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Excerpted From: Jason P. Nance, Implicit Racial Bias and Students' Fourth Amendment Rights, 94 Indiana Law Journal 47 (Winter, 2019) (442 Footnotes) (Full Document)


Deadly acts of school violence such as those that occurred in Columbine, Newtown, and, most recently, in Parkland and Santa Fe cause strong feelings of outrage, fear, sadness, perplexity, and helplessness. In response to these tragedies, and for other reasons, many schools have attempted to create a more orderly and safe environment by intensifying the manner in which they monitor and control students. It is not uncommon for school authorities to require students to regularly pass through metal detectors, have fully uniformed police officers run metal-detector wands around students' frames, install surveillance cameras, rely on drug-sniffing dogs, require students to wear identification badges, control access to school campuses by locking or monitoring gates, conduct random searches of students' personal belongings, lockers, and persons, and have police officers patrol school hallways and grounds. School officials should ensure that students are monitored to some degree to promote a safe learning environment. However, not only is there very little empirical evidence that these measures actually make schools safer, there comes a point when monitoring and controlling students no longer fosters a positive learning climate but instead significantly impairs it. This is particularly true when school officials rely on a combination of these coercive measures to monitor students, which can result in the creation of a prisonlike environment for students.

For example, a large school district in Los Angeles has a search policy mandating that teachers and school staff members at each of its 900 schools conduct suspicionless searches of their students at various points of the day, including during class time. A student described his experience with this policy in the following manner. He said that while he and his classmates were taking notes in his middle school English class, police officers interrupted the class and announced that they were conducting a random search for drugs. The police officers looked around the classroom and said that they wanted to search the "three black kids back there." The officers pulled these students out into the hallway, forced them to spread their arms out, and began conducting the searches. A police officer asked one student to open up his backpack. As the student began to comply, the police officer grabbed the backpack out of his hands and dumped its contents onto the ground. A police officer told another student to take off his shirt and his shoes. At first this student simply lifted his shirt up because he was uncomfortable with the police officer's demands. But then the police officer forcibly pulled up this student's shirt and conducted his search. When asked how this ordeal made him feel, the student who was interviewed replied, "[I]t made me not care about school .... I didn't want to feel or be the person they try to make me be, and that's a criminal .... We are students, not suspects."

Another student, Elizabeth Perea, a high school junior, described her experience this way. In the middle of class, a school official entered the classroom to randomly select students to be searched in front of all the other students. Elizabeth continued:

We were told to face the blackboard. [The school official] told us to lift up our arms and open our legs. She patted down our pockets, ankles, and pant legs. She told us to untuck our shirts and to turn around. Nobody found anything on any of the students. Nobody explained why they were searching us. Instead, we each received a note afterwards explaining that we had been searched.

According to Elizabeth, these searches humiliate and embarrass the students. "It is absurd. We try to stay away from violence and gangs, and either way we are treated like gangbangers. They should not search us during our education time. Plus, girls have private things in our bags ... and that shouldn't be shown for everyone to see." Even worse, according to the American Civil Liberties Union, these policies are not applied uniformly. Rather, the ACLU's review of the school district's search logs shows that schools with higher concentrations of low-income students or students of color implement the search policy much more frequently than schools with lower concentrations of low-income students or students of color.

Minerva Dickson, a student attending high school in New York City, lamented that the first time she saw her high school, it reminded her of a prison. Each day when she arrived at school, she waited in a long line to slide her identification card through a machine. Then she would head to the metal detectors, where she would find several police officers with handcuffs dangling from their belts waiting for her. While the police officers were watching, Minerva would remove her shoes, hairpins, and jewelry; put her backpack and purse on the conveyer belt to be scanned; and wait for a police officer to signal her to come forward. Another police officer then would run a metal detector scanner around her tiny frame as she stood with her arms and legs spread out. When the police officer finished, she would hurriedly gather her belongings, put her shoes back on, and rush to her first class. When asked about how these experiences made her feel, she replied, "They treat[] us like criminals. It ma[kes] me hate school. When you cage up students like that it doesn't make us safe, it makes things worse."

Edward Ward, who attended high school in the west side of Chicago, also described his school experience as prisonlike. Ninety percent of the students attending Edward's school were low-income students, and all of the students were students of color. Edward recalled:

From the moment we stepped through the doors in the morning, we were faced with metal detectors, x-ray machines and uniformed security. Upon entering the school, it was like we stepped into a prison .... [T]he halls were full with school security officers whose only purpose seemed to be to serve students with detentions or suspensions.

Edward observed that attending school in this tense surveillance environment that focused primarily on confinement and control had a profound negative effect on him and his classmates. He stated that he "could slowly see the determination to get an education fade from the faces of [his] peers because they were convinced that they no longer mattered."

Overreliance on extreme surveillance measures can harm students' interests in at least two ways. First, coercive security measures contribute to the formation of dysfunctional learning environments that lead to poor student outcomes. Substantial research indicates that coercive security measures often engender distrust, discord, and disunity among members of the school community, which often leads to higher levels of dissatisfaction, disorder, and dysfunction in the long term. Second, the use of extreme surveillance measures often leads to higher levels of student exclusion and student involvement with the criminal justice system. When schools rely on intense surveillance tactics in connection with other extreme disciplinary measures, such as zero tolerance policies, to control school environments, schools end up pushing more students out of school and into the criminal justice system, which has devastating consequences on students, their families, and our nation.

Intense surveillance climates can exist in all types of schools, but this normally is not the case. Critically, substantial empirical evidence demonstrates that schools serving higher concentrations of students of color are more likely to rely on coercive surveillance measures than schools serving primarily white students. Furthermore, these racial disparities remain even after accounting for other factors that might explain why some school officials choose to rely on intense surveillance measures and others do not, including the level of crime that occurs on school grounds, the amount of student misbehavior and school disorder, and the level of crime that exists in the neighborhood in which the school resides.

These empirical findings suggest that legitimate safety concerns do not fully explain the disparate use of intense surveillance measures among students of color, but that implicit racial bias influences school officials' decisions to some degree. Empirical studies repeatedly confirm that many individuals unconsciously and unfairly associate minorities, particularly African Americans, with violence, crime, aggression, and danger. In fact, the science of implicit racial bias provides a compelling explanation for how some school officials can seemingly act in good faith and without a conscious intent to racially discriminate, yet unknowingly create and perpetuate racial inequalities by making decisions that harm students of color based on unconscious stereotypes and attitudes.

Educators and policymakers themselves can and should lead the reform movement to address the unequal application of coercive security measures on students of color. Indeed, there are much more effective methods to create safe, orderly learning environments than relying on oppressive surveillance measures. The judiciary also has a critical role to play, especially when school officials are unaware of, apathetic towards, or even resistant to the need for change.

This Article goes beyond the current literature by proposing a new legal framework for evaluating intense surveillance methods in schools. Importantly, this framework seeks to ameliorate the pernicious effects of implicit racial bias in school officials' decision-making where the majority of students they serve are students of color. This proposed test does not rely on the Fourteenth Amendment's Equal Protection Clause, which requires independent evidence, other than disproportionate impact, that government officials acted with a discriminatory racial intent when making a decision. Instead, this framework centers on the U.S. Supreme Court's current jurisprudence evaluating students' Fourth Amendment rights.

It is important to emphasize that this reformulated framework does not require a complete overhaul of current Fourth Amendment case law. Rather, this framework is firmly grounded within the U.S. Supreme Court's Fourth Amendment jurisprudence. It is only a matter of expanding lower courts' understanding of the current factors that the U.S. Supreme Court has established to evaluate students' Fourth Amendment rights in light of current realities that many students face. Said another way, this framework requires only a modest recalibration, but one necessary to correct for the illegitimate role that implicit racial bias can play in school officials' decisions to adopt harsh surveillance measures. And while lawmakers, courts, educators, community members, parents, and the students themselves must do much more to create equitable and inclusive school environments for students of all races, ethnicities, and backgrounds, this proposed framework will help move our nation closer to achieving this important goal.

This Article proceeds in five parts. Part I discusses the science of implicit racial bias and how this cognitive bias can influence school officials' decisions to adopt extreme surveillance measures based on the concentration of minority students at school.

Part II presents the results of several empirical analyses revealing the disparate use of coercive security measures along racial lines, even after accounting for other factors that might explain these disparities, such as neighborhood crime, school crime, and overall levels of disorder within the school, suggesting that implicit racial bias influences school officials' decisions to employ intense surveillance measures to some degree.

Part III discusses the social and pedagogical harms that result from the overreliance of coercive surveillance measures in schools. It also discusses the particular harms associated with the disproportionate use of these measures on students of color.

Part IV discusses the development of Fourth Amendment law that courts currently employ to evaluate surveillance measures in schools. It demonstrates that the current Fourth Amendment jurisprudence provides school officials with almost unbounded discretion to employ a variety of intense security measures, even when schools do not face legitimate safety concerns, and thereby establishes prime conditions for implicit racial bias to unduly influence school officials' decision-making.

Part V proposes a reformulated framework to evaluate the constitutionality of suspicionless searches of students that is rooted in the U.S. Supreme Court's current Fourth Amendment jurisprudence. Applying this new framework will help counteract the ill effects of implicit racial bias, ameliorate the disproportionate application of intense surveillance measures on students of color, and foster more equitable and inclusive school environments for all students.

[. . .]

The proposed recalibration of the current legal framework for evaluating suspicionless search practices in schools is an important step forward to creating more equitable and inclusive academic environments for all of our nation's youth. It would help ameliorate the pernicious effects of implicit racial bias, address the unequal use of intense surveillance measures on students of color, and motivate school officials to rely on alternative, evidence-based measures that more effectively foster safe environments without harming the learning climate. The reformulated test also is more consistent with the broader purposes of Fourth Amendment doctrine and good educational policy and practice.

Over one hundred years ago, the wise philosopher and reformer John Dewey astutely observed that "[w]hat the best and wisest parent wants for his own child, that must the community want for all of its children. Any other ideal for our schools is narrow and unlovely; acted upon it destroys our democracy." In some of our nation's schools, including schools serving children living in challenging environments, students view their experiences to be too important to risk suspension and expulsion and too precious to be spoiled by crime and violence. These schools have an ethos of belonging and trust. Children desire to attend these schools because they feel part of a special community--a community that cares for one another and desires the best for one another. These are the types of schools that make real differences in children's lives and prepare them to be happy and productive. We owe it to our nation's children to strive to create these types of learning environments for all students. They deserve nothing less.

Professor of Law and University Term Professor, University of Florida Levin College of Law. J.D., University of Pennsylvania Law School; Ph.D., M.A., Educational Administration, The Ohio State University.