State v. Williams

¶1concurring.

¶2I concur with the result in this case, but I write separately to emphasize the necessity of permitting a school to have a policy in place to prevent drug use and protect the safety of students as is necessary based on the school’s setting and particular circumstances. While the majority correctly reverses because the State did not put forth any evidence in this case that the policy of searching students who were more than 30 minutes late was linked to corresponding drug activity or violence among those students, the majority opinion should not be taken to imply a blanket rule that a policy of pat-down searches of students who are markedly tardy to school is per se unconstitutional.

¶3Specifically, the third constitutional consideration under Earls requires us to con*709sider the nature and immediacy of the school’s concerns along with the efficacy of the policy at issue in dealing with these concerns. Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 834, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002). I believe the nature and immediacy of the government’s concerns are understated in the majority opinion. In Miller v. Wilkes, the United States Court of Appeals for the Eighth Circuit explained that “[t]he nature of the problem, well known for years and well documented, is substance abuse in the public schools.” 172 F.3d 574, 580 (8th Cir. 1999). The court noted the United States Supreme Court’s observations that drug use and violent crime are worsening and are “major problems” in public schools. Id. (citing Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 674, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989); New Jersey v. T.L.O., 469 U.S. 325, 339, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)). The Miller court then stated that to the extent any party thinks it necessary, the court would take judicial notice of the fact that “[d]rug and alcohol abuse in public schools is a serious social problem today in every part of the country.” 172 F.3d at 580-81. The court added, “[w]e see no reason that a school district should be compelled to wait until there is a demonstrable problem with substance abuse among its own students before the district is constitutionally permitted to take measures that will help protect its schools[.]” Id. at 581; see also Earls, 536 U.S. at 835, 122 S.Ct. 2559 (noting demonstrated problem of drug abuse is not necessary in all cases to validity of testing regime). Thus, I believe the immediacy of the problem is clear even where specific evidence of a drug problem in the school is lacking.

¶4Here, the majority opinion notes there was no evidence that the drug problems in the surrounding neighborhood spilled into the school. Though this evidence would clearly “shore up” a fi iding of immediacy under Earls, 536 U.S at 835, 122 S.Ct. 2559, I would find the immediacy of the school’s concern has been demonstrated time and again throughout the country, in numerous court holdings, and specifically here given the evidence of drug activity and violence in the neighborhood surrounding this school.

¶5The problem here lies in the evidence regarding the efficacy of the school’s policy in meeting these immediate concerns. If the school’s pat-down policy exists for students who are more than 30 minutes late to school because students who are this late are more likely involved in violence and/or drug activity, that could support a finding of the policy’s efficacy, but the State presented no evidence to support this proposition or its policy beyond the fact that the school “ha[d] a lot of drug activities and violence down in that neighborhood.” Given the well-established immediacy of the problem, it is clear the school should have some policy in place to address violence and drug activity, but the State failed to establish why this policy of searching students more than 30 minutes late effectively addressed the drug and violence problem. Thus, on this record, I agree that application of Earls’ balancing test to the present case requires us to find the school’s search violated Williams’ Fourth Amendment rights.1

¶6However, the majority opinion should not dissuade public schools from crafting *710constitutionally appropriate pat-down policies that protect students and staff in light of the serious drug and violence problems facing school communities today. It is paramount that schools protect their students and design policies that appropriately address these serious problems while still protecting students’; limited right to privacy op public schooj campuses. In future cases, the State must carry its burden and present sufficient evidence supporting its reasons for the specific terms of school pat-down policies in light of the circumstances the school faces, so that the immediacy and efficacy of the policies can justify the intrusion on students’ limited rights in order to adequately protect students and staff. With these observations, I concur with the majority opinion.