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District delays search and seizure policy

Some members uneasy with constitutional pieces

Posted: August 18, 2011 - 9:01pm

The Juneau School District Board of Education delayed taking action on updating the district’s search and seizure policies and regulations because some members were uneasy about the new proposal — particularly about parts that pertain to constitutional rights.

Part of the change in regulations aligns district rules to state statute; the other change clearly divides out policy versus regulation.

The policy, which the board will either approve or deny, is a general statement of what the district expects. The regulations, however, are the finer details of how the policy gets carried out.

The responsibility for the regulations lies solely with administrators, and some board members wanted a bigger say in areas where a student’s constitutional rights are involved.

Board member Mark Choate, an attorney, spoke to the constitutionality of the proposed changes, particularly in the general terminology of “reasonable suspicion” versus “probable cause.”

“I think I can understand some of the reasons for this,” Choate said. “But we’re also talking about the U.S. Constitution and Alaska Constitution in terms of the right to be free from unreasonable search and seizure and generally (a search requires probable cause). There is no probable cause requirement here for a student to be searched. There simply has to be reason. I’m not going to play lawyer at this time, but I am always concerned when basic constitutional rights are placed secondary to other issues, and so it seems to me that I would generally want to see an extenuating circumstance.”

Assistant Superintendent Laury Scandling said the policy and regulations meet constitutional thresholds because of U.S. Supreme Court cases establishing precedent.

“The threshold for probable cause is defined as, and has been supported as through precedent, including U.S. Supreme Court cases of reasonable suspicion,” she said. “That is what administrators are trained to measure against, is reasonable suspicion. The search and seizure policy does use language that I as a former high school administrator, I find reassuring. It directs student privacy not be violated by an unreasonable search and seizure and that no student be searched without his or her consent unless there is reasonable grounds to suspect a search will reveal evidence of violation of school rules.”

Scandling said regulations need to be clear for administrators to assist them in making judgement calls, and for them to know at what degree of the policies and regulations they need to contact parents, add witnesses and how to initiate those processes.

Scandling said there have been very few cases where parent notification or non-consent of a student occurred with searches. In recent years, that included one case for weapons and one case for drugs.

“The balance here for us is that we are charged, and the public expects us to maintain a safe, orderly learning environment and to do that, sometimes, under pretty extreme circumstances, we ask students to ‘show me what’s in your pockets’ or that sort of thing,” Superintendent Glenn Gelbrich said. “That’s balanced in here very, very carefully. The greater detail is in the training our administrators went through last Monday. It’s really clear to them, the further you get beyond that, the more you need to be talking to somebody else about that if the degree of privacy violation increases.”

Board member Barbara Thurston addressed the change to include vehicles on school property, and wasn’t convinced that it was necessary.

“I see a difference between a locker and a vehicle,” she said. “A locker is in the building. Basically saying, you drive mom and dad’s car to school and park in the Thunder Mountain Parking lot … school administrators have the right to search that. I can’t think of a scenario where a school administrator would need to search a vehicle. I can think of some safety issues in which case you would call the police and the police would search the vehicle.”

Scandling gave a scenario that occurred while she was a school administrator of a student who had gone duck hunting prior to coming to school. That student left the gun in the vehicle and had come to school. It is against federal law, since the 1999 Columbine High School shootings, to have any weapon on school grounds. That student realized the error and told Scandling. His vehicle was searched, the weapon confiscated and turned over to his parents.

She said if information had come to her in another manner — where it was reported that the student had a gun in their vehicle, but wasn’t visible, that would be a cause to call police.

Thurston also pointed out a discrepancy in the policy and regulations — it says nothing of teachers or members of the public on school campuses and how those cases are to be handled.

Board member Kim Poole urged the district to send out a message to the community that weapons are prohibited on school campuses, given the size of the hunting community. In instances where a weapon is reported in plain sight inside a vehicle, outside the school day, police are brought in to handle it.

One student spoke out against some portions of the updated policy. Sam Kurland, past member of the Juneau-Douglas High School student council and a member of the Juneau Youth Court, gave the board a two-page letter outlining flaws with the regulations and argued against points conflicting with Fourth Amendment rights citing U.S. Supreme Court cases.

“In general, the proposed amendments provide the district with greater authority in the execution of searches for contraband on school premises,” Kurland summarized. “In doing so, they seem to combat the violation of laws and school rules, in particular the use of controlled substances by students. I agree wholeheartedly with this intent. However the proposed amendments do not accomplish this goal.”

Kurland said the regulations and policies provide a great liability to the district for lawsuits, which will cost the district money at a time when they are losing funds.

He also outlined in his letter potential improvements to the regulations to meet the district’s goals, but to not infringe on constitutional rights. In closing, Kurland cited a Supreme Court ruling on a case with the Des Moines Independent School District.

“The Supreme Court stated that students in school, as well as out of school, are persons under our Constitution,” Kurland said. “They are possessed a fundamental right which the state must respect, just as they themselves must respect their obligations to the state. The essential component in education in the modern world is civil education. Students must learn to appreciate their duties to the state, and that the state appreciates and defends their constitutional rights. By voting to amend this policy to respect the Fourth Amendment right of students, you will send a powerful message to students that you care deeply about their fundamental freedoms as citizens of the United States. In return, they will develop a greater trust in you, and in democracy as a whole.”
Scandling said Kurland made some good points in his letter and intends to meet with him and work out some of the details in the regulations.

Choate said the more he thought about it, the less comfortable he was with solely having the administration draft and approve the regulation portion, particularly when it involved civil rights.

JDHS Principal Ryan Alsup said there is a legitimate need for administrators to have that “reasonable suspicion” provision over “probable cause.” He said he has had to conduct vehicle and other searches prior to serving at JDHS, and while some results turned up clear, others have uncovered a bomb that was crafted with the intent of using it in the school and other weapons with similar intent for use.

“If we had not used that opportunity and in those cases law enforcement would not have had probable cause,” Alsup said. He said he wants to make sure the issue is examined from all sides.

The district is likely to take up the measure again at its next meeting.

• Contact reporter Sarah Day at 523-2279 or at sarah.day@juneauempire.com

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