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Episode 87: January 6, 2012

Hello, and welcome to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. I’m your host, Adam Freedman.

But first, your daily dose of legalese: This podcast does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Today’s episode: Searching Students at School

I’ve recently received two email messages from mothers concerned that their local schools are violating their children’s right to privacy.

Pam from Minnesota writes:

“I am wondering if a public school in Minnesota has the right to search a personal camera card without permission and then use the photos to discipline students.”

Meanwhile, Karen from Oklahoma City writes that her son:

“was suspended for 5 days and given a disorderly conduct ticket because he refused to submit to a search in the middle of the school cafeteria. . . . My son told [the assistant principal] he could search him but in a private area (not in front of everyone in the cafeteria).. . . I feel my son’s Fourth Amendment rights were violated and I intend to fight this.”

That’s the spirit, Karen! Seriously, these are great questions from both Pam and Karen. The short answer is that students are covered by the Constitutional right against unreasonable searches; however, court decisions over the last 20 years have given schools great latitude to conduct searches. But this area of the law is still evolving; and in a minute, I’ll discuss a recent case that might significantly strengthen students’ rights.

The Fourth Amendment to the Constitution protects the people against “unreasonable searches and seizures” conducted by representatives of the state including, of course, the police.

Student Searches Need Not Be “Warranted”

In the landmark 1985 case of New Jersey vs. TLO, the Supreme Court held that the Fourth Amendment applies to searches conducted on school grounds. However, the Court also held that schools are not required to get a warrant to search a student. The Court reasoned that schools need “swift and informal disciplinary procedures” in order to ensure a safe environment that is conducive to learning. The Court held that the school’s need for quick discipline would be frustrated if a teacher had to get a warrant every time a student needed to be searched.

Reasonable Suspicion Will Do

The TLO Court also decided that school officials do not have to meet the usual standard of “probable cause” that is required when the state searches an adult. Rather, schools can search students based on a lower threshold, sometimes referred to “reasonable grounds” or “reasonable suspicion.”

In a 1995 case called Vernonia School District v. Acton, the Supreme Court held that even the “reasonable suspicion” need not be an “individualized suspicion” in order to justify a search. In other words, a school can search students for things like drugs or weapons even if they don’t have don’t have reason to suspect any particular student has drugs or weapons. They just have to have a reasonable belief that some student might be sneaking such contraband into school. TheVernonia case upheld the legality of school rules requiring mandatory urine tests for school athletes, so that the schools can look for things like drugs, steroids, and, of course, beer.

A particular school search will be deemed “reasonable,” according to the Supreme Court, if “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 nature of the infraction." But how to determine whether a search is “excessively intrusive?” Well, it depends on whether the student had a “reasonable expectation of privacy.”

The Winds of Change?

If that was the end of the story, I’d say that Pam and Karen face an uphill battle against their children’s schools because courts have generally held that students have very little expectation of privacy when they enter the schoolhouse. Therefore, school searches are rarely found to be excessively intrusive so long as they are reasonably related to the school’s need to maintain discipline.

However, in July 2008, the Federal Court of Appeals for the Ninth Circuit caused a sensation (or, at least, what passes for a sensation in legal circles) by holding that the Safford School District of Arizona had violated the Fourth Amendment by ordering a strip search of a 13-year-old girl -- even though the school had reason to suspect that that student was distributing prescription medications to other students.

And now the Safford case is going up to the Supreme Court – as I write this, the case has yet to be decided. If the Supreme Court upholds the lower court’s decision, schools may be required to meet the more stringent “probable cause” standard for student searches. And in some cases, students would even be able to sue school administrators for money damages – and that certainly will make schools think twice before the old stop-and-frisk. Pam and Karen: stay tuned!

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life.

You can send questions and comments to legal@quickanddirtytips.com or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

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