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When a drug-sniffing dog found marijuana in a high school student's car in southwestern Montana, it started a statewide discussion on how much power school districts have to conduct random drug sweeps.

Still, Helena Public Schools has no plans to back away from its policy calling for widespread searches, even though their legality may be in question.

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, the Ravalli County judge 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 the search. Haynes ruled the school did not have sufficient evidence to believe either was true.  

The order only applies to Ravalli County, but the case could have statewide implications if considered by the Montana Supreme Court. 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.

“Our dismissal of the state’s appeal does not imply or suggest the Ravalli County District Court opinion can or should have any lasting consequences to future random drug dog sweeps in public schools in Ravalli County or in any other county in Montana,” the letter says.

Helena is in the process of making its policy more detailed and thorough, but will continue conducting widespread searches. After a July board meeting, a representative of the ACLU gave recommendations during the public comment section, and the policy was sent back to a committee for further consideration.

The board will take a final vote on Tuesday, but it’s unclear if the district is likely to face a lawsuit for continuing widespread searches and not including language the ACLU says would help avoid Fourth Amendment violations. Kaleva, who also represents Helena Public Schools, said she thought a smaller school could have trouble providing evidence of a widespread drug problem, but didn’t think the high schools in Helena would have the same issue if challenged.

To comply with guidelines issued by the Attorney General’s Office, the Helena school district’s policy is specific on what can be searched, and includes a definition of reasonable suspicion and how searches are conducted.

The district will still perform random drugs searches with canines using a company called Interquest Canines.

SK Rossi, director of advocacy and policy at ACLU Montana, recommended that the board discontinue policies that allow for searches without reasonable suspicion.

“I think it is very irresponsible and unsafe and an invasion of privacy for an administration to just assume there is always a drug problem on their campus,” Rossi said.

During the July board meeting, the principals from both high schools spoke about performing canine searches in their schools. Capital High School has had no citations in the past four years, while Helena High School has had a handful.

“We haven’t really found anything, which could tell you two things,” Upham said. “One, students know that, and they don’t bring them, or they keep them on their person.”

While school officials say the searches are deterrents and the attorney general says all schools have reason to believe there’s a drug problem, Rossi doesn’t think a court would agree those arguments are sufficient reasons to limit student privacy.

“We disagree with the AG on their assessment for when it’s appropriate to do widespread searches,” Rossi said. “School districts would be wise to pay attention to that Ravalli County decision. Schools shouldn’t be allowed to do drug sweeps of parking lots for no other reason than this is routine. Something being routine does not give you reasonable suspicion. I think most courts would agree if it were challenged.”

Rossi said schools are less likely to face a lawsuit if they include both reasonable suspicion and individualized suspicion in their policies. Reasonable suspicion, for example, would require the school to have some sort of evidence that there’s drug activity in 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 their car, it’s both reasonable and individualized suspicion. But Rossi said a widespread situation doesn’t qualify.

“Saying, ‘I smelled marijuana in the parking lot so I’m going to search the entire school,’ is what I view as a Fourth Amendment violation,” Rossi said.

Only one board member, Sanjay Talwani, took issue with the ethics of conducting searches at school based on a presumption that all schools have widespread drug problems.

“You just have to say there’s a big drug problem,” Talwani said. “I still see a problem and it’s possibly not very effective either.”

But administrators say the searches are intended to keep schools safe and don’t have a goal to violate student privacy. Upham said schools are up-front with students about the possibility of searches and don’t view the search as a success if a dog alerts on multiple cars and students are issued citations as punishment.

Upham said the goal is to build a culture of trust where students feel comfortable reporting illegal behavior to school officials and officials prioritize student safety instead of targeting students or looking for citations to give. For example, possession of tobacco on school property is a handbook violation, regardless of whether the student is of legal age. Instead of punishing a student, administrators will throw away the tobacco product and generally notify a parent.

“We’re not dealing with a ‘gotcha’ attitude. It’s unhealthy,” Upham said. “These are deterrents.”

Upham said contraband in schools is mostly from students who come to school or school-sponsored events after drinking or are in possession of marijuana. When medical marijuana was first legalized, Upham said high schools saw use at least double. He expects a similar jump as new medical marijuana laws go into effect.

“It’s changing norm lines,” he said. “It’s dangerously close to being normal."

With the updated policy, students will remain subject to canine searches unless they park off school property. The policy also informs students that all school property, such as desks and lockers, are subject to be searched at any time. School officials must have reasonable suspicion to search personal items such as backpacks and purses, although those searches could get thrown out if the official doesn't have individualized suspicion.

The entire policy will be discussed by the board with option for public comment on Tuesday, Aug. 15, at 5:30 p.m. at the Ray Bjork Learning Center.

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