Tuesday, August 17, 2010
Sarah Jane Forman (Washington University School of Law in St. Louis) has posted Countering Criminalization: Toward a Youth Development Approach to School Searches on SSRN. Here is the abstract:
This article focuses on one aspect of school disciplinary enforcement: the search and seizure of students and their property while at school. School search and seizure policy is important because it is not an area of the law that has been frequently examined by legal scholars in the context of youth development. Youth development is becoming part of the discussion around juvenile justice reform with regard to culpability and sentencing, Eighth Amendment issues involving the constitutionality of death or life without parole sentences for juveniles, and in the Fifth Amendment context. However, little has been said about how the scientific and psychological research that is used to support these arguments could be applied to Fourth Amendment jurisprudence. This article is the first in a trilogy of projects that will explore how the school environment effects youth development and identity. Beginning with this article, I advance a theory of juvenile rights that accounts for adolescent development without eschewing autonomy and equality concerns.
Every since New Jersey v. T.L.O., the dominant narrative, particularly in inner-city schools, has been that school children are dangerous and violent, drug dealing, gang affiliated, and out of control. Teachers and fellow students need protection from these menacing ambassadors of street thuggery. Therefore, under the rubric of school safety, we strip students of the full protection afforded by the 4th Amendment while simultaneously subjecting them to a model of school discipline that utilizes law enforcement officers to enforce school rules.
The sacrifice of students’ rights in the name of public safety comes at a cost. Such policies “construct a narrow range of meaning through which young people define themselves.” Forcing students to submit to pats, frisks, sniffs, and searches that would be illegal if performed on the average adult citizen transforms them into suspects. The constant suspicion with which they are regarded pushes students into a defensive posture that hinders their ability to become active and engaged citizens of their community and nation. This alienates them from mainstream society, increasing the lure of counter-culture ideas, decreasing the legitimacy of the rule of law, and, in some instances, feeding the school-to prison pipeline.
This conditioning is particularly detrimental to high school age youth because adolescents undergo significant psychological, intellectual and emotional development. During this time, youth are being “hardwired,” shaped, and programmed into patterns of thought and behavior that impact the way they interact with the world around them and determine what kind of adults they will become. As a result, they have very fragile identities which make them particularly vulnerable to outside pressures and influences. During the teenage years, children learn as much from interactions with peers and authority figures as they do from textbooks. Therefore, the draconian disciplinary policies of America’s public schools, where children are viewed with suspicion and treated like threats, create a self-fulfilling prophecy – when students are treated as threats to society, they become threats to society.
In section one, I examine and critique the current paradigm of school search jurisprudence. I discuss how the Court’s analysis largely ignores age as a factor in determining the reasonableness of a search. I also address the increased use of police officers to enforce school discipline. Drawing on neuroscience and developmental psychology, in section two I discuss the developmental needs of youth, particularly in light of recent Supreme Court cases involving the rights of juveniles. The Court’s endorsement of recent research in the area of adolescent brain development has important implications for school search jurisprudence particularly because reasonableness is an evolving standard. I also examine positive youth development, an approach that focuses on strengthening youth by encouraging healthy development.
Section three focuses on the developmental implications of search and seizure practices in America’s public high schools and seeks a way to strike a developmentally appropriate balance between safety and privacy in the context of school searches. To encourage positive development, adolescents’ burgeoning sense of autonomy must be nurtured and supported rather than diminished and disregarded. I call this a ‘positive youth development approach’ to school searches. Evolving standards of reasonableness, like evolving standards of decency, should account for the realities of adolescent brain development and the particular vulnerabilities of youth. Furthermore, utilitarian concerns militate in favor of a unitary standard that applies to both school officials and police officers.
In conclusion, I suggest doctrinal and policy changes that counter the trend of increasing youth criminalization by encouraging positive youth development. I argue that, if implemented correctly, probable cause is more a developmentally appropriate standard. Therefore, it should be the unitary standard in school searches.