Archive for Tuesday, December 13, 2005

Alcohol policy adopted on 6-1 vote

Board member Craig Grant calls universal testing invasion of students’ privacy

December 13, 2005


Starting next semester, all Lawrence high school students will be tested for alcohol before being admitted to school-sponsored dances.

School board members adopted the policy Monday.

The vote was not unanimous. Board member Craig Grant voted against the policy, arguing that not all students should be tested unless all students were suspected of drinking.

"To subject all students to the invasion of their privacy in this way is something I can not vote for when there is another method - that of requiring those students who exhibit signs of breaking the policy to take a Breathalyzer test," Grant said, reading from a written statement later filed with the board secretary.

Other board members recognized Grant's concerns but said they were outweighed by the need to ensure a safe environment at the dances.

Grant insisted he in no way was condoning underage drinking.

School officials began drafting the policy after fielding reports of some students appearing intoxicated during the Free State High School Firestarter Dance in late August.

Board members Monday circulated an e-mail from Lawrence High School Principal Steve Nilhas, who noted that more than 500 students - a record number - had attended the school's winter formal on Saturday.

"I saw students at this dance who had not attended previous dances this year," Nilhas wrote, "and these students indicated to me (that) one reason they attended was because they would not have to put up with students who had been drinking before the dance."

Under the new policy:

¢ Students who test positive - they do not have to be intoxicated - will be banned from school dances for a calendar year. Those who test positive a second time will be banned for the remainder of their high school years.

¢ The test-all policy will not be applied to other school-sponsored events such as football or basketball games. Still, school officials have the authority to test students they believe have been drinking at these events.

¢ Parents of students who've been drinking will be called and asked to come get their child. If a parent cannot be reached or cannot leave work, the school's administrator will assume responsibility for ensuring the student returns home. Other adult relatives may be called.

¢ Students who test positive will not be suspended or expelled.

¢ Students suspected of drinking after they've been admitted to the dance will be subject to the same penalties as those who test positive at the door.

¢ Seniors who test positive at the prom will not be allowed to take part in commencement.

Though concerns over the possibility of seniors not be able to take part in graduation ceremonies were raised at the board's Nov. 28 meeting, they were not mentioned during Monday's session.


Harry_Manback 12 years, 1 month ago

This isn't going to stop teen drinking. It kind of seems to infringe their rights, but I guess high school students don't really have any rights, as I remember.

This seems to punish the good kids for other students bad choices.

Well, now I guess students will just have to wait until AFTER the dance to drink, like most of us did!

Richard Heckler 12 years, 1 month ago

Can the rule withstand a legal challenge?

sweatpeagj 12 years, 1 month ago

I am really interested to see what happens when they actually start the testing. It qualifies under illegal search and seizure so the first parent that actually fights this will be a groundbreaker. I have seen more drug and alcohol use during sporting events than at any school functions.

neopolss 12 years, 1 month ago

The students need to realize that they are being duped. Students, boycott these dances. And perhaps, wear a button that proclaims "suspected alcohalic." You're guilty until proven innocent.

bankboy119 12 years, 1 month ago

The policy is ridiculous and wasting more taxpayer money. I'm with neo on this; students, boycott the dances.

hawkbygod 12 years, 1 month ago

Better answer. Don't drink. You are 15,16,17. You have the rest of your lives to go to bars and get plastered.

Of course this is going to withstand a legal challenge, Wendt you know this. If a kid actually was drinking they have no privacy interest in illegal activity, and this is only targetting illegal activity.

mcoan 12 years, 1 month ago

  1. Attendance at school dances is about to plummet! Duh!
  2. Yes, kids will simply switch to kids showing up at the dance to see each other, then leaving to go drink outdoors or at a friend's house whose parents are gone. Result: More likely to drink and drive. Would you rather have kids drunk at a dance, or "shooting the square" in their cars?
  3. I see more kids getting stoned on pot and Ecstasy before going to the dance.
  4. I'd say school dances are where the "good" kids go...a lot of kids find them completely stupid events. Those kids will continue to drink and use drugs, as they have for decades.

badger 12 years, 1 month ago

Well, dance attendance is going to go down...

I agree with the dissenting board member, that the preferable option would be to test those who show signs of alcohol consumption.

It's not about 'Well, duh, just don't drink.' It's about innocent people who get treated the same as those who break rules. If they're already being treated like they've done something wrong, the reward of being good (having the trust and respect of others) is gone, so there's a lot less incentive to do it.

bankboy119 12 years, 1 month ago

observer....that was one of the most ignorant comments I've seen posted in awhile. The board members are raging how conservatives have anything to do with this ruling I don't know.

avhjmlk 12 years, 1 month ago

The testing policy will, in all likelihood, withstand a legal challenge. Extracurricular activities (sports, dances, FFA, other clubs) are considered privileges, and, according to the Supreme Court, are open to having extra restrictions placed on participation for several reasons: role modeling (used for sports testing policies), reduced expectation of privacy (kids sharing locker rooms for sports, dressing rooms during performances, etc), and a heightened awareness of safety.

The other concern the Supreme Court has had with drug testing policies is stigmatization. That's why any drug testing policies have to be either random, or complete. You can't just pick out the kids you suspect ar drinking because the purpose of the testing/discipline system is deterrence/reform, not punishment.

There would be a definite search and seizure concern if the testing were going to be used by law enforcement to place kids in the juvenile system, but since the testing is for school policy and school discipline only, there isn't nearly the reasonable suspicion requirement that there is for the police.

And, really, if you think about it, this testing policy is a LOT less invasive than some. These kids aren't going to have to pee in front of a gym coach. They will just breathe, fully clothed and without worrying about bashful bladders or embarrassing bodily noises, into a monitor.

I would be REALLY surprised if a legal challenge went anywhere.

avhjmlk 12 years, 1 month ago

Granted, I'm not saying I agree with the policy as it's crafted (in terms of how the discipline will play out), but it's entirely legal.

Baille 12 years, 1 month ago

What is most clear by these posts is that very few citizens understand the 4th Amendment, the concept of probable cause, the application of these principles to privileges as opposed to the infringment of fundamental rights, or what the "right to privacy" really means. Forget the penumbras, as a society we don't even understand the explicit parts of the Constitution. I doubt most have even read it, or if they have read it have made any attempt to understand it.

avhjmlk 12 years, 1 month ago

An Oklahoma public school district's all-test policy for every after-school activity at the high school (every kid involved in after school activities, clubs, sports, etc, had to be tested once, and then were subject to random testing after that, with appropriate discipline attached) was upheld by the Supreme Court.

badger 12 years, 1 month ago

Yeah, Baille, numerous cases have been held up by the Supremes indicating that when it comes to school events and property, students lose some constitutional protection.

For example, lockers, bookbags, purses, and persons are subject to search without a warrant as long as they conform to school rules. In any other setting, that'd be a massive violation of the Fourth, but the Supreme Court has said on more than one occasion that it's allowed.

Todd 12 years, 1 month ago

The students should just organize their own dance and hold it off school grounds.

pepper_bar 12 years, 1 month ago

Good Lord, talk about good intentions run amok. What a bewilderingly stupid and invasive privacy. "WELCOME TO THE DANCE - WE DON'T TRUST YOU."

pepper_bar 12 years, 1 month ago

p.s. "bewilderingly stupid and invasive policy." not "invasive privacy." yep, i'm illiterate.

Charla Welch 12 years, 1 month ago

I agree with this. I remember my high school dances (they weren't all that long ago). Sure, they were boring, sure I disliked most of the people there, but I still managed to have a good time without alchohol. Isn't there's already a rule that alcohol isn't allowed on school grounds? And a law against being drunk in public? And another law against underage drinking? They have evidence of kids drinking underage at school dances, and they are trying to put a stop to it. And yes, it does have to be everyone. In my senior year of high school, I suffered from some bad migraines. I often wore my sunglasses all day, I had vertigo, I had trouble thinking. Many people thought I was drug or high when I was really just in a lot of pain. Of course they would have tested me for alcohol, but I never drank before school events. I would not have appreciated being singled out as a drunk.

Baille 12 years, 1 month ago

I don't necessarily disagree with the gist of your post, Badger, although your language is too loose and your assertions precise enough to be legally accurate.

However, the constitutionality of searches on school property was not the point of my post. My point is that many people can say what the Supreme Court may or may have decided, but rarely can they articulate the reason why or offer an adequate opinion on why that decision may or may not be wrong. For instance, is it really true that "students lose some constitutional protection" or rather is it simply that searches of school property under certain circumstances can be performed within the bounds of the constitution? The difference in the rationale is huge even while the outcome is the same.

Can not lockers be searched under different circumstances than the search of a person? What is the difference and why is it there? What is the relationship between reasonable suspicion, probable cause, and the constitutionality of any given search or seizure? These dinstinctions are very important and if more people took the time to understand them, it would make discussions about the Patriot Act, FISA, and even the process by which we select our local judgments much more productive.

Seems to me that many (and I am necessarily aiming at any particular responses in this thread) are playing fast and loose with their individual understanding of constitutional protections without doing much work to substantiate their understanding. For instance, Rush got the law completely wrong yesterday in one of his little rants about the FISA courts and the procedure by which information gained without probable cause can be kept from tainting the criminal prosecutions of US citizens. As a matter of fact, I have not heard one pundit - liberal or conservative - explain that issue in a way that came even close to being accurate.

Jamesaust 12 years, 1 month ago

I don't see a basis for a successful legal challenge here.

There is no right to attend a government (school) sponsored activity. Unlike school, attendance is not compulsory. The students must consent to the alcohol test as the 'price' of admission. The school has a compelling reason - safety - for its need to verify sobriety. Testing all admittees removes any taint of discrimination, hence no need for probable cause. There is no expectation of privacy at a quasi-public event.

If this involved attendance at school, that would change the calculus quite a bit. Here, this looks indistinguishable from similar cases already upheld by the U.S.S.C.

The only concern I have is: "Students suspected of drinking after they've been admitted to the dance will be subject to the same penalties as those who test positive at the door." Surely, the reporter is inaccurate and this statement should read something like - Students suspected...will be re-tested and if they fail they will be subject.....

Baille 12 years, 1 month ago

Gah! Perfect example: "What drives this out of the Fourth Amendment umbrella is that the no alcohol rule is established and publicized prior to the school year even starting. The time and the date of the alcohol testing is established and publicized prior to the dance even starting."

Nothing is driven out of the Fourth Amendment umbrella. Sure, it has been found constitutinal for police to set-up DUI checkpoints under certain circumstances. But that doesn't give them free reign. They can't search the passenger compartment of your car or your person without specific, articulable, and reasonable suspicion they are in danger (Terry), or probable cause which is required to search the rest of your car (the MV exception). Unless of course they arrest you - or impound your car and do an "inventory" search. (Bad SCOTUS decision IMO.)

Publicizing an unreasonable search does not "drive it out of the 4th Amendment" nor does it make it "reasonable." The cops just can't publicize that they believe that drugs are being sold in Lawrence and on December 13, 2005 they will be entering and searching every home in Lawrence to find evidence of the crime of selling drugs. Even if they know a crime has just been committed and they believe the criminal is in a car or home nearby, they can't just enter every home and car in hopes of finding the criminal. Not even if they publish the we-will-search-every-home-and-car-within-a-three-block-area-of-every-crime-scene rule, and everyone agrees with the rule.

Why and under what circumstances can a school search a locker? Why and under what circumstances can the school take the blood of a student-athlete or -musician while not doing the same to the non-involved students?

RonBurgandy 12 years, 1 month ago

Oh, boo hoo, my rights are being taken away. Big freaking deal. It's not like you can't go to the dances, or you are being put in jail for absolutely no reason. You are just blowing into a tube, no one is going through your locker, or your purse, or your car. Quit the crying.

avhjmlk 12 years, 1 month ago

The reason it's ok is because juveniles actually just don't have the same constitutional protection in school that they do elsewhere.

Did you know that a juvenile (in a juvenile proceeding--once you're in adult court, you get all the adult rights) doesn't have a right to a jury trial?

Juveniles have been carved out of the criminal courts into their own special court. The legislature has (and has used) the right to give different legal consideration to juveniles. The schools, in loco parentis (in the place of parents) are allowed to do searches with less suspicion than a cop. That is the constitutional situation for juveniles.

BlondeTiger 12 years, 1 month ago

maybe the students wouldn't have this problem if they didn't get/act stupid-drunk after 2 bartyl's and james.

badger 12 years, 1 month ago

For examples, how about Vernonia School District v. Wayne Acton?

From the decision:

'Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the "reasonableness" inquiry cannot disregard the schools' custodial and tutelary responsibility for children. For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases. Particularly with regard to medical examinations and procedures, therefore, "students within the school environment have a lesser expectation of privacy than members of the population generally." '

In this decision, much was made of the voluntary nature of the activities engaged in by the tested students, specifically team sports. Dances are also voluntary, and the policy is announced and clearly stated as a requirement for attendance at the dances.

I don't know enough about Constitutional law to say that yes it is or no it isn't going to stand. What I do know is that I found this particular example (which I chose because it has a particularly applicable quote to my point) in a location where there were several other examples of cases in which the Supreme Court allowed, in some fashion, that the expectation of Constitutional protection is different for students enrolled in and engaged in the activities of a public school than it is for the public at large. Consequently, my opinion continues to be that high school students are in fact not given the full protection of the Constitution that I might expect to have in my daily life.

I also, for the record, have stated here and on an earlier article that I think the policy itself is a bad idea, that testing everyone instead of students who have given reason to think they're drinking is a bad practice both expensive for the school district and insulting for the students who've done nothing wrong.

avhjmlk 12 years, 1 month ago

badger, I agree that it seems like a better idea to only test those kids who seem drunk. However, the stigma associated with getting picked out for suspicion of drunkenness, ESPECIALLY if the person they picked out ends up having not been drinking, is great enough to make testing everyone a better idea.

Baille 12 years, 1 month ago


Thank you for the more thorough explanation. You have managed to find and identify and least part of the balancing test used in analyzing searches and seizures under the 4th Amendment in school settings. Isn't it amazing how we treat the Constitution as the living document that it is when we start applying terms like "reasonable" to different situations? I wonder what the so-called "textualists" or "originalists" think about such an approach to Constitutional interpretation?

Anyway, now that we have a more solid understanding of the Constitutionality of the policy and how it comports with the principles and the values embodied in the Constitution, it is possible to consider the desirability of such a policy.

While I agree in large part with your last paragraph, it is worth considering the consequences of searching specific kids based on specific suspicion. Won't this blanket policy make the possibility of confrontation less likely? I would think if a teacher had to start pulling kids out and telling them they had to blow because they seemed intoxicated that teacher would be much more likely to trigger a violent confrontation than if every kid simply had to pass through a line and blow. After all, dances are a privilege (much like driving), they all know the rules beforehand, and frankly most kids simply don't have the biological or emotional maturity to make good decisions when placed in awkward situations. Why not remove the awkwardness as much as possible and treat everyone the same?

avhjmlk 12 years, 1 month ago

Now, Baille, I have to ask if you are forcing us to play "Guess what Baille's thnking"? Seems from your last post that you were more than familiar with the balanding test the whole time, and were just prodding badger along until he came up with it.

Maybe it's just me, but that seems a little petty and patronizing.

mom_of_three 12 years, 1 month ago

My concern with the school policy is that they are testing everyone at school dances, but "only those students who they (the school authorities) believe have been drinking at these (sporting) events." More students attend some sporting events than school dances. It doesn't seem right.
I am glad Craig Grant wasn't afraid to speak his mind. The policy may be needed, but I don't think it is set up fairly.

daisy05 12 years, 1 month ago

Gosh, you would think all these self-proclaimed lawyers would be busy billing hours to their clients rather than posting Fourth Amendment analysis on this website.

avhjmlk 12 years, 1 month ago

mom-I think their point with sporting events is that drinking at these is not the pervasive problem that it seems to be at dances. Also, sporting events don't have the party atmosphere that dances do. I don't remember ever going to a friend's to get all bundled up before a football game, but I definintely remember groups of girls coming over to our house with my sister so they could get their "costumes" in line for whatever dance they were going to. THAT'S when the drinking starts.

avhjmlk 12 years, 1 month ago

I never claimed to be a lawyer.

I'm also taking an early lunch.

badger 12 years, 1 month ago

Why not?

I've never been a fan of prophylactic punishment. I think it makes things easier on the administrators by creating the 'you're all potential criminals; we just have to catch the ones who are guilty right now' mindset, and doesn't encourage the idea that they are interested in fairly addressing student disciplinary issues based on the actual actions of the students.

What's wrong with teachers simply walking up to a student who's acting out and saying, "Hey, what you're saying or doing is inappropriate. You need to come with me," and then removing the student to a more controlled location where the student can be given the test? I'm not talking about, "Ok, Jenny, you are a good student, you can go in. Jane, you're a troublemaker, blow in this tube before we let you in the door."

I'm talking about a teacher walking over to a student who is causing problems (which they would be doing whether the student is drunk or not), and assessing during the time when he or she is talking to the student whether alcohol may be involved, and removing the student and performing the test to see if it is. If the student escalates it to a confrontation, well, that's his choice and he gets to deal with consequences of increasing severity.

If a student who didn't test positive for alcohol under the mandatory testing started a ruckus, the fact that he hadn't been drinking wouldn't prevent it from becoming a confrontation anyway. At my high school, we had a student's mother knock out an assistant principal after he said her son had 'menaced' him, and there was no booze involved.

For me, this comes back to, "Is the school district trying to provide a safe environment for the dances, or trying to stop teen drinking?" For the former, simply testing those students who are affecting the safe environment will suffice, and I'm not certain that mandatory breathalyzers are going to be at all effective in the latter case. I'm not actually certain that it's the school's job to stop teen drinking outside of the context in which it relates to the school. Educate them about the dangers, but a certain degree of responsibility for the actions and choices of students needs to stop when they are not on school property or engaged in a student event.

badger 12 years, 1 month ago

daisy05 said:

"Gosh, you would think all these self-proclaimed lawyers would be busy billing hours to their clients rather than posting Fourth Amendment analysis on this website."

Uh, also never claimed to be a lawyer. It's not necessary to be a lawyer to have opinions about the Constitution. I think everyone should have them.

My job involves a lot of waiting for the computer to finish building reports, datasets, and files. I do this while I wait for other things to happen that I can't speed up.

saramaatta 12 years, 1 month ago

As a former LHS graduate I would boycott all school dances if this policy would have been in place.

avhjmlk 12 years, 1 month ago

saramaatta--because you would have felt invaded, or because you wanted to be able to drink?

badger 12 years, 1 month ago

So, macon47, you're comfortable with everyone's rights being abridged to stop a few offenders in the name of public safety?

So, for example, you'd be fine with every automobile in the US being fitted with Breathalyzer locks like those put on the cars of people with multiple DUI convictions, and with every driver being required to take the test to start his car? It would certainly cut down on the drunken driving.

That's, well, certainly an interesting position...just interested in knowing how far that philosophy goes for ya. At what point do we decide that a group of people doesn't deserve consideration of their rights as a whole because a subset of that group might hurt someone?

I may argue that students are not subject to certain Constitutional protections according to the Supreme Court, but I certainly won't argue that people shouldn't be looking to make sure that we're not just shutting down rights wholesale in the name of a convenient means to the public good.

Baille 12 years, 1 month ago

Avhjmlk, my intent was not to be patronizing but rather to spur those who advocate for a position - especially a policy position - to do more homework on the subject. I admit surpris that Badger went beyond policy to find a legal test. I don't think such an expectation is petty either. Knowing and understanding the law and the authority and rationale behind the law is key to making cogent arguments. It is what separates the chaff from the wheat.

Badger, when I was in high school, I would have agreed with you completely. Now that I am fairly far removed from high school I think I am looking more at the practicalities of the situation. A breathalyzer line, like a metal detector, seems a fairly minimal intrusion and would circumvent some potentially violent confrontations. However, I recognized such a utilitarian approach minimizes some of the principles and values I cherish, and is subject to a valid slippery-slope argument. For myself, I would be offended to be subject to such a policy, would avoid those sorts of social activities that would subject me to such indignity, and would be decrying those who would seek to impose such draconian measures upon me. I would have no objection to the approach advocated by the lone dissenter on the BOE, but I also understand the benefits of the adopted policy.

And, Daisy? Not all lawyers bill by the hour or are paid by the hour. Some work on commission. Some work for themselves. Some are paid by the job. Some don't work much at all during finals period - although immediately before and after is very work intensive. And some are simply retired.

avhjmlk 12 years, 1 month ago

Baille, sorry if I overreacted. I've recently struggled with irritating cases of "guess what I'm thinking," so anything that seems similar gets under my skin.

And, you're right. The time right before and right after finals is quite work intensive, or can be if you care enough...

badger 12 years, 1 month ago

See, Baille, when I was in high school, I would have vehemently protested any student being given a Breathalyzer. I'd have organized my own school dance, a la 'Footloose.' I guess we all mellow a little...

I understand the utilitarian and practical considerations. I just live too much in fear of practical considerations when they relate to how rights are or are not applied to people. I think (sadly) that we are a lazy nation, and that there's a certain willingness to sacrifice what we should stand up for on the altar of 'convenient appeasement of people demanding that the government protect them from things'.

It's not easy, or convenient, or uncomplicated to be a nation based on the balance between freedom and safety, and so I ask myself these questions, and I ask other people these questions, because it's too easy to say, "Well, that Patriot Act would make it easier for law enforcement to catch terrorists, and I'm sure that the government wouldn't misuse its provisions," or "Well, I may not like the idea of repressing students' free speech, but it is in the interests of protecting them from things I'm not comfortable with them knowing about," or "It's not really censorship if I don't think it's art..." and make decisions that seem easy and straightforward but lay down landmines for later restrictions.

mom_of_three 12 years, 1 month ago

I know when I went to school, drinking at/before sporting events was as common as drinking before/after dances. It may be different now, but I don't think it is right to select one activity to test students and not the other.

neopolss 12 years, 1 month ago

I won't bother to rehash many of the arguments on here. Badger covers many points very well. The main problem I have in doing this is that it treats each student as an offender. I DO have a problem with sobriety checkpoints, and in general loath the fact that most of the time, the constitution does not bend in favor of the public, but rather in favor of the enforcer. This is not all of the time, but enough so that many activities that our government performs in the name of safety are all highly questionable.

As for the dances, the only reason I see to test everyone is to eliminate the favorites game. At least in my school, certain teachers had it in for you. I'm sure there are a few students that are on that list at LHS. My other reason - to drive up the cost of performing this service. I like seeing perfectly good school money being wasted on this instead of hundreds of other various projects.

hawkbygod 12 years, 1 month ago

Baille, This is basic, first year criminal procedure stuff. There is no slippery slope here. Drinking is illegal for anyone under 21, a breath test only displays alchohol. You have no privacy interest in illegal activity.

How long ago did you attend law school?

Richard Heckler 12 years, 1 month ago

Testing at sporting events would have to include parents as well would it not?

Hang overs are also painful and usually a waste of time. While it may not sink in we suggest no more than one or two drinks in order to avoid hang overs and humiliation(making a fool of one self).

badger 12 years, 1 month ago

So, hawkbygod?

What about the people who aren't committing an illegal act?

What does first-year law, that criminal procedure stuff, say about their privacy interests?

I think people are less concerned about the rights of the students who are drinking than they are the rights of the ones who aren't.

carlwhoishot 12 years, 1 month ago

What a bunch of god damned hypocrites. How many of the school board members would have passed a breathalyzer at every one of their school dances? People need to quit protecting their kids and let them learn some lessons on their own.

Jamesaust 12 years, 1 month ago

I believe there's too much focus on the fact that the people here are underage, or in that the drinking is illegal. Neither matters in reviewing whether the school can 'Breathalyze' the dance attendees.

If the City of Lawrence wanted to hold a Founders' Day dance, there is nothing that prevents the City from checking for intoxication, running people through metal-detectors, or even patting down their person. No one is compelled to be present, government has created the entire forum, government has a legitimate reason for its minimal intrusiveness, and people have a limited expectation of privacy in a quasi-public forum. Government acts no differently than any private party hosting the activity. (Indeed, those super-sensitive to imposition on their "rights" would most likely be the first to sue the City for negligence if the City failed to take such actions and they were harmed as a result.) Illegality and minority are not necessary to reach the conclusion that the search by Breathalyzer is allowable.

I can understand preferences for individualized suspicion but that just introduces additional problems - could the principal articulate the basis of his/her suspicion? Is there an oversampling of gender in those under suspicion? of race? One need no imagination to consider the inevitable claims of bias. Here, at a dance, breathalyzing some but not all makes no more sense than running some but not all through a metal-detector. If you find this too intrusive, then stay home! Its a free country.

Baille 12 years, 1 month ago

"Baille, This is basic, first year criminal procedure stuff. There is no slippery slope here. Drinking is illegal for anyone under 21, a breath test only displays alchohol. You have no privacy interest in illegal activity.

How long ago did you attend law school?"

Who said I did? In any case, your legal analysis is awful.

Privacy interest analysis looks to whether a search or seizure of a person based on probable cause but w/o a warrant is reasonable. From such analysis grew the exigent circumstances exceptions. If the government could search anyone, sans warrant and/or probable cause, on the basis that no one has a privacy interest in illegal activity than the requirement for a warrant and/or probable cause would never be necessary.

"As Justice Ginsberg forcefully has noted, "[i]f the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty. ...In short, these arguments demonstrate a fundamental misunderstanding of the requirement that one take "normal precautions to maintain privacy." That simply means that a defendant must outwardly behave as a typical occupant of the space in which he claims an interest, avoiding anything that might publicly undermine his expectation of privacy." US v. Vega, (citing United States v. Fields, 113 F.3d 313, 321 (2nd Cir.1997) (observing that "many Fourth Amendment issues arise precisely because the defendants were engaged in illegal activities on the premises for which they claim privacy interests").

Of course, it well may be that I am misunderstanding or not addressing your argument since your argument was limited to ad hominems.

Initially, the proposal made was that the BOE could authorize searches of students without probable cause or a warrant. Students "outwardly behaving as a typical occupant of the space in which he claims an interest" would be searched for no reason. While it may be true that students and minors as a class have a lesser expectation of privacy in circumstances that have been described, that analysis along with the "reasonableness" analysis was done in teh case cited by Badger. Tellingly the Court never once used the rule of "one has no privacy interest in illegal activity." If you disagree with the test he suggested, I suggest you find case law to refute it.

However, such analysis does not apply to my reference of a slippery slope argument. That referred to the wisdom and the use of the utilitarian rationale to justify prophylactic searches across a variety of settings and populations. Whether such searches would be constitutionally conducted or not is irrelevant to the discussion of the wisdom of the policy.

In any case, there is no reason to be such a twit about the issue. If you have a point to argue, the argue it.

hawkbygod 12 years, 1 month ago

The breathalyzer only indicates whether you are drinking or not. It is not looking in your locker, it is not making you urinate in a cup, give a blood sample, or open your hand bag. Those things are all illegal searches because they could indicate legal activity. This test is no different than passing through a metal detector.

Also, what right is this test violating for sober students. There is no "right of privacy" specifically listed in the constitution. The 4th Amend. gives us the right against unlawful searches and seizures. Even for sober students this is not an unlawful search. Therefore, no rights violation...

Baille 12 years, 1 month ago

Not it doesn't. The 4th Amendments protects us against "unreasonable searches and seizures." Illegal? What is that?C'mon this is first year Con Law.

For anyone searched without probable cause, without the presence of exigent circumstances or a carved out exception, their right to be free from an unreasonable search has been violated, and can be enforced under 42 U.S.C. 1983.

Glass houses? Rocks?

Baille 12 years, 1 month ago

See? Now I got sloppy in my hast. Corrected:

"For anyone searched without probable cause and/or a warrant, without the presence of exigent circumstances or a carved out exception, their right to be free from an unreasonable search has been violated, and can be enforced under 42 U.S.C. 1983."

avhjmlk 12 years, 1 month ago

hawkbygod--you are forgetting that a breathalyzer IS a search of your BODY because it is taking a measurement of your bodily state. In this case, though, considering the lesser constitutional protection that school kids have in participating in non-required, extracurricular activities like dances, and the relatively non-invasive method of the search, it's ok.

Metal detectors are legal in airports because the public safety concern is overwhelmingly more important than a person's privacy right in whether he has something metallic on his person. Additionally, the search is fairly non-invasive unless you are found to have metal on your person, in which case they search in progressively more invasive ways (wanding, pat-down, and making you empty your pockets, etc) to determine the source of the metal and decide if it's safe/legal or not. But, they can do that because the public safety concern of not wanting to have armed civilian passengers on a plane outweighs a person's privacy interest in a metal belt buckle.

compmd 12 years, 1 month ago

neo said, "the constitution does not bend in favor of the public, but rather in favor of the enforcer."

I disagree. The interests of the public are represented by "the enforcer." Does that then imply that the constitution sways toward the people over a criminal suspect?

Implied consent is something many people dont deal with well. For example, in many states, operating a motor vehicle while you have a valid drivers license gives implied consent to a breathalyzer. failure to comply usually results in immediate suspension of your driving privileges.

If students are upset by this policy, maybe they should go to the library and read up on the law. Ignorance of the law is not a defense for breaking it.

For parents of students who get nailed for drinking more than once, you should think about how you can help your child. Its possible that a parent isnt to blame, though, in which case the child is probably certifiably stupid.

I wonder how many students will be at commencement. :)

Baille 12 years, 1 month ago

Check the new session law for KSA 8-1001.

I disagree with the proposition that the interests of the public are represented by the Enforcer. The Founders spent a great deal of time and effort insulating the public from the excesses of the enforcer.

badger 12 years, 1 month ago

hawkygod, all I'm saying is that someone NEEDS to be thinking about Constitutional rights, right to privacy, and the possibility of an extended (and expensive) legal challenge on things like this.

When you put a policy in place like this, if you're not thinking through all the ramifications, from the possibility of a challenge based on the Fourth Amendment to the idea that as they have publicly stated they're doing this to " ensure a safe environment at the dances," they might possibly be held responsible if a student snuck in alcohol, drove home drunk, and wrecked his car, then you're being ridiculously irresponsible.

Additionally, aside from Constitutionality, I think it's a bad move to treat people who haven't done anything as if they are guilty but just haven't been caught yet. I don't think that removing that presumption of trust for all students will encourage the ones who aren't drinking to act in a manner worthy of the trust.

buffbonzai 12 years, 1 month ago

Man, I'm glad I already finished highschool back in 2000, what with the recent downgrading of education (ID) and now this. I agree with the idea that students should not be showing up drunk to school dances or any other school function, that's just plain stupidity. I did my share of drinking during my highschool years, but I knew better than to drive while intoxicated or show up plastered on school grounds. It generally took a lot of coaxing to get me to go to school dances in the first place, it would be next to impossible if I were in highschool now. What really gets me about this new policy is that the only punishment for intoxicated students is that they get banned from school dances, like that's really going to stop them from drinking and driving. If they can't show up to school dances drunk, then why would it bother them to not be able to go back. Why not suspend them for a few days, they're obviously not learning a whole lot in school if they're dumb enough to come to the school drunk. The closest thing this policy has to a real punishment is calling the parents (some of which probably don't care) and not allowing graduating Seniors to walk if they are caught intoxicated at the prom.

saramaatta 12 years, 1 month ago

Because we drank before school dances.

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