Volume 108

Equal Speech Protection

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection—and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order to protect a safe and informed democratic discourse. This Article explains the origins and bases of the hierarchy myth, the reasons why equal speech protection supplants the hierarchy model, and the consequences of the myth’s persistence despite its failure to guide free speech doctrine.

Dismantling the myth that the First Amendment embraces a hierarchy of speech protection is critical at this precarious moment in the development of free speech law, when regulating speech—of all kinds—is essential to fostering a healthy public sphere. By excavating a robust tradition of equal and moderate speech protection out from under the shadow of the hierarchy myth, this Article recovers the hidden “social democratic theory” of speech protection—a theory that is singularly suited to addressing the modern speech challenges raised by an ever-expanding digital economy and dangerously toxic political speech environment.

Introduction

The First Amendment’s hierarchy of protection for different types of speech is a myth. The doctrine has long purported to place political speech at the highest and most protected position in this hierarchy, followed by commercial speech and speech on purely private matters, with “low-value” speech like obscenity and fighting words on its bottom rung.1 1.I use the phrase “invented tradition” much as Genevieve Lakier recently employed the phrase to refer to a novel constitutional practice that is “justified on the basis of an alleged, but ultimately fictitious, continuity with the past.” The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2168 (2015) (citation omitted). As Lakier notes, the phrase was coined by historian Eric Hobsbawm, who defined the phenomenon as “responses to novel situations which take the form of reference to old situations.” Id. (quoting Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 2 (Eric Hobsbawm & Terence Ranger eds., Canto ed. 1992)).Show More This basic hierarchy, however, is a doctrinal fiction. As a theory, it does not accurately describe how the First Amendment protects speech; as a doctrine, it does not guide the Supreme Court’s application of free speech law. The true but hidden framework of modern free speech law is one of equal speech protection. Through a holistic reevaluation of the Supreme Court’s free speech jurisprudence, this Article reveals that the First Amendment grants different types of speech comparable levels of protection and that this level of protection is altogether quite moderate—including for political speech. The most salient and startling consequence of exposing the hierarchy as a myth, therefore, is to uncover the constitutionality of restricting dangerous political speech to safeguard important public interests—namely, the protection of democratic governance.

The widely accepted view that political speech garners an exceptionally high level of constitutional protection is flawed in two ways. First, political speech does not enjoy an especially robust level of protection from state interference. The vast majority of political speech is routinely subject to significant government regulation or enjoys no First Amendment protection at all—this includes political speech on public and most private property, election speech, expressive political conduct, political speech crimes, and the speech of millions of government employees, students, and prisoners on matters of public importance. Second, the First Amendment does not protect political speech to a greater degree than it does non-political speech like cultural, commercial, or “low-value” speech. Rather, all speech receives essentially equal protection, notwithstanding judicial platitudes to the contrary.

This equal level of protection that all speech receives is best described as “moderate.” It permits, in effect, courts to moderate speech rights to preserve democratic interests. From a doctrinal standpoint, moderate protection looks a lot like intermediate scrutiny applied to all speech. But “intermediate” does not quite capture what the Supreme Court is doing when it extends moderate protection to speech. The Court is not simply charting a middle road between strict scrutiny and rational basis review, nor is it conducting a pure balancing inquiry or employing proportionality review to speech regulations. Instead, it is applying a unique, substantive standard that permits reasonable limits on speech that are necessary for democracy to function. Under this substantive standard, the Court largely defers to the government on whether a regulation is reasonable and focuses, implicitly, on whether it is necessary to protect democratic governance. This inquiry takes two forms: it can focus on safeguarding effective governance or it can focus on protecting democratic participation. The first requires subordinating speech rights to public order and safety; the latter requires doing so to ensure a healthy and informed public discourse. The result is a doctrine that equally permits regulations on any type of speech for these purposes, in direct contradiction to the hierarchical model of speech protection nominally embraced by the Court throughout its First Amendment caselaw.

The hierarchy of speech protection is no more than a doctrinal myth. The concept of myth is integral to understanding the hierarchy model. Myths are widely held beliefs that are, at once, invented traditions and fictitious narratives.2 2.See infra Section I.D (explaining that the myth influences popular culture, lower court decisions, and many scholarly accounts of First Amendment doctrine).Show More The hierarchy of speech protection embodies both elements of myth: it was invented out of whole cloth late in the development of free speech jurisprudence and has since persisted as a false narrative about how the First Amendment protects speech. Like most myths, the hierarchy is real and not real; it is pretend in that it does not control the outcome of cases, but it is powerful in that it continues to propagate widely held, but mistaken, assumptions about free speech law.3 3.See Jack M. Balkin, Constitutional Hardball and Constitutional Crises, 26 Quinnipiac L. Rev. 579, 579 (2008) [hereinafter Balkin, Constitutional Hardball] (understanding that the conventions governing what legal claims are plausible “and which are ‘off the wall’” are influenced by “changing political, social, and historical conditions”).Show More

This acoustic separation between myth and law has reached a critical juncture. The digital age has transformed large swaths of human behavior into speech, bringing more and more activity within the First Amendment’s protective sphere and shading distinctions between types of speech. At the same time, the quantity of social and political speech that poses serious risks to democracy, the economy, and a just society has exploded. These developments demand regulations on speech, and yet the hierarchy of speech protection claims to immunize just such speech from regulation. Exposing the hierarchy as a doctrinal myth that does not reflect the law or theory of free speech protection thus illuminates the constitutional paths forward for regulating speech that risks serious social, political, and commercial harms.

Unmasking this myth has particular ramifications for the regulation of political speech. For decades the Supreme Court has perpetuated the narrative that there is a gradation of speech protection and that political speech receives the utmost protection from state interference. But its rhetoric does not match its holdings. A close examination of the protection afforded to political speech, both in the absolute and relative to other types of speech, shows that this supposed cornerstone of First Amendment law is more smoke and mirror than substantive rule. Indeed, the ruse that political speech receives near-absolute protection is perhaps the greatest misdirection accomplished by the hierarchy myth. In reality, political speech receives a moderate level of judicial protection, equal to that received by all other types of speech.

This tradition of extending equal and moderate protection to all speech works well by allowing the Court to moderate free speech rights in the interest of protecting democratic governance. But its potential is under-realized and increasingly at risk because it remains hidden behind the myth of the hierarchy of speech protection. By dismantling the myth, scholars, legislators, and judges alike can begin to reconceptualize the limits, and the possibilities, of speech regulations—including and especially political speech regulations. The advantages of doing so are manifold: it would put on the table some presumed off-the-wall restrictions on false and malicious political speech,4 4.424 U.S. 1, 14 (1976); 425 U.S. 748, 771 n.24 (1976); infra Section I.A.Show More and it would serve to democratize speech protection by encouraging legislatures to claim a greater share of the governing responsibility for protecting free speech.

This Article lays bare the hierarchy myth through a comprehensive retelling of the Supreme Court’s free speech jurisprudence. It explains why the hierarchy was invented, why it did not take hold doctrinally, and why it has nonetheless persisted rhetorically. In brief, the Court invented the hierarchy in two steps over a pair of cases in 1976: Buckley v. Valeo and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council.5 5.The reasons undergirding the hierarchy’s invention are discussed infra Section I.A.Show More First, in Buckley, the Court shifted the role of political speech as core to the First Amendment to a new position as the highest value of the Amendment. Then, in Virginia Pharmacy, the Court established a counterposing point on this newly conceived spectrum of speech by extending a supposedly lower level of protection to commercial speech. What appeared in these cases as small rhetorical steps actually represented a massive doctrinal leap.

The reason for this move inheres in the subject matter of the two cases in which it appears. Buckley and Virginia Pharmacy extended First Amendment protection to campaign financing and to commercial speech, respectively, and represented a tipping point in the post-New Deal explosion of First Amendment coverage. Prior to these cases, the Court did not purport to extend different levels of protection to different types of protected speech. But the Court had spent the last forty years increasingly expanding equal First Amendment protection to speech beyond core political speech—both by deepening coverage to semi-political speech and widening coverage to other types of speech—so that by 1976 the doctrine was sinking under its own weight and deeply in need of an organizing framework. It was in this novel context that the Court wholesale invented a hierarchy of speech protection, ordered according to the speech’s First Amendment value, out of what had been a diverse pool of equally protected speech representing various First Amendment values.6 6.See, e.g., infra notes 9–11 and accompanying text; Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. Times (Aug. 17, 2015), https://www.ny​times.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequen​ces.html [https://perma.cc/KX84-ALL5] (documenting the pervasive view among scholars that the Court’s recent free speech jurisprudence is sweeping and expansionist); Thomas B. Edsall, Have Trump’s Lies Wrecked Free Speech?, N.Y. Times (Jan. 6, 2021), https://www.ny​times.com/2021/01/06/opinion/trump-lies-free-speech.html [https://perma.cc/ZA75-NT3S] (collecting opinions of numerous legal academics on the maximalist and far-reaching state of First Amendment protections, especially for political speech).Show More

Lacking historical basis and in tension with other foundational principles of free speech law, the hierarchy failed to take root and guide the doctrine. Since its invention, the Supreme Court has continued to extend a quite equal level of protection to all covered speech. This equalization of speech protection results from two overriding trends: first, the Court has continued to grant political speech mostly moderate, not absolute, protection, permitting ample government regulation to facilitate the safe exchange of political ideas. In recent decades, the Court has reliably reaffirmed, or in some cases even lessened, this moderate level of protection for political speech, contrary to prevailing criticisms.7 7.A full explanation of these two trends follows infra Sections I.B and I.C.Show More Second, the Court has consistently elevated protection for non-political speech to the same level as protection for political speech immediately or soon after recognizing that speech as covered by the First Amendment.8 8.As discussed infra Sections I.B and I.C, these doctrines include, among others the Article will discuss: the time, place, and manner doctrine, Anderson-Burdick balancing, the O’Brien standard, the rule against viewpoint- and content-based laws, and the principle of common law analogical reasoning.Show More

These two trends—maintaining moderate protection for political speech and extending the same level of protection to non-political speech—are themselves the inevitable consequence of applying the patchwork of core doctrines that comprise First Amendment law. These doctrines consist of a series of safety valves that funnel most political speech restrictions to regulation-accommodating corners of the jurisprudential landscape, as well as a series of neutral principles that resist drawing distinctions between types of speech.9 9.See, e.g., Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393, 1396 (2017); Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165, 167–72 (2015).Show More Together, these doctrines exert simultaneous pressure to ratchet down protection for political speech and ratchet up protection for non-political speech to the same level, all but ensuring that a hierarchy of speech protection could never fully develop.

Scholars have previously pinpointed the 1970s as the moment in which free speech doctrine became distorted in a number of significant ways. For example, scholars have identified how the free speech cases of that decade transformed the doctrine into one that vindicates corporate speech rights, undermines economic regulations, and subordinates the interests of citizens.10 10.See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1962 (2018); Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1917 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 135–36; Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1207–09 (2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1455 (2015).Show More This Article identifies another doctrinal innovation that occurred in this period: the Court’s invention of a hierarchy of speech protection and the ultimate failure of this new framework to guide free speech law. This Article thus exposes the fallacy in the doctrinal truism that political speech garners especially high protection, both in the absolute and relative to other types of speech.

In so doing, this Article resituates the current scholarship on the Court’s recent appetite for overturning commercial regulations under the First Amendment—a trend commonly termed the “Lochnerization” of the First Amendment. The origins and consequences of this trend have been widely discussed in recent years, almost entirely through a critical lens.11 11.See infra Subsection I.C.1.Show More This Article offers a novel understanding of how Lochnerization actually fits quite neatly, and in some ways beneficially, within the far larger trend of maintaining equal speech protection amongst varying types of speech. Where the Lochnerization sub-genre of First Amendment critique has focused narrowly on the doctrinal developments (or distortions) of commercial speech law, this Article makes clear that First Amendment Lochnerization is actually one piece of a larger doctrinal framework that blurs distinctions between types of speech and renders restrictions on all speech subject to moderate judicial protection. Specifically, Lochnerization is one speech protection equalization tool among many that functions as a means of ratcheting up protection for commercial speech to the same level of protection enjoyed by all other types of speech.12 12.See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment (2015); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 88–153 (2014); Steven H. Shiffrin, What’s Wrong with the First Amendment? (2016); Post & Shanor, supra note 10; Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minn. L. Rev. 1431 (2013); Steven J. Heyman, The Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy: The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014).Show More

Finally, unlike the overwhelming majority of recent literature on the trajectory of First Amendment doctrine,13 13.See infra Section II.B.Show More the doctrinal manipulation this Article identifies has the potential to be normatively valuable. Recognizing that the hierarchy of speech protection and its attendant truism that political speech garners near-absolute protection are doctrinal myths clarifies the constitutionality of speech regulations aimed at protecting a safe and healthy political discourse. It also excavates the robust, but hidden, tradition of moderate and equal speech protection, which this Article argues serves as a unifying “social democratic theory” of free speech law.14 14.See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1789–90 (2004) (explaining the cultural “magnetism” of the First Amendment).Show More

But it is important from the beginning to sharpen this Article’s assertion that the hierarchy of speech protection is a myth. The myth I describe is a doctrinal myth—it is a legal principle that operates rhetorically rather than analytically, meaning it has little descriptive value for explaining the landscape of speech protection and little influence on how the Supreme Court decides free speech cases. This is not to say that the myth does not do any work. Most myths persist precisely because they have social, political, and psychological power. The myth of the hierarchy of speech protection is no different. It has bolstered the Court’s power and reputation as a guardian of speech rights and fostered a deeply ingrained legal and popular culture of speech tolerance that shapes law and policy decisions in legislatures and boardrooms every day.15 15.First Amendment “coverage” refers to whether a type of speech comes within the protected ambit of the First Amendment at all, whereas First Amendment “protection” refers to whether the speech is ultimately safeguarded from government regulation. Thus, prior to 1976, the question of whether speech was covered was largely synonymous with the question of whether speech was protected. See infra notes 52–53 and accompanying text.Show More The myth serves the Court and free speech advocates and is also embraced by progressive scholars attempting in good faith to stem the constitutional inoculation of commercial activity from regulation. As this Article shows, however, the hierarchy myth is self-defeating and precisely the wrong doctrinal framework to accomplish progressive constitutional ends.

This Article also does not suggest that all speech regulations are equally permissible. Viewpoint- and content-based regulations, for example, are roundly prohibited. But such laws are equally prohibited regardless of the underlying type of speech at issue. These rules are therefore orthogonal to this Article’s central observation that all speech—political and non-political alike—receives equal protection from regulation. While there are only a few ways government may not regulate any type of speech, there are many ways it can regulate all types of speech. In declaring the hierarchy of speech protection a myth, this Article is chiefly concerned with showing that, as a holistic framework for understanding speech protection under the First Amendment, the hierarchy is an invented tradition disguising a reality of routine government supervision of speech boundaries.

Part I provides a descriptive account of the invention of the hierarchy myth and its lack of substantive force in shaping the doctrine since its creation. Section I.A briefly chronicles the post-New Deal trajectory of First Amendment expansionism from the 1930s through the mid-1970s and shows the absence of gradations in the level of protection afforded to covered speech in this period.16 16.See, e.g., Kessler & Pozen, supra note 11, at 1959–60; Leslie Kendrick, Another First Amendment, 118 Colum. L. Rev. 2095, 2098–2100 (2018); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2118 (2018); Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 Colum. L. Rev. 2161, 2162 (2018).Show More The remainder of Part I then details how the newly invented tradition of a hierarchy of speech protection never amounted to anything more than a doctrinal truism. It documents how all types of speech are treated at essentially an equal, moderate level of protection. First, Section I.B catalogues the numerous ways the doctrine regularly, and uncontroversially, permits restrictions on political speech that are necessary for democratic government to function. It illuminates that most political speech is actually highly regulable under this standard, directly refuting a core tenet of the hierarchy framework that political speech garners strict constitutional protection. Section I.C then shows how the hierarchy of speech protection is also false for purporting to provide sequentially lesser protection to non-political speech. It explains that most non-political speech garners the same level of protection as political speech under various speech-specific doctrines and generally applicable rules of free speech law that have the effect of ratcheting up protection for non-political speech above what the rhetoric of the hierarchy otherwise suggests. Finally, Section I.D offers possible explanations for why the hierarchy myth has persisted and what consequences it has had on speech protection.

Part II takes up the normative question of whether an equal speech protection doctrine is desirable. It posits that equalizing speech protection—and equalizing it at a level that permits significant though specific legislative control over speech—is ultimately beneficial for maintaining a healthy speech environment and thus a healthy democracy. An equal speech framework is superior to any purported hierarchy of speech model for essentially two reasons, discussed in Sections II.A and II.B respectively. First, there is little practical or constitutional difference between political and non-political speech, making any attempt to distinguish speech by type a doomed and unwise task. Second, acknowledging that political speech is, and should be, afforded a moderate level of protection will foster a more democratic, egalitarian, and resilient First Amendment. It would invite legal reforms aimed at safeguarding the stability and vitality of our public discourse, including reforms addressing the proliferation of disinformation and toxic speech.

Recent scholarship has gone far to document the undemocratic and inegalitarian effects of current First Amendment doctrine17 17.Kessler & Pozen, supra note 11, at 1960; Jack M. Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053, 1072 (2016) [hereinafter Balkin, Cultural Democracy] (“[T]he challenge for liberty theorists has always been to give an account of freedom of speech that explains why it should have special constitutional value that traditional economic freedoms do not enjoy.”). In the early 1990s, scholars including Owen Fiss, Cass Sunstein, and Robert Post began reviving the collectivist theory of free speech in the spirit of Alexander Meiklejohn, understanding the essential objective of the First Amendment to be the promotion of a rich and valuable public debate and democratic deliberation. This progressive effort to reform First Amendment doctrine may have been, counterintuitively, counterproductive. By elevating democratic deliberation to the apex of First Amendment protection, these efforts reinforced a conception of a tiered system of protection that, ultimately, kept courts in the driver’s seat of guarding the political process against political reforms. See infra Section II.B.Show More but has struggled to identify a constitutionally compelling alternative.footnote_id_19_18 This Article does just that by focusing on reinterpreting the doctrine, as opposed to reinventing it. Properly understood, our current free speech doctrine is one of equal speech protection; and properly applied, this doctrine has enormous potential to produce egalitarian outcomes in which the vast majority of average citizens’ public discourse and democratic participation is affirmatively protected by legislatures from interference and manipulation. Thus, while doctrinal recitations by courts and commentators have long described a hierarchy of greater and lesser protected speech under the First Amendment, I show, by exposing its historical invention and its negligible impact on actual judicial decisions, how the hierarchical First Amendment is a sham. Instead, in origin, purpose, and application, the First Amendment prescribes equal treatment of varied kinds of speech, and making this clear can sharpen and improve advocacy, decisions, and responses to calls for reform.

  1. Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2358 (2020) (Breyer, J., concurring in part and dissenting in part) (“This Court’s cases have provided heightened judicial protection for political speech, public forums, and the expression of all viewpoints on any given issue.”); Rucho v. Common Cause, 139 S. Ct. 2484, 2514 (2019) (Kagan, J., dissenting) (“[The First] Amendment gives its greatest protection to political beliefs, speech, and association.”); Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1955 (2018) (placing criticism of government officials “high in the hierarchy of First Amendment values”); Snyder v. Phelps, 562 U.S. 443, 452 (2011) (“‘[N]ot all speech is of equal First Amendment importance,’ however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous.”) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)); Holder v. Humanitarian L. Project, 561 U.S. 1, 42 (2010) (Breyer, J., dissenting) (“That this speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection is elementary.” (emphasis omitted)); R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concurring) (“Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position; commercial speech and nonobscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and fighting words receive the least protection of all. Assuming that the Court is correct that this last class of speech is not wholly ‘unprotected,’ it certainly does not follow that fighting words and obscenity receive the same sort of protection afforded core political speech.” (emphasis omitted)); Connick v. Myers, 461 U.S. 138, 145 (1983) (“[S]peech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.”) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (“[W]e instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values . . . .”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 n.24 (1976) (holding that the differences between commercial speech and “other varieties” of speech mean “a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired”); Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam) (“The First Amendment affords the broadest protection to such political expression . . . .”); Monitor Patriot Co. v. Roy, 401 U.S. 265, 271–72 (1971) (“[The First Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office.”). ↑
  2. I use the phrase “invented tradition” much as Genevieve Lakier recently employed the phrase to refer to a novel constitutional practice that is “justified on the basis of an alleged, but ultimately fictitious, continuity with the past.” The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2168 (2015) (citation omitted). As Lakier notes, the phrase was coined by historian Eric Hobsbawm, who defined the phenomenon as “responses to novel situations which take the form of reference to old situations.” Id. (quoting Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 2 (Eric Hobsbawm & Terence Ranger eds., Canto ed. 1992)). ↑
  3. See infra Section I.D (explaining that the myth influences popular culture, lower court decisions, and many scholarly accounts of First Amendment doctrine). ↑
  4. See Jack M. Balkin, Constitutional Hardball and Constitutional Crises, 26 Quinnipiac L. Rev. 579, 579 (2008) [hereinafter Balkin, Constitutional Hardball] (understanding that the conventions governing what legal claims are plausible “and which are ‘off the wall’” are influenced by “changing political, social, and historical conditions”). ↑
  5. 424 U.S. 1, 14 (1976); 425 U.S. 748, 771 n.24 (1976); infra Section I.A. ↑
  6. The reasons undergirding the hierarchy’s invention are discussed infra Section I.A. ↑
  7. See, e.g., infra notes 9–11 and accompanying text; Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. Times (Aug. 17, 2015), https://www.ny​times.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequen​ces.html [https://perma.cc/KX84-ALL5] (documenting the pervasive view among scholars that the Court’s recent free speech jurisprudence is sweeping and expansionist); Thomas B. Edsall, Have Trump’s Lies Wrecked Free Speech?, N.Y. Times (Jan. 6, 2021), https://www.ny​times.com/2021/01/06/opinion/trump-lies-free-speech.html [https://perma.cc/ZA75-NT3S] (collecting opinions of numerous legal academics on the maximalist and far-reaching state of First Amendment protections, especially for political speech). ↑
  8. A full explanation of these two trends follows infra Sections I.B and I.C. ↑
  9. As discussed infra Sections I.B and I.C, these doctrines include, among others the Article will discuss: the time, place, and manner doctrine, Anderson-Burdick balancing, the O’Brien standard, the rule against viewpoint- and content-based laws, and the principle of common law analogical reasoning. ↑
  10. See, e.g., Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393, 1396 (2017); Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165, 167–72 (2015). ↑
  11. See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1962 (2018); Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1917 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 135–36; Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1207–09 (2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1455 (2015). ↑
  12. See infra Subsection I.C.1. ↑
  13. See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment (2015); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 88–153 (2014); Steven H. Shiffrin, What’s Wrong with the First Amendment? (2016); Post & Shanor, supra note 10; Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minn. L. Rev. 1431 (2013); Steven J. Heyman, The Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy: The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014). ↑
  14. See infra Section II.B. ↑
  15. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1789–90 (2004) (explaining the cultural “magnetism” of the First Amendment). ↑
  16. First Amendment “coverage” refers to whether a type of speech comes within the protected ambit of the First Amendment at all, whereas First Amendment “protection” refers to whether the speech is ultimately safeguarded from government regulation. Thus, prior to 1976, the question of whether speech was covered was largely synonymous with the question of whether speech was protected. See infra notes 52–53 and accompanying text. ↑
  17. See, e.g., Kessler & Pozen, supra note 11, at 1959–60; Leslie Kendrick, Another First Amendment, 118 Colum. L. Rev. 2095, 2098–2100 (2018); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2118 (2018); Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 Colum. L. Rev. 2161, 2162 (2018). ↑

  18. Kessler & Pozen, supra note 11, at 1960; Jack M. Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053, 1072 (2016) [hereinafter Balkin, Cultural Democracy] (“[T]he challenge for liberty theorists has always been to give an account of freedom of speech that explains why it should have special constitutional value that traditional economic freedoms do not enjoy.”). In the early 1990s, scholars including Owen Fiss, Cass Sunstein, and Robert Post began reviving the collectivist theory of free speech in the spirit of Alexander Meiklejohn, understanding the essential objective of the First Amendment to be the promotion of a rich and valuable public debate and democratic deliberation. This progressive effort to reform First Amendment doctrine may have been, counterintuitively, counterproductive. By elevating democratic deliberation to the apex of First Amendment protection, these efforts reinforced a conception of a tiered system of protection that, ultimately, kept courts in the driver’s seat of guarding the political process against political reforms. See infra Section II.B. ↑

Statutory History

The New Textualism championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes. Indeed, Justice Scalia himself was famous for dissenting from paragraphs, sentences, or even footnotes in opinions that so much as casually mentioned a statute’s legislative history, even as corroboration for an interpretation reached through textual analysis. A less well-known corollary of modern textualism’s aversion to legislative history, however, is that textualists are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of the bill that ultimately became law or the original version of a statute that has since been amended—to speculate about the statute’s meaning. In fact, textualist Justices regularly use this kind of “statutory history” to draw inferences about a statute’s substantive meaning, even as they criticize the use of other, more traditional forms of legislative history.

It is at once surprising and instructive that textualists have embraced this kind of “statutory history” while rejecting traditional legislative history. On the rare occasions when they have acknowledged this dichotomy, textualists have sought to distinguish statutory history from traditional legislative history on the ground that the former involves comparisons of enacted statutory language, rather than mere commentary by legislators. Scholars have, largely uncritically, tended to accept these distinctions. But no one to date has studied the judicial use of statutory history in any significant detail, nor has anyone evaluated whether the theoretical justifications textualists offer for their use of statutory history, as distinct from traditional legislative history, hold up in practice.

This Article provides the first empirical and doctrinal examination of how the U.S. Supreme Court employs statutory history to determine a statute’s substantive meaning. Based on a study of 574 statutory cases decided during the Roberts Court’s first thirteen-and-a-half terms, this Article catalogues five different forms of statutory history inferences employed by the modern Court. It finds that (1) the Justices on the Roberts Court exercise significant discretion when drawing inferences from statutory history; and (2) while some of the statutory history inferences the Court draws are consistent with the theoretical justifications textualists have offered, many involve unenacted legislative materials or venture beyond traditional text-based analysis—and are difficult to distinguish from traditional legislative history or other contextual purposive evidence that textualists reject. In the end, this Article suggests that textualists should either abandon their reliance on statutory history altogether or, preferably, broaden their interpretive toolkit to include other forms of background legislative context evidence, at least as a check on the inferences they draw from statutory history.

Introduction

The New Textualism1 1.“New Textualism” is a term coined by Professor William Eskridge to describe the statutory interpretation methodology advanced by Justice Scalia beginning in the late 1980s. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 & n.11 (1990).Show More championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes.2 2.See, e.g., Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 29–37 (1997) (“I object to the use of legislative history on principle.”); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1512 (1998) (“Doctrinally, the new textualism’s most distinctive feature is its insistence that judges should almost never consult, and never rely on, the legislative history of a statute.”).Show More A less well-known corollary of this interpretive approach is that Justice Scalia and his fellow textualists were and are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of a bill that ultimately became law or the original version of a statute that has since been amended—to speculate about a statute’s meaning. Indeed, textualist Justices regularly use such “statutory history”—the cold record of how a statute evolved from one version to the next—to draw inferences about a statute’s substantive meaning even as they criticize the use of other, more traditional forms of legislative history, such as committee reports or floor statements.

Consider two examples:

First, in Arizona v. United States, the Court considered whether federal law preempts an Arizona statute that regulates the behavior of immigrants who are unlawfully present in Arizona.3 3.567 U.S. 387 (2012).Show More One of the state law provisions at issue made it a crime for illegal immigrants to seek employment.4 4.Ariz. Rev. Stat. Ann. § 13-2928(C) (2011).Show More The Court, in an opinion authored by Justice Kennedy, ruled that the provision was preempted by federal law.5 5.Arizona, 567 U.S. at 405.Show More In so ruling, the Court noted that Congress chose to impose civil, rather than criminal, penalties for immigrants who engage in unlawful employment—and backed this up with statutory history about the process by which the Immigration Reform and Control Act of 1986 (“IRCA”) was enacted.6 6.See id.Show More Specifically, Justice Kennedy’s opinion noted that draft proposals to make unauthorized employment a criminal offense were introduced and “debated and discussed during the long process of drafting IRCA” and that “Congress rejected them.”7 7.Id.Show More Based on this drafting history, the Court concluded that IRCA’s framework “reflects a considered judgment” by Congress that immigrants should not face criminal sanctions for engaging in unauthorized work.8 8.Id.Show More

Second, in Nichols v. United States, the Court considered whether the Sex Offender Registration and Notification Act (“SORNA”) requires sex offenders who move out of state to update their registrations with the jurisdiction they have left.9 9.136 S. Ct. 1113 (2016).Show More SORNA provides that “[a] sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved” to “inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.”10 10.42 U.S.C. § 16913(c).Show More Nichols moved from Kansas, where he was a registered sex offender, to the Philippines—a foreign country not covered by SORNA—and neglected to register his departure with the state of Kansas; he was convicted of violating SORNA because he had failed to update his registration with Kansas.11 11.Nichols, 136 S. Ct. at 1117.Show More The Tenth Circuit upheld Nichols’ conviction, concluding that when a sex offender “leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved” under SORNA.12 12.Id.Show More In a unanimous opinion authored by Justice Alito, the Supreme Court disagreed, ruling instead that SORNA does not require sex offenders to update their registration in a state that they have departed.13 13.See id.Show More In so ruling, the Court relied on the statute’s plain meaning, grammar rules, practical reasoning, and SORNA’s statutory history.14 14.See id. at 1117–18.Show More Specifically, the Court noted that the Wetterling Act, a predecessor statute that SORNA replaced, explicitly required sex offenders to “report the change of address to the responsible agency in the State the person is leaving”—but that Congress declined to retain that language when it enacted SORNA.15 15.See id. at 1116 (emphasis omitted).Show More “If the drafters of SORNA had thought about the problem of sex offenders who leave the country and had sought to require them to (de)register in the departure jurisdiction, they could easily have said so; indeed, that is exactly what the amended Wetterling Act had required,” the Court explained.16 16.Id. at 1118.Show More Congress’s decision to employ different language in SORNA, the Court reasoned, was significant: if Congress wanted to require sex offenders to update their registrations in the states they departed, “Congress could have chosen to retain the language in the amended Wetterling Act.”17 17.Id.Show More Because Congress chose not to do so, the Court concluded that SORNA did not require Nichols to update his registration in Kansas once he no longer resided there.18 18.See id.Show More

In both of the above cases, the Court’s references to statutory history were designed to provide contextual support for its chosen statutory constructions. In highlighting that Congress considered and rejected a proposal to impose criminal penalties on immigrants who engage in unauthorized work and that Congress changed the Wetterling Act text requiring registration updates in the state of departure when it enacted SORNA, the Court sought to demonstrate that its reading of the relevant statutes’ texts was consistent with Congress’s likely intent. But it did so without citing the typical commentary by individual legislators or congressional committees that we ordinarily associate with the label “legislative history”—rather, it focused on changes Congress made to the statutes’ texts and on background legislative circumstances, and it used those developments to make its own inferences about Congress’s intent.

The inferences from statutory history employed by Justices Kennedy and Alito in Arizona and Nichols are not anomalous. Indeed, they are a fairly familiar feature of the Roberts Court’s statutory jurisprudence. But while the use of statutory history has been part of the Court’s interpretive arsenal for some time, scholars have paid surprisingly little attention to it as an interpretive resource. To date, only one article has examined the Court’s use of statutory history in any detail—and that article did so only briefly, in passing.19 19.SeeJames Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 688–89 (2017).Show More No article has studied the Court’s use of statutory history systematically, and no article has sought to illuminate the different types of inferences the Court draws from such history or to evaluate normatively the justifications offered for employing this form of history, in contrast to traditional legislative history.

This Article seeks to fill that void. It provides the first in-depth analysis of the multiple ways in which the modern Supreme Court uses statutory history to draw inferences about a statute’s intended meaning. While the Article is primarily doctrinal in nature, it draws from an empirical database of 574 statutory cases decided during the Roberts Court’s first thirteen-plus terms to supplement its analysis. Ultimately, this Article aims both to provide a catalogue of the different kinds of interpretive inferences the Court makes when examining a statute’s historical evolution—what the Article refers to as “statutory history”—as well as to evaluate whether textualist Justices’ willingness to employ statutory history can be squared with their unwillingness to examine traditional legislative history or other forms of background legislative context.

Five points stand out from the data and doctrinal analysis: (1) the Roberts Court’s overall use of statutory history is moderate—15.7% of the cases in the dataset employed such history; (2) all of the Justices, irrespective of their interpretive methodology, invoke statutory history in the opinions they author; (3) the Court’s most committed textualist Justices invoke statutory history more often than they invoke traditional legislative history; (4) there are at least five different forms of inferences that the Justices tend to draw from statutory history; and (5) nearly two-thirds of the statutory history inferences the Court employs conflict in some way with the parameters textualists have articulated to distinguish statutory history from traditional legislative history.

This Article proceeds in three Parts. Part I defines what is meant by the term “statutory history,” examines the ways in which this interpretive resource differs from traditional legislative history, and reviews the limited existing literature on statutory history. Part II reports data about the Roberts Court’s use of statutory history in the 574 statutory cases decided during its first thirteen-and-a-half terms. Part II also provides a catalogue of the different forms of inferences the Court draws from statutory history, as well as offers doctrinal observations about the Court’s use of this interpretive aid. Part III evaluates the theoretical implications of the Roberts Court’s approach to statutory history, noting that the decontextualized use of statutory history shifts to judges, rather than legislators, the authority to fill in the gaps between different versions of a statute—and that judges engage in substantial speculation when performing such gap filling. It argues that while some forms of statutory history approximate the logical inferences common to traditional textual analysis, others share important features in common with traditional purposive interpretive tools—and are thus inconsistent with the justifications textualists have offered for embracing statutory history while rejecting traditional legislative history. In the end, Part III suggests that textualist judges should either end their reliance on statutory history altogether or, better yet, broaden their interpretive toolkit to include other forms of background legislative contextual evidence, at least as a check on the inferences they draw from statutory history.

  1. * Professor of Law, Georgetown University Law Center. I owe deep thanks for valuable insights and conversations to James J. Brudney, Aaron-Andrew Bruhl, Catherine B. Duryea, William N. Eskridge, Jr., Margaret H. Lemos, Kevin Tobia, and participants at workshops at Yale Law School and the University of Southern California School of Law. I am especially indebted to my husband, Ron Tucker, for his patience and support throughout this project. Thanks also to Deans William M. Treanor and Michael A. Simons of Georgetown University Law Center and St. John’s University School of Law, respectively, for generous research support. Kathryn Baldwin, John Burger, Danielle DelGrosso, Thomas Combs, Christina Corcoran, Brian Dolan, Sade Forte, Kim Friedman, Ilya Mordukhaev, Vince Nibali, Melissa Parres, Barbara Reilly, Jennifer Roseman, Peter Ryan, Christine Sammarco, Jonathan Sclar, Sean Kelly, Ashleigh Shelton, Samuel Sroka, Jennifer Thomas, Rita Wang, and Lissa Yang provided excellent research assistance, and Janet Ruiz-Kroll provided invaluable assistance with the tables. All errors are my own. ↑
  2. “New Textualism” is a term coined by Professor William Eskridge to describe the statutory interpretation methodology advanced by Justice Scalia beginning in the late 1980s. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 & n.11 (1990). ↑
  3. See, e.g., Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 29–37 (1997) (“I object to the use of legislative history on principle.”); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1512 (1998) (“Doctrinally, the new textualism’s most distinctive feature is its insistence that judges should almost never consult, and never rely on, the legislative history of a statute.”). ↑
  4. 567 U.S. 387 (2012). ↑
  5. Ariz. Rev. Stat. Ann. § 13-2928(C) (2011). ↑
  6. Arizona, 567 U.S. at 405. ↑
  7. See id. ↑
  8. Id. ↑
  9. Id. ↑
  10. 136 S. Ct. 1113 (2016). ↑
  11. 42 U.S.C. § 16913(c). ↑
  12. Nichols, 136 S. Ct. at 1117. ↑
  13. Id. ↑
  14. See id. ↑
  15. See id. at 1117–18. ↑
  16. See id. at 1116 (emphasis omitted). ↑
  17. Id. at 1118. ↑
  18. Id. ↑
  19. See id. ↑

  20. See James Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 688–89 (2017). ↑

Reevaluating School Policing

School police, often referred to as school resource officers (“SROs”), contribute to a pattern called the school-to-prison pipeline, through which Black and brown children are diverted from classrooms and into the criminal justice system. In schools that employ SROs, SROs disproportionately search and discipline Black and brown students. This leads to SROs preventing these students from accessing the educational opportunities their states have guaranteed them. Despite these racially disparate searches and seizures, many courts have failed to adequately protect students’ Fourth Amendment rights in their interactions with SROs. This Essay addresses how to ensure that all students receive full Fourth Amendment rights in school police interactions. In doing so, this Essay responds to Black Lives Matter protests, which emphasized that entrenched racial biases pervade American policing. This Essay builds on existing literature to propose a student-conscious framework for considering the constitutionality of any law enforcement officer’s involvement with a student in a school-based search or seizure. By “student-conscious,” this Essay means an approach that focuses on the young person’s status as both a child and a student who is statutorily guaranteed access to education by the state.

Introduction

Soon after a police officer killed George Floyd, an unarmed Black man, in Minneapolis in May 2020, Minneapolis Public Schools severed its decades-long relationship with the city’s police department.1 1.Ryan Faircloth, Minneapolis Public Schools Terminates Contract with Police Department over George Floyd’s Death, StarTribune (June 2, 2020, 9:38 PM), https://www.startribune.co​m/mpls-school-board-ends-contract-with-police-for-school-resource-officers/570967942/ [ht​tps://perma.cc/9C7G-TWD2].Show More Other large school districts soon followed suit by cutting ties with school police regimes.2 2.E.g., Dana Goldstein, Do Police Officers Make Schools Safer or More Dangerous?, N.Y. Times (Oct. 28, 2021), https://www.nytimes.com/2020/06/12/us/schools-police-resource-officers.html [https://perma.cc/54U4-V4LJ].Show More In doing so, these districts sought to end school police officers’ negative effects on students, particularly students of color—responding to Black Lives Matter (“BLM”) protests, which emphasized entrenched racial biases that pervade American policing.3 3.E.g., Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time (June 4, 2020), https://time.com/magazine/us/5847952/june-15th-2020-vol-195-no-22-u-s/ [https://perma.cc/RT4B-FLJ9].Show More However, many schools have continued to station officers, often called school resource officers (“SROs”), on their campuses due to unsubstantiated school safety justifications.4 4.E.g., Kim Bellware, Chicago School Board Votes to Keep $33M Police Contract – But Student Activists Say the Fight Isn’t Over, Wash. Post. (June 25, 2020), https://www.washi​ngtonpost.com/education/2020/06/25/chicago-school-police/ [https://perma.cc/BT7V-85C3]; infra Part I.Show More In schools employing SROs, SROs disproportionately search and discipline Black and brown students.5 5.E.g., Josh Gupta-Kagan, Reevaluating School Searches Following School-to-Prison Pipeline Reforms, 87 Fordham L. Rev. 2013, 2043–45 (2019).Show More

Though the Fourth Amendment is meant to protect individuals from unreasonable searches and seizures, violations of students’ Fourth Amendment rights persist in school contexts.6 6.E.g., Derek W. Black, Ending Zero Tolerance: The Crisis of Absolute School Discipline 204–05 (2016).Show More Such persistence is two-pronged. First, although students receive certain constitutionally-rooted rights with law enforcement officers outside of school contexts—such as the right not to be searched without a warrant and probable cause unless an exception applies—courts have commonly limited these rights in relation to school officials.7 7.E.g., New Jersey v. T.L.O., 469 U.S. 325, 340–43 (1985) (plurality opinion); see also Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987, 1006 (2014) (pointing out that, in some contexts, an all-things-considered “general reasonableness” approach may allow for consideration of interests beyond just quantitative measures of legal guilt such as “probable cause”).Show More Courts have often treated SROs as school officials, rather than traditional law enforcement officers, despite strong opposition to this approach.8 8.Infra Section II.A.Show More They therein apply a reduced Fourth Amendment search standard—which the Court created for teachers and school administrators interacting with students—to officers.9 9.Infra Sections II.A, III.A.Show More Second, in considering the reasonableness of a search or seizure, courts balance an individual’s interests against the government’s interests.10 10.E.g., T.L.O., 469 U.S. at 337 (plurality opinion).Show More When doing so, courts have repeatedly failed to recognize and weigh individual interests specific to schoolchildren11 11.Infra Section II.B.Show More—such as a child’s interest in accessing educational benefits.12 12.E.g., Goss v. Lopez, 419 U.S. 565, 576 (1975). But cf. Bowers, supra note 7 (arguing that consideration of probable cause should supplement, rather than replace, other relevant considerations).Show More

This Essay proposes a student-conscious model for considering the constitutionality of any law enforcement officer’s involvement with a student in a school-based search or seizure.13 13.This Essay considers only federal law. Additionally, officer qualified immunity in a school context is outside this Essay’s scope.Show More It builds on other scholars’ work discussing the need for the Court to clarify how a Fourth Amendment reasonableness standard should be understood in school contexts.14 14.E.g., Alexis Karteron, Arrested Development: Rethinking Fourth Amendment Standards for Seizures and Uses of Force in Schools, 18 Nev. L.J. 863, 905–17 (2018); Jason E. Yearout, Individualized School Searches and the Fourth Amendment: What’s a School District to Do?, 10 Wm. & Mary Bill Rts. J. 489, 522–23 (2002).Show More This Essay introduces students’ educational interests and socio-emotional wellbeing as explicit factors in determining whether a school-based seizure passes constitutional muster. By “student-conscious,” this Essay means an approach focused on a young person’s status as both a (1) child and (2) student to whom the state statutorily guarantees access to education.15 15.E.g., Goss, 419 U.S. at 576. The student-conscious model considers only K–12 students, as only K–12 education is guaranteed in all states. Emily Parker, 50 State Review: Constitutional Obligations for Public Education, Educ. Comm’n of the States 1–2 (Mar. 2016), https://www.ecs.org/wp-content/uploads/2016-Constitutional-obligations-for-public-educati​on-1.pdf [https://perma.cc/CUR7-4HJR].Show More There is little opportunity for success in disparate impact claims related to school policing’s disproportionate effect on children of color.16 16.Infra Part II; Jason P. Nance, Implicit Racial Bias and Students’ Fourth Amendment Rights, 94 Ind. L.J. 47, 93–94 (2019).Show More Yet, a student-conscious model for students’ Fourth Amendment rights could overcome disparate impact litigation’s limitations by supporting all children interacting with police officers at school—therein implicitly working against SROs’ disproportionate effects on Black and brown students.17 17.Cf. Josh Bowers, Annoy No Cop, 166 U. Pa. L. Rev. 129 (2017) (arguing for Fourth Amendment doctrines that would do more to accommodate the particular perspectives of specific individuals and groups).Show More

This Essay proceeds in three parts. Part I addresses how school policing hinders children’s educational interests, particularly by contributing to educational inequality for Black and brown students. Part II synthesizes the law surrounding (1) student and government interests in educational benefits and (2) students’ reduced Fourth Amendment rights in school contexts. Part III presents a student-conscious model for interpreting children’s Fourth Amendment rights with law enforcement officers at school.

I. SROs and Racial Inequality

Despite the surge in SROs following high-profile school shootings, the notion that SROs increase school safety remains unsubstantiated and heavily contested. Interest in federal SRO funding has increased after each high-profile school shooting since the Columbine massacre.18 18.Jack Denton, When Schools Increase Police Presence, Minority Students Are Harmed Disproportionately, Pacific Standard (Feb. 15, 2019), https://psmag.com/education/after-parkland-schools-upped-police-presence-has-it-made-students-safer [https://perma.cc/2LU3-BMGJ].Show More State laws have also explicitly encouraged more SRO involvement in schools following school shootings.19 19.For example, following Parkland’s shooting, Florida legislated schools must always have a “safe-school officer” present. Fla. Stat. § 1006.12 (2019).Show More Due to high-profile school shootings, school officials today are more concerned about shootings occurring at their institutions.20 20.See Nat’l Inst. of Just., School Safety: By the Numbers (Nov. 2017), https://www.ncjrs.go​v/pdffiles1/nij/251173.pdf [https://perma.cc/A6V7-25LZ].Show More Yet, (1) mass shootings in schools are rare,21 21.Id.; Ashley Fetters, The Developing Norms for Reopening Schools After Shootings, Atlantic (Aug. 27, 2018), https://www.theatlantic.com/education/archive/2018/08/how-schools-decide​-when-to-reopen-after-a-shooting/568666/ [https://perma.cc/A9QG-SC4Q].Show More (2) school crime rates and student fear of crimes have decreased since the early 1990s,22 22.Nat’l Inst. of Just., supra note 20; Philip J. Cook, Denise C. Gottfredson, and Chongmin Na, School Crime Control and Prevention, 39 Crime & Just. 313, 316 (2010).Show More and (3) increasing investments in SROs does not necessarily lead to safer schools.23 23.Kenneth Alonzo Anderson, Does More Policing Make Middle Schools Safer?, Brookings Inst. (Nov. 8, 2018), https://www.brookings.edu/blog/brown-center-chalkboard/2018/11/08/d​oes-more-policing-make-middle-schools-safer/ [https://perma.cc/8Y97-49S4].Show More Despite SROs’ questionable school safety benefits, schools have hired more SROs over time, and SRO supporters argue there would be additional school shootings without SRO presence.24 24.Compare Anya Kamenetz, Why There’s a Push to Get Police Out of Schools, NPR (June 23, 2020, 7:00 AM), https://www.npr.org/2020/06/23/881608999/why-theres-a-push-to-get-police-out-of-schools [https://perma.cc/2JQP-SN4B] (describing an argument SROs stop shootings before they happen), with Eli Saslow, ‘It Was my Job, and I Didn’t Find Him’: Stoneman Douglas Resource Officer Remains Haunted by Massacre, Wash. Post (June 4, 2018), https://www.washi​ngtonpost.com/national/it-was-my-job-and-i-didnt-find-him-stone​man-douglas-resource-offi​cer-remains-haunted-by-massacre/2018/06/04/796f1c16-679d-11​e8-9e38-24e693b38637_sto​ry.html [https://perma.cc/H3Z9-82P9] (describing an account by an SRO who failed to stop the Marjory Stoneman shooting).Show More

We may not conclusively know if SROs increase school safety, but we know SROs negatively impact students.25 25.Compare, e.g., Emily G. Owens, Testing the School-to-Prison Pipeline, 36 J. Pol’y Analysis & Mgmt. 11, 34 (2016) (describing how SRO presence increases school safety), with Aaron Kupchik, Research on the Impact of School Policing, ACLU Penn. 1 n.3 (Aug. 2020), https://www.endzerotolerance.org/impact-of-school-policing [https://perma.cc/X3VF-7HGZ] (listing studies indicating SROs either do not impact student crime or SRO presence is associated with increased student misconduct). Inconclusive data may be due to SROs filling a solely law enforcement role in some schools while serving in mentorship capacities in others. See Kupchik, supra, at 1.Show More Evidence indicates SROs’ use of zero-tolerance policies has pushed students from classrooms and into the juvenile justice system.26 26.See, e.g., Emily M. Homer & Benjamin W. Fisher, Police in Schools and Student Arrest Rates Across the United States: Examining Differences by Race, Ethnicity, and Gender, 19 J. Sch. Violence 192, 192 (2020).Show More School discipline zero-tolerance policies require that schools apply predetermined consequences to students based on their disciplinary violations.27 27.Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 933 (2016) [hereinafter Nance, Students, Police].Show More These consequences are typically severe and punitive, and they do not consider situational context, mitigating circumstances, or the gravity of the behavior at issue.28 28.Id.Show More Data regarding SROs’ effects on schools largely signal that SRO presence increases the probability of arrest and court referral for low-level offenses.29 29.E.g., Deanna N. Devlin & Denise C. Gottfredson, The Roles of Police Officers in Schools: Effects on the Recording and Reporting of Crime, 16 Youth Violence & Juv. Just. 208, 217 (2016).Show More As SRO prevalence increased nationally, disciplinary violations conventionally managed by school administrators and teachers became more likely to be handled through law enforcement interventions.30 30.Matthew T. Theriot & Matthew J. Cuellar, School Resource Officers and Students’ Rights, 19 Contemp. Just. Rev. 363, 369 (2016).Show More Accordingly, a hallway tussle is deemed assault and class disruptions become disorderly conduct: behavior posing no real threat to school safety causes students to be taken from classrooms for delinquent and criminal prosecution.31 31.Id.Show More

Such law enforcement interventions negatively affect a young person’s education. Removing students from classrooms for disciplinary purposes, whether due to a school-based search or otherwise, causes students to miss educational opportunities, face stigma from peers and instructors, experience greater surveillance, and have a higher likelihood of leaving school before graduating.32 32.Id. at 369–70.Show More Use of force against a student at school in a disciplinary context can be particularly traumatic, adversely affecting the student’s socio-emotional growth and educational success.33 33.Richard G. Dudley, Jr., Childhood Trauma and Its Effects: Implications for Police, New Perspectives Policing, July 2015, at 1, 5 (trauma can “rewire [children’s] brains,” impacting their future encounters with law enforcement).Show More Overall, punishing students by pushing them out of the classroom increases their likelihood of future incarceration, and there is no evidence that handling school-based discipline through zero-tolerance policies reduces school disciplinary violations.34 34.Nancy Heitzeg, The School-to-Prison Pipeline: Education, Discipline, and Racialized Double Standards 102 (2016).Show More Studies have shown non-punitive disciplinary practices—which focus on helping students continue their education after disciplinary violations35 35.See, e.g., Erin R. Archerd, Restoring Justice in Schools, 85 U. Cin. L. Rev. 761, 794–95 (2017) (explaining restorative justice as an example of a discipline practice that helps students work towards improved behavior); Nance, Students, Police, supra note 27, at 981.Show More—improve a school’s climate by reducing violent acts, suspensions, and office referrals.36 36.Jason P. Nance, Dismantling the School-to-Prison Pipeline: Tools for Change, 48 Ariz. St. L.J. 313, 356–57, 360 (2016).Show More Nevertheless, harsh disciplinary practices now permeate schools serving middle-class and low-income students.37 37.See, e.g., Aaron Kupchik, Things Are Tough All Over: Race, Ethnicity, Class and School Discipline, 11 Punishment & Soc’y 291, 292 (2009).Show More

Black and brown children bear the brunt of these negative educational effects. SRO biases and strict school security measures disproportionately affect Black and brown students.38 38.See Charles Ogletree, Robert J. Smith, and Johanna Wald, Coloring Punishment: Implicit Social Cognition and Criminal Justice, in Implicit Racial Bias Across the Law 54 (Justin D. Levinson & Robert J. Smith eds., 2012).Show More Students of color do not commit more disciplinable school offenses than their white peers, either by individual racial group or collectively.39 39.U.S. Comm’n on C.R., Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities 161 (July 2019), https://www.usccr.gov/pubs/2019/07-23-Beyond-Suspensions.pdf [https://perma.cc/H​7W3-E8LH] [hereinafter Beyond Suspensions].Show More Yet, Hispanic and Black students comprise almost three-quarters of students arrested due to an incident at school or referred by schools to the police.40 40.Archerd, supra note 35, at 773. For comparison, in fall 2018, 15% of public-school students were Black and 27% were Hispanic. Racial/Ethnic Enrollment in Public Schools, Nat’l Ctr. for Educ. Stat. (May 2021), https://nces.ed.gov/programs/coe/indicator_cge.asp [https://perma.cc/9FV2-CQGD].Show More Most of these school-based arrests are for nonviolent offenses.41 41.Beyond Suspensions, supra note 39, at 42, 45 n.244, 53.Show More

These negative educational effects stemming from SROs prevent the government from achieving its well-documented interest in ensuring all children have access to education.42 42.See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society.”); Goss v. Lopez, 419 U.S. 565, 576 (1975) (“Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses . . . .”); Plyler v. Doe, 457 U.S. 202, 214 (1982) (holding everyone within a state’s boundaries has educational rights).Show More While there is no federally recognized right to education,43 43.San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).Show More the Court has held that, when a government does provide students with a basic education, it must provide that right equally.44 44.See sources cited supra note 42; see also Eric Merriam, Obergefell and the Dignitary Harm of Identity-Based Military Service and Exclusion, 27 UCLA Women’s L.J. 41, 67 (2020) (“[A]n equal protection right to basic education . . . requires that when the government does provide it, it be provided equally.”).Show More In a Fourth Amendment context, the Court has described that a government’s interest in school discipline rests on promoting school order—a prerequisite for ensuring all children have the opportunity to learn.45 45.E.g., New Jersey v. T.L.O., 469 U.S. 325, 339–40 (1985) (plurality opinion).Show More Some Justices have also emphasized that the government interest rests on protecting students’ safety, which itself is key for students to have a positive learning environment.46 46.E.g., id. at 353 (Blackmun, J., concurring); id. at 357 (Brennan, J., concurring).Show More However, if SROs discipline students in a manner that pushes them from classrooms without directly contributing to other students’ safety and positive learning environment, such action opposes the government’s interest in ensuring equal educational access.47 47.The disparate rate at which SROs discipline students of color hinders the government from achieving its interest in creating integrated school environments. E.g., Brown, 347 U.S. at 493 (“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”).Show More

II. Gaps in Protecting Students’ Rights in School Searches and Seizures

Current federal law largely allows police officers to disparately impact students of color.48 48.Since 2001, only regulatory agencies and the Department of Justice (“DOJ”) can enforce disparate impact claims under Title VI. Alexander v. Sandoval, 532 U.S. 275, 284–85 (2001) (private litigants cannot bring disparate impact suits); 34 C.F.R. § 100.8(a) (2021) (allowing regulatory agencies and the DOJ to enforce disparate impact claims). The DOJ can engage in disparate impact suits, and the Department of Education (“ED”) can investigate complaints and review schools’ compliance with the ED’s Office for Civil Rights’s (“OCR”) guidelines, consequently revoking federal funds pursuant to Title VI as necessary. Office for Civil Rights, U.S. Dep’t of Educ., Case Processing Manual (CPM) 23 (2020), https://www2.ed.gov/ab​out/offices/list/ocr/docs/ocrcpm.pdf [https://perma.cc/K4YP-HFU2]; 42 U.S.C. § 2000d-1.Show More Schoolchildren of color thus need more remedial avenues when they experience disproportionate disciplinary discrimination. Though the Department of Education and Department of Justice can pursue disparate impact cases, policies associated with different political administrations can strengthen or weaken the departments’ civil rights enforcement capacities.49 49.E.g., Catherine E. Lhamon & Jocelyn Samuels, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline 4, 7 (Jan. 8, 2014), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdf [https://perma.cc/9SPS-H26B] (rescinded by Kenneth L. Marcus & Eric S. Dreiband, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter (Dec. 21, 2018), https://ww​w2.ed.gov/about/offices/list/ocr/letters/colleague-201812.pdf [https://perma.cc/MXX7-V2B​3]); Office for Civil Rights, U.S. Dep’t of Educ., Questions & Answers on Racial Discrimination and School Discipline 2 n.6 (2018), https://www2.ed.gov/about/offices/lis​t/ocr/docs/qa-title-vi-201812.pdf [https://perma.cc/9Z8A-QV35].Show More To protect students from disparate negative educational opportunities, civil rights advocates must not rely on government entities’ intervention. Such efforts could end when, for example, a presidential administration transition occurs.50 50.Supra note 49 and surrounding text.Show More Instead, litigants must consider new avenues for protecting students’ constitutional rights in student-SRO interactions long-term.

A. Educational Interests and the Fourth Amendment

When considering Fourth Amendment standards surrounding school searches, the Court has discussed the importance of the government’s interest in ensuring students receive an education. Before SRO prevalence in American public schools, the Court attempted to support students’ educational interests by preserving the “informality of the student-teacher relationship”—through limiting students’ traditional Fourth Amendment protections in relation to “school officials.”51 51.T.L.O., 469 U.S. at 340 (plurality opinion).Show More In New Jersey v. T.L.O., the Court abandoned traditional probable cause and warrant requirements for “school officials” conducting searches of students on school grounds.52 52.Id. at 340–41.Show More In place of the traditional requirements, the Court put forward an approach balancing “the individual [student]’s legitimate expectations of privacy and personal security; [and] the government’s need for effective methods to deal with breaches of public order.”53 53.Id. at 337.Show More

T.L.O. considered educational interests only in terms of the government’s interest in promoting education for most students, failing to also consider the educational interests of an individual child searched by school officials. The Court concluded schoolchildren in public schools have legitimate expectations of privacy that could be violated by searching their personal property.54 54.Id. at 337–38.Show More The Court also recognized teachers and administrators have a “substantial interest . . . in maintaining discipline in the classroom and on school grounds.”55 55.Id. at 339.Show More Thus, the Court sought to weigh the individual privacy interest of a searched student against a “school’s equally legitimate need to maintain an environment in which learning can take place.”56 56.Id. at 340.Show More

To balance a “schoolchild’s legitimate expectations of privacy” against the school’s overall interest in ensuring students can access education, the T.L.O. plurality ruled that school officials could search students based on “the reasonableness, under all the circumstances, of the search.” 57 57.Id. at 340–41; see generally Silas J. Wasserstrom, The Court’s Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 Am. Crim. L. Rev. 119 (1989) (describing “general reasonableness” as understood by this Essay).Show More The plurality concluded that, ordinarily, when “a teacher or other school official” searches a student, as long as 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,” the search is “justified at its inception.”58 58.T.L.O., 469 U.S. at 341–42 (citation omitted).Show More A search by a teacher or other school official will be considered “reasonably related” to the circumstances initially causing the search as long as “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.”59 59.Id. at 342 (citation omitted). This theoretically provides more protection than a probable cause, or quantum of guilt, standard in conventional crime-solving contexts. See, e.g., Bowers, supra note 7, at 1021–22. However, as this Essay further explores, this standard has been treated as “amorphous.” See, e.g., T.L.O., 469 U.S. at 367 (Brennan, J., concurring) (describing the new standard as “ambiguous,” potentially “leav[ing] teachers and administrators uncertain as to their authority and . . . encourag[ing] excessive fact-based litigation.”); Barry C. Feld, T.L.O. and Redding’s Unanswered (Misanswered) Fourth Amendment Questions: Few Rights and Fewer Remedies, 80 Miss. L.J. 847, 848–49 (2011) (presenting T.L.O.’s reasonableness standard as “amorphous”).Show More

The Court did not intend T.L.O.’s reasonableness standard to extend to students’ Fourth Amendment rights in relation to law enforcement officers. The plurality emphatically rooted the T.L.O. holding in the relationship between educators and students, recognizing “a certain degree of flexibility in school disciplinary procedures” and “the value of preserving the informality of the student-teacher relationship.”60 60.469 U.S. at 340 (plurality opinion).Show More In their concurrences, Justices Powell and Blackmun differentiated between searches by traditional school officials—such as teachers and administrators—and searches by police.61 61.Id. at 351–53 (Blackmun, J., concurring); id. at 349–50 (Powell, J., concurring). Justice Powell emphasized that the flexible Fourth Amendment standard described by the T.L.O. plurality stemmed from a close relationship between teachers and students, which differs from students’ relationship with “[l]aw enforcement officers[, who] function as adversaries of criminal suspects.” Id. at 349 (Powell, J., concurring); see also id. at 351 (Blackmun, J., concurring) (emphasizing searches, such as the school official-led search at hand, could evade Fourth Amendment warrant and probable cause requirements, “[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirements impracticable”).Show More However, the T.L.O. Court declined to address the role of school searches “in conjunction with or at the behest of law enforcement agencies.”62 62.Id. at 341 n.7; see also Gupta-Kagan, supra note 5, at 2022 (“T.L.O.’s rationale set up an important question: Are searches by school resources officers, or searches by school officials at the behest of or in conjunction with SROs, governed by T.L.O.?”).Show More

Since T.L.O., the Court has belabored that students’ limited Fourth Amendment rights in school search contexts depend on whether a search, or its effects, involves law enforcement participation.63 63.See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 833 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658 (1995); Gupta-Kagan, supra note 5, at 2023.Show More Board of Education v. Earls and Vernonia School District 47J v. Acton, cases considering whether schools could require students to submit a urinalysis drug test to participate in extracurricular activities, held the urinalysis drug test requirements did not violate the Fourth Amendment.64 64.Earls, 536 U.S. at 837–38; Acton, 515 U.S. at 663–65.Show More In both cases, the Court emphasized law enforcement would not obtain the drug test results, so students would not face delinquency or criminal charges.65 65.Earls, 536 U.S. at 833; Acton, 515 U.S. at 658.Show More Students would miss non-scholastic opportunities66 66.Earls, 536 U.S. at 833–34.Show More—but their states’ statutorily guaranteed educational benefits would not be disrupted.67 67.Goss v. Lopez, 419 U.S. 565, 576 (1975) (“But, ‘education is perhaps the most important function of state and local governments,’ and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child.”) (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).Show More

Judicial precedent also supports that searches by school officials still require traditional warrant and probable cause standards when the search is “extensive[ly] entangle[d]” with law enforcement.68 68.Ferguson v. City of Charleston, 532 U.S. 67, 83 n.20 (2001); see also Developments in the Law — Policing, 128 Harv. L. Rev. 1706, 1762 (2015) (“[T]he identity of who uses the result of a search does bear on the seriousness of the privacy intrusion.”).Show More Reduced Fourth Amendment standards are only permitted when a search fulfills “special needs, beyond the normal need for law enforcement . . . .”69 69.New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring).Show More When law enforcement is involved in a search outside of a school context, the Court has held a close analysis is necessary to determine whether a legitimate special need can be distinguished from collecting evidence for law enforcement purposes.70 70.E.g., Ferguson, 532 U.S. at 83 n.20, 84, 88 (Kennedy, J., concurring); see also Josh Gupta-Kagan, Beyond Law Enforcement: Camreta v. Greene, Child Protection Investigations, and the Need to Reform the Fourth Amendment Special Needs Doctrine, 87 Tulane L. Rev. 353, 399–422 (2012) [hereinafter Gupta-Kagan, Beyond Law Enforcement] (theorizing how to improve the special needs test to best serve children, based on empirical evidence).Show More Yet, many state and federal courts have still extended the T.L.O. standard to SROs, therein limiting students’ Fourth Amendment rights in school settings.71 71.A.M. v. Holmes, 830 F.3d 1123, 1157–61 (10th Cir. 2016) (applying T.L.O. analysis to an SRO as well as a school principal and assistant principal); Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1304–06 (11th Cir. 2006) (applying T.L.O. when analyzing an unlawful seizure claim filed against a law enforcement deputy at an elementary school); Shade v. City of Farmington, 309 F.3d 1054, 1060–62 (8th Cir. 2002) (applying T.L.O. to determine the legality of a search law enforcement officers conducted away from school grounds in conjunction with a school teacher and administrator); Gupta-Kagan, supra note 5, at 2024–25 (explaining a majority of state courts have applied T.L.O. to SROs).Show More Further, although T.L.O. only considered students’ Fourth Amendment rights in relation to a school-based search, courts have also applied T.L.O.’s reasonableness standard to school-based seizures.72 72.E.g., Bostic, 458 F.3d at 1304; C.B. v. City of Sonora, 769 F.3d 1005, 1023–28 (invoking T.L.O. without using its two-part analysis for the seizure at issue); Ziegler v. Martin Cnty. Sch. Dist., 831 F.3d 1309, 1322–24 (11th Cir. 2016); Wofford v. Evans, 390 F.3d 318, 326–27 (4th Cir. 2004); Doe ex rel. Doe v. Hawaii Dep’t. of Educ., 334 F.3d 906, 909–10 (9th Cir. 2003).Show More

B. Reasonableness and School-Based Seizures

Without clarification regarding how to understand reasonableness in an SRO-led school-based search or seizure of a student, some circuits have ignored students’ educational interests. For example, in the Sixth Circuit, in a case in which a seventh-grader was handcuffed after being involved in two school fights, the court described the need to determine if an officer’s actions were “objectively reasonable.”73 73.Neague v. Cynkar, 258 F.3d 504, 505–07 (6th Cir. 2001).Show More The court overlooked the way an experience such as handcuffing could be more traumatic for a student than an adult, based on his age, and how the incident could hinder his future educational opportunities.74 74.Infra Section III.A; see also Bowers, supra note 17, at 198 (arguing that in Fourth Amendment cases judges should do more to accommodate the perspective of the layperson).Show More

Special needs searches such as those T.L.O. anticipates fall under the “objective reasonableness” umbrella—an umbrella that also includes excessive force.75 75.Graham v. Connor, 490 U.S. 386, 396 (1989); supra note 71 (listing relevant cases). Deadly force is outside the scope of this Essay, as it is uncommon in school policing. For a discussion of deadly force, see, e.g., Scott A. Harman-Heath, Renaming Deadly Force, 106 Cornell L. Rev. 1689, 1690–713 (2021).Show More Courts adapt the objective reasonableness standard to weigh school-specific reasonableness factors when considering a students’ Fourth Amendment rights.76 76.E.g., Hoskins v. Cumberland Cnty. Bd. of Educ., No. 2:13-cv-15, 2014 WL 7238621, at *7 (M.D. Tenn. Dec. 17, 2014) (“[T]he Court must first consider the factors uniquely relevant to this case as required by Graham, namely the very young age of T.H. and the fact that this incident took place in a school setting.”); E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 179 (4th Cir. 2018) (“Here, we believe it prudent to consider also the suspect’s age and the school context.”); Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (“His age and size are certainly factors in the totality-of-the-circumstances reasonableness calculation. . . . However, these factors alone do not render force used against him unreasonable per se.”).Show More This reasonableness standard necessitates “a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing government interests at stake.”77 77.Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); United States v. Place, 462 U.S. 696, 703 (1983)); Scott v. Harris, 550 U.S. 372, 383 (2007); see also Rachel A. Harmon, When Is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1127, 1136–38 (2008) (discussing how the Scott Court undermined Graham and Garner, therein “reduc[ing] the Fourth Amendment regulation of reasonable force to its vaguest form . . . .”).Show More The Court has held that determination regarding whether a law enforcement officer’s actions are “objectively reasonable” cannot consider an officer’s “underlying intent or motivation.”78 78.Graham, 490 U.S. at 397 (citations omitted).Show More This effectively forecloses any argument that a seizure is unreasonable based on an officer’s implicit biases.79 79.See, e.g., Charles Ogletree et al., supra note 38, at 54 (discussing that implicit biases often affect decisions made by school administrators and school resource officers).Show More Further, the Court has emphasized the Fourth Amendment reasonableness test “is not capable of precise definition or mechanical application”80 80.Graham, 490 U.S. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).Show More and therefore “requires careful attention to the facts and circumstances of each particular case.”81 81.Id. But see Harmon, supra note 77, at 1127, 1130 (explaining the Graham reasonableness standard allows juries to decide use of force cases based on “their intuitions”). The Eighth Circuit has noted sister circuits’ lack of clarity regarding whether to apply the T.L.O. or Graham reasonableness standard when considering a student seizure involving law enforcement officers on school grounds. K.W.P. v. Kan. City Pub. Schs., 931 F.3d 813, 822 (8th Cir. 2019).Show More Lower courts, in applying the Fourth Amendment objective reasonableness standard to children, thus must fully consider the specific facts and circumstances inherent to childhood and students’ educational interests, as Part III discusses.

Courts have commonly ignored students’ status as children when determining if a school-based search or seizure is reasonable. For example, the Tenth Circuit has treated a nine-year-old more like an adult than a child when determining an SRO acted reasonably by using a twist-lock to “command [the child’s] compliance.”82 82.Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (10th Cir. 2014).Show More After the SRO grabbed a sixty-seven-pound nine-year-old who was sitting quietly in a hallway, the child responded by grabbing the SRO’s arm.83 83.Id.Show More The court emphasized that “[a]n arrestee’s age and small demeanor do not necessarily undermine an officer’s concern for safety and need to control the situation.”84 84.Id.; see also C.B. v. Sonora, 769 F.3d 1005, 1030 (9th Cir. 2014) (describing the child’s small size as factoring against the reasonableness of his seizure).Show More The court thus unrealistically determined a reasonable officer could view a small child grabbing her arm as “an act of violent resistance” and a safety concern.85 85.Hawker, 591 F. App’x at 675.Show More

Fortunately, some circuits have taken an explicitly child-conscious approach when considering reasonableness of an SRO’s seizure of a student, though not an explicitly student-conscious approach. That is, unsurprisingly, as common sense and the Court counsel,86 86.Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009) (considering age when determining reasonableness in a Fourth Amendment context).Show More they implicitly consider students’ status as children when determining objective reasonableness—assessing children’s size, lack of maturity, and general nature in assessing the reasonableness of force used against them. For example, the Eleventh Circuit determined that an SRO, in handcuffing a nine-year-old child after escorting her out of gym class because she vaguely threatened her physical education teacher when he told her to do jumping jacks, unreasonably seized her.87 87.Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1300–07 (11th Cir. 2006).Show More Taking a child-conscious approach, the court described, “[T]he handcuffing was excessively intrusive given [the student’s] young age and the fact that it was not done to protect anyone’s safety.”88 88.Id. at 1306.Show More The Fourth Circuit has likewise described youth as an important factor in deciding if handcuffing is an appropriate use of force, emphasizing courts must be mindful of the way criminally punishing young students can have long-lasting effects on children’s future success, therein implying the need to consider students’ educational interests.89 89.E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 180–82, 188 (4th Cir. 2018).Show More Similarly, the Ninth Circuit recognized handcuffing a child was inherently unnecessary, i.e., unreasonable, for achieving the government’s interest in maintaining school order—ruling that other mechanisms should have instead been used to support the child’s own educational interests. 90 90.C.B. v. City of Sonora, 769 F.3d 1005, 1023–24, 1029–30 (9th Cir. 2014).Show More

III. A Student-Conscious Approach to Fourth Amendment Protections at School

Building on legal scholarship and empirical evidence, Part III proposes a student-conscious model for deciding whether a school-based search or seizure of a student by law enforcement officers is constitutional. This model (1) makes explicit how existing Fourth Amendment precedent relates to students, while (2) aiming to protect students—of all racial backgrounds—from negative emotional and educational impacts tied to searches and seizures. In doing so, such a model could particularly benefit students of color disproportionately impacted by school discipline.

A. Adopting a School-Specific Reasonableness Standard for Students

The Supreme Court has ruled that determining “reasonableness under all the circumstances” for a school-based Fourth Amendment search requires balancing an individual child’s interests against governmental interests.91 91.New Jersey v. T.L.O., 469 U.S. 325, 341–42 (1985) (plurality opinion); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995).Show More In so ruling, the Court recognized that a student’s interests should only be limited to the extent necessary to accommodate the government’s interests.92 92.T.L.O., 469 U.S. at 341–42; Acton,515 U.S. at 656.Show More Furthermore, the Court has expressed that (1) procedural protections for students’ educational interests and socio-emotional growth are important,93 93.E.g., In re Gault, 387 U.S. 1, 21–27 (1967); Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 374–79 (2009); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975).Show More (2) age is relevant both in considering how a student interprets a police interaction94 94.E.g., J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011).Show More and evaluating Fourth Amendment issues related to schoolchildren,95 95.T.L.O., 469 U.S. at 342; Redding, 557 U.S at 375.Show More and (3) overly-invasive treatment of minors violates Fourth Amendment privacy rights.96 96.Redding, 557 U.S. at 368, 379.Show More

Building on such precedent, this Essay proposes a model by which, when a school-based search or seizure by law enforcement officers occurs, courts consider a student’s educational interests, socio-emotional vulnerability, age, and (in the case of a seizure) stature—in addition to more traditional Fourth Amendment standards such as privacy and security—when balancing an individual child’s interests against government interests.97 97.These factors build on those Professor Alexis Karteron has previously discussed when describing a school-specific reasonableness standard for students. Karteron, supra note 14, at 870 (“[R]easonableness requires consideration of objective factors especially relevant to the school context and unique vulnerabilities of youth including: the seriousness of the alleged infraction or crime; the likelihood that the student has committed an infraction or crime; the age of the student; the size and stature of the student; the likelihood of inflicting harm or trauma, especially in light of known disabilities or vulnerabilities; and the necessity of the enforcement action.”).Show More Thus far, when considering student interests at stake in a school-based search context, the Court has focused on privacy.98 98.T.L.O., 469 U.S. at 338–40; Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995); Karteron, supra note 14, at 907 (“In T.L.O. and subsequent cases, all decided in the context of a search conducted by a school official, the Court identified privacy as the only student interest at stake.”).Show More Yet, in a school search context, which has commonly been extended to seizures, the Court recognized the need to consider “reasonableness, under all the circumstances.”99 99.T.L.O., 469 U.S. at 341 (emphasis added); see Bowers, supra note 7, at 1105–07 (arguing that special-needs searches may sometimes be more protective by accommodating considerations that the Court deems irrelevant for crime-solving searches).Show More As cases outside the Fourth Amendment context have emphasized the importance of students’ psychological wellbeing and interests in continuing to receive an education,100 100.E.g., Lee v. Weisman, 505 U.S. 577, 599 (1992) (First Amendment Establishment Clause context); Tinker v. Des Moines Indep. Sch. Dist. 393 U.S. 503, 508 (1969) (First Amendment Speech Clause context); J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011) (Fifth Amendment context); Eddings v. Oklahoma, 455 U.S. 104, 115–16 (1982) (Eighth Amendment context); Brown v. Bd. of Educ., 347 U.S. 483, 494–95 (1954) (Fourteenth Amendment Equal Protection Clause context); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975) (Fourteenth Amendment Due Process Clause context).Show More it would be valuable to encompass these interests in a Fourth Amendment reasonableness approach for students.101 101.Other scholars have agreed these broader interests must be encompassed. E.g., Karteron, supra note 14, at 905; Gupta-Kagan, Beyond Law Enforcement, supra note 70, at 411.Show More Doing so would prevent courts from ignoring students’ educational interests and would make explicit some circuits’ implicit consideration of a plaintiff’s student status when determining reasonableness of a search or seizure.102 102.Supra Section II.B.Show More

When balancing an individual’s interest against government interests to determine reasonableness of a search or seizure, courts must weigh whether the search or seizure of one student effectively promotes a safe, orderly educational environment to such an extent that the harm to the plaintiff-child’s education is outweighed by the benefit to other children’s education.103 103.Supra notes 45–47 and accompanying text.Show More In a school-based search, the Court has explained that courts must balance (1) the “serious emotional damage” that could result from a search against (2) the governmental interest in the search, emphasizing that “[t]he indignity of [a] search does not, of course, outlaw it, but it does implicate the rule of reasonableness. . . .”104 104.Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 375 (2009). For a depiction of the Court taking different views of “dignity” in Fourth Amendment consideration, see Bowers, supra note 7, at 1010–18.Show More Governmental interest encompasses local and state interests in keeping schools safe for the purpose of “maintain[ing] an environment [where] learning can take place.”105 105.New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (plurality opinion).Show More Despite positing this balancing test in a search context, the Court has provided little guidance regarding reasonableness in school-based seizures. This Section thus proceeds to explicate the student-conscious reasonableness model in a seizure context.

The student-conscious reasonableness model this Essay proposes recognizes balancing “serious emotional damage” against the governmental interest in a search as useful under the objective reasonableness balancing test for seizures. It provides a student-specific mode of considering “a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests[]’ against the countervailing governmental interests at stake.”106 106.Supra note 77 and surrounding text.Show More This prompts courts to consider whether a government’s interest in creating an orderly educational environment outweighs the emotional and psychological effects a seizure could have on a child.

Courts have approached such balancing inadequately. In the Tenth Circuit, for example, use of excessive force on a child, which the court deemed reasonable, led to the affected child receiving treatment for post-traumatic stress disorder.107 107.Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014).Show More The court focused on the government’s interest in creating an orderly educational environment, without considering how its decision hindered the government’s interest in supporting all students’ education.108 108.Supra note 42 and surrounding text.Show More Such selective consideration cannot continue.

In a school seizure by law enforcement officers, the governmental interest in supporting education for most students will seldom outweigh the plaintiff-child’s educational interests. The Court has recognized that only “[s]tudents whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process” may “be immediately removed from school.”109 109.Goss v. Lopez, 419 U.S. 565, 582 (1975).Show More If students do not pose such a continuing danger or threat, the educational harm caused by seizing them outweighs the seizure’s benefit to the overall student body. After all, empirical evidence indicates SRO involvement in school discipline creates a negative educational environment for all students, even those not disciplined by an SRO.110 110.Supra Part I.Show More

Further, potential student body benefits seldom outweigh the socio-emotional harm a seizure causes a child. In a search context, the Court has emphasized “adolescent vulnerability intensifies” a search’s “intrusiveness,”111 111.Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 375 (2009).Show More and research indicates the same is true in seizures.112 112.Infra note 116 and surrounding text.Show More To ascertain the socio-emotional effects of a seizure on a student, courts must consider a child’s age and stature to determine the reasonableness of said seizure. The Court has long-recognized children cannot be considered “miniature adults,”113 113.E.g., J.D.B. v. North Carolina, 564 U.S. 261, 274 (2011); Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) (“[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.”).Show More and has noted “childhood yields objective conclusions.”114 114.J.D.B., 564 U.S. at 275.Show More One such conclusion is that children cognitively differ from adults, making them more likely both to act out and to experience greater physical and mental harm from being subject to the use of force.115 115.See, e.g., Karteron, supra note 14, at 880.Show More Similarly, empirical evidence supports that, while anyone who is “yanked” physically by a law enforcement officer or handcuffed could be traumatized by such an occurrence, youth have a heightened risk for such trauma.116 116.Id.; Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014).Show More

Along with age, considering a child’s stature is key in a school-based seizure. There are typically less restrictive ways for a law enforcement officer to discipline or restrain a child.117 117.Karteron, supra note 14, at 913.Show More Thus, as force should only be used when it is necessary to preserve governmental interests,118 118.E.g., Graham v. Connor, 490 U.S. 386, 395–97 (1989).Show More an officer should not be able to use force when a less restrictive manner of restraint exists.119 119.See, e.g., Hawker, 591 Fed. App’x. at 671.Show More

Strengthening students’ Fourth Amendment protections in school policing contexts by adopting this student-conscious framework aligns with precedent, which has recognized children’s needs for increased procedural protections in school spaces.120 120.Derek W. Black, The Constitutional Limit of Zero Tolerance in Schools, 99 Minn. L. Rev. 823, 903–04 (2015).Show More Critics may argue such a framework hinders school safety, therein hampering students’ learning opportunities. However, the Court is well-positioned to deliver guidance emphasizing procedural requirements meant to deter school searches and seizures.121 121.Id.Show More After all, in recent years, the Court has struck down state actors’ aggressive treatment of minors in school spaces, finding strip searching a student for Tylenol is overly invasive122 122.Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 368–369, 379 (2009).Show More and police interrogations at school must be informed by a student’s age.123 123.J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011).Show More

Some critics may argue a student-conscious reasonableness standard could diminish the administrability of existing Fourth Amendment reasonableness standards.124 124.See, e.g., Bowers, supra note 7, at 1016–17; Bowers, supra note 17, at 144.Show More In a Fifth Amendment context, Justice Alito, joined by Justices Scalia and Thomas, alleged that considering a child’s age—and therein departing from a “one-size-fits-all” reasonableness test—would be hard for police to follow and for judges to apply.125 125.J.D.B., 564 U.S. at 293 (Alito, J., dissenting).Show More He specifically posited it would be difficult for a judge to recognize how the “average” child or adolescent experiences a police interaction.126 126.Id. at 294 (Alito, J., dissenting).Show More Further, critics may assert a student-conscious reasonableness standard opens litigation floodgates, prompting vulnerable defendants to always argue a “one-size-fits-all reasonable-person test” must be adapted to account for their individualized characteristics.127 127.J.D.B., 564 U.S. at 283 (Alito, J., dissenting).Show More However, the student-specific nature of the proposed model protects against these critiques.

Courts commonly consider student status and age when determining children’s constitutional rights.128 128.Policy-and-practice arguments are outside the scope of this Essay, but it is worth noting that, though some states require no school-specific training for SROs, e.g., Ala. Code § 16-1-44.1 (2019); Ky. Rev. Stat. Ann. §158.441 (West 2020), many states already train SROs to work with students. E.g., Wash. Rev. Code § 28A.320.124(1)(a) (2021); Cal. Educ. Code § 38000(e) (West 2020); Conn. Gen. Stat. § 17a-22bb (2013); N.M. Stat. Ann. § 29-7-14(B) (2020); Va. Code Ann. § 9.1-102 (2020); see also Ga. Code. Ann. § 35-8-27(b) (training is available but not required). Training SROs in a student-conscious reasonableness model would thus be a low-cost initiative, building on existing training models.Show More Although Justice Alito expressed concern in the Fifth Amendment context that judges may struggle to put themselves in the position of a reasonable child to understand a child-specific age-based standard,129 129.J.D.B., 564 U.S. at 293 (Alito, J., dissenting).Show More judicial precedent already indicates age and student status should be considered in First, Fourth, Fifth, and Eighth Amendment contexts.130 130.Supra note 100; Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 379 (2009) (Fourth Amendment context).Show More Justice Alito himself has signed on to an opinion indicating agreement with this approach in the Fourth Amendment context.131 131.Safford, 557 U.S. at 368, 379 (2009); see also Howes v. Fields, 565 U.S. 499 (2012) (Justices Alito, Scalia, and Thomas abandoning a one-size-fits-all approach and accepting a reasonable inmate’s perspective on custody).Show More Rather than introducing a new requirement for judges, the posited student-conscious reasonableness standard makes explicit the requirement that judges consider children’s ages when determining Fourth Amendment violations, as has already been made explicit in other constitutional contexts. This standard’s focus on age is complemented by a focus on student status, aligning with precedent regarding the government’s interest in education.132 132.Supra notes 42–47 and surrounding text; supra Section II.A.Show More As this standard distills existing precedent related to age and student-status to illuminate how the Fourth Amendment should be understood in a school context, it does not provide a basis for opening the floodgates for non-school-based Fourth Amendment litigation.

B. Cross-Ideological Support

The proposed student-conscious reasonableness model makes explicit how existing Fourth Amendment doctrine applies to schoolchildren, and has the potential to gain cross-ideological support from the Roberts Court Justices. Justice Gorsuch has expressed his distaste for the current role of policing in school discipline.133 133.A.M. v. Holmes, 830 F.3d 1123, 1169 (10th Cir. 2016) (Gorsuch, J., dissenting) (“If a seventh grader starts trading fake burps for laughs in gym class, . . . . Maybe today you call a police officer. And maybe today the officer decides that . . . an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option . . . . Respectfully, I remain unpersuaded.”).Show More Justices Breyer, Roberts, and Alito all ruled school officials violated a student’s Fourth Amendment rights when strip searching the child for painkillers, basing their holding largely on the student’s vulnerability as a child.134 134.Safford, 557 U.S. at 368, 375, 379.Show More Justices Sotomayor and Kagan have yet to hear a case regarding students’ Fourth Amendment rights at school or school policing more generally. However, they have advocated for strong Fourth Amendment rights broadly.135 135.E.g., Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (maintaining individuals have a reasonable expectation to digital privacy).Show More Justice Sotomayor has particularly emphasized the need for robust Fourth Amendment rights for those disproportionately targeted by police due to their race.136 136.Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting).Show More

Support from Justices Thomas, Barrett, and Kavanaugh for the proposed student-conscious Fourth Amendment reasonableness standard is less certain. Justice Thomas would likely prefer courts heavily defer to school choices regarding campus policing policies. He has explained children have reduced rights at schools—viewing schools as a “substitute[] of parents” with broad authority “to discipline speech and conduct.”137 137.Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2059 (2021). (Thomas, J., dissenting); see also Redding, 557 U.S. at 384 (Thomas, J., dissenting) (“[S]chool officials retain broad authority to protect students and preserve ‘order and a proper educational environment’ under the Fourth Amendment.”) (citation omitted).Show More Although Justices Barrett and Kavanaugh have not expressed views regarding students’ Fourth Amendment rights at school or school policing more generally, they may support deference to school police, having exhibited limited views of the Fourth Amendment’s scope.138 138.E.g., Torry v. City of Chicago, 932 F.3d 579, 588–89 (7th Cir. 2019) (Barrett, J.) (then-Judge Barrett, finding officers were entitled to immunity in a lawsuit alleging they illegally stopped and harassed three Black men in a car); United States v. Jones, 625 F.3d 766, 770–71 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (arguing a defendant had no reasonable expectation of privacy while driving a car on a public thoroughfare, so police could install a tracking GPS in his car); United States v. Askew, 529 F.3d 1119, 1165 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (arguing that officers were within their rights to unzip and open a defendant’s jacket after an original frisk yielded nothing). But see Caniglia v. Strom, 141 S. Ct. 1599, 1602–05 (2021) (Kavanaugh, J., concurring) (supporting a broad view of the Fourth Amendment by agreeing the “community caretaking” exception to the Fourth Amendment’s warrant requirement does not extend to the home). Still, as they have sought to protect students’ First Amendment rights away from school campuses, they could possess broader views on children’s constitutional protections than currently known. See Mahanoy, 141 S. Ct. at 2042–43.Show More

Conclusion

Race-based criminalization in schools must end. Otherwise, American schools can never move beyond a dual system of education, which provides minority students with unequal educational opportunities, setting them up for a lifetime of inequality. Ensuring all students’ Fourth Amendment rights in school policing contexts would work towards dismantling the school-to-prison pipeline’s racially based pattern of pushing students from classrooms and into the criminal justice system. Judicial precedent supports that (1) students deserve procedural protections at school, (2) children experience police interactions differently than adults, and (3) both students and state governments have important interests in the provision of an education. Building on such precedent, it is time to hold schools and law enforcement agents accountable, end racialized school discipline, and ensure students receive full Fourth Amendment rights so they can more readily access the educational opportunities their states have guaranteed them.

  1. * J.D. Candidate, University of Virginia School of Law (expected 2022). I would like to thank Professor Kimberly J. Robinson, Professor Josh Bowers, Scott Harman-Heath, Professor Josh Gupta-Kagan, Professor Jason P. Nance, Elizabeth Adler, Barrett Anderson, Julia Eger, Margaret Booz, Meredith Kilburn, and Jack Hoover for their helpful comments. Additionally, I wish to thank Dean Dayna Matthew and Professor Katie Ryan for valuable conversations that inspired me to write this piece, as well as Professor A.E. Dick Howard for encouraging my research related to constitutional doctrines in school settings. ↑
  2. Ryan Faircloth, Minneapolis Public Schools Terminates Contract with Police Department over George Floyd’s Death, StarTribune (June 2, 2020, 9:38 PM), https://www.startribune.co​m/mpls-school-board-ends-contract-with-police-for-school-resource-officers/570967942/ [ht​tps://perma.cc/9C7G-TWD2]. ↑
  3. E.g., Dana Goldstein, Do Police Officers Make Schools Safer or More Dangerous?, N.Y. Times (Oct. 28, 2021), https://www.nytimes.com/2020/06/12/us/schools-police-resource-officers.html [https://perma.cc/54U4-V4LJ]. ↑
  4. E.g., Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time (June 4, 2020), https://time.com/magazine/us/5847952/june-15th-2020-vol-195-no-22-u-s/ [https://perma.cc/RT4B-FLJ9]. ↑
  5. E.g., Kim Bellware, Chicago School Board Votes to Keep $33M Police Contract – But Student Activists Say the Fight Isn’t Over, Wash. Post. (June 25, 2020), https://www.washi​ngtonpost.com/education/2020/06/25/chicago-school-police/ [https://perma.cc/BT7V-85C3]; infra Part I. ↑
  6. E.g., Josh Gupta-Kagan, Reevaluating School Searches Following School-to-Prison Pipeline Reforms, 87 Fordham L. Rev. 2013, 2043–45 (2019). ↑
  7. E.g., Derek W. Black, Ending Zero Tolerance: The Crisis of Absolute School Discipline 204–05 (2016). ↑
  8. E.g., New Jersey v. T.L.O., 469 U.S. 325, 340–43 (1985) (plurality opinion); see also Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987, 1006 (2014) (pointing out that, in some contexts, an all-things-considered “general reasonableness” approach may allow for consideration of interests beyond just quantitative measures of legal guilt such as “probable cause”). ↑
  9. Infra Section II.A. ↑
  10. Infra Sections II.A, III.A. ↑
  11. E.g., T.L.O., 469 U.S. at 337 (plurality opinion). ↑
  12. Infra Section II.B. ↑
  13. E.g., Goss v. Lopez, 419 U.S. 565, 576 (1975). But cf. Bowers, supra note 7 (arguing that consideration of probable cause should supplement, rather than replace, other relevant considerations). ↑
  14. This Essay considers only federal law. Additionally, officer qualified immunity in a school context is outside this Essay’s scope. ↑
  15. E.g., Alexis Karteron, Arrested Development: Rethinking Fourth Amendment Standards for Seizures and Uses of Force in Schools, 18 Nev. L.J. 863, 905–17 (2018); Jason E. Yearout, Individualized School Searches and the Fourth Amendment: What’s a School District to Do?, 10 Wm. & Mary Bill Rts. J. 489, 522–23 (2002). ↑
  16. E.g., Goss, 419 U.S. at 576. The student-conscious model considers only K–12 students, as only K–12 education is guaranteed in all states. Emily Parker, 50 State Review: Constitutional Obligations for Public Education, Educ. Comm’n of the States 1–2 (Mar. 2016), https://www.ecs.org/wp-content/uploads/2016-Constitutional-obligations-for-public-educati​on-1.pdf [https://perma.cc/CUR7-4HJR]. ↑
  17. Infra Part II; Jason P. Nance, Implicit Racial Bias and Students’ Fourth Amendment Rights, 94 Ind. L.J. 47, 93–94 (2019). ↑
  18. Cf. Josh Bowers, Annoy No Cop, 166 U. Pa. L. Rev. 129 (2017) (arguing for Fourth Amendment doctrines that would do more to accommodate the particular perspectives of specific individuals and groups). ↑
  19. Jack Denton, When Schools Increase Police Presence, Minority Students Are Harmed Disproportionately, Pacific Standard (Feb. 15, 2019), https://psmag.com/education/after-parkland-schools-upped-police-presence-has-it-made-students-safer [https://perma.cc/2LU3-BMGJ]. ↑
  20. For example, following Parkland’s shooting, Florida legislated schools must always have a “safe-school officer” present. Fla. Stat. § 1006.12 (2019). ↑
  21. See Nat’l Inst. of Just., School Safety: By the Numbers (Nov. 2017), https://www.ncjrs.go​v/pdffiles1/nij/251173.pdf [https://perma.cc/A6V7-25LZ]. ↑
  22. Id.; Ashley Fetters, The Developing Norms for Reopening Schools After Shootings, Atlantic (Aug. 27, 2018), https://www.theatlantic.com/education/archive/2018/08/how-schools-decide​-when-to-reopen-after-a-shooting/568666/ [https://perma.cc/A9QG-SC4Q]. ↑
  23. Nat’l Inst. of Just., supra note 20; Philip J. Cook, Denise C. Gottfredson, and Chongmin Na, School Crime Control and Prevention, 39 Crime & Just. 313, 316 (2010). ↑
  24. Kenneth Alonzo Anderson, Does More Policing Make Middle Schools Safer?, Brookings Inst. (Nov. 8, 2018), https://www.brookings.edu/blog/brown-center-chalkboard/2018/11/08/d​oes-more-policing-make-middle-schools-safer/ [https://perma.cc/8Y97-49S4]. ↑
  25. Compare Anya Kamenetz, Why There’s a Push to Get Police Out of Schools, NPR (June 23, 2020, 7:00 AM), https://www.npr.org/2020/06/23/881608999/why-theres-a-push-to-get-police-out-of-schools [https://perma.cc/2JQP-SN4B] (describing an argument SROs stop shootings before they happen), with Eli Saslow, ‘It Was my Job, and I Didn’t Find Him’: Stoneman Douglas Resource Officer Remains Haunted by Massacre, Wash. Post (June 4, 2018), https://www.washi​ngtonpost.com/national/it-was-my-job-and-i-didnt-find-him-stone​man-douglas-resource-offi​cer-remains-haunted-by-massacre/2018/06/04/796f1c16-679d-11​e8-9e38-24e693b38637_sto​ry.html [https://perma.cc/H3Z9-82P9] (describing an account by an SRO who failed to stop the Marjory Stoneman shooting). ↑
  26. Compare, e.g., Emily G. Owens, Testing the School-to-Prison Pipeline, 36 J. Pol’y Analysis & Mgmt. 11, 34 (2016) (describing how SRO presence increases school safety), with Aaron Kupchik, Research on the Impact of School Policing, ACLU Penn. 1 n.3 (Aug. 2020), https://www.endzerotolerance.org/impact-of-school-policing [https://perma.cc/X3VF-7HGZ] (listing studies indicating SROs either do not impact student crime or SRO presence is associated with increased student misconduct). Inconclusive data may be due to SROs filling a solely law enforcement role in some schools while serving in mentorship capacities in others. See Kupchik, supra, at 1. ↑
  27. See, e.g., Emily M. Homer & Benjamin W. Fisher, Police in Schools and Student Arrest Rates Across the United States: Examining Differences by Race, Ethnicity, and Gender, 19 J. Sch. Violence 192, 192 (2020). ↑
  28. Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 933 (2016) [hereinafter Nance, Students, Police]. ↑
  29. Id. ↑
  30. E.g., Deanna N. Devlin & Denise C. Gottfredson, The Roles of Police Officers in Schools: Effects on the Recording and Reporting of Crime, 16 Youth Violence & Juv. Just. 208, 217 (2016). ↑
  31. Matthew T. Theriot & Matthew J. Cuellar, School Resource Officers and Students’ Rights, 19 Contemp. Just. Rev. 363, 369 (2016). ↑
  32. Id. ↑
  33. Id. at 369–70. ↑
  34. Richard G. Dudley, Jr., Childhood Trauma and Its Effects: Implications for Police, New Perspectives Policing, July 2015, at 1, 5 (trauma can “rewire [children’s] brains,” impacting their future encounters with law enforcement). ↑
  35. Nancy Heitzeg, The School-to-Prison Pipeline: Education, Discipline, and Racialized Double Standards 102 (2016). ↑
  36. See, e.g., Erin R. Archerd, Restoring Justice in Schools, 85 U. Cin. L. Rev. 761, 794–95 (2017) (explaining restorative justice as an example of a discipline practice that helps students work towards improved behavior); Nance, Students, Police, supra note 27, at 981. ↑
  37. Jason P. Nance, Dismantling the School-to-Prison Pipeline: Tools for Change, 48 Ariz. St. L.J. 313, 356–57, 360 (2016). ↑
  38. See, e.g., Aaron Kupchik, Things Are Tough All Over: Race, Ethnicity, Class and School Discipline, 11 Punishment & Soc’y 291, 292 (2009). ↑
  39. See Charles Ogletree, Robert J. Smith, and Johanna Wald, Coloring Punishment: Implicit Social Cognition and Criminal Justice, in Implicit Racial Bias Across the Law 54 (Justin D. Levinson & Robert J. Smith eds., 2012). ↑
  40. U.S. Comm’n on C.R., Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities 161 (July 2019), https://www.usccr.gov/pubs/2019/07-23-Beyond-Suspensions.pdf [https://perma.cc/H​7W3-E8LH] [hereinafter Beyond Suspensions]. ↑
  41. Archerd, supra note 35, at 773. For comparison, in fall 2018, 15% of public-school students were Black and 27% were Hispanic. Racial/Ethnic Enrollment in Public Schools, Nat’l Ctr. for Educ. Stat. (May 2021), https://nces.ed.gov/programs/coe/indicator_cge.asp [https://perma.cc/9FV2-CQGD]. ↑
  42. Beyond Suspensions, supra note 39, at 42, 45 n.244, 53. ↑
  43. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society.”); Goss v. Lopez, 419 U.S. 565, 576 (1975) (“Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses . . . .”); Plyler v. Doe, 457 U.S. 202, 214 (1982) (holding everyone within a state’s boundaries has educational rights). ↑
  44. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). ↑
  45. See sources cited supra note 42; see also Eric Merriam, Obergefell and the Dignitary Harm of Identity-Based Military Service and Exclusion, 27 UCLA Women’s L.J. 41, 67 (2020) (“[A]n equal protection right to basic education . . . requires that when the government does provide it, it be provided equally.”). ↑
  46. E.g., New Jersey v. T.L.O., 469 U.S. 325, 339–40 (1985) (plurality opinion). ↑
  47. E.g., id. at 353 (Blackmun, J., concurring); id. at 357 (Brennan, J., concurring). ↑
  48. The disparate rate at which SROs discipline students of color hinders the government from achieving its interest in creating integrated school environments. E.g., Brown, 347 U.S. at 493 (“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”). ↑
  49. Since 2001, only regulatory agencies and the Department of Justice (“DOJ”) can enforce disparate impact claims under Title VI. Alexander v. Sandoval, 532 U.S. 275, 284–85 (2001) (private litigants cannot bring disparate impact suits); 34 C.F.R. § 100.8(a) (2021) (allowing regulatory agencies and the DOJ to enforce disparate impact claims). The DOJ can engage in disparate impact suits, and the Department of Education (“ED”) can investigate complaints and review schools’ compliance with the ED’s Office for Civil Rights’s (“OCR”) guidelines, consequently revoking federal funds pursuant to Title VI as necessary. Office for Civil Rights, U.S. Dep’t of Educ., Case Processing Manual (CPM) 23 (2020), https://www2.ed.gov/ab​out/offices/list/ocr/docs/ocrcpm.pdf [https://perma.cc/K4YP-HFU2]; 42 U.S.C. § 2000d-1. ↑
  50. E.g., Catherine E. Lhamon & Jocelyn Samuels, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline 4, 7 (Jan. 8, 2014), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdf [https://perma.cc/9SPS-H26B] (rescinded by Kenneth L. Marcus & Eric S. Dreiband, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter (Dec. 21, 2018), https://ww​w2.ed.gov/about/offices/list/ocr/letters/colleague-201812.pdf [https://perma.cc/MXX7-V2B​3]); Office for Civil Rights, U.S. Dep’t of Educ., Questions & Answers on Racial Discrimination and School Discipline 2 n.6 (2018), https://www2.ed.gov/about/offices/lis​t/ocr/docs/qa-title-vi-201812.pdf [https://perma.cc/9Z8A-QV35]. ↑
  51. Supra note 49 and surrounding text. ↑
  52. T.L.O., 469 U.S. at 340 (plurality opinion). ↑
  53. Id. at 340–41. ↑
  54. Id. at 337. ↑
  55. Id. at 337–38. ↑
  56. Id. at 339. ↑
  57. Id. at 340. ↑
  58. Id. at 340–41; see generally Silas J. Wasserstrom, The Court’s Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 Am. Crim. L. Rev. 119 (1989) (describing “general reasonableness” as understood by this Essay). ↑
  59. T.L.O., 469 U.S. at 341–42 (citation omitted). ↑
  60. Id. at 342 (citation omitted). This theoretically provides more protection than a probable cause, or quantum of guilt, standard in conventional crime-solving contexts. See, e.g., Bowers, supra note 7, at 1021–22. However, as this Essay further explores, this standard has been treated as “amorphous.” See, e.g., T.L.O., 469 U.S. at 367 (Brennan, J., concurring) (describing the new standard as “ambiguous,” potentially “leav[ing] teachers and administrators uncertain as to their authority and . . . encourag[ing] excessive fact-based litigation.”); Barry C. Feld, T.L.O. and Redding’s Unanswered (Misanswered) Fourth Amendment Questions: Few Rights and Fewer Remedies, 80 Miss. L.J. 847, 848–49 (2011) (presenting T.L.O.’s reasonableness standard as “amorphous”). ↑
  61. 469 U.S. at 340 (plurality opinion). ↑
  62. Id. at 351–53 (Blackmun, J., concurring); id. at 349–50 (Powell, J., concurring). Justice Powell emphasized that the flexible Fourth Amendment standard described by the T.L.O. plurality stemmed from a close relationship between teachers and students, which differs from students’ relationship with “[l]aw enforcement officers[, who] function as adversaries of criminal suspects.” Id. at 349 (Powell, J., concurring); see also id. at 351 (Blackmun, J., concurring) (emphasizing searches, such as the school official-led search at hand, could evade Fourth Amendment warrant and probable cause requirements, “[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirements impracticable”). ↑
  63. Id. at 341 n.7; see also Gupta-Kagan, supra note 5, at 2022 (“T.L.O.’s rationale set up an important question: Are searches by school resources officers, or searches by school officials at the behest of or in conjunction with SROs, governed by T.L.O.?”). ↑
  64. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 833 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658 (1995); Gupta-Kagan, supra note 5, at 2023. ↑
  65. Earls, 536 U.S. at 837–38; Acton, 515 U.S. at 663–65. ↑
  66. Earls, 536 U.S. at 833; Acton, 515 U.S. at 658. ↑
  67. Earls, 536 U.S. at 833–34. ↑
  68. Goss v. Lopez, 419 U.S. 565, 576 (1975) (“But, ‘education is perhaps the most important function of state and local governments,’ and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child.”) (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)). ↑
  69. Ferguson v. City of Charleston, 532 U.S. 67, 83 n.20 (2001); see also Developments in the Law — Policing, 128 Harv. L. Rev. 1706, 1762 (2015) (“[T]he identity of who uses the result of a search does bear on the seriousness of the privacy intrusion.”). ↑
  70. New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring). ↑
  71. E.g., Ferguson, 532 U.S. at 83 n.20, 84, 88 (Kennedy, J., concurring); see also Josh Gupta-Kagan, Beyond Law Enforcement: Camreta v. Greene, Child Protection Investigations, and the Need to Reform the Fourth Amendment Special Needs Doctrine, 87 Tulane L. Rev. 353, 399–422 (2012) [hereinafter Gupta-Kagan, Beyond Law Enforcement] (theorizing how to improve the special needs test to best serve children, based on empirical evidence). ↑
  72. A.M. v. Holmes, 830 F.3d 1123, 1157–61 (10th Cir. 2016) (applying T.L.O. analysis to an SRO as well as a school principal and assistant principal); Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1304–06 (11th Cir. 2006) (applying T.L.O. when analyzing an unlawful seizure claim filed against a law enforcement deputy at an elementary school); Shade v. City of Farmington, 309 F.3d 1054, 1060–62 (8th Cir. 2002) (applying T.L.O. to determine the legality of a search law enforcement officers conducted away from school grounds in conjunction with a school teacher and administrator); Gupta-Kagan, supra note 5, at 2024–25 (explaining a majority of state courts have applied T.L.O. to SROs). ↑
  73. E.g., Bostic, 458 F.3d at 1304; C.B. v. City of Sonora, 769 F.3d 1005, 1023–28 (invoking T.L.O. without using its two-part analysis for the seizure at issue); Ziegler v. Martin Cnty. Sch. Dist., 831 F.3d 1309, 1322–24 (11th Cir. 2016); Wofford v. Evans, 390 F.3d 318, 326–27 (4th Cir. 2004); Doe ex rel. Doe v. Hawaii Dep’t. of Educ., 334 F.3d 906, 909–10 (9th Cir. 2003). ↑
  74. Neague v. Cynkar, 258 F.3d 504, 505–07 (6th Cir. 2001). ↑
  75. Infra Section III.A; see also Bowers, supra note 17, at 198 (arguing that in Fourth Amendment cases judges should do more to accommodate the perspective of the layperson). ↑
  76. Graham v. Connor, 490 U.S. 386, 396 (1989); supra note 71 (listing relevant cases). Deadly force is outside the scope of this Essay, as it is uncommon in school policing. For a discussion of deadly force, see, e.g., Scott A. Harman-Heath, Renaming Deadly Force, 106 Cornell L. Rev. 1689, 1690–713 (2021). ↑
  77. E.g., Hoskins v. Cumberland Cnty. Bd. of Educ., No. 2:13-cv-15, 2014 WL 7238621, at *7 (M.D. Tenn. Dec. 17, 2014) (“[T]he Court must first consider the factors uniquely relevant to this case as required by Graham, namely the very young age of T.H. and the fact that this incident took place in a school setting.”); E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 179 (4th Cir. 2018) (“Here, we believe it prudent to consider also the suspect’s age and the school context.”); Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (“His age and size are certainly factors in the totality-of-the-circumstances reasonableness calculation. . . . However, these factors alone do not render force used against him unreasonable per se.”). ↑
  78. Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); United States v. Place, 462 U.S. 696, 703 (1983)); Scott v. Harris, 550 U.S. 372, 383 (2007); see also Rachel A. Harmon, When Is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1127, 1136–38 (2008) (discussing how the Scott Court undermined Graham and Garner, therein “reduc[ing] the Fourth Amendment regulation of reasonable force to its vaguest form . . . .”). ↑
  79. Graham, 490 U.S. at 397 (citations omitted). ↑
  80. See, e.g., Charles Ogletree et al., supra note 38, at 54 (discussing that implicit biases often affect decisions made by school administrators and school resource officers). ↑
  81. Graham, 490 U.S. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). ↑
  82. Id. But see Harmon, supra note 77, at 1127, 1130 (explaining the Graham reasonableness standard allows juries to decide use of force cases based on “their intuitions”). The Eighth Circuit has noted sister circuits’ lack of clarity regarding whether to apply the T.L.O. or Graham reasonableness standard when considering a student seizure involving law enforcement officers on school grounds. K.W.P. v. Kan. City Pub. Schs., 931 F.3d 813, 822 (8th Cir. 2019). ↑
  83. Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (10th Cir. 2014). ↑
  84. Id. ↑
  85. Id.; see also C.B. v. Sonora, 769 F.3d 1005, 1030 (9th Cir. 2014) (describing the child’s small size as factoring against the reasonableness of his seizure). ↑
  86. Hawker, 591 F. App’x at 675. ↑
  87. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009) (considering age when determining reasonableness in a Fourth Amendment context). ↑
  88. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1300–07 (11th Cir. 2006). ↑
  89. Id. at 1306. ↑
  90. E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 180–82, 188 (4th Cir. 2018). ↑
  91. C.B. v. City of Sonora, 769 F.3d 1005, 1023–24, 1029–30 (9th Cir. 2014). ↑
  92. New Jersey v. T.L.O., 469 U.S. 325, 341–42 (1985) (plurality opinion); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995). ↑
  93. T.L.O., 469 U.S. at 341–42; Acton, 515 U.S. at 656. ↑
  94. E.g., In re Gault, 387 U.S. 1, 21–27 (1967); Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 374–79 (2009); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975). ↑
  95. E.g., J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011). ↑
  96. T.L.O., 469 U.S. at 342; Redding, 557 U.S at 375. ↑
  97. Redding, 557 U.S. at 368, 379. ↑
  98. These factors build on those Professor Alexis Karteron has previously discussed when describing a school-specific reasonableness standard for students. Karteron, supra note 14, at 870 (“[R]easonableness requires consideration of objective factors especially relevant to the school context and unique vulnerabilities of youth including: the seriousness of the alleged infraction or crime; the likelihood that the student has committed an infraction or crime; the age of the student; the size and stature of the student; the likelihood of inflicting harm or trauma, especially in light of known disabilities or vulnerabilities; and the necessity of the enforcement action.”). ↑
  99. T.L.O., 469 U.S. at 338–40; Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995); Karteron, supra note 14, at 907 (“In T.L.O. and subsequent cases, all decided in the context of a search conducted by a school official, the Court identified privacy as the only student interest at stake.”). ↑
  100. T.L.O., 469 U.S. at 341 (emphasis added); see Bowers, supra note 7, at 1105–07 (arguing that special-needs searches may sometimes be more protective by accommodating considerations that the Court deems irrelevant for crime-solving searches). ↑
  101. E.g., Lee v. Weisman, 505 U.S. 577, 599 (1992) (First Amendment Establishment Clause context); Tinker v. Des Moines Indep. Sch. Dist. 393 U.S. 503, 508 (1969) (First Amendment Speech Clause context); J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011) (Fifth Amendment context); Eddings v. Oklahoma, 455 U.S. 104, 115–16 (1982) (Eighth Amendment context); Brown v. Bd. of Educ., 347 U.S. 483, 494–95 (1954) (Fourteenth Amendment Equal Protection Clause context); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975) (Fourteenth Amendment Due Process Clause context). ↑
  102. Other scholars have agreed these broader interests must be encompassed. E.g., Karteron, supra note 14, at 905; Gupta-Kagan, Beyond Law Enforcement, supra note 70, at 411. ↑
  103. Supra Section II.B. ↑
  104. Supra notes 45–47 and accompanying text. ↑
  105. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 375 (2009). For a depiction of the Court taking different views of “dignity” in Fourth Amendment consideration, see Bowers, supra note 7, at 1010–18. ↑
  106. New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (plurality opinion). ↑
  107. Supra note 77 and surrounding text. ↑
  108. Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014). ↑
  109. Supra note 42 and surrounding text. ↑
  110. Goss v. Lopez, 419 U.S. 565, 582 (1975). ↑
  111. Supra Part I. ↑
  112. Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 375 (2009). ↑
  113. Infra note 116 and surrounding text. ↑
  114. E.g., J.D.B. v. North Carolina, 564 U.S. 261, 274 (2011); Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) (“[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.”). ↑
  115. J.D.B., 564 U.S. at 275. ↑
  116. See, e.g., Karteron, supra note 14, at 880. ↑
  117. Id.; Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014). ↑
  118. Karteron, supra note 14, at 913. ↑
  119. E.g., Graham v. Connor, 490 U.S. 386, 395–97 (1989). ↑
  120. See, e.g., Hawker, 591 Fed. App’x. at 671. ↑
  121. Derek W. Black, The Constitutional Limit of Zero Tolerance in Schools, 99 Minn. L. Rev. 823, 903–04 (2015). ↑
  122. Id. ↑
  123. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 368–369, 379 (2009). ↑
  124. J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011). ↑
  125. See, e.g., Bowers, supra note 7, at 1016–17; Bowers, supra note 17, at 144. ↑
  126. J.D.B., 564 U.S. at 293 (Alito, J., dissenting). ↑
  127. Id. at 294 (Alito, J., dissenting). ↑
  128. J.D.B., 564 U.S. at 283 (Alito, J., dissenting). ↑
  129. Policy-and-practice arguments are outside the scope of this Essay, but it is worth noting that, though some states require no school-specific training for SROs, e.g., Ala. Code § 16-1-44.1 (2019); Ky. Rev. Stat. Ann. §158.441 (West 2020), many states already train SROs to work with students. E.g., Wash. Rev. Code § 28A.320.124(1)(a) (2021); Cal. Educ. Code § 38000(e) (West 2020); Conn. Gen. Stat. § 17a-22bb (2013); N.M. Stat. Ann. § 29-7-14(B) (2020); Va. Code Ann. § 9.1-102 (2020); see also Ga. Code. Ann. § 35-8-27(b) (training is available but not required). Training SROs in a student-conscious reasonableness model would thus be a low-cost initiative, building on existing training models. ↑
  130. J.D.B., 564 U.S. at 293 (Alito, J., dissenting). ↑
  131. Supra note 100; Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 379 (2009) (Fourth Amendment context). ↑
  132. Safford, 557 U.S. at 368, 379 (2009); see also Howes v. Fields, 565 U.S. 499 (2012) (Justices Alito, Scalia, and Thomas abandoning a one-size-fits-all approach and accepting a reasonable inmate’s perspective on custody). ↑
  133. Supra notes 42–47 and surrounding text; supra Section II.A. ↑
  134. A.M. v. Holmes, 830 F.3d 1123, 1169 (10th Cir. 2016) (Gorsuch, J., dissenting) (“If a seventh grader starts trading fake burps for laughs in gym class, . . . . Maybe today you call a police officer. And maybe today the officer decides that . . . an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option . . . . Respectfully, I remain unpersuaded.”). ↑
  135. Safford, 557 U.S. at 368, 375, 379. ↑
  136. E.g., Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (maintaining individuals have a reasonable expectation to digital privacy). ↑
  137. Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting). ↑
  138. Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2059 (2021). (Thomas, J., dissenting); see also Redding, 557 U.S. at 384 (Thomas, J., dissenting) (“[S]chool officials retain broad authority to protect students and preserve ‘order and a proper educational environment’ under the Fourth Amendment.”) (citation omitted). ↑

  139. E.g., Torry v. City of Chicago, 932 F.3d 579, 588–89 (7th Cir. 2019) (Barrett, J.) (then-Judge Barrett, finding officers were entitled to immunity in a lawsuit alleging they illegally stopped and harassed three Black men in a car); United States v. Jones, 625 F.3d 766, 770–71 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (arguing a defendant had no reasonable expectation of privacy while driving a car on a public thoroughfare, so police could install a tracking GPS in his car); United States v. Askew, 529 F.3d 1119, 1165 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (arguing that officers were within their rights to unzip and open a defendant’s jacket after an original frisk yielded nothing). But see Caniglia v. Strom, 141 S. Ct. 1599, 1602–05 (2021) (Kavanaugh, J., concurring) (supporting a broad view of the Fourth Amendment by agreeing the “community caretaking” exception to the Fourth Amendment’s warrant requirement does not extend to the home). Still, as they have sought to protect students’ First Amendment rights away from school campuses, they could possess broader views on children’s constitutional protections than currently known. See Mahanoy, 141 S. Ct. at 2042–43. ↑

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