Supreme Court Teaches Students They’re outside Constitution

October 16, 2013 • Commentary
This article appeared on Cato​.org on October 16, 2013.

I was furious to see this headline from civil liberties guardian the Rutherford Institute last week: “U.S. Supreme Court Refuses to Hear Case of Student Subjected to Random Lockdown and Mass Search by Police in Public School.”

I was furious, but not shocked because, as I’ll explain, this has happened before.

Furthermore, there has been hardly any media attention to the outcome of this case, Burlison v. Springfield Public Schools, which Rutherford’s founder and president, constitutional lawyer John Whitehead, says has “long‐​term ramifications of treating young people as if they have no rights.”

Here are the facts of the case:

“On April 22, 2010, the principal of Central High School (in Springfield, Mo.) announced over the public address system that the school was going into ‘lockdown’ and that students were prohibited from leaving their classrooms.

“School officials and agents of the Greene County Sheriff’s Department thereafter ordered students in random classrooms to leave all personal belongings behind and exit the classrooms (despite the previous order). Dogs were also brought in to assist in the raid.

“Upon re‐​entering the classrooms, students allegedly discovered that their belongings had been rummaged through.”

Mellony and Doug Burlison, the parents of two kids enrolled in Central High School, sued the school district for violating the Fourth Amendment and the Missouri Constitution. (The Rutherford Institute, as usual, provided lawyers to the Burlisons at no charge to present their case.)

These searches were conducted without any individually cited suspicions of wrongdoing by any of the students, not to mention total disregard of due process.

But dig this: In March of this year, the Eighth Circuit Court of Appeals ruled that the school’s concern with exposing drug use outweighed the privacy rights of the locked down students.

And, after an appeal to John Roberts’ Supreme Court, the plaintiffs got unpleasant news on Oct. 7: Among the court’s long list of cases for which certiorari, or review, was denied was Burlison v. Springfield Public Schools.

The Burlisons, effectively, have no case.

There was not one word about why our highest court couldn’t be bothered with this — and not a single, dissenting voice. Where were Justices Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer and Anthony Kennedy?

It was Justice Kennedy, often known as “the swing vote” in decisions, who said years ago: “The Constitution needs renewal and understanding each generation, or else it’s not going to last” (from my book Living the Bill of Rights, Harper Collins and University of California Press).

But in this case, the court, including Kennedy, simply had nothing to say about public school students being locked down and searched en masse without a glimmer of due process.

Most Americans have not even heard of the Burlisons’ case, so I’m not going to let it fade away. That’s why I hereby challenge all members of this Supreme Court to read (or reread) Justice William Brennan’s furious dissent in a similar 1981 case, Diane Doe v. Renfrow.

His dissent has largely been forgotten. But because the Supreme Court has once again tossed America’s young outside the Constitution, the late justice should also be heard by today’s students, parents and teachers, who need to pay much more attention to how our most powerful judicial body defines who we are as Americans.

I knew Justice Brennan. A powerful protector of our individual liberties, he was personally amiable, seldom raised his voice and addressed his friends, including me, as “pal.” But when the majority of that Supreme Court prompted his long dissent in the Doe case, he told me in his chambers, “I was really mad.”

I reported on the case in my profile of Justice Brennan for The New Yorker, later reprinted in my book Living the Bill of Rights: How to Be an Authentic American. Here is a portion of it:

“In 1979, Diane Doe, aged 13 (her last name was not given, because she was a minor), was sitting in her classroom at Highland Junior High School, in Highland, Ind. Next to that building was a senior high school.

“Suddenly, all the classrooms in both schools were entered by school and police officials — along with police‐​trained German shepherds — who were undertaking a mass search for drugs and drug paraphernalia. No students in particular were under suspicion; all of them were under general suspicion.

“For two and a half hours, the students had to sit quietly with their hands upon their desks and the contents of their desks in plain view. … Each student was inspected by a German shepherd. Justice Brennan wrote (in dissent) that when one of the dogs came to Diane, it ‘sniffed at her body, and repeatedly pushed its nose and muzzle into her legs.’ By its concentrated attention, the dog had marked the girl as a person under suspicion.”

Diane sued the school and police, claiming her Fourth Amendment rights had been violated. No judge had issued a warrant for this mass dragnet search.

A federal district judge later threw out her case, declaring her rights had not been violated. The Seventh Circuit Court of Appeals gave her damages for the dog’s strip search. However, the court denied her basic constitutional claim concerning the totality of the mass lockdown — without, wrote Brennan in his dissent, any focus “on particular individuals who might have been engaged in drug activity at school.”

The appeals court ruled the school’s interest in drug use outweighed Diane’s privacy rights. The Supreme Court then refused any further review of the case.

In his dissent of the Supreme Court’s decision, Justice Brennan roared: “Schools cannot expect their students to learn the lessons of good citizenship when the school authorities themselves disregard the fundamental principles underpinning our constitutional freedoms.”

I hope that teachers who read Brennan’s role in that case will encourage class discussions and arguments on what it means for this nation’s future now that the Supreme Court has, again, gotten away with treating our young as constitutional nonentities.

Do you agree? To be continued.

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