school district? If you go into other districts, that might be whiter and less urban, this kind of thing would never be tolerated. I don't know this for sure, but I would be willing to bet that every student who goes through the door at Columbine is not subjected to the kind of intrusive search that DPS students are subject to. There are racial implications. What is acceptable in black community isn't acceptable in white communities."
Personally, I'm just as worried that accepting acts like these alleged illegal searches undermines the idea of the rule of law to children, that it teaches them that their rights aren't really all that "inalienable" after all, but more something to be taken and given according to the whims of those "in charge." Do we really want to teach them that the rules only count when it's convenient? And is the hope for greater school safety really at odds with the preservation of civil liberties?
I asked Fancher about such implications. "You effectively transform a school house into a jail house," he said. "These are the kinds of conditions that exist in prison. Inmates have no rights, and everybody is subject to search and these intrusive kinds of procedures."
And it's not like jails are all that safe either.
Like I said, I really do understand why Detroiters fearful for the lives of the city's schoolkids are more than happy to look the other way when it comes to searches and seizures at schools, even illegal ones. I'm scared for these children, too. But I also believe rights do matter, even in dire circumstances. And I think the ACLU makes a good point here in challenging these allegedly illegal measures. What about you? Do you agree or disagree with the group's stance? And why?