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.  

[AnxiousGuy]

You could have just said, " I am cancelling you because I don't like what you say."   

It seems XLFD wants to keep your eyes and ears open to corruption and abuse by those with unsupervised power, but you want to stay loyal to your political party's talking points by keeping your eyes down and ears closed to these issues.    

 I would like to point out how your behavior is exactly one of that same party's talking points.  "Cancelling" XLFD will not change a thing.  You are just removing yourself from being part of the discussion.

While I don't always agree with XLFD, I respect his efforts and intentions.  In my opinion, Mr. Hart is a good guy with good intentions as well. This is based on my personal school related interactions with him.  This article is a perfect example of 2 guys with good intentions being chastised because their methods are being twisted out of context.  Neither one of these guys are bad for our community.  We need to find a way to work together, not just cancel each other out. 

[XLFD]

I hope you find your way back after you reoil your gears, Lake Lady, it's always a bonus to have a wide variety of perspectives when discussing issues of the day, and I am fully aware that my articles sometimes challenge the accepted beliefs of people across the political spectrum.  I believe, however, that you can't make an accountability omelet, without breaking a few eggs, some of those eggs will be good, some bad.

I make no apologies about writing on a middle school student, I did it one year ago when our School Resource Officer Austin Morris committed perjury on a search warrant affidavit and your heroic, award-winning principal was effectively doing the same in summarizing his investigation.  Then, I realized that a boy talking about his Christmas wish list (an airsoft gun) absent any threats who was expelled was not the big issue-- it was the bad actions of officials, ruining one family's lives for their own glory by intentionally lying on official documents.

Here, Principal Hart did a suspicionless search on a student's personal backpack, an act that the school's own law firm admits is improper.  With contraband found, he then moved on to the girl's Ipad, did another sweeping suspicionless search into her private Google email account and uncovered emails where both sender and receiver expected privacy.  That unlawful search found nothing incriminating but showed that Mike Hart was willing to invade her privacy without reasonable suspicion a second time.  This becomes a liability to everyone in the district, for her basic civil rights have been violated.

Had the girl emailed inappropriate photos/videos to others or revealed other potential crimes, Principal Hart and SRO Morris would have been obligated to pursue those additional fruits from this tree made poisonous from their unlawful searches and basic violations of civil rights.  Hart did not follow procedures established by the district and by its attorneys, just like this girl did not follow other rules.  Her issue is one that must be dealt with on a personal level, the other appears to be a big problem at the institutional level.  I find the latter the much bigger problem.

Police states arise when the people do not hold public officials accountable.  I greatly respect police and other officials when they act within the law and respect the basic rights of those they interact with.  You seem to respect police and other officials even when they don't.  Your course is a blueprint for taking America to a totalitarian state where basic human rights are just a memory.  I don't think this is a place you want to be in, so the Ludington Torch will continue calling out improper official policies and actors, even if you do not want to visit this place.

[XLFD]

Mr. Hart regularly presents information in front of the school board; he appears to have the student's best interests in mind and have the best intentions for student success.  That's what has shocked me when looking at these two November investigations.  A good principal would establish reasonable suspicion before any search is made and would accurately present the facts found in the investigation when presenting it before a tribunal (the school board).  He chose not to do either twice, and so I have to consider him a failure at investigations.  

Last year, I found that neither the LASD or the LPD had any sort of procedure to do threat assessments on students showing disturbing behaviors.  They haven't developed one since, and here we are at the year anniversary of the Oxford (MI) school shooting, where they, like LASD, had committed to a threat assessment policy and yet failed to ever make one.  Two former school board members of their district recently came forward and blew the whistle:  their school shooter showed many disturbing behaviors before the shooting happened. 

Had they a reasonable threat assessment policy they should have been able to avoid the tragedy that happened.  I am hearing credible reports that suggest the LASD is looking the other way when actual violent threats are being made and concerns are brought forth to school staff.  More on this later.

[RK Hubbard]

Students have been hospitalized and have even died because illegal drugs are being laced with fentanyl and other dangerous substances in schools across the country. I applaud school administrators for being proactive in finding and expelling students carrying or using drugs on the slightest suspicion, and in this case the suspicions were correct. Even in your explanation of this incident, there is plenty of room for understanding why Mr. Hart took the actions that he did. The health of his students and his own career are at risk. He deserves congratulations for removing a dangerous young person from the school. The US Transportation Security Administration searches some 2 million people and their baggage every day, and they can stop you for any reason at all, even for behaving in a "nervous or suspicious manner" (which is what alerted Mr Hart). They can thoroughly search everything on your person or in your baggage, your pockets,your wallet, your clothing, your phone, your computer, all of it. They can X-ray your entire body and even draw your blood without your consent. This happens in our airports hundreds of times every day. Don't you think our students and other citizens deserve the same protection from harm that airline passengers receive? Our airports are supposed to be sterile, free of illegal drugs and dangerous weapons. Shouldn't our schools be sterile too? 

[XLFD]

First off, let's note that Mr. Hart did not document any kind of 'slightest suspicion' of drug possession or use he had before he went for the girl's backpack, which falls far short of the 'probably cause' he does document and the 'reasonable' suspicion actually required by law.  Nor does he document why he would find more drugs by looking through her private email service when he already had secured contraband.  He violated this young girl's privacy in a way that violates her Fourth Amendment rights, and effectively the right to privacy of every person that communicated with this girl in her private email service.  He doesn't deserve a slap on the back, he deserves a lash or two on the back for violating clearly written school policy and subjecting all LASD taxpayers to liability because of it.

From your perspective, what's protecting this young vulnerable girl, whose parents were not there or contacted to be there, from being strip searched by Mr. Hart and Ms. Schaperkotter and holding her down and exploring all of her internal cavities for more drugs on the 'slightest suspicion' they might find some more?  Answer me this, RK, and I will address the rest of your post.

[RK Hubbard]

The law, common sense, and common decency prevent your wild fantasies from happening. (How does this crazy scenario even occur to you? What kind of person would imagine that this could realistically happen except in a horror movie?) My question, which you avoided, was: Do our school children have a right to enjoy the same environment free of drugs and weapons as provided in airports? Rephrased: Does the right to be free from unreasonable searches and seizures allow a student to pedal potentially lethal substances to other students as long as there is no "reasonable suspicion?" Suspicion is a very nebulous term. It is the job of school officials, in loco parentis, to know their students and to be suspicious, and thankfully Mr. Hart was correct. But let me add another question. What sort of liability would accrue to Mr. Hart and the school administration if he had ignored the situation and the "young vulnerable" drug pusher passed out drugs that killed another student? Remember Uvalde, where not action, but inaction, caused death and destruction. You are all about the "young vulnerable" perpetrator, but where is your concern for the possible and even more vulnerable victims of her crime? How about an answer to my original question? No conditions this time. 

[XLFD]

I assure you, RK, that as a civil libertarian the scenario I offered is far from being a fantasy, but a very real fear of a school system that would engage in unrestricted searches of young boys and girls.  As you are espousing, the potential of a convenient bugbear like illegal drugs, allows government agents to walk all over your child's civil liberties and do intrusive searches as part of the common good.  As such, my scenario seems like it may be a fantasy for you as you approve of bureaucrats doing the too-intrusive searches here.  I've raised enough girls to consider it as a nightmare, seeing a young girl guilty of anything, or not, subjected to improper searches by someone capable of lying about what transpired (as Mr. Hart proved in the earlier case).

FYI, from TSA's own website:  "TSA’s screening procedures are focused on security and are designed to detect potential threats to aviation and passengers. Accordingly, TSA security officers do not search for marijuana or other illegal drugs." and "You may transport unloaded firearms in a locked hard-sided container as checked baggage only. Declare the firearm and/or ammunition to the airline when checking your bag at the ticket counter."

So to answer your amended question:  "Do our school children have a right to enjoy the same environment free of drugs and weapons as provided in airports?"  You are fooling yourself, illegal drugs, guns and ammo flow through our airports under proper conditions, while the same trio has zero tolerance in our schools.  Lest we forget, many schools use metal detectors and conform to many of the security procedures of the TSA that they and court precedent have concluded are allowable.  If they fail to follow protocol and go beyond the policy and do an unreasonable search in the eyes of the law, they become a liability, not celebrated as someone who found a shiny object where they weren't supposed to look.  Hart failed to follow Thrun's directives and the relevant law.

[RK Hubbard]

So you have a "real fear" that some bureaucrat or school official is going to do a strip search of a student and "explore her internal cavities." That is simply paranoia. Where do you get these thoughts, Tom? Meanwhile, recent headlines: 

"PARKVILLE, Md. —Four students at a Baltimore County middle school became ill after ingesting drug-laced candy, school officials said."

"A shelter in place was called at Otto Shortell Middle School in the Oneida City School District Friday morning after several students became ill after eating food laced with marijuana."

"At Pine Bush High School, three students were taken to the hospital this past week after becoming sick due to drug use.

And in Monticello, three high school students were charged with selling cannabis edibles." 

[XLFD]

Upstate New York:  (CN, Dec 2016) – An upstate New York school district is the focus of an alarming assault complaint that says school officials pried open a student’s vagina and buttocks, and used a flashlight in a futile search for drugs.

Upon learning that other students had accused her of possessing drugs, Doe insisted that the allegations were false.

The complaint says Doe offered to let Luther search her backpack in front of her, but that the school officials had a more humiliating search in mind.

Doe had to leave her backpack behind, according to the complaint, while Luther and Bird took her to the nurse’s office with a change of clothes.

“Jane was told that she would undergo a ‘strip search,” the complaint states.

With Avallone and Bird looking on, Doe says she followed orders to disrobe completely.

Despite the spare set of clothes on hand, the women allegedly forced Doe “to stand exposed for several minutes” while they inspected her shirt, bra, boots, pants and underwear.

“No drugs, contraband, or any other prohibited substances were located in any of Jane’s clothes,” the complaint states.

Then nurse Avallone allegedly offered to perform a rectal exam.

“No,” Jane said immediately, according to the complaint, which continues to say that “Jane clearly indicated to defendants Bird and Avallone that she was not willing to undergo a rectal exam.”

Doe says Bird warned her that there would be a “serious problem” if she “put anything up there.”

“Scared and disturbed by the mention of a rectal exam, Jane pleaded to defendants Avallone and Bird to let her urinate in a toilet to prove she was not concealing anything in her rectum," the complaint states.

Doe says they took her up on her offer, with Avallone watching as she urinated.

Though Doe urinated normally, the nurse ordered Doe, flashlight in hand, to turn around.

“Jane protested and said 'no!'," the complaint states.

“Bend over,” the nurse said next, according to the complaint, as she then "pried Jane's buttocks apart with her hand, exposing Jane's rectal cavity.”

Ordered after to “turn around,” Doe says she complied with Avallone’s orders “to expose her vagina for examination.”

"Using her hand, Defendant Avallone pried apart the opening to Jane's vagina and shined her flashlight inside," the complaint states.

As with the student’s rectal cavity, the complaint says “there was absolutely nothing concealed in Jane’s vagina.”

Doe says she requested to call her father while she was dressing but that Bird said no and offered no explanation.

When Luther retuned Doe’s backpack to her, according to the complaint, she says her belongings were rearranged and that Luther admitted to searching the backpack outside of her presence.

All Luther had to say in explanation of his activity, the complaint says, was “Stop having your name associated with people with drugs.”

"The severe emotional toll of the morning's events left Jane extremely upset, so she eventually requested to leave school early for the day," the lawsuit states. "Jane missed several days of school due to her ongoing emotional distress resulting from this incident."

This case is not unique, RK.  Like school shootings, do not think that it could never happen here.

[RK Hubbard]

These are allegations, not facts, until proven otherwise. This story reads like something out of The Onion and it is far more likely to be a bunch of lies than a true account of whatever happened. But then, kids don't ever lie and make up stuff, do they? 

[XLFD]

The school sure paid a lot of money for these allegations, and very necessary training so that it doesn't happen again.  I'm sure they did that because they were innocent and just didn't want to pay all those annoying legal bills. 

"Nearly $400,000, that’s how much was paid to a former Harrisville Central student who claimed to be the subject of an unlawful body cavity search.
The Watertown Daily Times obtained the information via a Freedom of Information Law request. The Times reports the $375,000 payout and subsequent attorney’s fees are all covered by an insurance claim.
The then-student originally said school officials forced her into an office and searched her vagina and buttocks looking for drugs. The female who has since graduated claimed nothing was found in the search that took place during the school day.
While the payment isn’t coming from taxpayers, the settlement will require district officals to go through training programs.

[Willy]

X, you did a good job of explaining the issue and I would completely agree with you if we were discussing an adult and the rights afforded that person under the Constitution. But we are not. We are discussing a chlld whose brain is not able to reason as a mature, responsible adult. I  think Mr. Hart did this girl a huge favor by lowering the hammer on her to stop her from the stupidity that engulfed her. That mouthy snot brought God knows what into the school and when caught she figured she had the right to disrespect the principal. Yeah! She's a student of the year nominee. As far as I'm concerned, children do not have the same Constitutional rights as adults. Mr. Hart had the duty to protect all the students from these types of kids who think they are above the law. The only rights children should have are what their parents decide they should have as long as the parents themselves are not immorally depraved and have not  been prosecuted for Ozark style inbreeding.