Part 5

The more intrusive the search, the greater the justification that will be required by the courts. A search of a student's jacket or bookbag can often be justified as reasonable. At the other end of the spectrum, strip searches are considered a highly intrusive invasion of an individual's privacy and are viewed with disfavor by the courts (although even these searches have been upheld in certain extraordinary circumstances).

School officials do not necessarily have to stop a search if they find what they are looking for. If the search of a student reveals items that create reasonable grounds for suspecting that he may also possess other evidence of crime or misconduct, the school officials may continue the search. For example, if a teacher justifiably searches a student's purse for cigarettes and finds rolling papers like those used for marijuana cigarettes, it will then be reasonable for the teacher to search the rest of the purse for other evidence of drugs.

_Consent_

If a student consents to a search, the search is permissible, regardless of whether there would otherwise be reasonable grounds for the search. To render such a search valid, however, the student must give consent knowingly and voluntarily.

Establishing whether the student's consent was voluntary can be difficult, and the burden is on the school officials to prove voluntary consent. If a student agrees to be searched out of fear or as a result of other coercion, that consent will probably be found invalid. Similarly, if school officials indicate that a student must agree to a search or if the student is very young or otherwise unaware that he has the right to object, his consent will also be held invalid. School officials may find it helpful to explain to students that they need not consent to a search. In some cases, standard consent forms may be useful.

If a student is asked to consent to a search and refuses, that refusal does not mean that the search may not be conducted. Rather, in the absence of consent, school officials retain the authority to conduct a search when there are reasonable grounds to justify it, as described previously.

_Special Types of Student Searches_

Schools with severe drug problems may occasionally wish to resort to more intrusive searches, such as the use of trained dogs or urinalysis to screen students for drug use. The Supreme Court has yet to address these issues. The following paragraphs explain the existing rulings on these subjects by other courts:

. _Specially trained dogs._ The few courts that have considered this issue disagree as to whether the use of a specially trained dog to detect drugs on students constitutes a search within the meaning of the Fourth Amendment. Some courts have held that a dog's sniffing of a student is a search, and that, in the school setting, individualized grounds for reasonable suspicion are required in order for such a "sniff-search" to be held constitutional.[13] Under this standard, a blanket search of a school's entire student population by specially trained dogs would be prohibited.

At least one other court has held that the use of trained dogs does not constitute a search, and has permitted the use of such dogs without individualized grounds for suspicion.[14] Another factor that courts may consider is the way that the dogs detect the presence of drugs. In some instances, the dogs are merely led down hallways or classroom aisles. In contrast, having the dogs actually touch parts of the students' bodies is more intrusive and would likely require specific justification.

Courts have generally held that the use of specially trained dogs to detect drugs on objects, as opposed to persons, is not a search within the meaning of the Fourth Amendment. Therefore, school officials may often be able to use dogs to inspect student lockers and school property.[15]

. _Drug testing._ The use of urinalysis or other tests to screen students for drugs is a relatively new phenomenon and the law in this area is still evolving. The few courts that have considered this issue so far have not upheld urinalysis to screen public school students for drugs.[16] The permissibility of drug testing of students has not yet been determined under all circumstances, although drug testing of adults has been upheld in the criminal law setting.

SUSPENSION AND EXPULSION

A school policy may lawfully provide for penalties of varying severity, including suspension and expulsion, to respond to drug-related offenses. The Supreme Court has recently held that because schools "need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process," a school's disciplinary rules need not be as detailed as a criminal code.[17] Nonetheless, it is helpful for school policies to be explicit about the types of offenses that will be punished and about the penalties that may be imposed for each of these (e.g., use, possession, or sale of drugs). State and local law will usually determine the range of sanctions that is permissible. In general, courts will require only that the penalty imposed for drug-related misconduct be rationally related to the severity of the offense.

School officials should not forget that they have jurisdiction to impose punishment for some drug-related offenses that occur off campus. Depending upon State and local laws, schools are often able to punish conduct at off-campus, school-sponsored events as well as off-campus conduct that has a direct and immediate effect on school activities.

_Procedural Guidelines_

Students facing suspension or expulsion from school are entitled under the U.S. Constitution and most State constitutions to common sense due process protections of notice and an opportunity to be heard. Because the Supreme Court has recognized that a school's ability to maintain order would be impeded if formal procedures were required every time school authorities sought to discipline a student, the Court has held that the nature and formality of the "hearing" will depend on the severity of the sanction being imposed.

A formal hearing is not required when a school seeks to suspend a student for 10 days or less.[18] The Supreme Court has held that due process in that situation requires only that:

. The school must inform the student, either orally or in writing, of the charges against him and of the evidence to support those charges.

. The school must give the student an opportunity to deny the charges and present his side of the story.

. As a general rule, this notice and rudimentary hearing should precede a suspension. However, a student 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. In such a situation, the notice and rudimentary hearing should follow as soon as possible.

The Supreme Court has also stated that more formal procedures may be required for suspensions longer than 10 days and for expulsions. Although the Court has not established specific procedures to be followed in those situations, other Federal courts[19] have set the following guidelines for expulsions. These guidelines would apply to suspensions longer than 10 days as well:

. The student must be notified in writing of the specific charges against him which, if proven, would justify expulsion.

. The student should be given the names of the witnesses against him and an oral or written report on the facts to which each witness will testify.

. The student should be given the opportunity to present his own defense against the charges and to produce witnesses or testimony on his behalf.

Many States have laws governing the procedures required for suspensions and expulsions. Because applicable statutes and judicial rulings vary across the country, local school districts may enjoy a greater or lesser degree of flexibility in establishing procedures for suspensions and expulsions.

School officials must also be aware of the special procedures that apply to suspension or expulsion of handicapped students under Federal law and regulations.[20]

_Effect of Criminal Proceedings Against a Student_

A school may usually pursue disciplinary action against a student regardless of the status of any outside criminal prosecution. That is, Federal law does not require the school to await the outcome of the criminal prosecution before initiating proceedings to suspend or expel a student or to impose whatever other penalty is appropriate for the violation of the school's rules. In addition, a school is generally free under Federal law to discipline a student when there is evidence that the student has violated a school rule, even if a juvenile court has acquitted (or convicted) the student or if local authorities have declined to prosecute criminal charges stemming from the same incident. Schools may wish to discuss this subject with counsel.

_Effect of Expulsion_

State and local law will determine the effect of expelling a student from school. Some State laws require the provision of alternative schooling for students below a certain age. In other areas, expulsion may mean the removal from public schools for the balance of the school year or even the permanent denial of access to the public school system.

CONFIDENTIALITY OF EDUCATION RECORDS

To rid their schools of drugs, school officials will periodically need to report drug-related crimes to police and to assist local law enforcement authorities in detecting and prosecuting drug offenders. In doing so, schools will need to take steps to ensure compliance with Federal and State laws governing confidentiality of student records.

The Federal law that addresses this issue is the Family Educational Rights and Privacy Act (FERPA),[21] which applies to any school that receives Federal funding and which limits the disclosure of certain information about students that is contained in education records.[22] Under FERPA, disclosure of information in education records to individuals or entities other than parents, students, and school officials is only permissible in specified situations.[23] In many cases, unless the parents or an eligible student[24] provides written consent, FERPA will limit a school's ability to turn over education records or to disclose information from them to the police. Such disclosure is permitted, however, if (1) it is required by a court order or subpoena, or (2) it is warranted by a health or safety emergency. In the first of these two cases, reasonable efforts must be made to notify the student's parents before the disclosure is made. FERPA also permits disclosure if a State law enacted before November 19, 1974, specifically requires disclosure to State and local officials.

Schools should be aware, however, that because FERPA only governs information in education records, it does not limit disclosure of other information. Thus, school employees are free to disclose any information of which they become aware through personal observation. For example, a teacher who witnesses a drug transaction may, when the police arrive, report what he witnessed. Similarly, evidence seized from a student during a search is not an education record and may be turned over to the police without constraint.

State laws and school policies may impose additional, and sometimes more restrictive, requirements regarding the disclosure of information about students. Since this area of the law is complicated, it is especially important that an attorney be involved in formulating school policy under FERPA and applicable State laws.

OTHER LEGAL ISSUES

_Lawsuits Against Schools or School Officials_

Disagreements between parents or students and school officials about disciplinary measures usually can be resolved informally. Occasionally, however, a school's decisions and activities relating to disciplinary matters are the subject of lawsuits by parents or students against administrators, teachers, and school systems. For these reasons, it is advisable that school districts obtain adequate insurance coverage for themselves and for _all_ school personnel for liability arising from disciplinary actions.

Suits may be brought in Federal or State court; typically, they are based on a claim that a student's constitutional or statutory rights have been violated. Frequently, these suits will seek to revoke the school district's imposition of some disciplinary measure, for example, by ordering the reinstatement of a student who has been expelled or suspended. Suits may also attempt to recover money damages from the school district or the employee involved, or both, however, court awards of money damages are extremely rare. Moreover, although there can be no guarantee of a given result in any particular case, courts in recent years have tended to discourage such litigation.

In general, disciplinary measures imposed reasonably and in accordance with established legal requirements will be upheld by the courts. As a rule, Federal judges will not substitute their interpretations of school rules or regulations for those of local school authorities or otherwise second-guess reasonable decisions by school officials.[25] In addition, school officials are entitled to a qualified good faith immunity from personal liability for damages for having violated a student's Federal constitutional or civil rights.[26] When this immunity applies, it shields school officials from any personal liability for money damages. Thus, as a general matter, personal liability is very rare, because officials should not be held personally liable unless their actions are clearly unlawful, unreasonable, or arbitrary.

When a court does award damages, the award may be "compensatory" or "punitive." Compensatory damages are awarded to compensate the student for injuries actually suffered as a result of the violation of his or her rights and cannot be based upon the abstract "value" or "importance" of the constitutional rights in question.[27] The burden is on the student to prove that he suffered actual injury as a result of the deprivation. Thus, a student who is suspended, but not under the required procedures, will not be entitled to compensation if he would have been suspended had a proper hearing been held. If the student cannot prove that the failure to hold a hearing itself caused him some compensable harm, then the student is entitled to no more than nominal damages, such as $1.00.[28] "Punitive damages" are awarded to punish the perpetrator of the injury. Normally, punitive damages are awarded only when the conduct in question is malicious, unusually reckless, or otherwise reprehensible.

Parents and students can also claim that actions by a school or school officials have violated State law. For example, it can be asserted that a teacher "assaulted" a student in violation of a State criminal law. The procedures and standards in actions involving such violations are determined by each State. Some States provide a qualified immunity from tort liability under standards similar to the "good faith" immunity in Federal civil rights actions. Other States provide absolute immunity under their law for actions taken in the course of a school official's duties.

_Nondiscrimination in Enforcement of Discipline_

Federal law applicable to programs or activities receiving Federal financial assistance prohibits school officials who are administering discipline from discriminating against students on the basis of race, color, national origin, or sex. Schools should therefore administer their discipline policies even-handedly, without regard to such considerations. Thus, as a general matter, students with similar disciplinary records who violate the same rule in the same way should be treated similarly. For example, if male and female students with no prior record of misbehavior are caught together smoking marijuana, it would not, in the absence of other relevant factors, be advisable for the school to suspend the male for 10 days while imposing only an afternoon detention on the female. Such divergent penalties for the same offense may be appropriate, however, if, for example, the student who received the harsher punishment had a history of misconduct or committed other infractions after this first confrontation with school authorities.

School officials should also be aware of and adhere to the special rules and procedures for the disciplining of handicapped students under the Education of the Handicapped Act, 20 USC Sec. 1400-20, and Section 504 of the Rehabilitation Act of 1973, 29 USC Sec. 794.

(For legal citations, see reference section.)

_RESOURCES_

_Specific Drugs and Their Effects_

CANNABIS

Effects

All forms of cannabis have negative physical and mental effects. Several regularly observed physical effects of cannabis are a substantial increase in the heart rate, bloodshot eyes, a dry mouth and throat, and increased appetite.

Use of cannabis may impair or reduce short-term memory and comprehension, alter sense of time, and reduce ability to perform tasks requiring concentration and coordination, such as driving a car. Research also shows that students do not retain knowledge when they are "high." Motivation and cognition may be altered, making the acquisition of new information difficult. Marijuana can also produce paranoia and psychosis.

Because users often inhale the unfiltered smoke deeply and then hold it in their lungs as long as possible, marijuana is damaging to the lungs and pulmonary system. Marijuana smoke contains more cancer-causing agents than tobacco.

Long-term users of cannabis may develop psychological dependence and require more of the drug to get the same effect. The drug can become the center of their lives.

Type What is What does it How is it called? look like? it used? ------------------------------------------------------------------- Marijuana Pot Dried parsley mixed Eaten Grass with stems that Smoked Weed may include seeds Reefer Dope Mary Jane Sinsemilla Acapulco Gold Thai Sticks ------------------------------------------------------------------- Tetrahydro- THC Soft gelatin capsules Taken orally cannabinol Smoked ------------------------------------------------------------------- Hashish Hash Brown or black Eaten cakes or balls Smoked ------------------------------------------------------------------- Hashish Oil Hash Oil Concentrated Smoked--mixed syrupy liquid with tobacco varying in color from clear to black -------------------------------------------------------------------

INHALANTS

Effects

Immediate negative effects of inhalants include nausea, sneezing, coughing, nose-bleeds, fatigue, lack of coordination, and loss of appetite. Solvents and aerosol sprays also decrease the heart and respiratory rates, and impair judgment. Amyl and butyl nitrite cause rapid pulse, headaches, and involuntary passing of urine and feces. Long-term use may result in hepatitis or brain hemorrhage.

Deeply inhaling the vapors, or using large amounts over a short period of time, may result in disorientation, violent behavior, unconsciousness, or death. High concentrations of inhalants can cause suffocation by displacing the oxygen in the lungs or by depressing the central nervous system to the point that breathing stops.

Long-term use can cause weight loss, fatigue, electrolyte imbalance, and muscle fatigue. Repeated sniffing of concentrated vapors over time can permanently damage the nervous system.

Type What is What does it How is it called? look like? it used? ------------------------------------------------------------------- Nitrous Laughing gas Propellant for Vapors inhaled Oxide Whippets whipped cream in aerosol spray can Small 8-gram metal cylinder sold with a balloon or pipe (buzz bomb) ------------------------------------------------------------------- Amyl Poppers Clear yellowish Vapors inhaled Nitrite Snappers liquid in ampules ------------------------------------------------------------------- Butyl Rush Packaged in small Vapors inhaled Nitrite Bolt bottles Locker room Bullet Climax ------------------------------------------------------------------- Chlorohydro- Aerosol Aerosol paint cans Vapors inhaled carbons sprays Containers of cleaning fluid ------------------------------------------------------------------- Hydrocarbons Solvents Cans of aerosol Vapors inhaled propellants, gasoline, glue, paint thinner -------------------------------------------------------------------

STIMULANT: COCAINE

Effects

Cocaine stimulates the central nervous system. Its immediate effects include dilated pupils and elevated blood pressure, heart rate, respiratory rate, and body temperature. Occasional use can cause a stuffy or runny nose, while chronic use can ulcerate the mucous membrane of the nose. Injecting cocaine with unsterile equipment can cause AIDS, hepatitis, and other diseases. Preparation of freebase, which involves the use of volatile solvents, can result in death or injury from fire or explosion. Cocaine can produce psychological and physical dependency, a feeling that the user cannot function without the drug. In addition, tolerance develops rapidly.

Crack or freebase rock is extremely addictive, and its effects are felt within 10 seconds. The physical effects include dilated pupils, increased pulse rate, elevated blood pressure, insomnia, loss of appetite, tactile hallucinations, paranoia, and seizures.

The use of cocaine can cause death by disrupting the brain's control of the heart and respiration.