The “school-to-prison pipeline” is defined by the ACLU as the “national trend in which children are funneled out of public schools and into the juvenile and criminal justice system.” Concern for the devastating impacts of this phenomenon has steadily increased over the past couple of decades, as our society reckons with the consequences of an oftentimes dysfunctional, discriminatory, and disproportionately heavy-handed criminal justice system.
Harsh sentencing laws, zero tolerance policies, under-funded public schools, the War on Drugs, and racial discrimination are often thrust to the forefront of this debate as central causes of the school-to-prison pipeline. These issues are extremely complex, and either have deep-roots in American culture and attitudes or are the result of decades of concerted political and legislative efforts. Resolving any of them fully would require not only an immense shift in societal conceptions regarding the role of law enforcement but also substantial bipartisan legislation. Difficult, to say the least.
One important issue that is not discussed nearly as often but could, potentially, be more amenable to straightforward resolution is the “reasonable suspicion” standard that governs searches of public school students. Re-defining this standard to more narrowly limit searches of students would help mitigate the effects of the school-to-prison pipeline.
Unlike the other aforementioned factors, the government’s expansive interpretation of what constitutes “reasonable suspicion” is purely judicial, revolving entirely around the semantics of what entails a “reasonable” search.
To provide some legal background, the U.S. Supreme Court ruled in its landmark 1985 decision New Jersey v. T.C.O. that the “probable cause” standard for searches under the 4th Amendment does not apply to public school officials conducting warrantless searches of students. Rather, in order to best “maintain an environment in which learning can take place,” the Supreme Court ruled that student searches instead fall under the less-restrictive standard of “reasonable suspicion.” A search qualifies as legal under this standard if the following two conditions are met. First, it must be “justified at its inception,” meaning it would reasonably be expected to generate evidence that a student is violating school rules. Second, the search must be “reasonably related in scope to the circumstances that justified the interference,” meaning that the methods used to search the student must be proportionate to the goals of the search and not overly intrusive. Thus, public school officials need only a “reasonable suspicion” of misconduct in order to search a student without a warrant, a significantly easier bar to meet than that of “probable cause.”
It is important to note that this less-restrictive standard for warrantless searches only applies to school officials. A policeman who wants to search a student would still need to justify his/her search under the much stricter “probable cause” standard. However, as the lines between law enforcement and schools have blurred over the years this distinction has created significant legal confusion. In fact, the New Jersey v. T.C.O. decision explicitly “express[es] no opinion” concerning this gray area of searches “conducted by school officials in conjunction with…law enforcement.” According to the Harvard Law Review a “majority” of legal scholars and lower courts have instead “converged” around definitions provided in the 1996 Illinois Supreme Court decision People v. Dilworth to fill this judicial void. In Dilworth, the court ruled that only searches in which “outside police officers initiate a search” fall under the “probable cause” standard, while any search involving school officials, school police or liaison officers, or even outside police acting under the direction of school officials or out of concern for school safety fall under the “reasonable suspicion” standard.
As a result of Dilworth’s broadening of the applicability of the “reasonable suspicion” standard, the criminalization of students and outsourcing of behavioral discipline to law enforcement has skyrocketed. In the aftermath of Dilworth the number of police officers in public schools rose 55 percent from 1997 to 2007. Looking at high schools specifically, only 10 percent had a weekly security presence during the 1996-7 school year, compared to 76.4 percent in the 2009-10 school year. That is primarily because law enforcement officials employed by schools, known as “school resource officers” (SROs), are allowed to undertake searches under the “reasonable suspicion” standard even when acting independently from school officials and school policies, for they are still technically “agents” of the school. Thus, as the legal distinction between school officials and law enforcement grew hazier, police involvement in schools increased, and with it the severity of punishments for and criminalization of minor infractions.
According to a study by Professor Matthew Theriot of the University of Tennessee, schools with SROs have nearly 400 percent more arrests for minor offenses than schools without SROs, even after controlling for socioeconomics. Another analysis by Clayton County Juvenile Court Judge Steven Teske found that the addition of SROs to schools dramatically increased the number of direct referrals to the juvenile justice system, from an average of 89 per year in the 1990s to over 1,400 per year by 2004.
Almost none of these incidents, however, merit such serious reactions, and the notion that police are constantly rooting out drugs, weapons, and threats of violence with these searches is simply false. A study by Professor of Law Kerrin Wolf quantifies that over 90 percent of lead charges against students are for “relatively minor misbehaviors” such as “shooting plastic ‘spitwads’ at other students in the hallway,” which resulted in a 6-month suspension and criminal charges.
These overreactions have had devastating impacts on American schoolchildren, harming their ability to learn, increasing crime in the long-term, and disproportionality impacting minorities. Ironically, the presence of SROs has also harmed schools’ abilities to “maintain an environment in which learning can take place,” as New Jersey v. T.C.O famously used to justify the “reasonable suspicion” standard that prompted schools to hire SROs. According to Executive Director of New York Civil Liberties Union Donna Lieberman, “over-policing…foster[s] environments where children perceive that they are…criminals; where they are diminished by such perceptions; and where they, consequentially, cultivate negative attitudes toward their schools.” This uniquely impacts minorities, as a report by the Department of Education Office for Civil Rights found that minority students are suspended at disproportionately higher rates than their white counterparts. Additionally, because SROs tend to “arrest first and ask questions later,” the ACLU of Michigan was able to identify a significant number of cases where students feel intimidated by the presence of SROs.
By creating an environment in which students constantly feel they are under suspicion, SROs can actually worsen the problems they are trying to address. In addition to harming learning outcomes, increased police presence on campus causes “minor behavioral problems [to be] redefined as criminal problems” and causes “discipline responsibilities…to be shifted away from teachers…to the SROs.” On top of bringing the racial biases of America’s criminal justice system into the hallways of schools — black students are three times more likely than white students to be arrested at school — the “formal processing of minor offenses and harsh response to minor disciplinary situations” by SROs actually leads to more crime in the long-term. Professor of Sociology David Kirk quantifies that students introduced to the justice system have an almost six times higher chance of being arrested later-in-life than juveniles who haven’t previously been arrested, due to a combination of both pre-existing propensity to commit crime and the experience of being processed through the justice system. Being searched by police also has dramatic impacts on youth behavior, as juveniles are four times more likely to commit delinquent acts after such an encounter.
These issues are exactly why Professor of Law Sarah Forman advocates for shifting away from the “reasonable suspicion” standard back to “probable cause.” According to Forman this shift would help “address the problem of the expanding nexus between school officials and law enforcement” by re-defining the relationship between police and schools. Under the “probable cause” standard, students would have a much better chance of avoiding criminal prosecution based on warrantless searches, schools would be forced to once again separate their internal disciplinary procedures from the criminal justice system, and the currently unchecked power of SROs would be limited.
Moving away from the “reasonable suspicion” standard would also help reduce the stark racial disparities currently exhibited in juvenile arrests, for as noted in the Harvard Law Review “subjective violations” that raise a police officer’s “reasonable suspicions” are “disproportionality enforced against minority students.” Thus, civil rights lawyers and policymakers concerned with the school-to-prison pipeline should heavily consider litigation or lawsuits targeted at re-interpreting the definitions provided in the 1996 Dilworth ruling. For while there are many factors contributing to this negative phenomenon, the direct impact that the “reasonable suspicion” standard has on the day-to-day operations of schools coupled with its purely semantic nature make it an attractive and feasible target for bringing about real-world reform.
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