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Resolved: In United States public K-12 schools,
the probable cause standard ought to apply to
searches of students.
PRO CASE
My partner and I strongly affirm the resolution Resolved: In United States public
K-12 schools, the probable cause standard ought to apply to searches of
students.
Observation 1) Definitions:
The Supreme Court Case Ornelas v. United States, 1996 clarifies that “Probable cause
to search exists when ‘known facts and circumstances are sufficient to warrant a man of
reasonable prudence in the belief that contraband . . . will be found.”’
Observation 2) Framework:
This round should be evaluated on a cost benefit analysis: if the affirmative can prove
the benefits outweigh the harms, then we win the round.
We will prove that the resolution is true with the following two contentions:
Contention 1: Reasonable Suspicion in the Status Quo Perpetuates Institutionalized
Racism.
Contention 2: The Current System Systemically Harms Students Inside and Outside of
the Classroom.
Contention 1: Reasonable Suspicion in the Status Quo Perpetuates
Institutionalized Racism.
Subpoint A) Minority students are searched more often in the status quo:
Currently, school administrators operate under rules of “reasonable suspicion”
and not “probable cause.”
Ehlenberger, 2002 (Kate Ehlenberger, Member of the ASCD, “The Right to Search Students,” ASCD, 2002)
As summarized by Kate Ehlenberger of the ASCD, This means that no “known facts
or circumstances” are necessary to warrant a search, and rather reasonable
suspicion is satisfied when two conditions exist: (1) the search is justified at its
inception, and (2) the search is reasonably related in scope to the circumstances
that justified the search.
Because of this, searches in the status quo that do not use the probable cause standard
empirically exhibit instances of and perpetuate institutionalized racism. This is the most
important impact in the round, because this uniquely marginalizing and dehumanizing to
students of color, and decreases their quality of life.
Subpoint B) Increase in “random sweeps” are a violation of students’ personal
privacy.
Jason P. Nance ‘10 summarizes that these sweeps provide little return, especially
in schools with high minority populations.
Nance ’13 (Jason Nance, Assistant Professor of Law, University of Florida Levin College of Law. J.D., University of
Pennsylvania Law School; Ph.D., M.A., Educational Administration, “Suspicionless searches of students’ belongings:
A legal, empirical, and normative analysis”, University of Colorado Law Review, The Ohio State University, 2013)
The odds of
conducting random sweeps without reporting any incidents relating
substance abuse or weapons were greater for schools with
higher minority populations thanfor schools with lower minority populations.
A Few key predictors emerged from the analysis. First, the data show that
Specifically , the odds for schools with minority populations of over 50 percent were more than 2.7 times greater in
2009-2010,and more than 3.6 times greater in 2007-2008, than for schools with minority populations of between 0
and 5 percent. This holds true even when taking into account other factors that may influence school officials to
conduct these searches, such a their perceptions of the crime levels where students reside and where the
school is located, the percent of students eligible for free & reduced lunch, school level, school enrollment size,
and school location. in 2009-2010,the odds of conducting these searches were four times greater for
schools with minority populations of over 50 percent than for schools with minority populations between
5 and 20 percent. Also In 2009-2010, the odds were 7.7 times greater for schools with
minority populations of over 50 percent than for schools with
minority populations between 20 and 50 percent. More research is needed to discover the
Reasons behind different results across school years and why, in 2009-2010, the greatest odds emerged from
comparing schools with minority populations of 20 and 50 percent to schools with over 50 percent. Nevertheless,
the general finding that emerged from this analysis clear: the odds of conducting random sweeps
without reporting incidents relating to substance abuser weapons were greater for
schools with higher percentages of minority students than for schools with lower percentages of
minority students.
Subpoint C) Students of color are more likely to be suspended:
Nance, 15 (Jason P. Nance, University of Florida Levin College of Law, Students, Police, and the School-to-Prison
Pipeline, Washington University Law Review, Forthcoming; University of Florida Levin College of Law Research
Paper No. 15-20. November 2, 2015,, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577333)
Another serious ramification of these laws, practices, and policies is their
disproportionate impact on minority students.196 Using a variety of measures, racial disparities relating
to suspensions, expulsions, referrals to law enforcement, and school-based arrests have been documented using national, state,
and local level data at all school levels across all settings.197 For example, the U.S. Department of Education’s Office of Civil Rights
Data Collection demonstrates that although
African-American students represented only
sixteen percent of the total number of students during the 2011–2012 school year, they
represented thirty-two percent of students receiving an in-school suspension; thirty-three
percent of students receiving one out-of-school suspension; forty-two percent of students
receiving more than one out-of-school suspension; and thirty-four percent of
students who were expelled.198 Also during this period, African-American students accounted for
twenty-seven percent of the students who were referred to law enforcement, and thirty-one
percent of students who received a school-based arrest.199 Just as appalling (or perhaps more so), while
African-Americans accounted for eighteen percent of the preschool student population, they represented forty-eight percent of the
preschool children who received more than one out-of-school suspension.200 These disparities are not explained by more frequent
or more serious misbehavior by minority students.201 According to the Office of Civil Rights, “in
our investigations we
have found cases where African-American students were disciplined more
harshly and more frequently because of their race than similarly situated white
students. In short, racial discrimination in school discipline is a real problem.”
Contention 2: The Current System Systemically and Cyclically Harms Students
Inside and Outside of the Classroom.
Subpoint A) The “reasonable suspicion” standard leads to too many unjust
suspensions: Suspensions are actively increasing due to a lack of the implementation
of the probable cause standard in relation to suspensions and searches. Many of these
suspensions and expulsions resulted from only trivial infractions of school rules or
offenses.
Nance, 15 (Jason P. Nance,University of Florida Levin College of Law, Students, Police, and the School-to-Prison
Pipeline, Washington University Law Review, Forthcoming; University of Florida Levin College of Law Research
Paper No. 15-20. November 2, 2015, , http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577333)
One cannot measure with precision the combined effect of these laws, policies, and practices on students.
Nevertheless, there is objective evidence indicating their significant negative influence. For example , the number
of students suspended or expelled in secondary schools nationwide increased
from one in thirteen in 1972–1973 to one in nine in 2009–2010.166 Many of these
suspensions and expulsions resulted from only trivial infractions of school rules
or offenses, not from offenses that endangered the physical well-being of other students.167 There is also
evidence that school-based referrals to law enforcement have increased.168 For example, in North Carolina, the
number of school-based referrals increased by ten percent from 2008 to 2013.169 In an empirical study to compare
referrals across multiple states,170 researchers Michael Krezmien, Peter Leone, Mark Zablocki, and Craig Wells
found that in four of the five states studied (Arizona, Hawaii, Missouri, and West Virginia) referrals from schools
comprised a larger proportion of total referrals to the juvenile justice system in 2004 than in 1995.171 That study also
demonstrated that schools from Missouri, Hawaii, and Arizona referred greater proportions of their students in 2004
than in 1995.172 The number of school-based arrests also increased in the Philadelphia Public School District (from
1,632 in 1999–2000 to 2,194 in 2002–2003),173 Houston Independent School District (from 1,063 in 2001 to 4,002 in
2002),174 Clayton County, Georgia (from 89 in the 1990s to 1,400 in 2004),175 Miami-Dade County, Florida (a
threefold increase from 1999 to 2001, and from 1,816 in 2001 to 2,566 in 2004),176 and in Lucas County, Ohio (from
1,237 in 2000 to 1,727 in 2002).177 Similar to the increase of suspensions and expulsions, there is substantial
evidence that the vast majority of these school-based referrals were for relatively minor offenses.
Subpoint B) Unnecessary suspensions of students has collateral damage to the
education system.
Perry, 2014 (Brea L. Perry, teacher at Indiana University, Suspending Progress
Collateral Consequences of Exclusionary Punishment in Public Schools, November 5, 2014,
,http://asr.sagepub.com/content/79/6/1067)
An influential literature in criminology has identified indirect “collateral consequences” of mass imprisonment. We
extend this criminological perspective to the context of the U.S. education system, conceptualizing exclusionary
discipline practices (i.e., out-of-school suspension) as a manifestation of intensified social control in schools. Similar
to patterns of family and community decline associated with mass incarceration, we theorize that exclusionary
discipline policies have indirect adverse effects on non-suspended students in punitive schools. Using a large
hierarchical and longitudinal dataset consisting of student and school records, we examine the effect of suspension
on reading and math achievement. Our findings suggest that higher levels of exclusionary discipline within schools
over time generate collateral damage, negatively affecting the academic achievement of non-suspended students in
punitive contexts. This effect is strongest in schools with high levels of exclusionary
discipline and schools with low levels of violence, although the adverse effect of
exclusionary discipline is evident in even the most disorganized and hostile
school environments. Our results level a strong argument against excessively
punitive school policies and suggest the need for alternative means of
establishing a disciplined environment through social integration. - the probable
cause standard.
Subpoint C) Youth Incarceration: Nance’s University of Florida study continues to
shed light on the negative consequences associated with incarcerating youths (more of
which occurs under the reasonable suspicion standards.)
Nance, 15 (Jason P. Nance,University of Florida Levin College of Law, Students, Police, and the School-to-Prison
Pipeline, Washington University Law Review, Forthcoming; University of Florida Levin College of Law Research
Paper No. 15-20. November 2, 2015, 07/07/16, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577333)
The negative consequences associated with incarcerating a youth, which is
where the school-to-prison pipeline may ultimately lead, should not be
underestimated. Empirical evidence demonstrates that incarcerating juveniles limits their
future educational, housing, employment, and military opportunities. It also
negatively affects a youth’s mental health,180 reinforces violent attitudes and
behavior,181 and increases the odds of future involvement in the justice system .
As the United States Court of Appeals for the Tenth Circuit recently observed, “[t]he criminal punishment of young
school children leaves permanent scars and unresolved anger, and its far-reaching impact on the abilities of these
children to lead prosperous lives should be a matter of grave concern for us all.”183 Further, the economic
costs for incarcerating students are staggering. The national average expense for detaining one
juvenile per year is $148,767 (ranging as high as $352,663 in the state of New York).184 And beyond
the millions of dollars that government entities spend to incarcerate youth, some
estimate that the long term costs to our society for detaining youth (which include lost future
earnings, recidivism, lost future tax revenue, additional Medicare and Medicaid spending) range from $7.9
billion to $21.47 billion per year.
Because it is irresponsible and inhumane to ignore these consequences, my partner
and I affirm.
AFF CARDS
Most reports are not anonymous – and most anonymous reports don’t solve
Cecka, 2015 (Dale M. Cecka, author of Abolish Anonymous Reporting to Child Abuse Hotlines, Abolish Anonymous
reporting to Child Abuse Hotlines 64 Cath. U. L. Rev. 51, 2015, 7/7/16,
http://scholarship.law.edu/lawreview/vol64/iss1/6 )
A study that specifically analyzed data regarding anonymous public reports found that,
nationally, 1.5% of all reports are both anonymous and substantiated. Moreover, during a
two-year study period in the Bronx, “no anonymous reports resulted in the removal of a
child for imminent danger.” Of those cases, just [o]ne case was referred to court seeking
removal, but this occurred only after the anonymous reporter agreed to come forward and testify
in court. . . . A small number of children in the substantiated cases[, which were all based on
findings of “neglect,”] were placed voluntarily or relocated with relatives because of parents’
difficulties in coping. Approximately eight percent of substantiated reports nationwide involve
physical injury to a child; more than three-quarters are substantiated on allegations of “neglect.”
Neglect is generally “defined as the failure of a parent or other person with responsibility for the
child to provide needed food, clothing, shelter, medical care, or supervision to the degree that
the child’s health, safety, and well-being are threatened with harm.”Typical neglect cases
involve “dirty houses,”a parent’s possession or abuse of substances,children who do not
regularly attend school (educational neglect), or failure of parents to provide medical
appointments (medical neglect)
A2 Principals and Teachers Cannot Search Students
ACLU, American Civil Liberties Union of Vermont, https://acluvt.org/pubs/students_rights/search.php
Yes, if they have “reasonable suspicion” that the search will produce evidence that you are
violating the law or a school rule. Also, the search itself must be reasonable based on your age
and what is being searched for. Strip searches are prohibited. If you voluntarily consent to a
search, the school does not need even reasonable suspicion to justify the search. (You never
have to consent to a search, even though you may feel pressure to say “yes.”) A search by
school officials requires a “lower threshold” of suspicion than a search by police. Police need
“probable cause” and must have a warrant. (But as with school searches, if you consent to a
police search, police need no proof you’ve done something wrong.) The U.S. Supreme Court
set the rules for school searches in the case New Jersey v. T.L.O According to the U.S.
Department of Justice, which last year ordered school districts to respond to student
misbehavior in “fair, non-discriminatory, and effective” ways, Black students are suspended
and expelled at a rate three times greater than White students, while Black and Latino
students account for 70 percent of police referrals. Also, students with disabilities are
twice as likely to be suspended than their non-disabled peers, and LGBT students are 1.4
times more likely to face suspension than their straight peers. In Ohio, a Black child with
an emotional disability was 17 times more likely to be suspended than a White, nondisabled peer. Combine these “risk factors,” and you’re talking about a child who might
as well stay home. The bias starts early. Black children represent 18 percent of preschool students, but account for 48 percent of pre-school suspensions. Yes, we’re
talking about 4-year-olds. “It’s crystal clear that Black students, especially boys, get it worse,”
said Jacqui Greadington, chair of the NEA Black Caucus. “Studies have shown that a Black
child, especially a male, is seen to be a bigger threat just because they are. They are. They
exist.” In fact, according to research, Black students do not “act out” in class more frequently
than their White peers. But Black students are more likely to be sent to the principal’s office for
subjective offenses, like “disrupting class,” and they’re more likely to be sent there by White
teachers, according to Kirwan Institute research on implicit bias. (White students, on the other
hand, are more likely to be suspended for objective offenses, like drug possession.)
Suspensions Perpetuate the School to Prison Pipeline
Lieberman 16 (Donna Lieberman, NYCLU , New York Civil Liberties Union, Testimony Of Donna Lieberman On
Behalf Of The New York Civil Liberties Union before The New York City Council Committees On Education And Civil
Rights Regarding The Impact Of Suspensions On Students’ Education Rights)
The School to Prison Pipeline describes local, state and federal education and public safety
policies that operate to push students out of school and into the criminal justice system. This
system disproportionately impacts youth of color and youth with disabilities. Inequities in
areas such as school discipline, policing practices, and high-stakes testing contribute to the
pipeline. The School to Prison Pipeline operates directly and indirectly. Schools directly send
students into the pipeline through zero tolerance policies that involve the police in minor
incidents, which too often lead to arrests, juvenile detention referrals, and even
incarceration. Schools indirectly push students into the criminal justice system by
excluding them from school through suspension, expulsion, discouragement and high
stakes testing requirements. Suspensions, often the first stop along the pipeline, play a
crucial role in pushing students from the school system and into the criminal justice
system. Research shows a clear correlation between suspensions and both low achievement
and dropping out of school altogether. Such research also demonstrates a link between
dropping out of school and incarceration later in life. Specifically, students who have
been suspended are three times more likely to drop out by the 10th grade than students
who have never been suspended. Dropping out in turn triples the likelihood that a person
will be incarcerated later in life. In fact, in 1997, 68 percent of state prison inmates were
school dropouts. Despite the poor outcomes associated with suspensions, schools across the
nation have seen an explosion in the number of suspensions and expulsions, mainly due to zero
tolerance policies that rely heavily on harsh disciplinary practices. Originally meant to address
only the most serious violent behavior, zero tolerance policies now too often target normal, nonviolent behavior, even though schools nationwide continue to benefit from a fourteen year
steady decrease in violent and non-violent crime in public schools. In 2006, the American
Psychological Association found that zero tolerance policies have been ineffective in reducing
violence in schools and have instead increased disciplinary problems and dropout rates in
middle schools and high schools, as well as the number of referrals to the juvenile justice
system for minor infractions once handled by educators in the schools. The report also found
that zero tolerance policies have led to an over-representation of students of color in school
discipline processes.
Black Students Are Suspended At Disproportionate Rates
Smith-Harper ’15 (Smith, E. J., & Harper, S. R., 2015, Disproportionate impact of K-12 school suspension and
expulsion on Black students in southern states. Philadelphia: University of Pennsylvania, Center for the Study of
Race and Equity in Education. http://www.gse.upenn.edu/equity/SouthernStates)
Nationally, 1.2 million Black students were suspended from K-12 public schools in a
single academic year – 55% of those suspensions occurred in 13 Southern states.
Districts in the South also were responsible for 50% of Black student expulsions from
public schools in the United States.This report aims to make transparent the rates at which
school discipline practices and policies impact Black students in every K-12 public school district
in 13 Southern states: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi,
North Carolina, South Carolina, Tennessee, Texas, Virginia, and West Virginia. Despite
comprising only 20.9% of students in the 3,022 districts analyzed, Blacks were
suspended and expelled at disproportionately high rates.The authors use data from the
U.S. Department of Education’s Office for Civil Rights to present school discipline trends related
to Black students district-by-district within each state. Districts in which school discipline policies
and practices most disproportionately impact Black students are also highlighted. The report
concludes with resources and recommendations for parents and families, educators and school
leaders, policymakers, journalists, community stakeholders (NAACP chapters, religious
congregations, activists, etc.), and others concerned about the school-to-prison pipeline and the
educational mistreatment of Black youth in K-12 schools. The authors also offer implications for
faculty in schools of education, as well as other sites in which teachers are prepared (e.g.,
Teach for America) and administrators are certified.
A2 The Police Have Greater Latitude in Terms of Search Permissions
Boylan, ’15 (Ellen Boylan, Senior Attorney at Education Law Center, Education Law Center, Student Discipline Rights
and Procedures: A Guide for Advocates, Second Edition p. 29-31(2015))
Under the Supreme Court’s ruling in New Jersey v. T.L.O., school officials are
granted greater latitude than police when conducting a search and seizure. Upon
reasonable suspicion that a student has violated, or is violating, the law or school rules,
school officials may search, among other items, a student’s outer clothing, purse,
backpack, locker, or a vehicle parked on school grounds. When police and other law
enforcement authorities, including those regularly stationed in a school, are involved in a
search and seizure, the higher standard - probable cause to conduct a search - will apply.
A school official may always ask for permission to conduct a search, even if the
official does not have reasonable grounds to believe that the search would reveal
evidence of an offense or infraction. The law is not settled on whether a student below
the age of majority can properly give informed consent to a search. A strong argument
31exists that school officials must obtain consent from the student’s parent. If a parent
consents to the search – that is, if he or she provides clear and unequivocal consent and
knowingly and voluntarily waives constitutional rights87 – the student cannot later
challenge the search on the basis of lack of reasonable grounds to conduct the search.
Additionally, because a student has the right to refuse to consent to a search, his or her
refusal to give permission to a search should not be considered evidence of guilt or
reasonable grounds to conduct a search.
In squo, school admin uses reasonable suspicion, not probable cause.
Justice Byron White for the Supreme Court, 1985 (Associate Justice Byron White in the opinion of Supreme Court of
the United States in New Jersey v. T.L.O., “New Jersey v. T.L.O.”, Cornell University Law School Legal Information
Institute, https://www.law.cornell.edu/supremecourt/text/469/325#writing-USSC_CR_0469_0325_ZO)
The school setting also requires some modification of the level of suspicion of illicit
activity needed to justify a search. Ordinarily, a search -- even one that may permissibly be
carried out without a warrant -- must be based upon "probable cause" to believe that a violation
of the law has occurred. See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266, 273
(1973); Sibron v. New York, 392 U.S. 40, 62-66 (1968). However, "probable cause" is not an
irreducible requirement of a valid search. The fundamental command of the Fourth Amendment
is that searches and seizures be reasonable, and although both the concept of probable cause
and the requirement of a warrant bear on the reasonableness of a search, . . . in certain limited
circumstances neither is required.
Almeida-Sanchez v. United States, supra, at 277 (POWELL, [p341] J., concurring). Thus, we have in a number of cases recognized the legality of searches and seizures based
on suspicions that, although "reasonable," do not rise to the level of probable cause. See, e.g., Terry v. Ohio, 392 U.S. 1 (1968); United States v. Brignoni-Ponce, 422 U.S. 873,
881 (195); Delaware v. Prouse, 440 U.S. 648, 654-655 (1979); United States v. Martinez-Fuerte, 428 U.S. 543 (1976); cf. Camara v. Municipal Court, supra, at 534-539.
Where a careful balancing of governmental and private interests suggests that the public
interest is best served by a Fourth Amendment standard of reasonableness that stops
short of probable cause, we have not hesitated to adopt such a standard.
We join the majority of courts that have examined this issue [n6] in concluding that the
accommodation of the privacy interests of schoolchildren with the substantial need of
teachers and administrators for freedom to maintain order in the schools does not
require strict adherence to the requirement that searches be based on probable cause to
believe that the subject of the search has violated or is violating the law. Rather, the
legality of a search of a student should depend simply on the reasonableness, under all
the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the
. . . action was justified at its inception," Terry v. Ohio, 392 U.S. at 20; second, one must determine whether the search as actually conducted "was reasonably related in scope
to the circumstances which justified the interference in the first place," ibid. Under ordinary circumstances, a search of a student by a teacher or other school official [n7] will be
[p342] "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law
or the rules of the school. [n8] Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of the age and sex of the student and the nature of the infraction. [n9]
Most reports are not anonymous – and most anonymous reports don’t solve
Dale M. Cecka, Abolish Anonymous Reporting to Child Abuse Hotlines, 64 Cath. U. L. Rev. 51, 2015,
http://scholarship.law.edu/lawreview/vol64/iss1/6 (7/7/16))
A study that specifically analyzed data regarding anonymous public reports found that, nationally, 1.5%
of all reports are both anonymous and substantiated. 59 Moreover, during a two-year study
period in the Bronx, “no anonymous reports resulted in the removal of a child for
imminent danger.”60 Of those cases, just [o]ne case was referred to court seeking removal, but this occurred only after the
anonymous reporter agreed to come forward and testify in court. . . . A small number of children in the substantiated cases[, which
were all based on findings of “neglect,”] were placed voluntarily or relocated with relatives because of parents’ difficulties in
coping.61 Approximately eight percent of substantiated reports nationwide involve physical injury to a child;62 more than threequarters are substantiated on allegations of “neglect.”63 Neglect is generally “defined as the failure of a parent or other person with
responsibility for the child to provide needed food, clothing, shelter, medical care, or supervision to the degree that the child’s health,
safety, and well-being are threatened with harm.”64 Typical neglect cases involve “dirty houses,”65 a parent’s possession or abuse
of substances,66 children who do not regularly attend school (educational neglect), or failure of parents to provide medical
appointments (medical neglect).6
Reasonable suspicion = more searches
Thurau, 2010 (Lisa H. Thurau is Founder and Director, Strategies for Youth. Johanna Wald is Director of Strategic
Planning, Charles Hamilton Houston Institute for Race and Justice, Harvard Law School. “Controlling Partners: When
Law Enforcement Meets Discipline in Public Schools,” New York Law School Review, Volume 54, 2009-2010 7/7/16
PDF/Book (2010))
With the passage of the Gun Free School Zones Act of 1990, 23 the merging of school administrators and police as forces of law
and order within schools led to complex arrangements, including the delegation and division of authority and labor. The result has
been confusion among police and administrators that continues to this day. This confusion focuses on where administrators’
disciplinary roles stop and police powers begin, what conduct should be handled exclusively by school disciplinarians, and what
conduct becomes an arrestable offense. Students, parents, teachers, the courts, and legislatures experience this confusion.
Massachusetts is no different. Administrators
were granted expansive authority, effectively the
equivalent of police powers, in the name of safety, order, and discipline to conduct investigations
and search students’ property and persons.24 This “Fourth Amendment lite” imposed no
obligations on administrators to notify students that the information they collected would be
provided to the police and that prosecution could follow.25 The advantage of this approach was
that it increased the number of searches and neatly circumvented Miranda v. Arizona.26
Massachusetts’s highest court codified this approach in Commonwealth v. Ira I,27 holding that school administrators who conduct
searches of students are not agents of the police—and whatever they obtain in the course of such a search may be turned over to
SROs or police officers for prosecution.28 The court also declined the juvenile’s “invitation to overrule the portion of Commonwealth
v. Snyder29 that concluded that the Miranda rule does not apply to a ‘school administrator who is acting neither as an instrument of
the police nor as an agent of the police.’”30 The court came to this conclusion based on the absence of any record showing that “the
police directed, controlled, or otherwise initiated or influenced” the school administrator’s conduct.31 This
decision, like so
many others across the country, rendered youth who are obligated to attend school by
mandatory attendance laws, effectively without constitutional protection to object to a search by
a school administrator. It empowered school administrators to serve in both roles—as police
and as minister of justice at an intermediate or ultimate level of authority, depending on whether
the case is passed off to the police or allowed to result in a school-based disciplinary action.
Weatherspoon 2004 (Floyd Weatherspoon is a professor of law at Capital University. “Racial Profiling of
African-American Males: Stopped, Searched, andStripped of Constitutional Protection”, Racism.org,
http://racism.org/index.php?option=com_content&view=article&id=1472:constitutionalprotection&catid=130&Itemid=241)
The term driving while black has been used to describe the practice of law enforcement
officials to stop African-American drivers without probable cause. The practice particularly
targets African-American males. African-American males are not only singled out while driving,
but also while schooling, eating, running for political office, walking, banking, serving as a juror,
getting a taxi, shopping, and just being black and a male. The mere fact of being black and
male in America is sufficient cause for governmental and private law enforcement
officials to abridge the rights of African-American males. This is not to suggest that law
enforcement officers can never consider race when performing their job. Just the opposite,
where a witness identifies the race and gender of a suspect, it is relevant evidence to consider
in an effort to apprehend a criminal. Racial profiling, however, involves a pre-disposition
held by law enforcement officers who are members of the majority, to believe that
minorities, and particularly African-American males, are engaged in criminal activities;
therefore, they are stopped and searched without probable cause or reasonable
suspicion.
SRO’s Are Already In Schools
Raymond ’10 (Barbara Raymond, Official at the Center for Problem-Oriented Policy, 2010,
http://www.popcenter.org/responses/school_police/)
Police agencies have LONG provided services to schools. It has been in the past two decades,
however, that assigning police officers to schools on a full-time basis has become a
widespread practice. An estimated one-third of all sheriff’s offices and almost half of all municipal police
departments assign nearly 17,000 sworn officers to service in schools. These officers are commonly
referred to as school resource officers (SRO’s).
School search methodology crucial
Forman, Sarah Jane, Countering Criminalization: Toward a Youth Development Approach to School Searches
(August 4, 2010). Washington University in St. Louis Legal Studies Research Paper No. 10-08-02. Available at
SSRN: http://ssrn.com/abstract=)
A school search framework that better accounts for the developmental needs of youth would
appreciate that adolescents are future autonomous citizens in the process of developing a
sense of personhood. A developmentally appropriate paradigm would encourage positive youth development and
democratic socialization. To this end, the Fourth Amendment right to be free from unreasonable
searches and seizures must be viewed as a vehicle through which adolescents’ capacity
to become “mature adults capable of democratic self-government” and self-realization—
“the process by which an individual defines himself”—can be developed.288 Such an approach would recognize that there is a
coincidence of interest shared by students, school officials, and society in developing democratic citizens.
Students should have the same methods as adults.
Forman, Sarah Jane, Countering Criminalization: Toward a Youth Development Approach to School Searches
(August 4, 2010). Washington University in St. Louis Legal Studies Research Paper No. 10-08-02. Available at
SSRN: http://ssrn.com/abstract=1652971 //)
In the context of the Fourth Amendment, the primary concern is not competence or culpability, but
susceptibility.183 If, as the science suggests, the human brain is being hardwired during
adolescence, to what extent can students’ individual liberties be encroached upon by the
government without sacrificing positive youth development?184 Therefore, instead of militating
against individual autonomy, a Fourth Amendment framework that is developmentally
appropriate would actually afford adolescents greater autonomy and equality by freeing them
from unjust suspicion and arbitrary interference with their privacy. Moreover, while most scholars argue that
adolescents should be treated differently than adults, in regards to the Fourth Amendment adolescents should
be treated at least as equally as adults. This approach does not posit that adolescents should have rights coextensive to adults because they are the same as adults. Rather, recognizing the developmental uniqueness of adolescents dictates
the consideration of factors beyond privacy and school safety when applying the Fourth Amendment to high school students.
CON CASE
It is because violence and drug use is rampant in our public schools, especially
those that have been neglected, that my partner and I stand in negation of the
resolution – Resolved: In United States public K-12 schools, the probable cause
standard ought to apply to searches on students.
We begin with a few definitions and burdens:
Probable Cause has four components Taslitz from Howard University Professor of Law
in 2010, explains, “probable cause as having four components: one quantitative (How
certain must the police be?), one qualitative (How strong must the supporting data
sources be?), one temporal (When must police and courts make their judgments?), and
one moral (Do the police have “individualized suspicion?”)”
Wedgewood, Professor of Ethics, in 2006 defines “Ought” as something that “should be
realizable.”
Finally, the National School Safety Center in 1995 outlines that “Searches must be
reasonable in scope in light of the age and sex of the student and the nature of the
infraction.”
We argue that the burden of the negative is to prove that reasonable suspicion is
enough for school officials to make educated searches of students and that a higher
standard of probable would necessarily leave schools in violent shambles requiring
police officers or trained legal professionals decimating our police forces. We will
provide the following two contentions:
1. School Violence.
2. Police Tradeoff.
Contention 1. School Violence.
Our contention is that school violence is increasing and a higher standard would tie
schools’ hands.
Subpoint A. School violence is on the rise.
Mascia-Corbett ’16 (Jennifer, Erin, Director of Admissions at Ethel Walker School, and Director of Internal Data at
SayYes to Education Syracuse, “Once Per Day, an American Kid Brings a Gun to School.” (January 29, 2016).
Mascia and Corbett in 2016 explain in 2015 alone, “there were at least 135
incidents in which elementary, middle, and high school students were caught bringing guns
into America’s schools. The number is an update to The Trace’s reporting in November, which found 77 such
incidents in the first three months of the school year. All told, a handgun has been discovered in the
possession of a child more than once a school day.”
Additionally, guns are increasingly becoming more common in schools as Shah in 2013 reports,
“According to the latest report about the Gun-Free Schools Act, there was a 10 percent increase in the
number of guns found on students from the 2008-09 school year to the 2010-11
school year.”
Subpoint B. Reasonable suspicion saves lives.
Benjamin Tiller, J.D. Candidate, 2014, Saint Louis University School of Law, “THE PROBLEMS OF PROBABLE
CAUSE: MENEESE AND THE MYTH OF ERODING FOURTH AMENDMENT RIGHTS FOR STUDENTS”, 2014//
ENDI-JM
Tiller in 2014 explains, “It is clear that guns, drugs, and violence are an unfortunate part of the American school system. It is equally
clear that educators and resource officers have a legal duty to protect students while in school. A probable cause standard
would frustrate the fulfillment of the resource officer’s duty, make it harder for
schools to keep contraband off school property, and make it easier for students
to conceal drugs or weapons at school. This high standard will not mitigate drug
and gun problems, but will make them worse. It will force educators and resource
officers to take the time to apply for a warrant instead of immediately addressing
a perceived threat—time that in some circumstances, could literally be the difference between life
and death. Reasonable suspicion, though, allows educators and resource officers the
flexibility to search without wasting time obtaining a warrant, and discourages students from bringing
contraband to school. As a result, reasonable suspicion should apply when no “outside”
officers are involved.
Subpoint C. We note that weapons in schools cause death.
Boyd, 2014, (Allison Boyd, Member of The Council of State Governments, "Student Safety and Gun Violence in
Schools," No Publication, http://knowledgecenter.csg.org/kc/content/gun-violence-student-safety-and-public-health,
(June 25, 2014))
Boyd in 2014 explains, “Weapons in schools are responsible for the deaths
of students, staff and nonstudent individuals, including homicides and suicides.6
Between 1 and 2 percent of all youth homicides occur at school, and this percentage has been stable
during the past decade.7 Most attacks occur during transition times, such as lunch or the beginning and end of the school day.8 In
2011, 5.9 percent of students stayed home from school at least one day because they did not feel safe either at school or traveling
to and from school.9 In the 2010-11 school year, there were 31 school-associated violent deaths. Of these 31 deaths, 17 were staff
and nonstudents such as parents; 14 incidents—11 homicides and three suicides—involved students between the ages of 5 and 18.
These numbers fluctuate over time. For instance, in the 2006-07 school year there were 63 total deaths, with 32 student homicides
and nine student suicides. In
total, there were 468 school-associated violent deaths between
the 2000-01 and 2010-11 school years.”
Contention 2. Police would need to be called trading off with law enforcement or
School administrators would do probable cause wrong.
Subpoint A) We note that trained law enforcement are the only ones with the
ability to discern probable cause.
The National School Safety Center in 2005 notes, “"[t]he general rule is that when
a law enforcement officer instigates, directs, participates, or acquiesces in a
search conducted by school officials, the officer must have probable cause for
the search, even though the school officials acting alone would be treated as
state officials subject to a lesser constitutional standard for conducting searches.
“
Additionally, Champion in 1997 notes, “The rationale for this reasonableness standard,
as opposed to a search warrant or probable cause requirement, is that school
teachers and administrators can not be expected to school themselves in the
subtleties of the probable cause standard. “
Subpoint B. The requirement of probable cause will lead to less community
policing or more intrusions by school officials.
First, because police may be required to conduct searches to ensure probable
cause this will trade off with time out in the field.
Currently police departments are experience high amounts of storages.
Wilson ’10 (Jeremy Wilson, Policy Writer for the RAND Corporation, "Police Recruitment and
Retention for the New Millennium The State of Knowledge" Rand Organization
http://www.rand.org/content/dam/rand/pubs/monographs/2010/RAND_MG959.pdf)
Wilson et all '10 explains These difficulties, perhaps surprisingly, have persisted through recent recessionary times
and may become more challenging as the economy improves. Department resources have continued to
decrease and responsibilities to increase, with agencies being asked to do more police work with fewer
resources. Some agencies report staffing shortages (a small number still claim continuing drops in
applications). Others question whether the long-term commitment of applicants and
current officers will persist in times of economic improvement. To help address these
challenges and provide lessons for the law enforcement community, this monograph does not offer any new data but rather
summarizes for police practitioners lessons on recruiting and retaining diverse, effective workforces. It provides a means for local
officials to identify what has been tried elsewhere and what might be applicable in their own communities. It is a broad analysis of
issues confronting many agencies and how these have developed over time
Our argument is one of logic, when you send police to schools, they are
necessarily not in the field to respond to other forms of crime and because there
is a shortage this leads to a more violent society.
Second, Tiller in 2014 explains that school officials having the authority to conduct
probable cause searches could include pat downs. Tiller says, “In holding that
reasonable suspicion applied when school employees initiate an investigation,
the court noted that any other conclusion would be illogical and dangerous.105
Specifically, the court said a probable cause standard would encourage teachers, who
are untrained in pat-down procedures and in neutralizing dangerous weapons, to
unilaterally search students.”
As we all can probably guess, pat downs from your untrained teacher would not only be
icky, but could also be dangerous.
It is because we believe the trade-offs are too great and gun violence too real that we
negate the resolution.
CON CARDS
Searches only include those that are reasonable in scope
National School Safety Center, 1995, “STUDENT SEARCHES AND THE LAW,”
https://www.ncjrs.gov/pdffiles1/Digitization/161361NCJRS.pdf
Searches must be reasonable in scope in light of the age and sex of the student and the
nature of the infraction. Reasonable in scope has several applications. First, consider the
size of the item for which you are searching. If you receive credible information that Jane
has brought an AK-47 to school, a search that is reasonable in scope might include her
locker; it would not include her purse. Although some might say that they were searching for bullets, no
reasonable person would search for an AK-47 in her purse. Secondly, scope is also concerned with the
intrusiveness of the search. No reasonable person would strip search a student to find a
missing three dollars. A strip search, however, may be appropriate under circumstances which include drugs or weapons.
Remember: More intrusive searches require more serious reasons for the search.
Prefer our definition—Wedgwood draws a distinction between the practical
and political “ought”
(Ralph Wedgewood, Professor of Ethics at Oxford University, 2006 “The meaning of ‘ought’,”
2006. www-bcf.usc.edu/~wedgwood/meaningofought.htm)
I have already cited the distinction between the practical ‘ought’ and what Sidgwick called the “political ‘ought’”. The most striking
the practical ‘ought’ is clearly
indexed to a particular agent and time, and it is a constraint on what “ought” to be the
case, in this sense, that it should be realizable by what the agent thinks or does at that time;
the political ‘ought’, on the other hand, is not indexed to any particular agent and time in this
way. I might say, ‘The British constitution ought to be radically reformed’, without having any particular agent x in mind (either
difference between these two kinds of ‘ought’, as I have suggested, seems to be this:
individual or collective) such that I mean to say that x ought to bring it about that the British constitution is radically reformed. In that
case, as I argued earlier, my statement does not contain any implicit reference to any particular agent. My acceptance of this
statement hardly commits me to planning on the radical reform of the British constitution; at most it commits me to favouring the goal
of such radical reform. ‘Ought’
exhibits other sorts of contextual variation as well. For example, on
some occasions, therefore ‘ought’ seems to be relative to a particular goal or purpose.
“Probable cause standard” has four components
Andrew Taslitz, Professor of Law, Howard University, “WHAT IS PROBABLE CAUSE, AND
WHY SHOULD WE CARE?: THE COSTS, BENEFITS, AND MEANING OF INDIVIDUALIZED
SUSPICION”, 2010
In the introductory essay to this symposium, I define probable
cause as having four components: one
quantitative (How certain must the police be?), one qualitative (How strong must the
supporting data sources be?), one temporal (When must police and courts make their
judgments?), and one moral (Do the police have “individualized suspicion”1?).2 My focus in
this article is on the last of these components. “Individualized suspicion,” the United States Supreme Court has suggested, is
perhaps the most important of the four components of probable cause.3 That is a position with which I heartily agree. The other
three components each play only a supporting role. But individualized suspicion is the beating heart that gives probable cause its
vitality.
Searches by police officers already require probable cause
National School Safety Center, 1995, “STUDENT SEARCHES AND THE LAW,”
https://www.ncjrs.gov/pdffiles1/Digitization/161361NCJRS.pdf/
According to James Rapp,
"[t]he general rule is that when a law enforcement officer instigates,
directs, participates, or acquiesces in a search conducted by school officials, the officer
must have probable cause for the search, even though the school officials acting alone
would be treated as state officials subject to a lesser constitutional standard for
conducting searches. ''39 This is especially true where school officials are working with the police in conducting a criminal
investigation. There are exceptions to this rule, however, and not all forms of police participation in a school search will be deemed a
search by the police. Several circumstances exist in which police may assist the school and the search not be one conducted by the
police, n° For example, police may provide information to the school which leads to a search. In one case, the police were on
campus when the subsequent search was conducted, and the court still would not invalidate the search. 41 School officials may
also call police to be present when officials conduct a search. The general principle to be followed is that the school must initiate and
conduct the search with the police acting only as observers. If
the school becomes an agent of the police in
conducting a search, the higher probable cause standard will be required.
The impact is evident – Allison Boyd explains in 2014:
Allison Boyd, 6-25-2014, "Student Safety and Gun Violence in Schools," No Publication,
http://knowledgecenter.csg.org/kc/content/gun-violence-student-safety-and-public-health, //
Weapons in schools are responsible for the deaths of students, staff and nonstudent
individuals, including homicides and suicides.6 Between 1 and 2 percent of all youth
homicides occur at school, and this percentage has been stable during the past decade.7 Most attacks occur during
transition times, such as lunch or the beginning and end of the school day.8 In 2011, 5.9 percent of students stayed home from
school at least one day because they did not feel safe either at school or traveling to and from school.9 In the 2010-11 school year,
there were 31 school-associated violent deaths. Of these 31 deaths, 17 were staff and nonstudents such as parents; 14 incidents—
11 homicides and three suicides—involved students between the ages of 5 and 18. These numbers fluctuate over time. For
In total,
there were 468 school-associated violent deaths between the 2000-01 and 2010-11 school
years.
instance, in the 2006-07 school year there were 63 total deaths, with 32 student homicides and nine student suicides.
A lower search standard saves lives –– Benjamin Tiller explains in 2014:
Benjamin Tiller, J.D. Candidate, 2014, Saint Louis University School of Law, “THE PROBLEMS
OF PROBABLE CAUSE: MENEESE AND THE MYTH OF ERODING FOURTH AMENDMENT
RIGHTS FOR STUDENTS”, 2014// ENDI-JM
It is clear that guns, drugs, and violence are an unfortunate part of the American school system. It is equally clear that educators and resource officers
probable cause standard would frustrate the fulfillment
of the resource officer’s duty, make it harder for schools to keep contraband off school
property, and make it easier for students to conceal drugs or weapons at school. This
high standard will not mitigate drug and gun problems, but will make them worse. It will
force educators and resource officers to take the time to apply for a warrant instead of
have a legal duty to protect students while in school. A
immediately addressing a perceived threat—time that in some circumstances, could literally be the
difference between life and death. Reasonable suspicion, though, allows educators and
resource officers the flexibility to search without wasting time obtaining a warrant, and discourages students
from bringing contraband to school. As a result, reasonable suspicion should apply when no
“outside” officers are involved.
Jennifer Mascia and Erin Corbett, 1-29-2016, "Once Per Day, an American Kid Brings a Gun to
School," Trace, https://www.thetrace.org/2016/01/guns-in-schools-america/ // January 6, a 15-year-old
boy in Sumner, Washington, was busted trying to sell a .38-caliber revolver at his high school. He had brought the weapon from
home. The next day, an elementary school teacher in Chester, South Carolina, lifted one of her students out of a wheelchair and
discovered that the child had been sitting on a handgun. Police believe it was an accident. The day after that, in Palm Beach
County, Florida, a pre-kindergarten student boarded a school bus with an unloaded handgun in his backpack. The boy’s parents
said they sent him to school with the wrong bag. In the first half of the academic year — from late August, when many districts
started classes, to January 15, when many concluded the second report-card period — there
were at least 135
incidents in which elementary, middle, and high school students were caught bringing guns into
America’s schools. The number is an update to The Trace’s reporting in November, which found 77 such incidents in the
first three months of the school year. All told, a handgun has been discovered in the possession of a
child more than once a school day.
Nirvi Shah, 6-11-2013, "Students Found With Guns at School on Rise," Education Week - Rules
for Engagement,
http://blogs.edweek.org/edweek/rulesforengagement/2013/06/students_found_with_guns_at_sc
hool_on_rise.html //
The number of students who were caught with guns at school in the last few years has gone up, new U.S. Department of Education
figures show. According to the latest report about the Gun-Free Schools Act, there
was a 10 percent increase in the
number of guns found on students from the 2008-09 school year to the 2010-11 school year. The
1994 Gun-Free Schools Act requires students who bring firearms to school to be expelled for at least a year.
Probable cause standard leads to untrained pat downs
Benjamin Tiller, J.D. Candidate, 2014, Saint Louis University School of Law, “THE PROBLEMS
OF PROBABLE CAUSE: MENEESE AND THE MYTH OF ERODING FOURTH AMENDMENT
RIGHTS FOR STUDENTS”, 2014
In holding that reasonable suspicion applied when school employees initiate an
investigation, the court noted that any other conclusion would be illogical and
dangerous.105 Specifically, the court said a probable cause standard would encourage teachers,
who are untrained in pat-down procedures and in neutralizing dangerous weapons, to
unilaterally search students.106 The court relied on the fact that the officer merely assisted the school employee to
protect student welfare, and that the employee, not the resource officer, initiated and conducted the entire investigation.107 In fact,
the resource officer became involved only after the employee rightfully became concerned about safety.108 The court concluded
that the search was justified at its inception because the defendant was suspected of possessing marijuana and because he refused
to empty his pockets.109 The search was also permissible in scope because it was limited to the pocket where the large bulge was
located.110
Walter T. Champion Jr., Critical Look at the So-Called Locker Room Mentality as a Means to
Rationalize the Drug Testing of Student Athletes, 4 Jeffrey S. Moorad Sports L.J. 283 (1997).
Available at: http://digitalcommons.law.villanova.edu/mslj/vol4/iss2/3 //
The standard used for school searches is "reasonableness [ ] under all the circumstances." Id. at 1314 (quoting New Jersey v.
T.L.O., 469 U.S. 325, 341 (1985) (alteration in original)). The
rationale for this reasonableness standard, as
opposed to a search warrant or probable cause requirement, is that school teachers and administrators can
not be expected to school themselves in the subtleties of the probable cause standard.
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