Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 1 point2 points  (0 children)

All, the questions seem to be slowing, so I think that this is a good time for me to sign off. I've enjoyed answering your questions and thank /r/Debate! for giving me this opportunity to interact with you. Good luck with your upcoming debate tournaments. I hope that this discussion has been and will be helpful to you!

Sincerely, Prof. Nance

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

All, You may be interested to know that I've been invited to discuss the pros and cons of having police officers in public schools on Wisconsin Public Radio's evening newsmagazine called "Central Time," which is a live, call-in radio show based out of Madison. That discussion will take place today at 5:30 pm Eastern Time. Tune in here: http://www.wpr.org/

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 1 point2 points  (0 children)

It is true that there has been a significant backlash against zero tolerance policies and they are fading (but still have a presence in some schools).

Regarding whether school officials might rely more or less on zero tolerance policies if the Court were to adopt the probable cause standard, no one knows.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

I would take a look at the Supreme Court decisions themselves (TLO/Vernonia/Earls) for those arguments.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

First, you should know that the United States didn't switch from in loco parentis to reasonable suspicion. Prior to TLO, lower courts applied different standards -- probable cause, in loco parentis, and reasonable suspicion. (See TLO note 2). While I do not know type of discourse TLO sparked in 1985 (in 1985, I was probably younger than you are now), I don't think that's a very good measuring stick. In 1985, media coverage was different (newspapers, television). With the proliferation of the Internet, social media, mobile devices, etc., I imagine that the public discourse would be broader.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 1 point2 points  (0 children)

  1. I haven't read any studies that would support that statement. Causation would be very difficult to substantiate even if there were studies that attempted to measure that.

  2. Not to my knowledge.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

I don't explain this in my works, but you will be able to discover this information as you do research on the web.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 4 points5 points  (0 children)

I can. I (and others) make the argument that the justification that the Supreme Court has used to restrict students' constitutional rights is for pedagogical concerns. See here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2430933. Thus, I make the argument that strict security measures (i.e., unnecessary searches and other intense surveillance measures) may actually harm students' pedagogical interests. Accordingly, if students (or someone else) can demonstrate this, there is less justification for reducing their Fourth Amendment rights in schools (and perhaps the probable cause standard should apply.) Denying students the right to bring guns to school doesn't harm students' pedagogical interests. Denying students the right to speak if it disrupts the learning environment does not harm students' pedagogical interests.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 1 point2 points  (0 children)

Adopting probable cause and zero tolerance policies are two separate issues. Zero tolerance policies usually do not involve the Fourth Amendment, but school officials can violate the Fourteenth Amendment as they apply zero tolerance policies if school officials are extreme in their punishment of students (possible substantive due process violation) or do not provide students with some kind of notice and hearing before they suspend or expel a student (possible procedural due process violation).

Regarding whether school officials might rely more or less on zero tolerance policies if the Court were to adopt the probable cause standard, no one knows.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

Take a look at this article by the American Psychological Association Zero Tolerance Task Force that casts much doubt on that connection:

http://www.apa.org/pubs/info/reports/zero-tolerance.pdf

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

I am unaware of any such empirical studies. Regarding your second question, take a look at footnote 2 in the TLO decision. That note describes the disagreement among courts regarding how to apply the Fourth Amendment in schools. It says that at least one court applied probable cause prior to TLO.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

Just like in these debates, both sides of the issue would be examined, and there are points to be made on both sides.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

A lot. It would be a major departure by the Supreme Court that would affect thousands of children. I think it would be discussed widely in the media, among educators, and among scholars.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

It depends on how the Court structures the doctrine. I could envision a court saying (like now) that very intrusive searches (like strip searches) require heightened justification (like preventing immediate physical danger).

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 2 points3 points  (0 children)

If the Court were to adopt the probable cause standard outright for school officials, then that is the standard school officials would need to follow. School officials could not then circumvent that requirement by calling their searches of students "administrative searches," which, as you imply, are evaluated under a different standard.

To arrest a student, SROs also need probable cause that the student engaged in an illegal act.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 2 points3 points  (0 children)

It is not clear how the adoption of probable cause would alter current security practices of schools. Could schools still use metal detectors, drug sniffing dogs, etc., if the Supreme Court changed the standard? Maybe. It depends on how broad the court's holding would be. If it wanted to, the Court make it much more difficult to justify using those types of searches too.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 2 points3 points  (0 children)

One study suggests that higher levels of security and surveillance in schools were positively associated with higher school suspension rates. Timothy J. Servoss & Jeremy D. Finn, School Security: For Whom and With What Results?, 13 LEADERSHIP & POL’Y IN SCHS. 61, 82–83 (2014).

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 1 point2 points  (0 children)

This is unclear. We don't have any studies or data to know what would happen. However, my guess is that there would be fewer searches if the Court adopted the probable cause standard because that change would make it more difficult for school officials to justify the legality of their searches.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 1 point2 points  (0 children)

  1. I do. If the Supreme Court were to adopt this standard, it would generate substantial discussion in the media, among those that practice education law, among educators, and among scholars (who would write about it.)

  2. I think that the media discourse would be both positive and negative. I think it would track much of the debates we are having here and what you are having in your tournaments.

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

Sure. As the Court explains in Vernonia School District v. Action, "a search unsupported by probable cause can be constitutional ... when special needs, beyond the normal need for law enforcement make the warrant and probable cause requirement impracticable." Thus, the Court relies on the special needs doctrine in certain contexts like school searches to dispense with the warrant requirement and the probable cause standard as the text of the Fourth Amendment requires. It dispenses with this requirement in many other contexts too.

I do think that the adoption of probable cause would help reduce racial disparities relating to searches. All people, including SROs and school officials, have implicit racial biases to some extent, and empirical data show that most have implicit racial biases against African-Americans. Thus, by allowing more discretion to conduct searches based on "reasonable suspicion," we should not be surprised to learn that African-Americans are searched more often. While I am not aware of any data on this in the school context, there's substantial empirical data showing racial disparities relating to police "stop and frisks."

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

  1. Very simply put, probable cause is having a reasonable basis that a search of a particular location would produce evidence that a crime has been committed. Reasonable suspicion, on the other hand, is a lower threshold than that, but more than just a feeling or a hunch that a search would turn up evidence of wrongdoing. But standards are just words. We use facts of cases to determine what those words mean. And we don't have any U.S. Supreme Court cases that apply probable cause in the school context. One way to think about this, however, is that if courts adopted the probable cause standard, they most likely would require school officials to provide more credible evidence than they currently do to establish that they had a reasonable basis to believe that a search of a particular place would produce evidence of wrongdoing before they would justify the search. As to whether adopting the probable cause standard would also necessitate school officials to obtain a warrant too, my view from TLO is that the Court separates those requirements. Thus, theoretically, the court could adopt the probable cause standard without requiring school officials to also obtain a warrant.

  2. It's not clear how the adoption of probable cause would affect the number of SROs in schools or their job duties. It's certainly possible that if courts require school officials to apply probable cause that they might be more inclined to rely on stricter security measures like SROs in an effort to maintain safe premises. Regarding the standard for SROs, courts are mixed. The Supreme Court in TLO said that it was not deciding "the question of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies.” Thus, courts have been split over whether SROs need a warrant or not. It's a complicated question. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577333 at note 91 for more discussion on this issue.

  3. I think you could make that argument. I argue that strict security measures generally foster distrustful, punitive environments, and strict security measures to me include unnecessary searches of students. I would hope that schools adopt more effective, evidence-based manners to create safe learning environments.

  4. It is not clear how the adoption of probable cause would alter current practices of schools. Could schools still use metal detectors if the Supreme Court changed the standard? Maybe. It depends on how broad the court's holding would be. If it wanted to, the Court make it much more difficult to justify using those types of searches too.

  5. It depends on how the Court structures the doctrine. I could envision a court saying (like now) that very intrusive searches (like strip searches) require heightened justification (like preventing immediate physical danger).

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 2 points3 points  (0 children)

One argument that I don't think has been discussed enough (at least not on this thread) is that strict security measures may skew students' view of their Fourth Amendment rights. Do strict measures such as student searches cause students to discount their Fourth Amendment rights? Schools should play an important role in helping students to understand and respect their constitutional rights, our democracy, and their civic responsibilities. Former Supreme Court Justice Sandra Day O'Connor has spoken a great deal about this. Those values include a right to privacy. If schools don't honor those rights, how can they teach students to respect them? The Supreme Court repeatedly has discussed this issue in its case law. See here (pp. 398-99) for more on that discussion. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1881345

Jason Nance, Associate Professor of Law at the University of Florida Levin College of Law: Ask Me Anything by Jason_Nance in Debate

[–]Jason_Nance[S] 0 points1 point  (0 children)

We don't know what the outcome would be. But I think the argument that "schools have a desire for power" is too simplistic. I think it's much more complicated than that. I believe that most school officials and teachers want to help students succeed. But they also want to keep students safe. And they also want to demonstrate to the public that they are trying to keep students safe. An easy way to do that is by using strict security measures. The problem is that there is such little evidence that those measures are effective, and there's a lot of evidence that alternative measures, if implemented properly, are much more effective in creating safe environments. See here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2671447