BAD HAIR DAY AT JAMES MADISON HIGH SCHOOL
—THE FOURTH AMENDMENT—
The day before beginning this lesson, students may be given the following three Fourth Amendment scenarios as homework. For each, the student is asked to make a simple judgment to bring to class the next day: whether or not the actions requested by the school and local law enforcement are acceptable in a free and open democratic society. The complete exercise may be run equally well without the students having seen the three scenarios before.
On the evening news last night you learned that a student in another high school in your county had just been arrested and charged with plotting to attack his classmates and teachers at school with automatic weapons and live grenades which were discovered during a warranted search of his bedroom. According to entries in his diary, say police, the attack was planned for a week from today, which is the anniversary of the attack at Columbine High School. When you get off the bus at school this morning, the principal and faculty members ask that everyone line up to submit to a thorough search of your person and belongings with a metal-detection wand before being admitted to the building. Local police are conducting the searches. When several students refuse to submit, claiming it is a violation of their rights, they are immediately escorted away and locked in a patrol car. One of them is a close friend of yours, who you are sure would never hurt anybody.
ACCEPTABLE (constitutional) _____
NOT ACCEPTABLE (not constitutional) _____
Later in the morning, during band practice, the band director informs you and the other 37 members of the band that the group’s cash kitty—containing $742 in recent contributions toward new uniform capes—has been stolen sometime in the last 24 hours. A police detective has already found fingerprints on the empty cashbox, plus a human hair inside. Instead of practicing, the band director says, the detective and two patrol officers (conveniently still here following the entrance searches) would like to get a set of fingerprints and a single plucked hair from each of you. The detective reassures the group, saying that the fingerprint check will serve to clear you of any suspicion. The hair is being collected only in the event that DNA testing becomes necessary. One student begins to object, saying there is no reason why she should be a suspect in the first place. Another student immediately replies, “If you’re innocent, why would you object? What have you got to hide, anyway?”
ACCEPTABLE (constitutional) _____
NOT ACCEPTABLE (not constitutional) _____
During lunch you are called to the assistant principal’s office, where she asks you for your car keys. When you inquire why, she tells you that a student at another high school was caught with a small amount of marijuana. When pressured to reveal where he got it, the student claimed that all he knew was that he bought it from a blond high school-aged male wearing a jacket with your high school’s name on it and the numerals of your class year. You are blond, male, and are wearing just such a jacket with the same numerals, which you purchased at a local sporting goods store. The assistant principal says that the police (who are still at school) want to search your car, which is in the school parking lot. They also want to search your bookbag and your locker, as well as the contents of your pockets.
ACCEPTABLE (constitutional) _____
NOT ACCEPTABLE (not constitutional) _____
On the day of the lesson, if the three scenarios have been assigned as homework, begin by calling for a show of hands to tally the class’s judgments on the board. It is important to try to count only the judgments of those who have actually read the scenarios, not last-minute copycat opinions. The tallies will be left on the board for reference and comparison, should students’ views change.
Share with the class and ask them to interpret the text of the Fourth Amendment:
“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the person or things
to be seized.”
Then briefly outline three major considerations which bear on many Fourth Amendment cases, putting each on the board for future reference:
Greater Good vs. Individual Freedom – searching everyone in the school
because of information suggesting that one of them—unidentified—is carrying:
—a water bottle with vodka in it, compared to
—a portable CD player rigged up as a “dirty bomb.”
Warranted Suspicion vs. a General Sweep – searching employees’
homes based on:
—information obtained from an employee’s work e-mail indicating
criminal activity, so sworn before a judge and authorized by the
judge’s issuance of a search warrant, compared to
—an anonymous tip in the office suggestion box, suggesting criminal
activity by an unnamed employee, resulting in unwarranted searches
of all employees’ homes.
Prior Expectation of Privacy – a claim to privacy based upon the common
expectation of same by anyone in similar circumstances, as:
—the expectation of privacy in one’s bathroom at home, compared to
—the expectation of privacy on a nudists’ beach, or
—the expectation of privacy when carrying illegal material in one’s
purse in the supermarket, compared to
—the expectation of privacy when carrying illegal material openly
in one’s supermarket cart.
Each of the scenarios is now taken up. To begin consideration of each case, the class is asked to relocate to one side of the room if their judgment was that the scenario was ACCEPTABLE (explain how “acceptable” = constitutional, i.e., the action taken does not violate the Fourth Amendment to the Constitution), and to the other side if their judgment was that it was NOT ACCEPTABLE (= not constitutional because it does violate). Explain that, even if one is unsure of his or her judgment, a choice must be made, although it can be changed at any point during consideration of the scenario. This both makes clear each student’s fundamental view when speaking, and allows the entire class to witness any changing of minds that may occur. Explain that where you stand at the beginning is less important than where you end up standing at the end of each discussion. The terms “acceptable/constitutional” and “not acceptable/not constitutional” are of course virtually synonymous with “not protected” and “protected” by the Fourth Amendment.
Alternating sides of the room, ask students to articulate the reasoning behind their judgments. Encourage them to express their views in terms of the three major considerations in Fourth Amendment cases. Simple checkmarks beside each major consideration as it is referred to in discussion will help to verify their importance. The teacher may play devil’s advocate, and encourage students to do the same, manipulating the circumstances of the scenario by asking “but what if….” As the effect of the three major considerations surfaces, this is noted on the board for each scenario. The teacher may also introduce historic opinions from related court cases or analogous scenarios still under debate in society. Among the former are:
.
New Jersey v. T.L.O.(1985) – established the “reasonableness test” for
student searches in a case that supported school administration
T.J. v. Florida (1989) – a second case of the reasonableness test that
declared a search unconstitutional
Veronia School District v. Acton (1995) – supported school use of
random drug testing of student-athletes
Board of Education v. Earls (2002) – expanded school use of random
drug testing for participation in any extracurricular activity
Also pertinent is City of Indianapolis v. Edmond et al. (2000) – established
limits to police sweeps at roadblocks
For details go to: http://straylight.law.cornell.edu/supct/search/index.html or
http://www.findlaw.com/casecode/supreme.html
When each discussion seems to have run its course, give the students a moment for final consideration before taking their final positions on either side of the room. This, then, is the decision of the class court, although it may be worth explaining that courts do not rely simply on reason and the major considerations so much as on precedent. It is also worth emphasizing how often the Supreme Court, which students may perceive as the ultimate solution to legal controversies, actually reverses itself, i.e., changes its mind, as on slavery, women’s right to vote, New Deal legislation, abortion, et al. And of course many of its landmark decisions are split, often as close as five to four, such that one justice’s vote has determined the law of the land for millions of citizens.
Perhaps the most important goal of the entire exercise is to help students see the role of the three major considerations, and how complex is their interplay.
On placards or on the board in the classroom:
ACCEPTABLE (CONSTITUTIONAL) and
NOT ACCEPTABLE (NOT CONSTITUTIONAL)
The text of the Fourth Amendment
Three major considerations:
Greater Good vs. Individual Freedom
Warranted Suspicion vs. a General Sweep
Prior Expectation of Privacy
“The natural progress of things is for liberty to yield and government
to gain ground.” Thomas Jefferson
“The American people must be willing to give up a degree of personal
privacy in exchange for safety and security.” Louis Freeh, Director of the FBI in the 1990s, on the same placard with…
“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” Benjamin Franklin
Prepared by Bernie Huebner for use by the Maine Civil Liberties Union