The Helena School Board voted 6-1 to revise its search and seizure policy on Tuesday night after debating the language and philosophy three times.
Although members of the board deliberated several times whether the school district should be using canines to conduct random drug sweeps, only minor changes have been made to the policy. The lack of action has led to repeated objections from the ACLU alleging Fourth Amendment violations and division within the school board on whether the searches are inappropriate or an effective deterrent.
The use of drug dogs on school property has been something schools have struggled with since a 2016 case out of Ravalli County where a judge tossed out evidence found in a school parking lot during a random sweep with a canine. The ruling said schools should not conduct those types of searches without reasonable suspicion that a particular student is in possession of drugs or that the school has a known widespread drug problem.
The Attorney General’s office then issued a conflicting advisory recommendation, saying schools should still do random drug sweeps with dogs because there’s reason to assume all schools have a widespread drug problem. In the advisory, the office cited a 2012 survey saying 44 percent of students knew someone who sold drugs at their school. The Attorney General’s Office originally appealed the Ravalli County ruling but later withdrew it voluntarily.
At the most recent policy committee meeting on Sept. 5, a representative from ACLU of Montana said the policy is not in line with the Fourth Amendment of the U.S. Constitution prohibiting unreasonable search and seizure, or Montana’s heightened right to privacy.
SK Rossi, director of advocacy and policy at ACLU Montana, said despite the attorney general’s advisory, Helena Schools should stop doing random sweeps with drug dogs to comply with the judge’s decision in Ravalli County.
“I would venture the reason the state didn’t take it all the way to a Supreme Court decision is because they didn’t want it to be statewide,” Rossi said. “The opinion is very clear on that they want schools to continue doing these searches regardless of students’ constitutional rights.”
A spokesperson for the attorney general’s office said in a statement, “We did not agree with the legal analysis in the district court decision. If the Montana Supreme Court were to rule on that case, it might set a precedent that could severely inhibit lawful use of drug dog searches in Montana. If school districts follow the guidance issued by our office, we believe such searches can be conducted well within the confines of the law, respecting the constitutional rights of student.”.
In addition to not doing random sweeps, Rossi said the district should add a definition of individualized or particularized suspicion.
Reasonable suspicion, for example, would require the school to have some sort of evidence that there’s drug activity in the school before conducting a search. Individualized suspicion requires the school to have information that a particular student or particular group of students are in possession of drugs. If someone told a school official another student has beer in his or her car, it’s both reasonable and individualized suspicion. But Rossi said a widespread situation, like smelling marijuana in the parking lot and searching the entire school, doesn’t qualify.
“Your factors you list in here … doesn’t address whether you have articulable facts that justify the search of a particular student or students and you need to have that in there otherwise you’re pushing up against the Fourth Amendment.”
The policy wasn’t adjusted to include either of Rossi’s recommendations.
“You’re putting a lot of effort into making sure you’re performing the right kind of searches,” Rossi said. “It’s best to get it right the first time otherwise there’s going to be another court opinion and it might involve the Helena School District.”
Changes to the policy make student consent more clear. For example, if the student or parent refuses to consent to a search, the student will be prohibited from parking on school property.
If a drug dog alerts on a car and a student doesn’t consent to a search, board member Jeff Hindoien said students will suffer the consequences of “insubordination.”
“If you don’t open up the car and show us what you got, we’re going to assume you got it anyways,” Elizabeth Kavela, legal counsel for the Helena School District, said.
Board member Sanjay Talwani was the only one to vote against adopting the policy revisions. He said it’s a “recipe for being sued” and said the portion of the policy requiring consent to attend school doesn’t constitute consent.
“I’m not a lawyer but I am an English speaker. Consent is consent. It’s not coerced. It’s not something you sign on a manual that’s required to go to school,” he said.
Talwani objected to the philosophy of the policy throughout the entire revision process, but was told by high school principals and other administrators that the possibility of a drug dog search is a deterrent. Assistant Superintendent Greg Upham previously said the goal is to encourage students to trust the administration.
Luke Muszkiewicz initially said he was concerned with the policy, but voted for it on Tuesday night. At the policy committee on Sept. 5, he said it was meaningful when career educators on the board and in administration said the searches were a viable deterrent.
“I think that’s enough for a lot of people to hear that you feel this is a viable deterrent,” he said while addressing the policy committee. “But I wish we had some sort of data, something empirical, that demonstrated this was an effective deterrent.”
Principals from Helena Middle School, CR Anderson, PAL, Helena High School and Capital High School all spoke in favor of continuing random drug dog searches as a viable deterrent, but no one provided examples of citations issued after a drug dog alerted on a vehicle. Most said dogs hit on things like a ibuprofen or a gun shell from a hunting trip.
Before voting, Board Chair Sarah Sullivan said administrators spend the majority of the day with students and understand what’s occurring in schools better than a board member could.
“I believe them when they tell me it’s a problem and this helps them,” she said.