SnapChat is Sending Images to the Government

Our kids really need to know that. Like now. Our younger teachers do as well. In your next legal training on anything related to social media, you should mention this. I teach a pre-service law course starting next week; I am definitely going to mention this in there. 

I'm not a user of snapchat myself, but I know that many of our students are heavy users somewhat on the premise that whatever they send will go away quickly. Well, no so much. 

Details here. H/T: Bethany Smith

Educational Adequacy and Fiscal Reality

Two recent developments highlight what I think portends lots of coming chaos in school finance.  The first is a suit filed by parents in a middle-class Kansas school distict challenging the state's limits on local property tax millage rates (enacted in response to Kansas's numerous school finance cases).  The parents allege that their First Amendment right to direct the education of their children is infringed by the caps.  They also allege that their Fourteenth Amendment rights to control their own property and the uses to which it is put are infringed.  This is a novel claim, but it illustrates very clearly the conflicts that judicial rulings on systemic equality of educational resources create--simply put, these equalities cannot be achieved without limiting local control, and if these parents are correct, there are federal constitutional interests in local control of educational expenditures.  The parents have Harvard Law Professor Lawrence Tribe on their side, so this is not just a shot in the dark. 

The other development is the re-opening, once again, of the Abbott v. Burke case in New Jersey.  This time, the plaintiffs challenge the $800-plus million in budget cuts that the Christie Administration has directed at the NJ schools to help close an $11 billion dollar budget gap resulting from the recent economic times.  The most recent prior action of the New Jersey Supreme Court (the most activist court in the nation on school finance) was to grudgingly approve the latest set of funding levels (enacted before Governor Christie was elected), on the explicit assumption that these levels would not be reduced.  Now that the funding levels have been reduced, it is likely that the court will once again find its way into the case.  By my count, if the new set of hearings results in a written decision, this will be the 21st New Jersey Supreme Court opinion in the Abbott case.  Pretty remarkable. 

The question now is what will happen as a result.  If the courts in both cases rule for the plaintiffs, will the political branches comply?  In Kansas, this would seem to be easy, as the legislature can just remove the caps from the plaintiff district, but the suit in Kansas did not open up the prior Kansas Supreme Court decision--it is an independent challenge to the legislation based on federal constitutional rights, so the Kansas legislature may be faced with an equality mandate from its own supreme court and simultaneously an order forbidding the application of its equality legislation from the federal courts.  In New Jersey, it's hard to see this being resolved without a constitutional confrontation, unless the court completely capitulates to the Governor's arguments that the state just doesn't have the money.  The really scary thing is that, considering the coming end to the ARRA and its federal subsidies of state education systems, these two cases are likely only the tip of the iceberg. 

Body Scanners in Schools ... Tick, Tock

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.

Drug Testing Past the Limit

A school district in rural Texas is again going to try to randomly drug test all students. The leadership has decided that if it is challenged that they will set the legal precedent and win. That's possible, of course, if they take it all the way to the Supreme Court (who has provided pretty clear guidance in Vernonia and Earls). Good luck with it, I say, and good luck in the next re-election when the voters of your district find out how much "setting the precedent" costs.

Via - @SchoolLawNews

Students ... Give Up Your Passwords? Parents ... Give Up Your Schools!

A private school in S.C. has passed a policy requiring students in the school to give school officials their social networking passwords upon request (Facebook, MySpace, Twitter, etc.). The story (also on CNN video - a couple minutes in). Here's the local video:

I've thought about this for a couple days now, and I can't really think of a legal problem here (if you disagree, let me know, I would be happy to be proved wrong). The lawyer in the video says it is an invasion of privacy, but students don't really have many privacy rights and the fact this is at a private school gives them even less (if this was a public, it would be a search and seizure issue). The school really has no power to force students to reveal passwords if they don't want to, other than to threaten to kick the student out of the private school, so hopefully students are smart enough to see though this little charade.  

But, I think this just reinforces Scott McLeod's point from a few days ago. I just hope that parents who send their kids to schools like this realize the disadvantage they are putting their students at. While this school is busy scaring their students away from social networking, some other school in the city is integrating it into their curriculum. The world is not going to stop, no matter how much some traditionalists want it to, and the language of the age is social media. If your child is not speaking that language ... then you are putting them at a serious disadvantage. 

ELA's Perspective

This is encouraging from ELA.

Administrator, Attorney and Professor perspective on Forest Grove.

Ditto for Safford v. Redding.

Edjurist TV Episode 5: Initial Thoughts on Safford Unified School District v. Redding

The Redding case is out today (so is Horne v. Flores, but I'll address that later). Basically, my thoughts on Redding are ... Wahoo ... as I articule in Episode 5.

Here are some other links.

MSNBC reporting.

School Law Blog

ASCD Inservice

And here are all my previous posts:

Thoughts and Resources.

Wins en banc appeal.

Goes to en banc appeal.

Continues to get attention (with video embed).

Original Post (with comment from Savana Redding).

Who or Where?

I have been wrestling with this question of school resource officers (typically uniformed police officers) and search and seizure and how to legally deal with this issue for a while now. I thought I would give my conclusions in a scholarly series post, which I haven't done for a while. 

It occurs to me that there are two legal analysis options. A "who" option or a "where" option and courts currently seem to be employing both sort of at random. Asking the who question asks whether the person initiating the search is a school official (reasonable suspicion applies) or a law enforcement official (the higher probable cause applies). Asking the where question avoids that issue. Essentially, if it is a school setting = reasonable suspicion in all cases. 

To answer whether the question should be who or where, we need to look at the Supreme Court precedence in New Jersey v. T.L.O (and probably also consider the Redding case coming out next month). A reading of this case could probably provide support to either option, but I think it provides more support to the "who" question than the "where" question. 

For instance, look at how Justice White for the majority frames what they are deciding (emphasis added):

Although we originally granted certiorari to decide the issue of the appropriate remedy in juvenile court proceedings for unlawful school searches, our doubts regarding the wisdom of deciding that question in isolation from the broader question of what limits, if any, the Fourth Amendment places on the activities of school authorities prompted us to order reargument on that question.

Also, the court framed the whole initial analysis of whether the Fourth Amendment applies, not to "schools" as governmental entities, but rather to "school officials" as governmental actors ... i.e. it was the who that mattered, not the where, to determine whether we were under a constitutional amendment (see section II in the opinion). 

Continuing, the Court does articulate some "where" type statements, such as this one:

Accordingly, we have recognized that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship.

But, even in that statement, you can see it is the "who" relationship, the "student-teacher" relationship, that mattered - it just happens to always occur at schools. 

Further, in the central part of the case where the Court articulates the new standard that has governed search and seizure ever since, they are again more focused on the who than the where. Consider the bold (added) in the following paragraph:  

Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception," Terry v. Ohio, 392 U.S. at 20; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place," ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

In my opinion, the proper question here is not where the search occurs, but who is conducting the search. If the person conducting the search can be classified as a "teacher or school official," then reasonable suspicion should apply. If that person conducting the search, even on school property, cannot be classified as a "school official" then the default probable cause standard for governmental actors should apply. If, then, this is our analysis, it is very difficult for me to conclude that uniformed police officers, being paid by and reporting to the police department, are school officials entitled to the reasonable suspicion exception. 

After thinking on this issue for a while now, I think I am settled on this position. Police officers in schools are not school officials and are not entitled to reasonable suspicion directly, but only through a proper transfer of suspicion when a legitimate school official, such as a teacher or principal, initiates a search and then involves the officer. Very much depends on the nature of the employment of the school resource officer, but those officers that are more "police" than they are "school officials" clearly seem to fall outside of what the Court in New Jersey v. T.L.O. intended in its opinion. 

Can't Have it Both Ways School Resource Officers

I am growing more and more frustrated in how the courts are handling school resource officers. The courts seem to have no trouble concluding that school resource officers are more like school officials for purposes of getting under the reasonable suspicion standard of the 4th Amendment (searches and seizures). On the other hand, courts, such as this one in Florida, seem to have no problem still giving school resource officers all the protections traditionally afforded the police force. The Florida case even conceded the point that the resource officer was under the direction of school administrators, but still found a student guilty of the crime of battery of a law enforcement officer when he fought with the resource officer that stopped him in the hallway. How are students supposed to know how to treat these people? They discipline like principals, have the authority of school administrators, get the protections of school administrators, yet if you interact incorrectly with them, all the built-in protections we afford police in this country can come down on top of (and ruin) the student's life.

We absolutely need clarity from the courts on whether school resource officers are more like school employees or more like police. This having it both ways stuff (to the detriment of the students in all cases) has got to stop.

Why Teacher Drug Testing Should Be Avoided

It is just a nightmare procedurally.

You probably haven't been following it, but I am a casual NASCAR fan and my favorite driver growing up was Jeremy Mayfield. A week ago Mayfield was the first big driver to be caught in NASCAR's drug testing scheme. Mayfield has claimed it was a mix of over the counter and prescription drugs, but NASCAR is indefinitely suspending him without telling him or the public what the offending drug was. NASCAR's drug testing policy, implemented in the absence of a driver's union, is harsh and secretive. But, because it is harsh and secretive, when it ruins a driver's career like Mayfield's, it is almost guaranteed to be challenged in court. NASCAR allowed Mayfield to race after testing positive on the first sample, so it is questionable just how dangerous Mayfield was, if at all, on the track. And, now that they have caught him, they are probably looking at hundreds of thousands of dollars defending their actions. 

As education moves closer and closer to randomly drug testing teachers (2), we should learn a lesson from NASCAR here. NASCAR is a billion dollar sport with virtually unlimited resources to test their small cadre of privately employed drivers and crew ... and their drug testing scheme is a procedural nightmare and may well wind up an embarrassment when this hits the court system. Schools, with limited resources and public, frequently unionized, employees, is going to be even a harder drug testing system to procedurally manage and it will have to be done with far fewer resources. Implementing teacher drug testing systems is going to be a nightmare for schools procedurally and state officials need to really consider whether it is worth that cost.

Was it a search? - What?

The Supreme Court heard the Safford v. Redding case today ... so it is all over the news (I will post links and video as they become available). I trust Mark Walsh's interpretation of the events and he seemed struck by Justices Souter and Breyer asking tough questions of the Redding's (the student) lawyer. The question from Breyer about whether this was even a search at all is almost unimaginable - and then whether it was a "strip" search is also very odd. They peered in her undergarmets ... i.e. they saw what there was to see - how could that not be a strip search?  And comparing this to gym class (not a search because in their underwear all the time) doesn't make any sense either. It is a voluntary thing in gym class ... involuntary in Redding's case. That is the whole definition of the word "search" ... it is involuntary.

Very, very odd stuff from the Court today, so we'll have to wait and see, but I didn't like Redding's chances before. I really, really don't like her chances now.

Update:

Bloomberg

LA Times (also thinking the Court will side with school)

AP

Supreme Court Previews at the School Law Blog

Mark Walsh has done a superb job as always in previewing the upcoming Supreme Court cases related to education and instead of duplicating the effort, I will just point you over there. Mark usually attends the oral arguments as well, so be sure to watch for that also. 

Forest Grove Sch. Dist. v. T.A.

Safford U. Sch. Dist. v. Redding

Horne v. Flores

We are lucky to have a great resource like Mark in our field and since he is funded under a business structure instead of a university structure, be sure to patronize him plenty to make sure his employer is aware of his value.

Stafford v. Redding: Thoughts & Resources

The U.S. Supreme Court has granted cert. in the case of Stafford v. Redding. This is the Savana Redding strip search case that came out of Arizona a couple of years ago and I have been following along with here at the blog. Readers know I took a personal interest in this case as not only did I disagree with the opinion, but Savana also took the time to comment on the blog, which I thought was nice. Anyway, I am presenting to a class tonight related to search and seizure issues, so I thought this would be a good time to update this case with some thoughts and resources. 

Here is my original opinion on this case and it has not changed over since I first posted on it:

I personally feel this is clearly outside the bounds of the Constitution and even further outside the bounds of common sense.

Thoughts: I am sort of disappointed the Supreme Court took this case. The en banc Ninth Circuit got it right ... this was an unjustified strip search. Here's the bottom line - the search was for ibuprofen. End of story in my opinion ... no strip search can possibly be reasonable in scope for that purpose. Moreover, though, the facts simply don't lend themselves to this strip search. There was little, if any, solid evidence that Redding possessed this ibuprofen in the first place. The only evidence the principal was acting on was a tip from another student. It is questionable whether this search was justified at its inception anyway. Probably, like some of the judges in the en banc opinion, I would conclude that some search was justified based off the evidence supplied by the other student. But, at some point that justification I think went out the window. I don't think you can just continue pushing the search indefinitely based on a weak justification. Perhaps it is better to consider each new search of an item, a new search. In this case, for instance, the search left the principal's office and moved to the school nurse's office. Can we not consider that a new search for purposes of reasonable suspicion? I'll be interested in how the Court treats that issue as it split the en banc court quite a bit. Either way, the Supreme Court can provide some much needed guidance (last significant case was 1985) on student searches.       

Resources: 

Ninth Circuit Opinion (en banc).

Ninth Circuit Opinion (3 judge panel). 

Mark Walsh on the grant of cert.  

Adjunct Law Prof Blog on the first 9th Circuit opinion. 

MSNBC video on the case. 

Search and seizure law generally from the Center for Public Education. 

Previous Posts of Mine on this Case: 

Wins en banc appeal.

Goes to en banc appeal.

Continues to get attention (with video embed).

Original Post (with comment from Savana Redding).

Friday Snippets - 8/08/08: The Eights are Wild.

An anti-bullying bill that includes protections for homosexual and transgender students and teachers is in the New York Senate.

West Virginia teachers file suit claiming they were mislead into investing their retirement dollars into bad annuities. Little tip for teachers ... ALWAYS stick with the defined benefit plan if possible.

WV also having strong discussions about random student drug testing. (Hope someone brought up the 4th Amendment in those conversations).

Arizona special session to fund school vouchers?

And, vouchers will be on the ballot in Florida, pending appeal. Even if they are tied to less controversial measures.

We are still fighting in Hawaii over the teacher random drug testing policy.

Texas teachers are claiming the private school oriented dropout education program resembles vouchers.

Also, teachers in Nevada are fighting property tax increase limitations with procedural matters.

If teachers seem feisty this week, maybe it is because they are not being paid all that well lately.

Arkansas considering defibrillators in schools.

Lotteries and Education ... well, sort of.

We got so many tests, we don't even know what to name them all.


Around the Blogosphere ... it was sort of a slow week:

Jim Gerl composes his letter to the candidates ... thanks to all those that contributed.

Mark W. has the 5th Circuit considering Texas' moment of silence law (I think it will be upheld) and concerning 4th Amendment case on a timeout closet being upheld by the 10th Circuit.

Jen Weissman thinks we should be doing more training for pre-service teachers on ethics and the law. I totally, 100%, absolutely, ... agree. I am happy to report that at UK I will be teaching a course to at least some undergrad future teachers on the law and ethics ... but it should be all of them.

Students like Junior faculty in law school, Mitchell R. cites. Good - hope it works for education schools too.

Karl Romberger reminds us that sometimes state law can go further than FERPA.

Friday Fun?

The next 5000 days of the Web.



Google Document Link: Friday Snippets - 8/08/08: The Eights are Wild.

Savana Redding Wins En Banc Appeal

In the case that has probably generated more posts on this site than any other (that's what happens when the plaintiff leaves a comment), Savana Redding has finally won her case against the school that strip searched her over missing Ibuprofen. The 9th Circuit, sitting En Banc, ruled 6-5 that the strip search was not reasonable under the 4th Amendment. (ABA Journal).

Common sense informs us that directing a thirteen-year-old girl to
remove her clothes, partially revealing her breasts and pelvic area,
for allegedly possessing ibuprofen, an infraction that poses an
imminent danger to no one, and which could be handled by keeping her in
the principal’s office until a parent arrived or simply sending her
home, was excessively intrusive.

Clearly, correct.

I have made my feelings known on this case before, and obviously I feel the Court reached the right outcome here, even if it did take an En Banc review. Now, barring review by the Supreme Court (see below), Savana can rest easily and feel that justice was finally served.

As to the effect on educational law, I do think this case will have an impact although it broke no new constitutional ground. The reasonableness standard and its two prongs (justified at its inception and reasonable in scope) continued to be the analysis used by the Court, but what this case does is find that the reasonableness standard is not a protection for school officials, as the dissent argues. School officials can (and do) violate this standard and when they do they are putting their schools at risk and should be appropriately punished. It is up to the judges to determine reasonableness under the Constitution; it is not something that should be left wholly at the administrator's discretion. 

Second, I know many ed. law professors that try to draw fine lines between strip searches and searches that are not strip searches but involve the removal of some, but not all, clothing. That should stop after this case. I would advise administrators to no longer engage in the removal of student clothing. The administrators in this case attempted to not go so far as a strip in this case by not fully removing her underwear, but the removal of the outer layers of clothing was enough to constitute a strip search. Unless in dire and/or highly justifiable circumstances, the removal of clothing should probably not be considered an option.

We may not have heard the last of this case, however. Because of the publicity, the Circuit, the outcome, and the period of time since T.L.O. was decided, I do give this case a 15-20% chance or so of being heard by the Supreme Court. But, either way, this case will continue to be referred to for years to come when discussing reasonable suspicion in schools.

Video Cameras in Schools

Some notes on video cameras in schools.

First, not only are they becoming more prevalent but as the digital technology improves the feeds from the cameras can be sent to an increasing number of places ... other than just the principal's office. The first step was sending a live feed to district headquarters. Now, some cities are moving toward live feeds to the police station. I noted this last fall in a school in NJ and registered some of my concerns with it. Well, this idea of live feeds to police is expanding. Scott McLeod passes along a link that apparently I missed that Chicago is going to the extreme on this with 4,500 live feeds to their 911 technology center. They say that they are only going to regularly monitor cameras on the outside of the school building, but that in emergencies they will access the live feeds from cameras inside the school. The only good thing about this that I can see is that there is 4,500 feeds. You can't watch them all (see Hasan Elahi's interview on the Colbert Report).

I think we can clearly call this a trend now to send live video feeds to police headquarters ... which can then be fed to squad cars and wherever else the police need it. We need to think about what that means for kids and school administrators and how their role or behavior will/should change. You say nothing changes? .... keep reading ...

Okay, second note. Check out this animation of a story by Chris Ware for This American Life, which apparently is also on Showtime now in addition to its usual NPR slot.

I don't bring up philosophy much on the blog ... but I simply can't help but mention Foucault's Discipline and Punish here. I could go into a whole criticism of the live feeds to police headquarters where unknown people are watching you at unknown times and at unknown locations (sometimes I wonder how far away we are from the Panopticon), but Foucault does a better job than me and I will just reference you to him for further reading.

It is the little things like this where you lose something ... a little here a little there and what's left ... well, what's left?

No Drug Dogs in Canadian Schools

Continuing with our "America is Different" theme ...

The Canadian Supreme Court has ruled that random searches by drug sniffing dogs are illegal under their Charter of Rights and Freedoms. Mark Walsh has the details.

Here is some of the relevant language:

The dog sniff amounts to a search within s. 8 of
the Charter.  The information provided when the dog is trained to alert
to the presence of controlled drugs permits inferences about the precise
contents of the source that are of interest to the police.  The subject matter
of the sniff is not public air space.  It is the concealed contents of the
backpack.  As with briefcases, purses and suitcases, backpacks are the
repository of much that is personal, particularly for people who lead itinerant
lifestyles during the day as in the case of students and travellers. 
Teenagers may have little expectation of privacy from the searching eyes and
fingers of their parents, but they expect the contents of their backpacks not
to be open to the random and speculative scrutiny of the police.  This
expectation is a reasonable one that society should support.  The guilty secret
of the contents of the accused’s backpack was specific and meaningful
information, intended to be private, and concealed in an enclosed space in
which the accused had a continuing expectation of privacy.  By use of the dog,
the policeman could “see” through the concealing fabric of the backpack.

Reading that one can't help but conclude that the Canadian approach and the American approach to enforcement of Constitutional Rights are fundamentally different. Here the Canadian Supreme Court is expansively reading their Charter to encompass its general intent applied to this new situation. Lately, however, the American Supreme Court narrowly reads Constitutional Provisions looking for exceptions. On the same issue our lower courts have concluded that the air around the backpack is public, thus, the dog sniff does not constitute technically constitute a "search."

There is so much rich information if one were to study differences in educational law across national boundaries. However, so few educational law scholars actually engage in this kind of work. As the world continues to shrink ... we are gonna need more work in this area.

PhotoCredit: Lone Primate - Canadian Supreme Court Building (I like the progressively smaller windows in the roof)

Educational Entrapment?

Educational Entrapment? Why not?

Okay, I hear you lawyers out there crying foul and you may be right. Typically, entrapment is a legal defense whose application is limited only to instances where law enforcement officials trick a person into committing a criminal act who otherwise would not have committed it.

First, a little background on the case in question. A principal in New Hampshire confiscated a student's cell phone. As per her standard policy (???) she scrolled through the contact list and called other students. When this didn't yield any results she held onto the phone. A student from a different school text messaged the phone back, which the principal opened. The text message asked, "Yo, need a bag?" The principal messaged back saying she did in fact want a bag and set up a meeting outside her school. The police were called and were waiting for the student when he arrived. They searched him found some drugs and arrested him.  -- Here is a article on it and here is a CNN story (video).

So, where to start with this? 1) a policy of searching students' cel phones is probably illegal (see Klump). It is very possible this arrest was the result of an illegal search (opening the text message) so the student may well get off. 2) Why not call the police? Since when is the principal charged with community drug enforcement? I think this probably should have been handed off to the police the moment it was evident that drugs were going to be involved. You can read the reaction of other local school administrators here.

But, what I want to talk about is the entrapment issue. Now, rest assured this particular case will not win on the entrapment issue. There are a couple of reasons why. First, the school princpal in question worked at a private school, so not a "governmental official" - you will see why that is important in a minute. Second, although the principal's call to the drug dealing student probably triggered the "You need a bag" response, it was still the student that triggered the drug transaction. For entrapment to work, it is the government official that needs to trigger the transaction, not the criminal. So, it will probably not work in this case.

But, could it work in the right case? Perhaps - and let me explain. First, let's look at the language in the most recent Supreme Court case on the issue:

"In their zeal to enforce the law, however, Government
agents may not originate a criminal design, implant in an
innocent person's mind the disposition to commit a criminal
act, and then induce commission of the crime so that the
Government may prosecute." (Jacobson v. U.S.)

"Government agent" is the key language here. Even though later in the opinion the Justices refer to "law enforcement officials" when talking about entrapment, the broad language of "government agent" is probably the controlling language. Teachers, principals and other public school personnel are ... "government agents" under the standard definition. This more broad term of "government" or "governmental official" are used in other Supreme Court cases on entrapment as well (see Mathews & Sorrells)

Now, let's change the facts a little. Let's assume the principal was a public school principal and instead of responding to the text message, she originated the text message to the student asking, "Yo, can you hook me up with a bag?" All the other facts are the same. In this instance, I feel entrapment may be a valid defense even though the student was entrapped by a school official and not a law enforcement officer.

I would have to do more research to be sure, but entrapment by educators seems like a real possibility. This would make for a nice law journal if anyone is interested.

Scott McLeod came across this case this morning and sent it over, so a hat tip to him.

The Redding Strip Search Case Continues to Get Attention

If you have read the blog for a while, you know I took a personal interest in the Redding v. Stafford case a long time ago when Savannah Redding posted a comment to the blog to thank me for my interpretation of the case, in which I sided with the student that a strip search for Ibuprofen was unreasonable. (See my first post and a later post). Well, this case has been gaining national momentum of late, and rightfully so. Here is the latest clip from MSNBC which interviews Savannah and has a little analysis (although the analysis is pretty weak - MSNBC, next time you need some analysis, call me, I can point you in the right direction - Jackie Stefkovich at Penn State, for instance, would have been much better).

Damn those Skittles

A kid in Connecticut was suspended and stripped of his title of class vice president ... for having a bag of Skittles in school. He has since been cleared (see him talk about it), but I wonder what that superintendent would have done to me ... I pass out skittles in my class, so all of my students would have bags of skittles.