Feature: House Votes to Require School Districts to Allow Random, Warrantless Mass Search Policies

In a voice vote Tuesday night, the US House of Representatives voted to approve a measure that would force school districts across the country to adopt policies allowing teachers and school officials to conduct random, warrantless searches of all students at any time based on the "reasonable suspicion" that one student may be carrying drugs or weapons. Sponsored by Rep. Geoff Davis (R-KY), the Student Safety Act of 2006 (H.R. 5295) had no committee hearings and was fast-tracked to the House floor.

"Drugs and violence don't belong in our schools," said Rep. Davis during floor debate Tuesday. "I am a firm believer in our Constitution and our Bill of Rights, and this legislation doesn't offer a blank check to anyone to conduct random arbitrary searches. The Supreme Court has held that teachers and school officials can use their judgment to make decisions that will help control their classrooms and protect their students. This is simple, commonsense legislation."

Actually, the bill does not offer a blank check for searches, it forces it down school districts' throats. According to an analysis of the bill by the Congressional Research Service, it "requires states, local educational agencies, and school districts to deem a search of any minor student on public school grounds to be reasonable and permissible if conducted by a full-time teacher or school official, acting on any colorable [changed in the final version to "reasonable"] suspicion based on professional experience and judgment, to ensure that the school remain free of all weapons, dangerous materials, or illegal narcotics." And just to make sure school districts get the message, the analysis notes, the bill "denies Safe Schools and Citizenship Education funds, provided under the Elementary and Secondary Education Act of 1965, to states, local educational agencies, and school districts that fail to deem such searches reasonable and permissible."

Some House Democrats stood up to oppose the bill. "This bill would strip funding from any school district that decides local teachers and administrators know better than Congress how to make their schools safe," said Rep. Lynn Woolsey (D-CA). "It is a mistake to assume that every student is as guilty as some troubled person. We will stop any new program that would label all youth as guilty," she vowed.

"As someone who taught for six years in one of the toughest schools and communities in the country, I have serious reservations about what this legislation actually does," said Rep. Danny Davis (D-IL). "I am not alone. The American Association of School Administrators, the National School Boards Association, the PTA, the ACLU, the American Federation of Teachers, and my own Chicago school district all have concerns. We are concerned that this legislation overrides already enacted school search policies for a one-size-fits-all policy. This bill establishes a policy that gives teachers the authority to conduct searches when that authority should rest with the school board. And it penalizes schools for noncompliance by withholding Safe and Drug-Free Schools Act funds. While we all want our schools to be safe and secure places, this bill is duplicative, unnecessary, and takes away rights that should be reserved to local communities."

While Democrats spoke against the bill in debate Tuesday night, none took the simple step of asking for a roll-call vote, which might have resulted in a defeat for the measure. Since the bill was fast-tracked, it required a two-thirds vote in the House, and it is not clear that the bill could have reached that hurdle had members been forced to vote on the record. The bill now moves to the Senate for consideration.

"We're disappointed not only with the House in passing this bill, but with the cowardice displayed by the Democrats in not calling for a roll call vote to get legislators on the record," said Tom Angell, communications director for Students for Sensible Drug Policy (SSDP). "Any member could have called for a roll call vote, but nobody did, and that could have made a difference. Not a single member of Congress felt it was important enough to get their colleagues on the record on this issue," he told Drug War Chronicle.

Along with DRCNet and the Drug Policy Alliance, SSDP worked with extremely short notice to mobilize opposition to the bill, which was thought to have died a peaceful death but was revived at the last minute as a campaign maneuver by Rep. Davis. The drug reform groups opposing the bill were joined by the ACLU and a number of education groups. The only major education group supporting the bill is the National Education Association.

"We did pretty good analysis when we got the legislation, and the thing that really hung us up was the way they defined searches as an activity performed by a full-time teacher or public school official," said Tor Cowan, director of legislation for the American Federation of Teachers, which opposed the bill. "We don't think teachers are trained to be police officers. If a teacher believes a student is carrying a weapon or in possession of drugs, they should direct that to the vice-principal or dean of discipline, who has been trained by the district as to what's allowable, and he would determine what the next step should be. That is preferable to having 50 school teachers, all with a different understanding of what reasonable suspicion meant, try to do this," he told Drug War Chronicle.

"From an administrator's perspective," Cowan continued, "they feel like they have policies in place that could be jeopardized by this bill. We already have enough federal requirements and mandates, and this could lead to challenges of policies that have already been settled by the Supreme Court. The court gives a pretty wide berth to school districts when it comes to establishing reasonable suspicion."

Although Republican legislators Tuesday night hammered away at the theme that the bill would protect the safety of teachers and students alike, Cowan bristled at the implication that bill opponents were not concerned with security. "It is a false argument to say that people who didn't support this don't care about school safety," he said. "It is already very clearly in a teacher's self-interest -- not only in herself, but in her students', and her school's -- to report her suspicions that a student is carrying a weapon or using drugs to the appropriate administrator in the school. The means are already there to ensure security and make sure schools remain drug- and violence-free."

"We have a couple of issues with this bill, too" said Bill Piper, director of national affairs for the Drug Policy Alliance, one of the drug reform groups leading the opposition. "First, Congress is saying if you don't set a policy allowing teachers and administrators to search students, then you won't get federal money. The bill's authors say they are just trying to maintain the status quo, but that's absurd. School districts now can set their own policies and they should be able to set their own policies. If they want to protect the privacy rights of students, they should be able to do so without fear of losing federal funding," he told the Chronicle.

"Second, the way this bill is worded, it strongly implies that the school district's policy has to be one where they can conduct random mass searches," Piper continued. "If the principle hears a rumor that someone is selling marijuana, he could search every student in the building, and whether those kinds of searches will be constitutional is anybody's guess. Our big concern is that school administrators will get the wrong idea about the limits of their constitutional powers."

"In the controlling Supreme Court cases on these searches, the court held that school administrators did not need probable cause to search students, only 'reasonable suspicion,' which is a lesser standard," said Jesselyn McCurdy, legislative counsel at the ACLU's Washington Legislative Office. "But the court did not specifically rule on whether or not there has to be individualized suspicion; in fact, in its decision, it specifically said it was not expressing an opinion on mass searches," she told the Chronicle.

"We worry that the vague language in the bill will lead administrators to think they can do massive, sweeping searches like they did at Goose Creek," the site of a now notorious drug raid where police with drawn weapons and police dogs invaded a South Carolina high school, McCurdy said. "Regardless of whether the bill actually allows that, it is kind of silly. You can pass any bill you want, but if it's unconstitutional, someone will challenge it and force the Supreme Court to determine its constitutionality. Given that most school districts already have policies on school searches in place, this will only cause more confusion about what schools can and cannot do."

"We oppose this legislation because it is a one-size-fits-all blanket policy mandated from Washington," SSDP's Angell explained. "It sends the message that Congress knows better than school administrators how to keep drugs out of schools, and that is offensive, which is why all those education groups spoke out against it. If this becomes law, we're in danger of seeing more Goose Creek-style raids. A lot of schools already allow searches based on the rather flimsy reasonable suspicion standard, but they currently have a choice. Now Congress is trying to make them do that under the threat of losing federal funding."

Now the bill moves to the Senate, where reformers hope it dies a quiet death. If not, they are prepared to put a stake through its heart. "We'll be keeping a watchful eye on the Senate to ensure they don't try to sneak this bill into law," said Angell. "Lots of times at the end of the session things get tacked onto totally unrelated bills, and we're very wary of that. We'll be alerting the masses and asking people to call the Senate if we get word this bill is moving," he said.

While the opposition effort didn't manage to stop the bill in the House, organizations managed to deliver thousands of e-mails and countless phone calls to representatives in less than a week. And they'll be watching what happens next.