By Crystal Pound and Alex Lodge
Columbine High School; Red Lake Indian Reservation; Sandy Hook Elementary; Marjory Stoneman Douglas High School; Santa Fe High School; Robb Elementary School — these schools share the terrible distinction of being the locations of the six deadliest U.S. school shootings in the last 23 years. In half of these cases, an armed school resource officer (SRO) or unarmed security guards were present when the shooting began.
Simply stated, an SRO is a sworn law-enforcement officer with arrest powers who works either full or part time, in a school setting with minors. Where armed SROs were present, they were only sometimes able to return fire with the shooter. Other times they were injured nearly immediately. In one notable case, the SRO allegedly ran away when the shooting began and later “faced charges of neglect of a child, culpable negligence and perjury.” In none of these cases was the SRO’s presence or absence determinative of the overall outcome of the massacre.
A 2021 Brown University study and a recent ACLU research paper found no evidence of SROs reducing the number of school shootings. What SROs may reduce are the number of fights and other physical altercations between students — which is certainly a worthwhile goal in terms of school safety. But at what overall cost to high school students’ constitutionally protected rights? Part of the cost is increased suspensions, expulsions, and referrals to law enforcement, resulting in records that will follow students into their life post high school. This cost is especially high for Black teenagers. Depending on the state, Black students were arrested at a rate three to eight times that of their white counterparts. Added to the intractable expense of failing to properly instruct our adolescents on their powerful right to silence, is the disservice of teaching them that they should instead actively participate in interactions with law enforcement.
In almost every circumstance in U.S. life, a police officer must have probable cause that a violation of the law occurred prior to performing a search. This is due to the U.S. Constitutions’ 4th Amendment prohibition against unreasonable searches and seizures. However, a different standard applies if the search takes place in a U.S. school at the direction of a school official:
Under ordinary circumstances, a search of a student by a teacher or other school official will be “ justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
New Jersey v. T.L.O., 469 U.S. 325, 341–42 (1985) (emphasis added). In a school setting, this means that so long as the school official suspects a violation of any school rule or law, any search, within reason, reasonably related to finding evidence of the violation is fair game. Nearly 40 years after T.L.O., the hard questions remain: What standard applies when the school employee or contractor is also a police officer? And more pressingly, why does the answer matter?
Let’s focus on the impact of having an officer permanently stationed at a child’s school. By acting as both a police officer and school employee or contractor, SROs are uniquely poised to both gain a child’s trust and cause that child lifelong consequences for incriminating disclosures the child makes to the SRO. Put another way, an SRO is an individual with the power to elevate a situation of one student stealing another student’s phone from a school infraction into an aggravated misdemeanor charge of Theft 3rd under Iowa Code § 714.2(3). In elementary schools, while remaining legally justified, an SRO can elevate a 7-year-old’s temper tantrum, into a traumatic experience where the child is handcuffed to a chair for fifteen minutes.
However, schools, cities and counties can and do expand the SRO’s role from law enforcement to include duties of being a “law-related counselor, and law-related educator” and even a friend. People expect that a “counselor” will keep information confidential and always act in the discloser’s best interest. Would it be surprising to learn that an SRO taught high school students under their tutelage to always cooperate with an officer’s investigation? No. But is that actually in the student’s best interest? Or is it in the investigation’s best interest?
One school of thought is that an inherent conflict of interest exists in having the same person be the investigator and teacher, as well as ultimately being responsible for making a charge recommendation — especially when the student is under the belief that the SRO is their friend. Take for instance the SRO program in Cattaraugus County, New York, which describes their SRO program by saying “[students] see the SRO as a friend, and advisor, and positive role model, and someone to turn to in times of need.” However, Cattaraugus County fails to advertise that anything the students disclose to their friend, advisor and confidant can be used against them in a court of law.
It is important that every person understand that while it might be in an investigation’s best interest that individuals speak with police, it is not necessarily in an individual’s personal best interest to interact with — let alone speak with — law enforcement. It is just as crucial that people understand that refusing to speak to police is a reasonable exercise of their constitutional rights, and not indicative of guilt. These are concepts that many adults have a difficult time grasping — yet the placement of SROs in schools presupposes that underaged students would or should innately understand such rights.
Requiring students to navigate the quandary involved in interacting with a school official who is also a sworn officer of the law is a wildly unfair expectation that sets them up to fail. Society instructs students from their early elementary school days to confide in and seek safety from teachers, school administrators and staff. It simultaneously expects them to understand — perhaps innately, or through osmosis — that everything they say can, and will, be used against them in a court of law. The Eighth Circuit Court of Appeals recently remarked on this conundrum when it commented:
While it is generally true (as the district court observed) that police officers may not arrest someone without probable cause, that general truth doesn't provide much guidance to an officer in the public-school setting. Courts have recognized that, though the Fourth Amendment protects students in public schools, ‘those rights are different in public schools than elsewhere.’ … In fact, ‘students have a lesser expectation of privacy than members of the population generally.’ … So, actions outside the schoolhouse that clearly violate the Constitution do not necessarily do so inside it.
L.G. through M.G. v. Columbia Pub. Sch., 990 F.3d 1145, 1148 (8th Cir. 2021) (internal citations omitted) (emphasis added). How is an adolescent supposed to navigate a situation so tangled and unclear when the judicial branch finds it difficult to parse the issue? SROs are often meant to stand in as a “positive” relationship to students. While the goal is noble, the reality is that the SRO is always a police officer. Police officers, even SROs, are trained primarily in the criminal justice system. They are trained to investigate, detain, and arrest criminal suspects. A high school student looking for a sympathetic ear could easily transform themselves into a suspect by uttering one incriminating statement.
What can be done to change the status quo when it comes to SROs? Different communities have dealt with it differently. Some cities have chosen to terminate their SRO programs while others have chosen to circumscribe the scope of their SRO programs. At the very least, it is vital that our students and their parents understand what an SRO is and what they are not.
For those wishing for more information on what to do — whether you want to form an advocacy group to remove them from schools, or just want to make a deep dive into the data and history behind police in U.S. schools — the ACLU of Iowa will be releasing a toolkit advocating for police-free schools in Iowa. The toolkit will be available at https://www.aclu-ia.org.
Justice101 is an Iowa non-profit aimed at teaching students of all ages their Fourth Amendment rights during interactions with law enforcement. In the last year, Justice101 has presented to groups in Iowa, Illinois, and Wisconsin. More information is available at https://www.justice-101.org/about-us.html.
About the authors:
Crystal Pound is an attorney at O’Keeffe O’Brien Lyson attorneys in Fargo, North Dakota, whose practice involves family law, criminal law and general law. She is also the president and co-founder of Justice101, an Iowa-based non-profit aimed at teaching vulnerable populations their constitutional rights.
Alex Lodge is a Louisiana native but has made the Midwest his home. After finishing his degree in Chemistry at Grambling State University, Alex moved to Iowa to pursue a doctorate in Organic Chemistry where he later pursued a law degree at the University of Iowa College of Law. Alex is currently IP Counsel with Cargill, Inc.
