CONCLUSION
Drugs threaten our children's lives, disrupt our schools, and shatter families. Drug-related crimes overwhelm our courts, social service agencies, and police. This situation need not and must not continue.
Across America schools and communitieshavefound ways to turn the tide in the battle against drugs. The methods they have used and the actions they have taken are described in this volume. We know what works. We know that drug use can be stopped.
But we also know that defeating drugs is not easy. We cannot expect the schools to do the job without the help of parents, police, the courts, and other community groups. Drugs will only be beaten when all of us work together to deliver a firm, consistent message to those who would use or sell drugs: a message that illegal drugs will not be tolerated. It is time to join in a national effort to achieve schools without drugs.
SPECIAL SECTIONS
TEACHING ABOUT DRUG PREVENTION
Teaching About Drug Prevention: Sample Topics and Learning Activities
An effective drug prevention curriculum covers a broad set of education objectives. This section presents a model program for consideration by State and local school authorities who have the responsibility to design a curriculum that meets local needs and priorities. The program consists of four objectives, plus sample topics and learning activities.
OBJECTIVE 1: To value and maintain sound personal health; to understand how drugs affect health.
An effective drug prevention education program instills respect for a healthy body and mind and imparts knowledge of how the body functions, how personal habits contribute to good health, and how drugs affect the body.
At the early elementary level, children learn how to care for their bodies. Knowledge about habits, medicine, and poisons lays the foundation for learning about drugs. Older children begin to learn about the drug problem and study those drugs to which they are most likely to be exposed. The curriculum for secondary school students is increasingly drug-specific as students learn about the effects of certain drugs on their bodies and on adolescent maturation.
Sample topics for elementary school:
Sample topics for secondary school:
Children tend to be present-oriented and are likely to feel invulnerable to long-term effects of drugs. For this reason, they should be taught about the short-term effects of drug use—such as impact on appearance, alertness, and coordination—as well as about the cumulative effects.
Children tend to be present-oriented and are likely to feel invulnerable to long-term effects of drugs. For this reason, they should be taught about the short-term effects of drug use—such as impact on appearance, alertness, and coordination—as well as about the cumulative effects.
Sample learning activities for elementary school:
Sample learning activities for high school:
When an expert visits a class, both the class and the expert should be prepared in advance. Students should learn about the expert's profession and prepare questions to ask during the visit. The expert should know what the objectives of the session are and how the session fits into previous and subsequent learning. The expert should participate in a discussion or classroom activity, not simply appear as a speaker.
When an expert visits a class, both the class and the expert should be prepared in advance. Students should learn about the expert's profession and prepare questions to ask during the visit. The expert should know what the objectives of the session are and how the session fits into previous and subsequent learning. The expert should participate in a discussion or classroom activity, not simply appear as a speaker.
OBJECTIVE 2: To respect laws and rules prohibiting drugs.
The program teaches children to respect rules and laws as the embodiment of social values and as tools for protecting individuals and society. It provides specific instruction about laws concerning drugs.
Students in the early grades learn to identify rules and to understand their importance, while older students learn about the school drug code and laws regulating drugs.
Sample topics for elementary school:
Sample topics for secondary school:
Sample learning activities for elementary school:
Sample learning activities for secondary school:
OBJECTIVE 3: To recognize and resist pressures to use drugs.
Social influences play a key role in encouraging children to try drugs. Pressures to use drugs come from internal sources, such as a child's desire to feel included in a group or to demonstrate independence, and external influences, such as the opinions and example of friends, older children, and adults, and media messages.
Students must learn to identify these pressures. They must then learn how to counteract messages to use drugs and gain practice in saying no. The education program emphasizes influences on behavior, responsible decision-making, and techniques for resisting pressures to use drugs.
Sample topics for elementary through high school:
Sample learning activities for elementary through high school:
OBJECTIVE 4: To promote activities that reinforce the positive, drug-free elements of student life.
School activities that provide students opportunities to have fun without drugs—and to contribute to the school community—build momentum for peer pressure not to use drugs. These school activities also nurture positive examples by giving older students opportunities for leadership related to drug prevention.
Sample activities:
HOW THE LAW CAN HELP
Federal law accords school officials broad authority to regulate student conduct and supports reasonable and fair disciplinary action. The Supreme Court recently reaffirmed that the constitutional rights of students in school are not "automatically coextensive with the rights of adults in other settings."[1]Rather, recognizing that "in recent years … drug use and violent crime in the schools have become major social problems," the Court has emphasized the importance of effective enforcement of school rules.[2]On the whole, a school "is allowed to determine the methods of student discipline and need not exercise its discretion with undue timidity."[3]
An effective campaign against drug use requires a basic understanding of legal techniques for searching and seizing drugs and drug-related material, for suspending and expelling students involved with drugs, and for assisting law enforcement officials in the prosecution of drug offenders. Such knowledge will both help schools identify and penalize students who use or sell drugs at school and enable school officials to uncover the evidence needed to support prosecutions under Federal and State criminal laws that contain strong penalties for drug use and sale. In many cases, school officials can be instrumental in successful prosecutions.
In addition to the general Federal statutes that make it a crime to possess or distribute a controlled substance, there are special Federal laws designed to protect children and schools from drugs:
An important part of the Comprehensive Crime Control Act of 1984 makes it aFederal crime to sell drugs in or near a public or private elementary or secondary school.Under this new"schoolhouse" law, sales within 1,000 feet of school grounds are punishable by up todoublethe sentence that would apply if the sale occurred elsewhere. Even more serious mandatory penalties are available for repeat offenders.[4]
Distribution or sale to minorsof controlled substances is also aFederal crime. When anyone over age 21 sells drugs to anyone under 18, the seller runs the risk that he will receive up todoublethe sentence that would apply to a sale to an adult. Here too, more serious penalties can be imposed on repeat offenders.[5]
By working with Federal and State prosecutors in their area, schools can help to ensure that these laws and others are used to make children and schools off-limits to drugs.
The following pages describe in general terms the Federal laws applicable to the development of an effective school drug policy. This handbook is not a compendium of all laws that may apply to a school district, and it is not intended to provide legal advice on all issues that may arise. School officials must recognize that many legal issues in the school context are also governed, in whole or in part, by State and local laws, which, given their diversity, cannot be covered here. Advice should be sought from legal counsel in order to understand the applicable laws and to ensure that the school's policies and actions make full use of the available methods of enforcement.
Most private schools, particularly those that receive little or no financial assistance from public sources and are not associated with a public entity, enjoy a greater degree of legal flexibility with respect to combating the sale and use of illegal drugs. Depending on the terms of their contracts with enrolled students, such schools may be largely free of the restrictions that normally apply to drug searches or the suspension or expulsion of student drug users. Private school officials should consult legal counsel to determine what enforcement measures may be available to them.
School procedures should reflect the available legal means for combating drug use. These procedures should be known to and understood by school administrators and teachers as well as students, parents, and law enforcement officials. Everyone should be aware that school authorities have broad power within the law to take full, appropriate, and effective action against drug offenders. Additional sources of information on legal issues in school drug policy are listed at the end of this handbook.
SEARCHING FOR DRUGS WITHIN THE SCHOOL
In some circumstances, the most important tool for controlling drug use is an effective program of drug searches. School administrators should not condone the presence of drugsanywhereon school property. The presence of any drugs or drug-related materials in school can mean only one thing—that drugs are being used or distributed in school. Schools committed to fighting drugs should do everything they can to determine whether school grounds are being used to facilitate the possession, use, or distribution of drugs and to prevent such crimes.
In order to institute an effective drug search policy in schools with a substantial problem, school officials can take several steps. First, they can identify the specific areas in the school where drugs are likely to be found or used. Student lockers, bathrooms, and "smoking areas" are obvious candidates. Second, school administrators can clearly announcein writingat thebeginningof the school year that these areas will be subject to unannounced searches and that students should consider such areas "public" rather than "private." The more clearly a school specifies that these portions of the school's property are public, the less likely it is that a court will conclude that students retain any reasonable expectation of privacy in these places and the less justification will be needed to search such locations.
School officials should, therefore, formulate and disseminate to all students and staff a written policy that will permit an effective program of drug searches. Courts have usually upheld locker searches where schools have established written policies under which the school retains joint control over student lockers, maintains duplicate or master keys for all lockers, and reserves the right to inspect lockers at any time.[6]While this has not become established law in every part of the country, it will be easier to justify locker searches in schools that have such policies. Moreover, the mere existence of such policies can have a salutary effect. If students know that their lockers may be searched, drug users will find it much more difficult to maintain quantities of drugs in school.
The effectiveness of such searches may be improved with the use of specially trained dogs. Courts have generally held that the use of dogs to detect drugs on or inobjectssuch as lockers, ventilators, or desks as opposed to persons, is not a "search" within the meaning of the Fourth Amendment.[7]Accordingly, school administrators are generally justified in using dogs in this way.
It is important to remember that any illicit drugs and drug-related items discovered at school are evidence that may be used in a criminal trial. School officials should be careful, first, to protect the evidentiary integrity of such seizures by making sure that the items are obtained in permissible searches, since unlawfully acquired evidence will not be admissible in criminal proceedings. Second, school officials should work closely with local law enforcement officials to preserve, in writing, the nature and circumstances of any seizure of drug contraband. In a criminal prosecution, the State must prove that the items produced as evidence in court are the same items that were seized from the suspect. Thus, the State must establish a "chain of custody" over the seized items which accounts for the possession of the evidence from the moment of its seizure to the moment it is introduced in court. School policy regarding the disposition of drug-related items should include procedures for the custody and safekeeping of drugs and drug-related materials prior to their removal by the police and procedures for recording the circumstances regarding the seizure.
Searching Students
In some circumstances, teachers or other school personnel will wish to search a student whom they believe to be in possession of drugs. The Supreme Court has stated that searches may be carried out according to "the dictates of reason and common sense."[8]The Court has recognized that the need of school authorities to maintain order justifies searches that might otherwise be unreasonable if undertaken by police officers or in the larger community. Thus the Court held in 1985 that school officials, unlike the police, donotneed "probable cause" to conduct a search. Nor do they need a search warrant.[9]
Under the Supreme Court's ruling:
Interpretation of "Reasonable Grounds"
Lower courts are beginning to interpret and apply the "reasonable grounds" standard in the school setting. From these cases it appears that courts will require more than general suspicion, curiosity, rumor, or a hunch to justify searching a student or his possessions. Factors that will help sustain a search include the observation of specific and describable behavior or activities leading one reasonably to believe that a given student is engaging in or has engaged in prohibited conduct. The more specific the evidence in support of searching a particular student, the more likely the search will be upheld. For example, courts using a "reasonable grounds" (or similar) standard have upheld the right of school officials to search:
Scope of the Permissible Search
School officials are authorized to conduct searches within reasonable limits. The Supreme Court has described two aspects of these limits. First, when officials conduct a search, they must use only measures that are reasonably related to the purpose of the search; second, the search may not be excessively intrusive in light of the age or sex of the student. For example, if a teacher believes she has seen one student passing a marijuana cigarette to another student, she might reasonably search the students and any nearby belongings in which the students might have tried to hide the drug. If it turns out that what the teacher saw was a stick of gum, she would have no justification for any further search for drugs.
The more intrusive the search, the greater the justification that will be required by the courts. A search of a student's jacket or bookbag can often be justified as reasonable. At the other end of the spectrum, strip searches are considered a highly intrusive invasion of an individual's privacy and are viewed with disfavor by the courts (although even these searches have been upheld in certain extraordinary circumstances).
School officials do not necessarily have to stop a search if they find what they are looking for. If the search of a student reveals items that create reasonable grounds for suspecting that he may also possess other evidence of crime or misconduct, the school officials may continue the search. For example, if a teacher justifiably searches a student's purse for cigarettes and finds rolling papers like those used for marijuana cigarettes, it will then be reasonable for the teacher to search the rest of the purse for other evidence of drugs.
Consent
If a student consents to a search, the search is permissible, regardless of whether there would otherwise be reasonable grounds for the search. To render such a search valid, however, the student must give consent knowingly and voluntarily.
Establishing whether the student's consent was voluntary can be difficult, and the burden is on the school officials to prove voluntary consent. If a student agrees to be searched out of fear or as a result of other coercion, that consent will probably be found invalid. Similarly, if school officials indicate that a student must agree to a search or if the student is very young or otherwise unaware that he has the right to object, his consent will also be held invalid. School officials may find it helpful to explain to students that they need not consent to a search. In some cases, standard consent forms may be useful.
If a student is asked to consent to a search and refuses, that refusal does not mean that the search may not be conducted. Rather, in the absence of consent, school officials retain the authority to conduct a search when there are reasonable grounds to justify it, as described previously.
Special Types of Student Searches
Schools with severe drug problems may occasionally wish to resort to more intrusive searches, such as the use of trained dogs or urinalysis to screen students for drug use. The Supreme Court has yet to address these issues. The following paragraphs explain the existing rulings on these subjects by other courts:
SUSPENSION AND EXPULSION
A school policy may lawfully provide for penalties of varying severity, including suspension and expulsion, to respond to drug-related offenses. The Supreme Court has recently held that because schools "need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process," a school's disciplinary rules need not be as detailed as a criminal code.[17]Nonetheless, it is helpful for school policies to be explicit about the types of offenses that will be punished and about the penalties that may be imposed for each of these (e.g., use, possession, or sale of drugs). State and local law will usually determine the range of sanctions that is permissible. In general, courts will require only that the penalty imposed for drug-related misconduct be rationally related to the severity of the offense.
School officials should not forget that they have jurisdiction to impose punishment for some drug-related offenses that occur off campus. Depending upon State and local laws, schools are often able to punish conduct at off-campus, school-sponsored events as well as off-campus conduct that has a direct and immediate effect on school activities.
Procedural Guidelines
Students facing suspension or expulsion from school are entitled under the U.S. Constitution and most State constitutions to common sense due process protections of notice and an opportunity to be heard. Because the Supreme Court has recognized that a school's ability to maintain order would be impeded if formal procedures were required every time school authorities sought to discipline a student, the Court has held that the nature and formality of the "hearing" will depend on the severity of the sanction being imposed.
A formal hearing is not required when a school seeks to suspend a student for 10 days or less.[18]The Supreme Court has held that due process in that situation requires only that:
The Supreme Court has also stated that more formal procedures may be required for suspensions longer than 10 days and for expulsions. Although the Court has not established specific procedures to be followed in those situations, other Federal courts[19]have set the following guidelines for expulsions. These guidelines would apply to suspensions longer than 10 days as well:
Many States have laws governing the procedures required for suspensions and expulsions. Because applicable statutes and judicial rulings vary across the country, local school districts may enjoy a greater or lesser degree of flexibility in establishing procedures for suspensions and expulsions.
School officials must also be aware of the special procedures that apply to suspension or expulsion of handicapped students under Federal law and regulations.[20]
Effect of Criminal Proceedings Against a Student
A school may usually pursue disciplinary action against a student regardless of the status of any outside criminal prosecution. That is, Federal law does not require the school to await the outcome of the criminal prosecution before initiating proceedings to suspend or expel a student or to impose whatever other penalty is appropriate for the violation of the school's rules. In addition, a school is generally free under Federal law to discipline a student when there is evidence that the student has violated a school rule, even if a juvenile court has acquitted (or convicted) the student or if local authorities have declined to prosecute criminal charges stemming from the same incident. Schools may wish to discuss this subject with counsel.
Effect of Expulsion
State and local law will determine the effect of expelling a student from school. Some State laws require the provision of alternative schooling for students below a certain age. In other areas, expulsion may mean the removal from public schools for the balance of the school year or even the permanent denial of access to the public school system.
CONFIDENTIALITY OF EDUCATION RECORDS
To rid their schools of drugs, school officials will periodically need to report drug-related crimes to police and to assist local law enforcement authorities in detecting and prosecuting drug offenders. In doing so, schools will need to take steps to ensure compliance with Federal and State laws governing confidentiality of student records.
The Federal law that addresses this issue is the Family Educational Rights and Privacy Act (FERPA),[21]which applies to any school that receives Federal funding and which limits the disclosure of certain information about students that is contained in education records.[22]Under FERPA, disclosure of information in education records to individuals or entities other than parents, students, and school officials is only permissible in specified situations.[23]In many cases, unless the parents or an eligible student[24]provides written consent, FERPA will limit a school's ability to turn over education records or to disclose information from them to the police. Such disclosure is permitted, however, if (1) it is required by a court order or subpoena, or (2) it is warranted by a health or safety emergency. In the first of these two cases, reasonable efforts must be made to notify the student's parents before the disclosure is made. FERPA also permits disclosure if a State law enacted before November 19, 1974, specifically requires disclosure to State and local officials.
Schools should be aware, however, that because FERPA only governs information in education records, it does not limit disclosure of other information. Thus, school employees are free to disclose any information of which they become aware through personal observation. For example, a teacher who witnesses a drug transaction may, when the police arrive, report what he witnessed. Similarly, evidence seized from a student during a search is not an education record and may be turned over to the police without constraint.
State laws and school policies may impose additional, and sometimes more restrictive, requirements regarding the disclosure of information about students. Since this area of the law is complicated, it is especially important that an attorney be involved in formulating school policy under FERPA and applicable State laws.
OTHER LEGAL ISSUES
Lawsuits Against Schools or School Officials
Disagreements between parents or students and school officials about disciplinary measures usually can be resolved informally. Occasionally, however, a school's decisions and activities relating to disciplinary matters are the subject of lawsuits by parents or students against administrators, teachers, and school systems. For these reasons, it is advisable that school districts obtain adequate insurance coverage for themselves and forallschool personnel for liability arising from disciplinary actions.
Suits may be brought in Federal or State court; typically, they are based on a claim that a student's constitutional or statutory rights have been violated. Frequently, these suits will seek to revoke the school district's imposition of some disciplinary measure, for example, by ordering the reinstatement of a student who has been expelled or suspended. Suits may also attempt to recover money damages from the school district or the employee involved, or both, however, court awards of money damages are extremely rare. Moreover, although there can be no guarantee of a given result in any particular case, courts in recent years have tended to discourage such litigation.
In general, disciplinary measures imposed reasonably and in accordance with established legal requirements will be upheld by the courts. As a rule, Federal judges will not substitute their interpretations of school rules or regulations for those of local school authorities or otherwise second-guess reasonable decisions by school officials.[25]In addition, school officials are entitled to a qualified good faith immunity from personal liability for damages for having violated a student's Federal constitutional or civil rights.[26]When this immunity applies, it shields school officials from any personal liability for money damages. Thus, as a general matter, personal liability is very rare, because officials should not be held personally liable unless their actions are clearly unlawful, unreasonable, or arbitrary.
When a court does award damages, the award may be "compensatory" or "punitive." Compensatory damages are awarded to compensate the student for injuries actually suffered as a result of the violation of his or her rights and cannot be based upon the abstract "value" or "importance" of the constitutional rights in question.[27]The burden is on the student to prove that he suffered actual injury as a result of the deprivation. Thus, a student who is suspended, but not under the required procedures, will not be entitled to compensation if he would have been suspended had a proper hearing been held. If the student cannot prove that the failure to hold a hearing itself caused him some compensable harm, then the student is entitled to no more than nominal damages, such as $1.00.[28]"Punitive damages" are awarded to punish the perpetrator of the injury. Normally, punitive damages are awarded only when the conduct in question is malicious, unusually reckless, or otherwise reprehensible.
Parents and students can also claim that actions by a school or school officials have violated State law. For example, it can be asserted that a teacher "assaulted" a student in violation of a State criminal law. The procedures and standards in actions involving such violations are determined by each State. Some States provide a qualified immunity from tort liability under standards similar to the "good faith" immunity in Federal civil rights actions. Other States provide absolute immunity under their law for actions taken in the course of a school official's duties.