New Law Review Article: Jason P. Nance, Implicit Racial Bias and Students’ Fourth Amendment Rights, 94 Ind. L. J. 47 (2019):
Tragic acts of school violence such as what occurred in Columbine, Newtown, and, more recently, in Parkland and Santa Fe, provoke intense feelings of anger, fear, sadness, and helplessness. Understandably, in response to these incidents (and for other reasons), many schools have intensified the manner in which they monitor and control students. Some schools rely on combinations of security measures such as metal detectors; surveillance cameras; drug-sniffing dogs; locked and monitored gates; random searches of students’ belongings, lockers, and persons; and law enforcement officers. Not only is there little empirical evidence that these measures actually make schools safer, but overreliance on extreme security measures can create prisonlike environments that are inconsistent with students’ best interests. Specifically, overreliance on intense surveillance measures often engenders distrust and discord among members of the school community in the long term, leading to increased disorder and dysfunction. Extreme security measures also play a role in pushing more students out of school and into the criminal justice system, which can have devastating consequences on students and their families.
Although all schools do and should monitor students to some extent, empirical evidence demonstrates that not all students experience these intense, prisonlike conditions. Rather, schools serving higher concentrations of students of color are more likely to rely on coercive surveillance measures than schools serving primarily white students. Furthermore, the evidence suggests that legitimate safety concerns do not fully explain these racial disparities, but that implicit racial bias influences school officials’ decisions to rely on intense surveillance methods to some degree. Indeed, empirical studies repeatedly document that many people unconsciously and unfairly associate minorities, particularly African Americans, with aggression, violence, crime, and danger.
Recognizing that our current constitutional jurisprudence establishes prime conditions for these racial disparities to develop, this Article proposes a reformulated legal framework to evaluate the constitutionality of coercive surveillance methods that is firmly grounded in the U.S. Supreme Court’s current Fourth Amendment jurisprudence. Applying this reformulated framework in connection with other strategies will ameliorate the effects of implicit racial bias, help address the disproportionate application of coercive security measures on students of color, and motivate school officials working in majority-minority schools to rely on alternative, evidence-based methods to enhance school safety without harming the learning climate.