Monday, July 8, 2013

Josh Gupta-Kagan on the Special Needs Doctrine: School Law Meets the FISA Court

My new collague, Josh Gupta-Kagan, shared an interesting post with me yesterday on the intersection of school law and the recent debate over electronic communication monitoring.  Some of you might remember Josh's article, Reappraising TLO’s “Special Needs” Doctrine in an Era of School-Law Enforcement Entanglement, 33 J.L. & Educ. 291 (2004).  Since then, he has continued to write in and around the area.  He is now starting a juvenile justice clinic at the University of South Carolina. 

Here is his post:

School Law Meets the FISA Court

The NY Times reports that the Foreign Intelligence Surveillance Act Court has approved monitoring electronic communication without warrants or probable cause because they are “special needs” searches.  The special needs doctrine arises from a school search case – New Jersey v. T.L.O. – in which Justice Blackmun wrote that in school disciplinary contexts, “special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.”  (The Times mistakenly attributed the special needs doctrine to a later employment case which relied on T.L.O.)  The FISA Court’s justification significantly stretches the special needs doctrine (as the Times’ quoted expert said) – with education consequences as well.

T.L.O. approved an assistant principal’s search of a student caught violating a school rule; such searches had to be quickly and flexibly done to achieve school discipline ends.  So long as the school officials don’t do anything extreme – like, say, strip search a teenager suspected of having prescription strength ibuprofen – they have great leeway in searching students.  But this leeway depended on the assistant principal having school disciplinary and not law enforcement purposes.  Many academics (myself included) have argued that the doctrine has been applied even when law enforcement purposes are paramount.  And using NSA searches to identify, prevent, and prosecute terrorist conspiracies, a law enforcement purpose is plain.  (That doesn’t mean NSA searches were necessarily unconstitutional – only that the FISA Court needs some other 4th Amendment doctrine to justify them.)

In the education space, the special needs doctrine has been applied too simplistically to justify a range of searches without considering their purposes, only because they occur in schools.  T.L.O. should apply only when the search serves school disciplinary purposes and does not threaten law enforcement consequences or other invasions of fundamental constitutional rights.  However, in Camreta v. Greene (which reached the Supreme Court in 2011), state officials argued that a sheriff’s deputy and CPS investigator could seize a child at school as part of their effort to enforce both criminal and civil child abuse laws – with no connection to school disciplinary goals – simply because the seizure occurred at school.

More generally, the special needs doctrine has been read to give schools a free pass on searching students – permitting police officers to search children, and turning over the fruits of school searches to law enforcement for juvenile prosecution.  What originated as a means of enforcing school discipline has expanded into a tool to build the school-to-prison pipeline.

Education law – and apparently national security law too – would be well served by a deeper analysis about when the special needs doctrine ought to apply.

    --Josh Gupta-Kagan

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