New Helena School Board Trustees

From left, new Helena school board Trustees Jennifer Walsh, Jeff Hindoien and Luke Muszkiewicz take their oaths of office in this file photo from May. 

Thom Bridge, thom.bridge@helenair.com

The Helena Public Schools Board of Trustees sent a policy allowing the use of drug dogs for random drug sweeps back to a committee for the third time after debating its efficacy and potential legal risks.

A debate on whether random searches would remain legal in the state was sparked after a Ravalli County judge threw out a case last year. During a random search at Florence Carlton in December 2015, a drug dog alerted to a student’s car. The student consented to a vehicle search that revealed approximately five grams of marijuana and two pipes.

Although precedent from the U.S. Supreme Court says students have a reduced expectation of privacy when they’re at school, Ravalli County Judge James Haynes said schools need to have information that a particular student is in possession of drugs or the school has to have a significant drug problem to warrant a search. Haynes ruled the school did not have sufficient evidence to believe either was true.

The attorney general’s office originally appealed the ruling, but withdrew it voluntarily. Instead, the office issued an advisory letter to Elizabeth Kaleva, an attorney representing several area school districts, saying every high school could have a significant drug problem. The letter cites a 2012 survey by the National Center of Addiction and Substance Abuse that says 44 percent of students know someone who sold drugs at their school.

The Helena school board has already debated the policy two times, but mostly agreed to continue conducting random canine searches. The policy was slated to be approved on Tuesday, but was sent back for a third time to change some of the verbiage. 

"I really respect the ability of our administrators to say it’s an important tool, but we don’t have data to support that. It seems like it’s kind of in this legal limbo," board member Luke Muszkiewicz said. 

“It seems when something is used as a deterrent, it’s a hard thing to prove the efficacy of a deterrent,” he added.

In a recent interview with the Independent Record, assistant superintendent Greg Upham said use of marijuana had at least doubled since medical marijuana was first legalized in 2004.

But data shows that students in Lewis and Clark County are less likely to use alcohol or marijuana in 2017 than they were in 2001. The Youth Risk Behavior Survey, which is self-reported by students, said 83 percent of students had tried alcohol in 2001, compared to 67 percent in 2017. In 2001, 41 percent of students had tried marijuana and 39 percent had tried it in 2017.

Muszkiewicz acknowledged that bad behaviors tend to be under-reported, but said the data is still good in terms of showing trends.

“We’re kind of basing it on the legitimacy of the AG report that cites a survey from 2012 that isn’t specific at all to Lewis and Clark County or even Montana,” he said. “I just wonder if it’s worth doing.”

Board member Jeff Hindoien, an attorney, said the Montana Constitution in some cases awards more privacy to citizens than the U.S. Constitution. He said the policy could subject the district to a lawsuit at some point.

“It still could potentially expose the school district to a claim that students’ rights were violated,” he said. “It’s ultimately like a lot of other policies where the legal landscape isn’t clear and we have to make a decision.”

The board will consider canine searches for a third time on Sept. 1.

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