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Article Excerpt
I. INTRODUCTION
In March of 2005, a young girl threw a temper tantrum in kindergarten. (1) Temper tantrums are hardly unusual for a kindergartner. (2) Nonetheless, the school principal decided to call the police. (3) The police chief cancelled the call, as he thought it was inappropriate for police to be involved. (4) However, a local police officer, Officer Wilson, had recently visited the school and left his business card, so the principal called him directly when the police refused to come. (5) Officer Wilson came to the school and may have threatened to handcuff the girl if she did not comply with the teacher's requests. (6)
A week later, this precocious young girl had yet another tantrum, only this particular tantrum was extreme. (7) She threw desk items, tore paper off the wall, and even hit the assistant principal. (8) Once again, the school decided to call the police. (9) This time, Officer Wilson heard the call over the police radio. (10) Given his prior involvement with the girl and the school, he decided to go directly to the school. (11) The police supervisor did not cancel the call this time, but was unaware of Officer Wilson's decision to go to the school, and thus sent another car--resulting in a total of four police officers, as Officer Wilson was riding with an officer in training arriving to tackle this tough kindergartner. (12) When the officers entered the classroom, the girl was sitting quietly in her chair. (13) Despite her calm, the officers cuffed her and took her to the squad car. (14) There she remained shackled for three hours. (15) Her first introduction to the criminal justice system, at age five, is an experience sure to stick with her for a long time, and is emblematic of the school-to-prison pipeline.
In recent years, this pipeline has begun to garner more attention. It has had a disproportionate impact on poor and minority communities and has dramatically increased the number of juveniles that pass through the criminal justice system. (16) Ironically, this increase has occurred at the same time that overall and juvenile crime rates have declined. (17) A critical component of the pipeline is the role of police officers in the public schools. Thus, this Comment will examine the legal status of School Resource Officers (SROs) and other police officers who operate in schools. Part II will give an outline of the history behind zero-tolerance school discipline policies, the current prevalence of these policies, and of the use of SROs to enforce such policies. Part III will examine the Fourth and Fifth Amendment implications of these policies. Part IV will examine the legal status of police officers in current case law. Part V will recommend that uniform standards apply to police officers who operate in schools, whether those officers are SROs or not, with a legal and policy analysis to support this conclusion.
II. BACKGROUND OF THE SCHOOL-TO-PRISON PIPELINE
The school-to-prison pipeline has developed as a result of several educational and social factors. First, zero-tolerance discipline policies rose to prominence in the early 1990s, due to the perception that crime in schools was an increasingly large problem. (18) Contrary to the perception however, crime was actually decreasing. (19) Schools began implementing many other policies as well, including the increased reliance on police presence within schools. (20) This Part will analyze these factors and some of the practical ramifications of the increasing severity of punishment for relatively harmless violations. One important factor to consider when examining these various techniques is that of all the many disciplinary programs tried in the past fifteen years, the only one with serious research to support its effectiveness is the use of school uniforms. (21)
A. A HISTORY OF ZERO-TOLERANCE POLICIES
From 1975 to 1989, violent crime increased 80% nationwide; (22) that increase had a severe impact on schools. In 1989, as schools began to take notice of this crisis, school districts in California, New York, and Kentucky adopted the first zero-tolerance school disciplinary policies, mandating expulsion for fighting, drugs, and gang-related activity. (230 By 1993, zero-tolerance policies had been implemented across the country. (24) In 1994, President Clinton signed the Gun-Free Schools Act into law, which mandated expulsion for gun offenses. (25) Schools were required to abide by this policy in order to receive federal funding. (26) Subsequent amendments to the bill have expanded it to include other weapons. (27) Additional amendments have attempted to bring special education legislation in line with this policy. (28)
Zero-tolerance policies have continued to expand at the local level to apply to a variety of different behaviors, including smoking, drinking, fighting, threats, and even swearing. (29) By 1997, 94% of all schools had zero-tolerance policies for possession of firearms or other weapons, 87% for alcohol possession, and 79% for tobacco possession and on-campus violence. (30) As a result, rates for serious disciplinary consequences have risen. In 2004, for example, over three million students were suspended at some point during the school year, with rates of suspension as high as 11.9% for all students and 15.3% amongst boys. (31) This rate is nearly twice the annual number of suspensions that occurred in the 1970s. (32) Additionally, over 106,000 expulsions occurred in 2004. (33) Of course, certain cities and communities experience even higher suspension and expulsion rates, for example, inner city schools in larger urban areas. (34) Minority communities in particular have been disproportionally affected by aggressive school disciplinary measures. (35)
Zero-tolerance programs started as a response to two primary issues confronting schools, drugs and violence. Though the problems were and are real, the response has not been in proportion to the reality, nor has it been particularly effective. (36) Zero-tolerance programs began to proliferate after crime in schools began to decrease. (37) These policies have removed much discretion from teachers and administrators in the application of disciplinary procedures, producing several high-profile cases that have resulted in ridiculous punishment. Though only one of the stories below resulted in criminal sanction, they are all mentioned because, collectively, they highlight the three major concerns currently facing schools: (1) weapons, (2) drugs and alcohol, and (3) violence. (38)
In 1998, in Longmont, Colorado, a ten-year-old girl opened her lunch to find that her mother had left a steak knife in her lunchbox. (39) This girl knew that weapons were not allowed in school and did not want to get into trouble. (40) She immediately told one of her teachers about the knife and turned it in. (41) She did not intentionally bring the knife, she had no knowledge of it until lunch, she had no prior record, she immediately turned the knife over to school authorities upon discovery, and she was only ten years old; nonetheless, the school expelled her. (42)
In another case the same year, a second-grade student in Denver, Colorado was given chewable vitamin C by his mother on the way to school. (43) Without her knowledge, he pocketed an extra pill. (44) A friend at school began harassing him to give her the vitamin, and he did. (45) The school suspended him for his transgression. (46) Using discretion, the principal decided not to expel him, but the fact that expulsion was even an option for such an offense only highlights the extreme punishments available for relatively minor offenses. (47)
Though these Colorado cases seem extreme, one incident in Florida was particularly disturbing. In the spring of 2007, a six-year-old girl in Avon Park, Florida named Desre'e Watson threw a tantrum in school. (48)
She was violent and defiant. (49) The teachers removed her to another room, but she continued her behavior. (50) The administrators then called the police; (51) the police cuffed and arrested Desre'e, booked her, and fingerprinted her. (52) Desre'e was then charged with "battery on a school official," which is a felony, and two misdemeanors: disruption of a school function and resisting a law enforcement officer." (53)
When Bob Herbert of the New York Times said to the police chief "[b]ut she was six," the chief responded immediately, "Do you think this is the first six year-old we've arrested?" (54) As Herbert insightfully notes, once you begin to see ordinary childhood misbehavior as criminal, "it's easy to start seeing young children as somehow monstrous. 'Believe me when I tell you,' said Chief Mercurio, 'a six year-old can inflict injury to you just as much as any other person.'" (55) It is this prism of criminality and fear that has driven so many zero-tolerance policies and other security measures. (56) These stories illustrate a shift in educational priorities. No longer is education the primary goal; rather, the system emphasizes controlling children who are viewed as dangerous, even in kindergarten. (57)
B. CRIME AND DRUGS--PERCEPTION VERSUS REALITY
By the 1980s, many school districts were in crisis. Violence was high, and teacher morale was low. This situation garnered much popular attention through movies such as Stand and Deliver and Lean on Me in the late 1980s and early 1990s. (58) These movies depicted teachers and principals reshaping institutions through their sheer force of will. (59) This reinforced the notion that what schools really needed to do to solve the epidemic of crime and violence was to "get tough."
Further, as the years went on, extended media attention to crimes such as the Columbine killings fueled popular perception that schools were reaching a breaking point. (60) This attention only accelerated the pace of zero-tolerance adoption in schools, and the increased use of security measures such as metal detectors, police officers on campus, and other measures. Yet, by the time zero-tolerance policies began to take hold in education, (61) the violence was already subsiding. Crime in school, and outside of the school walls, dropped significantly in the 1990s, dropping by half in schools between 1992 and 2002. (62)
Similarly, drug and alcohol use in schools dropped significantly throughout the 1980s. (63) Although alcohol usage rates have dropped since 1990, the use of drugs has fluctuated since the implementation of zero-tolerance policies and is now roughly the same as it was in 1990. (64) The fact that drug use dropped rapidly prior to zero-tolerance policies, but has since leveled off or increased slightly, calls the efficacy of zero-tolerance policies into question.
Despite the rapid drop in crime and drug usage rates within schools, the public perception was that school crime and drug usage rates continued to increase, fueling the continued expansion of zero-tolerance policies to include more behaviors. (65) Not coincidentally reporting on crime generally spiked at the moment that crime in and out of schools was dropping, pushing crime to the forefront of the national conscience. (66) This increased fear of crime and drugs, particularly in schools, helped garner support for the continued expansion of zero-tolerance policies, along with an increase in other security measures, such as the increased presence of police officers in schools.
C. SUMMARY OF THE INCREASED PRESENCE OF POLICE 1N SCHOOLS
In addition to zero-tolerance programs, schools adopted a number of other solutions to the problems of in-school violence and drug use. (67) One common choice has been to increase police presence in schools at all levels. During the 2003-2004 school year, nearly 54% of all public secondary schools had a daily police presence. (68) The same year over 70% of students between the ages of twelve and eighteen reported at least some police presence within their school, an increase of nearly 30% since just 1999. (69) Three factors are predictors for a daily police presence: (1) school size, (70) (2) percentage of children receiving reduced price school lunch, (71) and (3) school location, with urban environments having a larger police presence than rural ones. (72)
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