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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?

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  • 1

    Well this is a tricky situation, I think that all troubled schools should include some form of contorlling violence and contraband from entering the school grounds.

    Is it right to have illegal searches, well no, but it may be necessary. The sad part is that it is the way it is. Most of this violence, and the bringing of contraband can be stopped by the parents, but it is not.

    I do think that putting the black vs. white school argument was for shock value though and am disappointed that you would stoop to creating an environment for petty arguing in to the blog. But you did and that is what it is.

    So here we go.... Would parents of a predominately white school be upset if it happened at their school. I'm sure they would be, but I as a parent would be somewhat agreeable to it as long as it was not to invasive to the children.

    We can point the finger at a great many factors that all play a roll in creating violent schools, poverty, bad parenting, uncaring teachers, drugs. All of theses combined with enough penetration in to the student body of any school (Black, White, what have you) will more the likely have the same effect.

    So in review, Yes I think that searches of the student body at large are ok, and should not be covered by the fourth amendment simply because a public school is funded by the tax payers, and we all have a responsibility to our children to provide a safe place for them to learn.

    • First, I didn't "stoop" to anything. Fancher raised it as a part of the discussion, and I quoted him.
    • Second, the black/white element comes in the 17th paragraph of a 21-graph post. And it's one graph. That you decided to devote much of your reply to race is fine with me. But please don't suggest that I'm "creating an environment" for you to take these positions. You want to discuss it as part of the piece. If you didn't, then you would've ignored that graph and talked about the much larger issue of Fourth Amendment rights. So please don't act like I'm making you talk race here.
    • Own your own sh*t, OK?
  • 1.2


    I do own my on sh*t, But you did quote it and it could have just as well been left out buy you also but you left that part in. There for for me you brought it to our (the readers attention). Did I take up too much time in my post on that issue, maybe. But the remark did irk me a little. No disrespect to you, but It seems that is how it gets broken down a lot, and to be honest that is sad state of journalism.

    The problem is the students and environment which they live and learn in, for any writer, blogger or what have you to make it about color or race is just for sensationalism in my book. And when it is pointed out I feel a need to call it out for what it is.

    Sorry if I ruffled your feathers, But you did quote it, so to speak. By doing that you foster even more speculation into the matter. And you did not seem fit to argue that one point of the whole article, just the part of the rights that may be violated.

  • 2

    I would agree with robertmprice to a great extent. It would seem there is a legal precedent pertaining to the constitutional rights of the "good" students being trampled on by the "bad" students. (I'm sorry for using such polarizing terms) For a child to be continually exposed to a level of violence one would only expect to find in a country with no stable government is a violation of the constitution of the highest order. The essential pursuit of life, liberty, and happiness can be taken as being completely absent. The varied social issues at play in the cauldron of cause cannot hold sway in the efforts to eliminate this threat in a public institution. And it is perfectly within the scope of the constitution that its mechanisms may be at the cost of some personal freedoms that any reasonable person would consider subservient to the right to stay alive.

  • 3

    As a parent of 2 high schoolers I am very much concerned with violence entering through the doors of our public school system. I for one have no problem with my children being harassed at every corner in school over safety. It is of utmost importance to me that my children & other children stay safe while not within our homes. How can anyone distinguish the "good kids" from the "bad kids" either? What about the kids who make good grades but are tired of being made fun of and teased so they bring a gun to school and blow everyone's brains out for what they view as unfair? You cannot judge a person just by how they look or act on any given day. It is our job to protect the children and if that means we have to rummage through their backpacks and lockers, pat them down and scan them repeatedly then so be it. It unfortunately is the society we live in and if that is what it takes to keep them safe then so be it. Detroit public school students deserve to be protected and if that means that we must strip their rights to the 4th amendment then so be it.

    /end rant

  • 4

    The community has the right to define its existence and purpose not the ACLU( BTW has very few Black lawyers on staff and lacks diversity in staff and leadership here in the state of michigan). When Black folks allow for others to define what is revelant that is real loss of our "inalienable rights."

    Legal Fictions do not reflect reality.Fancher is an atty and as such he does not have a clue about the reality confronting parents and students. Francher paid lip service at best to this real life concern.

    The misplaced notion that once we allow for the suspension of the 4th amendement rights in Mumford somehow it will lead to the loss of civil rights in other venues is pure speculation and scare tatics.

    ACLU is not the final arbiter of anything in the Black community .It is a mistake to cast this issue in the legal framework of civil liberties as a nation we made the same mistake after 911 calling those who took down WTC as terrorists instead of criminals.

    The ACLU has zero street cred and legacy in Black venues it is an outsider in this issue. The ACLU often engages in this white privledge mindset always knowing what is best for the poor and minorities from filing suits aginst same gender schools to making excuses for the KKK..

    Black parents should ignore the white privledge pandering of the ACLU especially when the lives of thier kids are at stake...The 4th amendment arguements do not shit to parents attending funerals of dead youths..

  • 5

    The constitution is not a suicide pact. A fortiori, it is not an license to condemn these kids to death, as Mr. Dawsey would do.

  • 6

    Its unfortunate the Mr. Francher introduces the issue of race into this matter. He cites that this wouldn't be tolerated is predominately white suburban areas citing Columbine as an example. This doesn't have anything to do with race. It has to do with violence!

    I would bet that if Columbine, barring the tragedy, were expericencing gun shots, gang fights, and stabbings in their halls, that these searches and maybe even stricter, possibly non-consitutional actions might be taken. This has to do with violence, plain and simple.

    And I don't agree that with Mr. Dawsey's opinion that we are teaching our kids that bending the rules is OK in certain situations is a bad thing. We should always question our rules, laws, and Constitution! Our children should be taught to follow these rules and laws, but to also think! If the rule is obsolete or wrong, they can question it and take actions to update or change it. Especially regarding life-threatening issues!

    I applaud the officials at Mumford. If they keep another child out of a grave, then each and every search, Constitutional or not, is worth it!

  • 7

    When can we expect the ACLU to sue the Robert Bobb and company ( State Of Michigan) for the loss of the elected school board in the city?

    When can we expect the ACLU to sue the manufactuers of guns/knives/bullets that flourish in the city?

    When can we expect the ACLU to sue the Dept of Defense for thier waste of funds in operating 2 global wars at the expense of our own cities here in America?

    I probably should not hold my breath since the ACLU knows what best for negros and coloreds in America..

  • 8

    Detroit students deserve clean and safe schools in clean and safe neighborhoods. Unfortunately, most city neighborhoods are blighted and dangerous. In addition Detroit students deserve equal educational opportunties on par with those of neighborhing suburbs. Again unfortunately, they receive something different, a separate and unequal educational when compared to what's offered and received from schools that are not segregated from mainstream society. Quality of life, in many matters including school issues, is separate, unequal, unlike that of surrouding communties and also throughout most of America.

  • 9

    As my screen name indicates, I was raised in the city of Detroit and I recall attending middle school on the East Side where we were searched everyday. Not only that, the search focused on candy and chips. Students weren't allowed to bring such things into the school. We had to take our coats off and go through metal detectors.

    Now you mean to tell me the school district has gotten more dangerous, but searches aren't taking place anymore? And there are less students to search? Or were we just middle schoolers unaware of our Fourth Amendment rights? Mind you, this was more than 10 years ago.

  • 10

    Suspending constitutional rights in the name of "safety" is the same thing we did in Guantanamo; it's the same thing we did to Japanese Americans when we put them in internment camps; and it's the same thing that DPS is doing to its students. Mass school searches violate constitutionally protected rights. Period. This is a constitutional democracy, not a communist country. We do not and should not practice strict utilitarianism.

    Secondly, if you want to discuss practical usefulness, take a look at the research. Mass searches don't benefit students. They create hostile environments and mistrust of school officials, breeding more hostility and violence. As the author mentioned, the students are already going through metal detectors and can be searched if a school official thinks they're suspicious. To the individual who thinks students are being kept "out of the grave," think again. Good policies are based on real evidence. There's no evidence to suggest that mass student searches provide any more safety.

    Finally, to the individual who thinks the ACLU of Michigan isn't diverse, I suggest you take a look at their staff that includes a number of people of color, represents various faiths and nationalities, and includes members of the LGBT community. As for their legal team, two of their six staff attorneys are of color.

  • Darrell Dawsey
    December 18, 2009
    at 12:02 pm
  • 11

    I would like to begin by stating that I am a white, suburban mother of 3 who lives in the Ann Arbor area. I grew up in South Lyon. I have no point of reference for these students as I have never been afraid to send my kids to school. Nor have I ever feared my own life upon entering a school.
    With that said, I agree with the author. We must tread very carefully when it comes to our rights and liberties. Just as we did not create a police state after 911 we can't make our schools a police state either. What is the solution? I don't know. But I do know that it is not illegal searches and violating the rights of children.
    One more comment, about the “race” issue. Just because we don't want to talk about race doesn't mean we shouldn't. Like it or not we as a nation and as a state need to do better. African and Hispanic Americans are disproportionately poor, in jail, or victims of violence. Whatever the cause it is a fact. So as fellow Americans and human beings we should all be looking for smart solutions. Education is the first step – both of parents and children. But how can we expect any student to be successful in an atmosphere of fear? It's a vicious cycle – we need to educate so that the situation can improve. We can't educate because the situation is so dire.
    It's not just Detroit's problem – our Michigan's problem. It's all of our problem and we need to work together to solve it.

  • 12

    There are a couple of points I would like to bring up. I'm glad the ACLU sued. However this is what I call Satisfy Your Grant Activism.

    Satisfy Your Grant Activism is when a organization recieves funding from foundations and covers mickey mouse issues to obtain multi-year funding. This always keeps their funders satisfied. It is important that we realize this.

    Two years ago I met with the ACLU to challenge the state of michigan/dps in court because DPS wasn't allowing kids to take home textbooks. They informed us that they knew of case law that could force the courts to make the district allow kids to take the books home. They then told me it wasn't in their grant so they wouldn't take it on. I then told them the ACLU in California sued the state over lack of supplies and conditions of buildings and won. They still said nothing.

    The name of the case is Richards vs California. Therefore while we applaud the ACLU for their stance its important that they as well as black civil lawyers address systemic changes in DPS.

  • 13

    I am the person that questioned diversity at the ACLU and I will continue to question it. With regard to racial diversity the ACLU here in Mich has One Male Black lawyer. I am talking about racial diversity not gender often apologists for ACLU and other liberal groups like to deflect when that cannot handle the truth about lack of inclusion and diversity in thier own ranks..

    BTW this is not America during the WWII era this issue is about safety for inner city kids not a fictional discussion about legal rights under the 4th amendment..

    Self determination has nothing to do with legal rights as defined by the majority..Clearly posters like detroit woman do not have clue about being a parent with a child at risk..

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