Body Scanners in Schools ... Tick, Tock
Justin Bathon on Friday, January 8, 2010 at 7:52PM 
Photocredit: John&Julie CHow long until these new body scanners enter the school house?
It's probably inevitable that some school will do it sooner or later, so let me try to head this one off now.
First, ethically ... c'mon. Your fooling yourself if you think scanning millions of kids this way is worth it, even if you do catch a couple extra weapons entering the school.
Second, Britain found an issue with these body scanners and child pornography laws, as the images created by the scanners may be detailed enough to amount to a "graphic image" of the child. I haven't compared our laws, but I would expect similar issues.
Third, more fundamentally, consider this summer's Supreme Court case of Safford v. Redding.
We do mean, though, to make it clear that the T.L.O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.
Given that this full body scanner reveals quite a bit of a students "intimate parts," I think schools will have a very difficult time making the case that such a scan is legal. Remember, the bar here for schools is fairly high. The full body scanner cannot be considered a search at all for this to work in place of metal detectors. Metal detectors are not a search, per se, because metal detectors only examine the airspace around the student and students have no expectation of privacy in that airspace. But, I think it would be a difficult case to say these full body scanners function under a similar legal theory in schools (although I could see how the case would be made). In my opinion, the difference is not one of degree it is one of the expectation of privacy. No part of one's body is revealed when passing under a metal detector that wouldn't otherwise be revealed not passing through the metal detector. But, with the full body scanners, I think something additional, something not intended, is revealed. Thus, the legal theory that this is not a "search" doesn't really hold water and if it is a search, it must meet the reasonable suspicion legal test.
Now, how I could see these used is possibly in place of a strip search once reasonable suspicion has been established. Certainly, I think, it is less of an invasion of privacy to examine a student's body through a scanner than actually making the student physically remove his or her garments. So, that could be a legal foothold for these body scanners. But, even then, I would heavily warn against it. While it might be technically better than a physical strip search, the body scans are very close to strip searches anyway, which, after Redding, require some pretty high danger thresholds to meet. I think putting them in the schools would just encourage school authorities to use it against pretty clear discouragement from the Supreme Court.
I'm fairly confident that we'll have to deal with these in the relative near future if for no other reason than airports represent a fairly small market and schools represent an enormous market (and there are some pretty big players manufacturing these). But, unlike metal detectors, the legal justification for these is simply not as strong. So, we'll see, but schools would be well served to play a wait and see approach with these. Not only may the technology become less intrusive over time, but assuredly there is going to be a decent amount of litigation coming out of the transportation sector, so we should probably wait and see how that plays out first.
Reader Comments (2)
I'll take my child to the first charter or private school that does not use scanners. My child is not government property. The government has zero right to strip search and/or touch my child's privates without a warrant or reasonable suspicion. It is equally unconstitutional and appalling at airports. I will not vote for another politician that does not promise to tear the scanners down. It has made itself the single greatest issue of importance in this country, because once you become government property, your rights will be taken away one amendment at a time. Property has no rights.
I will homeschool my children before I would allow them to attend a school that does this. Johns Hopkins University has stated that "there is no "safe" level of radiation". So even at the supposedly low levels that these machines emit (although 10 times higher than what the TSA has admitted) passing a child through these 180 times per year for their entire educational career is extremely dangerous!