An attorney from the law firm Fox Rothschild LLP, which represents Saucon Valley School District, attempted to explain in an email Thursday some of the legal background for proposed changes to the district’s search policy for students; changes that ignited a furor among some parents after a Morning Call article about Tuesday’s school board meeting detailed how the policy could allow for warrantless strip searches without parental consent of students under certain circumstances.
As of Friday, more than 80 percent of the 267 people who have voted in a Saucon Source poll about the proposed policy change say they’re against school officials searching students without parental consent–even in a situation in which they believe the student could be a danger to himself or others.
Attorney M. Kyle Berman said the district’s ability to do that is already implied with its current policy, and even without that in place, school officials have the legal authority to conduct searches of students when there is an “appropriate level of cause.”
“As it relates to this policy, it is worth noting that when merited, searches of students were already allowed,” he said. “The right was implied in the current policy, but even without the existing policy school officials with the appropriate level of cause may conduct searches of students legally. The requirement is only that the scope of the search be reasonably related to the basis for the search and not excessively intrusive when considering the age and sex of the student and either how serious or dangerous the violation believed to be occurring or have occurred. So if the only purpose in the amendment had been to include this authority, amending the policy was not necessary.”
Berman spoke on behalf of school board solicitor Mark Fitzgerald, who was out of the office. School district superintendent Dr. Monica McHale-Small referred questions about the policy to Fitzgerald and Fox Rothschild LLP.
“This update may have been part of the district’s regular review,” Berman said in the email, noting that the district’s current search policy appears to have been adopted in 2006. “Moreover, I believe most of this policy–including this section–is from the Pennsylvania School Boards Association version. The PSBA provides such policies as part of the policy subscription service that normally works with its subscriber districts to identify, review and update policies.”
The PSBA’s online policy manual includes an example of a student search policy that was adopted by the Butler Area School District in 1995 and revised in 2006.
That policy states, in part, that “the Pennsylvania Supreme Court has stated that the privacy interest of students within the school environment is limited. The Pennsylvania Superior Court has ruled that searches of school students are permissible when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating the law or the rules of the school, when the decision to search is reasonable, and the search is reasonably limited to the objective which prompted the search in the first place.”
Under a Delegation of Responsibility section, it further delineates the manner in which officials may conduct searches, but leaves open to interpretation the circumstances under which a parent may be present during a search, and–in those cases–how much time a parent has to respond to a school in a case in which their child is going to be searched.
1. All searches of a student and/or of items in the student’s possession or within the student’s control shall be conducted in the presence of the building principal and/or his/her designee(s) and a witness. Based on the nature and severity of the incident, the student’s parents/guardian are permitted to be present during the search of a student and/or of items in the student’s possession or within the student’s control if it is possible to locate the student’s parent(s)/guardian and they report to the building principal’s office within a reasonable period of time. Such searches shall be conducted in private.
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5. If the student refuses to voluntarily produce any suspected evidence that the student has violated or is violating either the laws of the United States of America or the Commonwealth of Pennsylvania or the rules, policies, and regulations of the School District and refuses to consent to a search, the building principal and/or his/her designee(s) in the presence of a witness and, if present, the student’s parent(s)/guardian(s), shall order the student to empty his/her pockets, remove his/her outer jacket, coat and/or vest, remove his/her shoes and socks, roll up his/her pant legs to the knee, and/or shirt sleeves to the elbows, remove his/her belt, and turn over to the person conducting the search any and all items in the student’s possession or within the student’s control.
6. The refusal of a student to submit to a search of himself/herself and/or of items in the student’s possession or within the student’s control shall be immediately reported to the appropriate law enforcement officers and/or juvenile probation officers for further investigation. The student shall be detained by the principal until such time as a law enforcement officer or juvenile probation officer arrives to interview the student.
“As I understand it, the (Saucon Valley) policy is not to address any one particular situation,” Berman said. “It is…drafted to have guidelines and expectations in place so that if such a search would be appropriate, that it would be carried out in the most appropriate way. Similarly, the check on a person’s ability to conduct the search is to ensure that at least one other person with knowledge of the legal limits has considered the matter before the search can move forward.”
“Finally, whether this policy is passed in its current form or not, I fully expect that where a reportable crime is believed to have occurred that the district will continue its practice of contacting the police,” he concluded. “At that point, the police will take whatever actions and conduct any searches they deem appropriate without input from the District or the District’s policy.”
Some of the parents who posted comments in response to the earlier story published on Saucon Source as well as the link to the Morning Call article that was posted on its Facebook page said they would consider taking legal action against the school district if their child were ever strip-searched without their consent.
“Not only would I sue, I’d want to file charges for pedophilia,” wrote Rick Chaco Baciocco in a Facebook comment on the Saucon Source article.
And Micky Garmsir wrote that “no one will lay a finger on my child, and I will be present if there is ever an issue. Any deviation from this will result in swift legal action.”
Others, however, blamed the prevalence of drugs in the community–rather than the school district–for the decision to update the policy to be more specific about searches.
“There is no indication that if a search is warranted the child will be asked to get naked with a person who is not trained to conduct the search,” commented Adrienne Pauling. “My guess is that the police would be involved relatively immediately and would more than likely be conducting the search. All of this is of course only necessary if an imminent danger to self or others is present. I can’t imagine this is something that would be done often. I can imagine the need for this type of intervention given the drug issues in Hellertown.”
In light of the judicial opinions that have been rendered on student searches in Pennsylvania, and the information provided by the school district’s law firm, where do you stand on this controversial issue? Tell us by posting a comment.
