Below is the abstract for “The Law of Disposable Children: Searches in Schools,” available for download on SSRN.

Schoolchildren are being strip-searched based on little or no reasonable suspicion, and schoolchildren are being targeted for searches based on their race, disability status, gender, or homelessness. This is possible because the Supreme Court has issued only two opinions in its history about the right of schoolchildren to be free from unreasonable searches and seizures in schools. Two cases in thirty-five years are not enough to regulate the lower courts’ oversight of literally millions of searches and seizures conducted in schoolhouses throughout the nation every year—a lack of oversight that lower courts have exploited to permit schools extraordinary discretion over schoolchildren and approve highly invasive searches. The existing literature focuses almost exclusively on the Supreme Court’s minimalist jurisprudence; in contrast, this Article uses a combination of methodological approaches to show how the law of searches in schools operates on the ground by conducting an in-depth case study of one jurisdiction, Illinois. The Court has established a special test for schoolchildren, far more permissive than that applied to those suspected of serious criminal wrongdoing.

We examine every case decided in Illinois and show that lower courts exploit the porousness of the Supreme Court’s test to permit questionable and sometimes even clearly illegal state actions. Yet even a comprehensive study of lower courts fails to fully grasp the extent of the problem: a minuscule proportion of the intrusions on schoolchildren by the state ever become cases—most internal school procedures are never reviewed, even if they involve unconstitutional intrusions. To understand how common searches and seizures of schoolchildren are and how often they cross the line into unconstitutionality, we draw on testimony from interviews with experts in the field. These interviews reveal that schools discriminate among students based on factors such as race, disability, homelessness, wealth, and community characteristics; and schools target some students for searches that can result in exclusion from school for shockingly long periods. Multiple interviewees independently described the system as treating some schoolchildren as disposable. The judiciary is failing to provide basic protections to our children and Supreme Court intervention is imperative.

Tonja Jacobi

Emory Law School

Tonja Jacobi is Professor of Law and Sam Nunn Chair in Ethics and Professionalism at Emory Law School. Prof. Jacobi specializes in Supreme Court judicial behavior and public law. Her areas of interest include judicial politics, Supreme Court oral arguments, criminal procedure, legislative process, and constitutional law. Combining doctrinal, empirical, and formal analysis, Prof. Jacobi examines how judges respond to institutional constraints.

Riley Clafton

U.S. Court of Appeals for the Ninth Circuit

Riley Clafton is a law clerk for Richard C. Tallman of the United States Court of Appeals for the Ninth Circuit.


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