Earlier this morning, Gardner Campbell retweeted a thought-provoking comment from Tony Gonzalez referring to a boingboing article about the electronic panopticon that many of our public schools have become. I agree wholeheartedly with Gardner and Tony that I wouldn’t dream of subjecting my own kid to that kind of environment.
Leaving aside the two-tiered system that results when Gardner, Tony, and I (and others like us) opt out of the public system for our children, what worries me is the longer-term pernicious effect on American society that such a system of schools is having. We’ve already seen tremendous erosions in personal liberty and privacy rights over the past 3 or 4 decades as a result of the war on drugs and the war on terror. Thanks to the exclusionary rule, the 4th amendment has been shot so full of exceptions that it’s hardly recognizable, and there have even been calls to eliminate the exclusionary rule, the only enforcement we have for the 4th amendment. The exclusionary rule is bad, but without it, we have no remedy for violations of 4th amendment rights, and a right without a remedy is no right at all.
And therein is the problem with raising generations of children in prison-like schools: the protections of the 4th-amendment are based on the concept of a reasonable expectation of privacy. What happens to those rights when we raise a few generations to accept warrantless searches, metal detectors, suspicionless canine searches, drug testing, constant webcam surveillance, and biometric-scanning to get into an amusement park as normal parts of life? If most people don’t expect to have any privacy, none of us will have any right to privacy.
That’s not a world I want to have a hand in creating.
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Tags: constitution, education, Fourth Amendment, school
Sometimes it’s a good thing when the Supreme Court denies certiorari. For example, today the Court denied cert in Virginia v. Harris, a case involving the police’s ability to pull over a vehicle after an anonymous tip. In this case, police received an anonymous tip that Harris was driving drunk. When the police spotted the car described in the tip, they pulled Harris over without observing that he violated any traffic laws. He failed a field sobriety test and was convicted of drunk driving. The Virginia Supreme Court ruled that because the police did not independently verify that Harris was driving dangerously, the stop was illegal, and they overturned the conviction. The Virginia court based its ruling on Florida v. J.L., 529 U. S. 266, 270 (2000), which holds that anonymous tips without additional corroboration generally are not reliable enough to support probable cause for a search. So far, so good.
The State of Virginia appealed to the US Supreme Court, which denied their petition. Justice Roberts, joined by Justice Scalia, relies on a variety of logical fallacies in dissent to argue that the Court should have heard the case (and presumably over-ruled the Virginia court).
Roberts and Scalia first write that the Fourth Amendment may not apply “in the special context of anonymous tips reporting
drunk driving.” Really? Is there a drunk driving exception to the fourth amendment? Although I don’t disagree that drunk driving is a serious problem, the argument that “magnitude of the drunken driving problem” is proved by the fact that “media reports of alcohol-related death and mutilation on the Nation’s roads are legion” is nonsense. Volume of media reports has nothing to do with the seriousness of the problem. Judging by recent media reporting, the problem of 6-year-old boys trapped in runaway balloons is an issue of significant magnitude.
The real issue though, is that Roberts (and Scalia) analyze the reasonableness of the stop based on knowledge unavailable to the police. Yes, this one time, the happened to pull over a drunk on an anonymous tip. But before they pulled him over, becaue they didn’t observe and dangerous driving, they had no way to know. What about people who aren’t driving intoxicated who get pulled over based on anonymous tips? What’s the analysis there? If I’m driving in a safe and reasonable fashion and get pulled over because of an anonymous tip and subjected to a field sobriety test and other police intrusion, how is that “reasonable” when the police couldn’t be bothered to observe whether I was driving dangerously?
How often does that happen? We’ll never know because our Fourth Amendment rights are protected only by the exclusionary rule, which never helps the innocent. The exclusionary rule (sometimes) allows defendants in a criminal trial to have evidence excluded if it was gathered illegally. By definition, the only people who are ever in a position to enforce the Fourth Amendment are criminals. The only way an appeals court ever sees a Fourth Amendment case is when the defendant is found guilty and challenges his or her conviction.
And there’s the problem: the exclusionary rule does little to protect the innocent from intrusive searches, and provides incentives to judges to find exceptions so that the guilty will be punished. Justices Roberts and Scalia hate the exclusionary rule because it hinders the police too much; I hate it because it fails to protect the innocent.
Tags: certiorari, Fourth Amendment, law, Supreme Court
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