I began writing about the problems with our school system when my son began having ‘issues’ with our local school district, but as I researched and became educated on the problems that span beyond just our local school district, I truly became scared for our children. I’ve said it before, and I’ll say it again, when the system works, the best case scenario for our kids is to attend a public school and receive a free and quality education.
The problem is, as many parents either know or are discovering, the system simply doesn’t work. More parents are turning to alternative education for their children, such as home schooling, private schooling, and even a new trend called UNschooling. I’m not here to talk about the right or wrong of these trends, but only to state that this is happening, and it’s happening in unprecedented numbers.
To get up to speed with the issues I’ve had with my son (primarily), a special needs child who was enrolled in ECISD prior to me pulling him out and home schooling him, and my daughter (secondarily), an honors student who graduated from an ECISD high school with high honors in 2005, you can begin by reading my previous articles on this topic:
Zero Tolerance for Zero Tolerance
The Educational System – Compulsory Attendance and Special Circumstances
The Educational System – The System is Broken
There will be more to come, but for now, let’s focus on the disturbing news that in ECISD, as well as in many other school districts across the nation, when you choose to send your student to a public school, you are agreeing to waive your child’s Fourth Amendment rights to illegal search and seizures.
Let’s first look at what the Fourth Amendment to the U.S. Constitution grants an American citizen.
Effectively, the Fourth Amendment protects U.S. citizens from illegal and unreasonable searches and seizures performed by a governmental entity, without probable or reasonable cause, and without consent there cannot be a search or seizure without a warrant or court order stating what is to be searched for, what is to be searched, and what the accusation is against the person.
A public school, usually supervised by a city or county government, and regulated by the state (which the Fourteenth Amendment provides for as part of the Fourth Amendment qualifier) qualifies as a governmental entity as it pertains to the Fourth Amendment. Additionally, peace/police officers are included in this, so any campus police, who are certified peace officers, would definitely be included, as would any person who works for the school district in any capacity as a paid or volunteer employee.
The Fourth Amendment provides for searches and seizures when there is reasonable or probable cause to perform the search or seizure, and then the search or seizure must be performed by an entity that is accountable to the court for having properly performed that search or seizure, without violating any constitutional rights of the individual involved.
With all this said, this means that the only way a school official could legally search a student or their property or seize any property from a student during a search or without a search warrant is if the student agrees to such search or seizure.
In ECISD, a parent and the student signs a Code of Conduct agreement with the district at the beginning of each school year, which clearly indicates in the agreement that the parent and the child are both providing permission for their child to be searched, their vehicle (should they have one) be searched while on school grounds or within 200 feet of the school property, their locker, backpack and other storage items to be searched, without any prior warning or permission, and without reasonable or probable cause.
This is what allows a school district to use metal detectors at the front doors of the school, to bring drug sniffing and bomb sniffing dogs into the school to randomly check lockers and do other thing that are said to be in the best interests of the safety of the student body.
This means that the school has the right, by signature of the parent, to search a child or their property or to seize a child’s property for any reasons whatsoever, without having to prove that there is any probable or reasonable cause to warrant that search or seizure. The child is a minor, so technically they cannot legally enter into such a signed agreement with the district, since a minor cannot legally enter into any contract and it be upheld by the courts. However, the parent also signs the agreement on behalf of the child, and since parents are responsible for the child, this has held up so far as legal.
This effectively removes the child’s Fourth Amendment right when the child is on campus or participating in a school sponsored event off campus, or allows the parent to consent to that removal of the Fourth Amendment right, and does not allow the child any say in the matter.
My concern in this is: In order to receive a free education in many school districts in the United States, one must voluntarily waive their child’s Fourth Amendment rights.
Now, the United States does not have a ‘right to education’ in the constitution (some states do though), but there are compulsory attendance laws which do require that a child of a certain age must be enrolled in some type of approved educational system or else the parent can face criminal charges. The only way to bypass this voluntary waiver of a student’s Fourth Amendment rights is to place the child in a private school without this restriction or to home school the child (which is not legal in all states yet).
Since many parents cannot afford private education, some areas won’t allow home schooling yet, and some parents who must work full time may not be able or even qualified to home school a child, this means only those families who don’t require both parents to work or who can afford private schooling, to be granted their Fourth Amendment rights for their children. In other words, poor or middle class families who struggle to make ends meet or work paycheck to paycheck are required to waive their constitutional rights for their child or else they face criminal charges for violating the compulsory attendance laws.
When I contacted ECISD administration to ask what would happen should a parent or a child refuse to sign the Student Code of Conduct agreement, I was informed that the child would be allowed to attend school for only a short period of time at the beginning of each school year, but that when the deadline for all the required registration and start of school year forms were due, the child would receive a notice home to the parent that if the form was not submitted by a certain deadline date, the child would not be allowed to attend classes until the proper forms were returned, including the signed Code of Conduct Agreement.
This means that 1) the child cannot attend school without the signed form that requires the parent to waive the child’s Fourth Amendment rights, and 2) once the form has been signed, the student can then be searched without additional parental consent, and their property seized without any prior notification to the parent, and without any notice as to what the school officials are searching for and what will be searched.
Further, the regulations for ECISD also indicate that if a child fails to submit to a search, they will be treated as though they did not comply with the Code of Conduct, and disciplinary action, up to and including expulsion, can be applied. Additionally, if the child requests that their parent be contacted prior to the search or seizure, the child will be treated as though they have refused to submit to the search or seizure, and again, they will be disciplined for a Code of Conduct violation, which can include expulsion.
So the child is not even able to say they want their parent present when their person or property is searched or seized.
I encourage all parents to review the Code of Conduct agreement or whatever rules and regulations your local public school district requires you to agree to prior to enrolling your child in public school, and see if you are, by nature of sending your child to school, voluntarily waiving your child’s Fourth Amendment rights. You might be surprised what you discover.
My questions to you readers today are:
Is it right, or even legal (constitutional), to require that a parent and/or child voluntarily waive their constitutional rights in order to receive a free education?
Does a parent have the right to waive a child’s constitutional rights if the child themselves does not consent?