The Improper Searches of Principal Hart

[XLFD]

On November 21, 2022, the Ludington School Board held a special meeting at 5 PM to have a disciplinary hearing in a parent-requested closed session for a student accused of violating the rules (as summarized here).  Without identifying the charge, the student's grade level or any findings of the hearing, the board reconvened, acknowledged that these hearings were the hardest part of their job, and expelled the student for the rest of the school year.  

After asking for and receiving public records showing the incident report and investigation of the event leading to this suspension/expulsion, it appears that middle school officials and the School Resource Officer (SRO) Austin Morris have once again pursued an unlawful course of conduct in their investigations, leading to potential liability for the Ludington Area School District (LASD) by their violation of this girl's basic rights as a student. 

                                    Ludington's OJ DeJonge Middle School Principal Mike Hart

In proving this assertion, let us first introduce the LASD's law firm, Thrun Law, and their most recent update on student searches that is publicly available and should be reviewed and understood by all administrative officials in the LASD who might be called upon to conduct investigations involving students.   Everybody understands that students in a school setting do not have the full range of rights available to them, but they still have protections against search and seizure by school officials afforded by the Fourth Amendment, as noted in this update:

"Generally, students have a reasonable expectation of privacy in their personal items, like clothing, bags, vehicles, and cell phones. A school offi­cial conducts a “search” by inspecting a student’s person or property. A search includes opening a back­pack; reviewing the contents of a cell phone or personal electronic device; or requiring a student to empty their pockets or undergo a “pat down.”

In New Jersey v TLO, 469 U.S. 325 (1985), the U.S. Supreme Court held that the Fourth Amendment applies to students in public schools but concluded that student privacy rights are often diminished in a school environment. Schools do not need a warrant or even “probable cause” before searching a student. Instead, the general standard for student searches is “reasonable suspicion.”

In other words, where students have an expectation of privacy and school officials want to conduct a search, school of­ficials must have reasonable grounds to suspect that the search will produce evidence that a student violated either the law or school rules... Reasonableness, within the context of a search, requires the search to be related to a circumstance that justifies the intrusion."

Additionally, they offer a variety of 'best practices' whenever they consider or conduct a search:

With that foundation, let's take a look at what happened in this incident.  A middle school teacher reported early on November 14th that Student A  had been dropped off at school by her mom that morning but wasn't in class, neither was her girl friend.  A general search and review of security cameras turned up nothing, a BOLO was issued via email to middle school staff and LPD's road officers.  The two girls were eventually located within a half hour time in a bathroom and taken to the main office area.  Student A appears to have been given a pass, there is no indication in the record that she was interviewed, she sat in the main office while Student XX was interviewed in Mr. Hart's office by him and Assistant Principal Abby Schaperkotter.  

Principal Hart states that a 'probable cause' standard was met for a search of XX's personal backpack because she fidgeted with it.  First off, he doesn't need the higher standard of 'probable cause' but 'fidgeting' with a backpack is far from meeting that standard.  What he needs is 'reasonable suspicion', and even if we consider what he meant to say was 'fiddling' rather than 'fidgeting', which seems inappropriate with reference to the backpack, it is unclear up to that point what exactly might be the evidentiary gain made by a backpack search.  

According to the LASD's law firm, "reasonable suspicion exists when a school official has objective, ar­ticulable grounds to suspect that the search will provide evidence that the student is violating the law or a school rule."  The documentation records no reasonable suspicion, nor does it even imply why the principals would search the personal backpack of a student who was caught skipping class.  This was an unlawful search violating XX's Fourth Amendment rights, and the fruit of this search led to disciplinary sanctions which have caused her measurable harm (being expelled).  The Principals' action led to the potential liability of the district being taken to federal court for the violation.

But the illegal search went further as the principals wound up looking into what appears to be her personal email account:

When the student handbook is consulted, we note the following, which indicates at first glance that student emails are not private and that the Ipad is property of the school:

There appears to be no issue with the seizure of the Ipad in this case by its proper owner, but school policy also notes what they mean when they refer to an email, it's an internal communication:

This indicates that students cannot contact other students through this internal internet service so that they need to use their personal email addresses to contact other students, and we see that it is likely that XX was using and/or sending email through Google's gmail service, as seen on the left margin of one of those messages captured by the principals:

Thus, it appears that they took XX's assigned Ipad from her and looked into her private gmail account without her approval; this and the prior illegal search probably is what had her cussing at the principals.  The Electronic Communication Privacy Act of 1986 and subsequent court cases have established that such private emails have protection from government access.  XX and the others she contacted seem to have believed they had a reasonable expectation of privacy in their communications by the nature of those emails.  This appears to be a violation of the ECPA and XX's privacy rights under the Fourth Amendment, a second count in a potential federal lawsuit.

Mike Hart notoriously oversold last November's expulsion by claiming that a boy had brought a dangerous weapon to school and made threats, while the investigation showed at worst that the boy talked to a friend about getting an airsoft gun for Christmas and planned to show it to him once he did.  No weapon, no threats.  He makes similar false representations in his letter to the superintendent and the board in considering an expulsion in this case:

Hart proclaims there is clear evidence that XX is distributing marijuana and other illegal substances in the LASD, but the investigation records are at best inconclusive, even with the private emails offered.  Neither marijuana or any other illegal substances is mentioned and can only be inferred if one suggests 'W' and 'nic' is code for something illegal.  Assuming sale or distribution of illicit substances has happened with the investigation provided would require a lot more than this in prosecuting the case in a fair court.  That's even assuming the court doesn't throw out all of the evidence gained through unlawful searches and seizures.

In this case, the school board unanimously voted to expel the student without any qualms about how the evidence was gathered through improper searches in the disciplinary hearing report.  Assuredly, XX was in violation of school rules and Michigan law for being a juvenile and having marijuana in school; capturing her with the goods will hopefully allow her to get proper counseling and make it harder for other students to get illicit substances that don't belong in school. 

But while we're looking at counseling and punishment for violating the law in school, why aren't we considering similar remedies for award-winning Principal Mike Hart?  In two consecutive Novembers he has taken part in two investigations that have been deeply flawed and could both easily be taken to federal court by two middle school parents who object to his unfounded claims and unlawful investigation methods.  If that counseling and disciplining is not forthcoming to Mr. Hart, we will only see this subjugation of our students in direct contradiction of Thrun Law's policies getting worse in the future.  

[XLFD]

Willy, I think you understand that if we can trust the investigation's report that I don't approve of her using bad language or that she had a drug that should never be found at school in the first place-- I only wish that they could have did their investigation according to Hoyle so that I wouldn't have to wind up defending her and making people think that I condone of such behaviors by her.  I don't, but the worst thing that happened here was not her behavior it was the actions of authorities.  

Here is a very salient link to the MSU's law school that has a couple of very interesting things to say that pertain to what happened here:  

"Let’s say a few students have complained to the principal that you have been selling marijuana out of your backpack by the boys’ bathroom. If the principal catches you with your backpack outside of the bathroom waiting during a class period, he probably has enough reasonable suspicion to search your backpack. The principal would pass that two-part test requiring reasonable suspicion because the search was justified from the beginning (the principal had a legitimate reason to believe that you were engaging in illegal drug sales) and the search was reasonable because he only searched your backpack, where the marijuana supposedly was kept.

This also applies to searches of cell phones. The school must have reasonable suspicion that, while at school, a student was using their phone to threaten the safety of another person, was engaging in illegal activity on the phone, or using the phone to violate a school policy. Then, the school would probably have the reasonable suspicion to search through certain information on the phone."

The documented investigation indicates nothing that even implied that Mr. Hart was searching the backpack for what he found inside.  It did indicate he seized the Ipad after finding the pot to restrict her from communicating with others, which seems reasonable enough, but then he accessed her private emails, which is likely forbidden in this context, from another link in the MSU law website:

"State laws, like the Michigan Internet Privacy Protection Act, suggest that school administrators can look at or access a student’s account only if the information is not protected or available via a public account. Everyone has a right to their private information, so school administrators cannot view things like text messages, emails, photographs, or other private information that the public does not have access to on a student’s phone without consent."

[Willy]

You bring up good points but it's exactly those points that I have a problem with. As far as I'm concerned kids should have no privacy rights at school. They are there to learn not to engage in illegal activity or texting on phones. In my opinion phones should not be allowed in school. if there is an emergency then teachers all have phones and can contact parents or whom ever needs to be contacted. These damned phones are nothing but trouble. If a student thinks they have privacy rights then that encourages them to to be in the  possession of contraband and other items not allowed. These kids are not adults and for them to think they should be treated as such is bad policy. The wokeness culture crap and permissiveness in schools is a major reason the schools are failing. Many public school systems are loosing students to home schooling and private education. This girl has caused a lot of grief and it's to bad she has to learn the hard way but sometimes that's the way it has to be.

[XLFD]

Cell phones do distract from the learning environment, so I wouldn't shed a tear if they get banned by a school district. 

But how would we teach our kids the Constitution they live under and to treasure their civil rights when we try to take them away so easily?  The problem today's schools have, generally, is that they are not teaching kids what rights they have, and the requisite duties they also have to others.  Instead, they teach 'group specific' rights as if they are privileges that must be honored by those outside the group.  If you are taught to have special rights by dint of your gender, race, sexual orientation, etc. you are regressing to a less enlightened time. 

We all have basic human rights, we have a duty to observe them when acting with others.  Children should learn these rights in age-appropriate activities, but it will be pointless without teaching them corresponding responsibilities and duties at the same time.  This has been lost over the years as new 'rights' keep growing and basic morality has been replaced by secular humanism.  School staff that deprive our kids of their basic rights should be retrained and/or disciplined.

[Willy]

Children are not legally autonomous. They are basically subservient to their parents in almost every aspect of their lives and that's the way it should be. The children can only be considered a autonomous citizen after they have reached the age of majority. After all kids cannot vote,  purchase fire arms, be elected to Congress, etc. 

https://youtube.com/shorts/LEm0ClYwxLo?feature=share ;

Please, no comments about my condoning child abuse or police brutallity.

[XLFD]

True rights are not gifted to any child by their parents, their school, or even any other level of government.  They are an innate gift of Providence and should be nurtured throughout life from when it starts until when it ends.  A parent's ongoing project should be to instill in their kids that if they expect to have any rights, they must first respect those same rights in others.