by Kristina “KK” Kersey, Sr. Youth Defense Counsel
I always loved back to school. It was a time of Lisa Frank, Trapper Keeper, and weirdly attractively smelling erasers. Teachers, the Dow Jones of school supplies, forecasted how many pencils I would need.
Back to school in 2021 might look different—I’m taking my nephew back-to-school shopping on Saturday, and so far the only thing on his list are Yeezys, which he assures me are necessary for gym class. He’s 10, and the public defender in me respects his willingness to advocate, even in the face of obvious defeat.
As you “like” all those adorable first-day-of-school photos flooding your timeline, let’s think about what supplies you might need to get ready for back-to-school advocacy.
And defenders, in honor of your first day of school advocacy, I have packed you a delicious justice, lettuce, and rights sandwich with the crusts cut off.
- We start with a nice base, the bread of your choice, with the well-settled doctrine that “students do not ’shed their constitutional rights . . . at the schoolhouse gate.’”
- But sometimes it’s seeded bread and it just jams right into your wisdom tooth, like the fact that over $2 billion has been spent placing school resource officers (SROs) in schools over the past two decades, which has contributed to the criminalization of normal adolescent behavior. While youth crime rates have steadily declined since the 1990s, during the 2015–2016 school year, schools referred approximately 204,000 students to law enforcement, and approximately 52,000 students were arrested on school property during the school day or at a school-sponsored event. Shockingly to none of you, youth of color bear the brunt of this criminalization.
We defenders are like welders that are sealing off the school-to-prison pipeline. But ya know, like sexy welders, like in Flash Dance.
- Then you add the mayo, schools as “substitute parents.” And courts, like people, are split on whether it’s gross or not. TLO makes clear that school officials have a responsibility to protect students, but underscore that they are state actors and not surrogate parents and therefore, they cannot claim immunity from the protections of the Fourth Amendment. While the Supreme Court in TLO failed to reach the issue of whether the exclusionary rule applies to the fruit of unlawful searches or seizures conducted exclusively by school authorities, lower courts have applied the exclusionary rule.
Suffice to say, we at NJDC are so anti-mayo in this analogy that our Executive Director is vegan.
- While reasonable minds may differ regarding mayo, we can all agree that it has no place on a PB&J. (::inbox floods with e-mails from southern defenders advocating the joy of a PBM&J sandwich::) Much like that disgusting combo, searches of children in school has also served up some stomach-turning arguments by the State. The Government has argued that students’ tardiness, students’ special education classification, and a student’s association with ‘wrongdoers’ constitute reasonable grounds for a search in school. Thankfully, the prosecution ate a PBM&J and lost on all of those arguments.
- Geno’s v. Pat’s in Philly, Primanti Bros., Mother’s, Central Grocery, Mr. Beef, Katz’s. We can argue about who makes the best sandwich (the correct answer is White House in Atlantic City), but we can all agree that school searches must not involve strip searches. What’s that, Justice Souter? No, we can’t? Can we agree that they are “categorically distinct” and “requir[e] distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings”? Great.
- Me, I like chips with my sandwich. And nowhere is the “salty crunch” felt more acutely than when you give a child the “choice” to consent to a search in school or to suffer some disciplinary action. When’s the last time you asked permission to use the bathroom?
- And now for the sweet dessert. We aren’t alone. School officials are beginning to question the role they play in the school-to-prison pipeline. Lawmakers are proposing bills that limit federal funding for police in schools and support hiring school counselors and social workers.
- A little sticky love note on school-space custodial interrogation from Justice Kween Sotomayor. D.B., y’all: It would be “nonsensical” to ignore a child’s age. “The effect of the schoolhouse setting cannot be disentangled from the identity of the person questioned.”
Have a great day fighting the man, Love, SS
- To wash it all down, a defender’s favorite beverage, a cool glass of “fact specific.” So many of these inquiries are fact-specific. What was known, by whom, and when. What was the role of the SRO, school official, or police officer in the interrogation or a search? Is a charter school a private institution immune from 4th Amendment analysis? Not if 99 percent of your funding is from state entities!
Some crusty old seasoned defender once told me, “If the law is on your side, argue the law. If the facts are on your side, argue the facts. And if neither are on your side, argue the Constitution.”
- Where do we pack all this information? Into a janky metal lunchbox that springs open the second you hold it upright? No, not us. Yeti and Igloo and Coleman have nothing on us. Hold our thermos, because we will pack all these arguments into a climate-controlled, waterproof, suppression-demanding brief.
Please send and post photos of you on your first day of back-to-school advocacy. #backtodefendingyouthinschool
 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 656, 115 S.Ct. 2386 (1995).
 Lisa Thurau, Two Billion Dollars Later: States Begin to Regulate School Resource Officers in the Nation’s Schools, A Survey of State Laws, Strategies for Youth, 4 (2019): https://strategiesforyouth.org/sitefiles/wp-content/uploads/2019/10/SFY-Wheres-the-State-Report-May2017.pdf.
 The largest drops in violent crime rate and weapons offenses over the past 30 years have been among youth. Jeffrey A. Butts, JohnJayREC — The Research and Evaluation Center at John Jay College of Criminal Justice, City University of New York (2019): https://johnjayrec.nyc/wp-content/uploads/2019/11/databit201901a.pdf.
 See U.S. DEP’T OF EDUC. OFFICE FOR CIVIL RIGHTS, CIVIL RIGHTS DATA COLLECTION, 2015-16 Discipline Estimations by Discipline Type.
 New Jersey v. T.L.O, 469 U.S. 325, 333,336-37 (1985).
 See, e.g., In re William G., 709 P.2d 1287, 1298 n.17 (1985); R.S.M. v. State, 911 So.2d 283 (Fla. App. 2005); State v. Pablo R., 137 P.3d 1198 (N.M. App. 2006); In the Interest of Dumas, 515 A.2d 984 (Pa. Super. Ct. 1986).
 Safford Unified Sch. Dist. V. Redding, 557 U.S. 364 (2009).
 “Counseling Not Criminalization in Schools Act” 2021 CONG US S 2125, 117th CONGRESS, 1st Session.
 J.D.B. v. North Carolina at 276.