Massachusetts Court Affirms: People On School Campuses Still Have Fourth Amendment Rights

from the students-are-still-American-citizens dept

The Massachusetts Supreme Court has reaffirmed the fact that students (and other people on school campuses) don't have location-based Constitutional rights. A pat-frisk of a nonstudent by a police officer on a school's campus resulted in the warrantless search of his backpack and the discovery of marijuana, a scale, and a handgun. All of these items may as well have never existed at all, thanks to the officer having zero reasonable suspicion to perform the frisk, much less the probable cause to search the backpack.

Police investigating a suspicious person in a school must have evidence the person committed a crime before they can conduct a pat-frisk, and must have a warrant before searching a backpack for firearms, the state’s highest court ruled Tuesday.

The issue split the Supreme Judicial Court, 5 to 2, with now-retired Justice Geraldine S. Hines, a former defense attorney, writing for the majority that the right to privacy under both the state and federal constitutions is undiminished in a school setting, even when it comes to people who are not students.

“We do not underestimate the threat of violence in schools and other public places. Recent history bears out the folly of doing so,’’ Hines wrote. But “nothing in the Fourth Amendment or our [Article 14 of the state Constitution] jurisprudence supports such limitations on a person’s reasonable expectation of privacy.”

The decision [PDF] details the events leading to the unconstitutional search. Basically, school officials detained a nonstudent, acting on their hunches, which they conveyed to the officer. The officer - who had no contact with the subject before being placed in the same room as him -- proceeded to frisk him and search his bag.

We acknowledge that the defendant, a nonstudent, was on school property surrounded by school officials who believed he possessed contraband of some sort. When Murphy arrived, however, she knew only that school officials had a male nonstudent detained in the conference room and that the police had been called for assistance in the matter. See Commonwealth v. Mendez, 476 Mass. 512, 515 (2017). The principal voiced his strong suspicions of the defendant, but neither he nor the vice-principal reported any conduct suggestive of criminal activity. The odor of marijuana, which Murphy appreciated upon her entry into the conference room, also was not sufficient to support reasonable suspicion of criminal activity.

The court notes Fourth Amendment protections are lowered when students are detained and searched by school officials. But the same standards that apply off school grounds apply to law enforcement officers searching students/nonstudents on school grounds.

The court also points out the smell of marijuana indicates nothing about whether or not a person is armed, thus eliminating warrant exceptions arising from officer safety.

The principal's unsubstantiated hunch that the defendant "had something on him," alone, was insufficient for a reasonable belief that the defendant was armed and dangerous, especially where the principal had invited the defendant to return to the school, the defendant had already emptied his pockets at the principal's direction, and the reasonable inference was that the principal believed that the defendant had marijuana or some other controlled substance on his person based on the strong odor of marijuana present in the room.

In conclusion, hunches from non-law enforcement personnel can't morph into probable cause for a search just because they've been relayed to an officer.

Moreover, the principal's hunch combined with Murphy's observations of the defendant's nervousness and Murphy's testimony that both the principal and the vice-principal appeared to be "rattled" still did not establish a reasonable belief that the defendant was armed and dangerous where the defendant was compliant and did not make any furtive gestures or reach into his pockets in a manner that would suggest that he was carrying a weapon.

What this decision does is remind school police officers the Fourth Amendment is still a viable thing, even on school campuses. Fortunately, the department whose officer performed the illegal search appears to be supportive of the Supreme Judicial Court's findings

Milton Police Chief John E. King credited his officers and school officials for “acting in the best interest of students and staff safety. They had to make a quick decision based on facts known to them at the time.”

He said in an e-mail that their instincts turned out to be correct “as this individual did in fact possess alcohol, drugs, and a loaded firearm inside a school building.”

But he also said he recognized “that the end does not justify the means. I fully respect the legal process and the SJC’s decision.”

The Commonwealth can still attempt to obtain a conviction. But it won't be able to use the evidence it obtained unconstitutionally. Considering that's pretty much all of it, the decision to bypass the Fourth Amendment has effectively allowed a nonstudent to walk onto campus with a handgun and drugs and get away with it.

The court recognizes schools have a compelling interest in providing safe campuses, but if they're going to bring outside help in to police the school, many of the outside rules will apply.

Filed Under: 4th amendment, college campuses, massachusetts

DOJ And Dept. Of Education To Colleges: Start Restricting Free Speech On Campus Or Kiss Your Federal Funding Goodbye

from the apparently,-speech-is-best-served-chilled dept

Our nation's universities are (or were) usually considered to be places that fostered open discourse and encouraged the discussion of controversial topics in order to promote the growth of both the students and their critical thinking skills. This is no longer the case. Many universities have crafted guidelines and policies that inhibit free speech, usually as an overreaction to offended sensibilities or criminal activity.

Much of what we've covered recently has dealt with private colleges, which have a little more leeway in crafting their speech policies. The chilling of free speech on campus is now spreading to public universities (not that some didn't have this problem already). Worse still, it's a government mandated inhibition of free speech, tied directly to federal funding.

In a letter sent yesterday to the University of Montana that explicitly states that it is intended as "a blueprint for colleges and universities throughout the country," the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.

The letter states that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature'" including "verbal conduct" (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an "objectively reasonable person of the same gender in the same situation"—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

What the OCR (the Dept. of Education's Office for Civil Rights) has done is remove the "objective" standard and opened anything said or done to be judged as harassment from a strictly subjective viewpoint. This is coupled with some very broad definitions of the sort of behavior prohibited under these new national codes. Eugene Volokh's in-depth writeup lists some of the prohibited actions.

saying “unwelcome” “sexual or dirty jokes”
spreading “unwelcome” “sexual rumors” (without any limitation to false rumors)”
engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, pictures or written materials”
making “unwelcome” sexual invitations.

There is no longer any stipulation that the offending actions create a "hostile, offensive or abusive environment." And, again, the "objective and reasonable" yardstick has been removed and replaced with subjectivity.

As FIRE (Foundation for Individual Rights in Education) points out, this new OCR letter contradicts a "Dear Colleague" letter issued by the OCR in 2003, in which the office offered the clarification that any guidelines issued were not intended to inhibit free speech on campus.

I want to assure you in the clearest possible terms that OCR's regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution ...OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.

It appears the OCR is no longer interested in protecting First Amendment rights. As FIRE notes, the new OCR letter does not contain the phrases "free speech" or "First Amendment" anywhere within its 31 pages. It also contradicts the OCR's earlier guidance on harassment, where it stated that actionable (or prohibited) behavior "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive."

FIRE also points out that the new codes cover much more than "sexual" speech, being expanded to cover "gender-based harassment," including "harassment based on a person's nonconformity with gender stereotypes." All well and good to bring more people under this "protection," but it does mean that certain protected speech will now lose its protection, at least on campus. FIRE quotes a Third Circuit Court decision [DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)]:

[T]he policy's use of "hostile," "offensive," and "gender-motivated" is, on its face, sufficiently broad and subjective that they "could conceivably be applied to cover any speech" of a "gender-motivated" nature "the content of which offends someone." This could include "core" political and religious speech, such as gender politics and sexual morality.

The OCR's letter does some dangerous conflation, in addition to its general disregard for students' First Amendment rights. By using the criminal sexual assault that occurred at the University of Montana as a springboard for its harassment policies, the OCR aims to kill two birds with stone, but only manages to injure one with its feckless toss -- free speech. The actions condemned (and meant to be prevented) by this letter remain punishable by existing laws and policies. Adding further limits to speech is simply a welcome byproduct for establishments (universities and the government) that seem to feel more and more that only subjectively acceptable speech should be protected. This new, mandated First-Amendment-as-university-doormat will only serve to make students more closed-minded as they toe these aribitrary lines and make our institutions of higher learning pale parodies of their formerly progressive selves.

Filed Under: college campuses, federal funding, free speech