This year, the Harlan Institute partnered with our friends at the Bill of Rights Institute to offer a BRI Badge. For this badge, students considered whether the Fourth Amendment places any limitations on a school’s power to search students (including their backpacks and cell phones).
Check out some of the best posts written by students that received the badge:
One student remarked on the reasonable suspicion standard necessary to search students in schools:
The question being asked involves having reasonable suspicion that a student is communicating with someone else (whether it be with another student or not) about selling drugs. A school should still not have the right under the Fourth Amendment of the United States Constitution to search that particular student’s phone. This Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” If a school authority is truly and reasonably suspicious that a student is using their cell phone or other electronic device during school hours to communicate with another person about selling drugs, said school authority should contact a higher authority (i.e., the police) and obtain a proper warrant to seize and search the student’s device. The Fourth Amendment protects such searches and seizures from happening without “probable cause, supported by oath or affirmation”, and that right should not be violated.
Another student drew a conceptual distinction between searching a backpack, and searching a cell phone:
Searching a person’s phone and searching a person’s backpack are two totally different things. A backpack is used for school supplies and things you would need during a school day. A phone is a personal connection to other people that doesn’t have anything to do with school. A phone allows us to communicate about and with out of school people and things. What is on phones is personal.
In the Safford Unified School District #1 v. Redding I think they went way over board on a girl having ibuprofen on her in school grounds. They didn’t need to go that far when ibuprofen is legal to have and the girl was only 13 years old. They did not need to strip search her for an ibuprofen tablet. I don’t necessarily think that random drug test follow the fourth amendment they don’t have probable cause to search people or test them for drugs. I don’t necessarily think its a bad idea but I can see where people would want to deny the test because of their rights. They shouldn’t have to get tested unless the person testing has a cause to do so. Student athletes should be tested for drugs in case they are using them in a way that could better their skills while playing that sport. They should be notified that if they are going to play the sport they are probably going to get tested and that if they don’t want to be tested they shouldn’t try out for the sport. So I think that the fourth amendment does allow schools to look at your phone under certain circumstances. There is also a fine line as to what circumstances are just and which ones aren’t.
A student drew a distinction between searching students who participate in extra-curricular activities (in the form of drug testing) and those who do not engage in such activities:
If a school wants to drug test students who want to participate in extra curricular activities, they can have students take them. Because the extra curricular activities are extra and not a have to do like attending school. When a student chooses to be in activities beyond just school, they have to follow a good conduct code. Students represent a school and how the system works. When there are drug tests in the student athletes, that prevents those students from taking drugs because they do not want to lose their spot on the varsity line up. A majority of students are apart of one extra curricular activity or another. The Fourth Amendment protects students from a random search. But if say, a drug dog comes onto campus, and detects drugs, that is probable cause to be searched.
Congratulations to all of the students who participated.
This year, the Harlan Institute partnered with our friends at ConSource to offer a ConSource badge. By researching primary sources from the time of the Founding available from ConSource, students considered whether the First Amendment places any limitations on a school’s power to punish students for things the students say on the Internet outside of school.
Check out some of the best posts written by students that received the badge.
One student noted, quite astutely, that when the Constitution and Bill of Rights were authored two centuries ago, the Framers could not have possibly conceived of computers or the Internet:
225 years ago, in the year 1787, the original Constitution was proposed in Philadelphia as The Bill of Rights. When they wrote the first ten amendments, I don’t think they had computers, cell phones, or the internet in mind. They weren’t expecting all the technology we have now. So it’s hard to base court cases now with all the technology we have with the Amendments which seem old to some of us.
One student commented on the dangers of bullying, especially in cyberspace:
The First Amendment should not protect those students for what they had done. If someone has an opinion like that, don’t take it to Facebook where the whole world can see. Bullying is illegal in the state of Iowa and no one seems to be enforcing it, even after someone takes their life. That law should be enforced all of the country, their has been more suicides recently then there has been in a long time. Just because something like this was said online doesn’t mean anything. It just shows that there is proof to do something about it, even if someone deleted a comment or a wall post. More lives are being put at risk because people don’t seem to be doing much to stop it.
Another student researched James Madison’s Resolution for Amendments to the Constitution from June 8, 1789 to understand what the freedom of speech protects:
This student is legal when it comes to the first amendment for the freedom of speech, but by making this profile of someone else, they then crossed the line of identity theft. Also, if they would have said it on their profile on MySpace as a “Status,” then it would be different, because it is their own expression of their thoughts. However, in the first amendment it says freedom of speech, press, assembly, petition to the government, and to their own religion (United States Constitution). This is beyond the freedom of speech and the other four do not permit it to be right either. Along with the Madison’s Resolution for Amendments to the Constitution (June 8, 1789) also says they can publish opinions, speech, writing, and press, but this is more than writing, opinions, speech, and press. They do not protect this student from being able to do this act.
Another student commented on the threats to reputation that hurtful comments on Facebook can create:
The freedom of speech is protected by the first amendment, but there are limits. A case where a person has been hurt, especially in a professional manner, should not go unpunished. When lies have been made up and started to endanger a person’s job, it cannot go unnoticed. Even if an incident happened outside of school, he/she should be punished because of the factors that it was hurting someone’s reputation, and could even cause the loss of a job. Does it matter that it was a student to principal or teacher? Would the situation actually be the same, under the same circumstances if it was co-worker to co-worker? There have been situations that a worker has either made a comment about their boss, and they have gotten fired, even though they’ve made the comment outside of the work site. It is the same concept, with the making a hate page or a page with lies that were claimed to be “confessions.” Reputations can be hurt, and if the administration would have believed what they saw on the page then a job could have been lost.
One student commented on the Supreme Court’s line of cases beginning with Tinker v. Des Moines Independent Community School District, noting that conduct that occurs outside the school cannot be punished by the school–but conduct that disrupts the classroom can result in discipline.
As far as the First Amendment goes, if a student publishes anything online off campus, then they are safe from any consequences from the school. This is the law, but there has to be line drawn. People have the right to freedom of speech, but they do not have the right to create a fake profile or account so they can make vulgar confessions of a made-up sexual encounters dealing with their peers and principal, or false possession of alcohol and drugs. In many ways the act should depend on the malignity of the situation. For example if a student is venting their feelings of the day on a status or tweet, this is completely different to the cases that have been addressed to the Supreme Court.
Congratulations to all of the students who completed the ConSource badge. Stay tuned. ConSource and Harlan have some cool plans in the works for next year!
Law Technology News interviewed several members of the Harlan Institute, and wrote an article about how FantasySCOTUS is transforming the way predictions about the Supreme Court are made:
“Wait, does Vegas take odds on u.s. supreme court decisions?” That was the question posed by George Mason University law student Josh Blackman as he kidded around with colleague Yaakov Roth, speculating on the outcome of the U.S. Supreme Court case,Citizens United vs. Federal Elections Commission in 2009. They chatted about how cool it would be for law nerds to test their skill at predicting Supreme Court rulings — like playing manager in a fantasy football league.
The next day, Blackman registered FantasySCOTUS.net, and started designing the website. Launched that November, it attracted 5,000 users who made more than 11,000 predictions for all 81 cases decided during the Supreme Court’s 2009-10 term.
With another law student, Corey Carpenter (who has a degree in economics and econometrics), Blackman analyzed the results of that first season. Overall, the predictions were like a coin toss: right slightly more than half the time. But when looking only at the “power predictors” (the serious players who made the most predictions), the accuracy rate shot to 70%.
Soon, Blackman was getting emails from high school teachers who wanted to use the site to teach students about the court and the Constitution. So they set up a non-profit educational organization, the Harlan Institute (after Supreme Court Justice John Marshall Harlan), and created a spinoff designed to be a teaching tool.
Today, about 13,000 people play on the primary site, and about 1,000 students on the educational site, says Carpenter, director of analysis for the institute. (Blackman is president.) The players are not just lawyers and law students, but include people from all walks of life who simply enjoy following the court.
In fact, last year’s “chief justice” (the title given to the highest-scoring player) is a librarian and math tutor from Queens, N.Y. Jacob Berlove, who has degrees in mathematics and Judaic studies and aspires to be an actuary, says he found the site link on a law blog, and was thrilled to find a community of like-minded people. “None of my friends really shared my interest in the court,” he says.
Berlove may capture the title again this year — as of April, he had the top score. He denies a secret formula, attributing his success to careful analysis: He knows the law, looks at precedents, and carefully reviews oral arguments looking for patterns of emphasis. He reviews the comments of each justice, to hone in on each justice’s reasoning, he says.
The work of the Harlan Institute was also featured in another article in the Law Technology News, titled “Big Data Meets Big Law.”
Another organization investigating quantitative legal prediction is the Harlan Institute, a non-profit organization that promotes interest in and education about the Supreme Court.
It grew out of what started as more of a lark by Josh Blackman, a law student and self-professed Supreme Court nerd, who in 2009 launched a web-based fantasy league for predicting Supreme Court decisions (see “Place Your Bets” for more on the league). Called Fantasy SCOTUS, the site has built up a database of crowd-sourced opinions and analyses of many Supreme Court cases.
In an academic paper published in the Northwestern Journal of Technology & Intellectual Property [Vol. 10, p. 125, 2012], Blackman and co-authors suggest that Fantasy SCOTUS could combine the crowd-sourced data with data from publicly available court filings, then use an algorithm and decision engine to make predictions: “It would be quite conceivable for a bot to crawl through all of the filings in Pacer . . . and develop a comprehensive database of all aspects of how each court works.”
Josh Blackman will be presenting a paper on FantasySCOTUS at LawTechCamp at the University of Westminster in London on June 29, 2012.
Ben Ewald, one of the members of the Harlan Teacher Advisory Network, was selected by the Texas Lawyers Auxiliary as the Teacher of the Year. Congratulations! Ben’s award will be announced at the Texas Lawyers Auxiliary annual meeting in Houston on June 14th. Ben will receive the award at the annual awards dinner in Austin on September 30.
In other Lone-Star-State news, when Josh Blackman returns to the Harlan Institute on July 21, 2012, he will assume a position as an Assistant Professor at the South Texas College of Law in Houston.
The Harlan Institute would like to congratulate several members of our team who are graduating!
Corey Carpenter, Laura Lieberman, and Cara Tucker are graduating from the George Mason University School of Law.
Yoni Roth is graduating from the University of Toronto Law School
Sam Reitman is graduating from the Georgetown University Law Center
Matt Allen is graduating from Clemson University.
Zak Slayback is graduating from Somerset High School (the winner of the inaugural season of FantasySCOTUS.org).
Zak will be going to UPenn State in the Fall. Good luck in Philly!