4 Feb ru a ry 2009 H AWAII BAR JOURNA L

The Board sent these proposals to publ i ch e a r i n g, and the ch a n ges have not ye tbeen fo rm a l ly made to the administrat iverules gove rning the sch o o l s. N o n e t h e l e s s,it was clear that the members of t h eB o a rd in 2008 favo red ch a n ges that wo u l de l i m i n ate any priva cy claims that studentscan make rega rding their personal effe c t swhile at sch o o l . In the November 2008e l e c t i o n , the composition of the Boardch a n ged and new members we re added toi t , and this matter may be subject to re ex-a m i n at i o n . This art i cle is designed toexplain the impact that the pro p o s e dch a n ges would have on the constitutionalrights of H awaii's students and, p o t e n t i a l-ly, on the priva cy rights of all of H awa i i ' sc i t i ze n s.

The proposed ch a n ges would amend the reg u l ations gove rning S chool Searches and Seizures found in Section 8-19-14 et seq o f the H awaii A d m i n i s t rat ive Ru l e s. The p resent language of these rules is as fo l l ow s :

SUBCHAPTER 4 - SCHOOL S E A RCHES AND SEIZURES

§8-19-14 Po l i cy on school searches and seizure s. Students have al eg i t i m ate ex p e c t ation of p r iva cy in s chool and during dep a rt m e n t -s u p e rvised activ i t i e s, on or offs chool pro p e rt y. Their ex p e c t ation o f p r iva cy extends to their persons and personal effects as well as school p ro p e rty assigned for theiri n d ividual use. S chool officials shall respect and uphold these priva cy rights of s t u d e n t s. S ch o o l s, on the other hand, h ave an equallyl eg i t i m ate need to maintain order and an env i ronment wh e re learning can take place. In fulfilling thisl eg i t i m ate need, s chool officials may on occasions need to carry out s e a rches and seizures on school

p remises or during dep a rt m e n t -s u p e rvised activ i t i e s. As a ge n e ral p o l i cy, s u ch searches and seizure sa re perm i s s i ble only when the health or safety of a person orp e rsons would be endange red if a s e a rch or seizure is not carried out by school off i c i a l s. S e a rches and s e i z u res conducted by sch o o lo fficials shall abide by the provisions o f this subch ap t e r.1

§8-19-15 Au t h o r i t y. S e a rches and s e i z u res may be carried out on s chool pre m i s e s, or duringd ep a rt m e n t - s u p e rvised activ i t i e s, on or off s chool pro p e rt y, by any school o fficial who is re s p o n s i ble for the s u p e rvision of the student orp ro p e rty to be search e d . A school o fficial conducting a search shall be accompanied by another sch o o lo fficial serving as a witness unless it is an emerge n cy wh e re prompt action is necessary to protect the health or safety of a person orp e rs o n s. It is not necessary for s chool officials to obtain a wa rrant b e fo re conducting a search of astudent or pro p e rt y.2

§8-19-16 Conditions under wh i ch s e a rches and seizures may bec a rried out.(a) Searches and seizures may be c a rried out by school officials when all of the fo l l owing conditions are m e t :(1) At the time of the search there a re re a s o n able grounds to suspect,based on the at t e n d a n tc i rc u m s t a n c e s, t h at the search will t u rn up evidence that the student or students have violated or arev i o l ating either the law or thestudent conduct prohibited under this ch ap t e r.(2) The manner in wh i ch the search is to be conducted is re a s o n ably re l ated to the purpose of the search and not exc e s s ive ly intru s ive in the light of the student's age and sex and the nat u re of the suspected

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o ffe n s e.(3) Unless the health or safe t y, or b o t h , o f an individual is in jeopardy,the student who will be subjected to a search shall be info rmed of the p u rpose of the search and shall be g iven an opportunity to vo l u n t a r i ly relinquish the evidence sought by the school off i c i a l .(b) The principal or designee of the s chool shall be info rmed by the s chool official who will conduct the s e a rch that a search is to beconducted and of the purpose ofthe search unless it is an emerge n cy wh e re prompt action is necessary to p rotect the health or safety of ap e rson or pers o n s.(c) If m o re than one student issuspected of committing a violat i o n ,then the school official conducting the search shall start with thestudent most suspected of h aving the item wh i ch is re l ated to thep u rpose of the search .3

§8-19-17 Prohibited searches and s e i z u re s.(a) Random searches are pro h i b i t e d .(b) Strip searches are pro h i b i t e d .(c) A school official shall notconduct a search requiring bodily contact of a student of the opposite s ex exc ept when such a search is n e c e s s a ry to prevent imminent h a rm to the health or safety of a p e rson or pers o n s.(d) In the course of a search , the use o f fo rce against a student isp rohibited unless the school official b e l i eves that the fo rce to be used is n e c e s s a ry to prevent imminent h a rm to the health or safety of a p e rson or pers o n s. When the use offo rce is necessary, the degree offo rce shall not be designed to cause or known to cre ate a substantial risk o f causing deat h , serious bodily i n j u ry, d i s f i g u re m e n t , ex t reme pain or mental distre s s, or gro s sd egra d at i o n .(e) Seizure of the personal effects ofa student resulting from a search conducted under the provisions ofthis subch apter shall be limited to the object or objects for wh i ch the s e a rch was conducted. H oweve r,a ny other object observed during a s e a rch may be seized by a school o fficial when possession of the object is a violation of l aw or the p rovisions of this ch ap t e r, i n cluding the possession of c o n t rab a n dconstituting a class D offense under this ch ap t e r, or when non-seizure m ay pose a serious thre at to the health or safety of a person or

p e rs o n s, i n cluding the school official conducting the search .4

§8-19-18 Searches and seizures i nvolving law enfo rcement off i c e rs.S chool officials shall cooperate with l aw enfo rcement off i c e rs in theconduct of criminal inve s t i gations on school premises and during d ep a rt m e n t - s u p e rvised activities in a c c o rdance with the provisions ofsections 22, 2 3 , and 24 of t h i sch apter re l ating to police interv i ews and arre s t s. H oweve r, s ch o o lo fficials shall not conduct any search and seizure in conjunction with, or

at the request of, l aw enfo rcement o ff i c e rs as part of a criminali nve s t i gat i o n . L aw enfo rc e m e n to ff i c e rs shall be permitted to carry out searches and seizures wh i ch they deem necessary under thep revailing legal standards ofcriminal inve s t i gat i o n s.5

This language, as it pre s e n t ly ex i s t s, i sexc e l l e n t , and it confo rms to the constitu-tional principles gove rning priva cy inH awa i i . In part i c u l a r, it re c og n i zes thei m p o rtant rights of p r iva cy re c og n i zed in

Feb ru a ry 2009 H AWAII BAR JOURNAL 7

H awaii's Constitution, in A rt i cle I,Sections 6-7. The proposed new languagewould dire c t ly violate the Constitutionand Laws of H awa i i . A l l owing sch o o lo fficials to open locke rs and to allow dog sto sniff these locke rs, without any part i c u-l a r i zed suspicion that an individual stu-dent has violated any school ru l e, wo u l dsend a totally inap p ro p r i ate message tothe students that they have no priva cyrights and that our school officials have norespect for the constitutional rights thatour pre d e c e s s o rs have fought and died fo r.As Justice Louis Brandeis said, a rg u i n gt h at wire t aps should be viewed as search e sfor Fo u rth Amendment purp o s e s : " O u rG ove rnment is the potent, t h eo m n i p resent teach e r. For good or for ill, i tt e a ches the whole people by its ex a m p l e. "6

I f the Board ch a n ges the language alongthe lines of the present pro p o s a l , it will bet e a ching our students, who will short lybecome vo t e rs and community leaders,t h at their personal rights to priva cy areu n i m p o rtant and can be ignored eve nwhen there is no basis for suspecting thatt h ey have done anything wro n g.

The Pro p o s a l . The 2008 Board ofE d u c ation ap p roved a proposal thatwould dra m at i c a l ly ch a n ge the rules gov-e rning School Searches and Seizures inour stat e. As listed ab ove, the existing lan-g u age in HAR sec. 8-19-14 says that"Students have a leg i t i m ate ex p e c t ation ofp r iva cy in school" and that this ex p e c t a-tion extends to "school pro p e rty assignedfor their individual use," such as sch o o ll o cke rs. The proposal would reve rse thiss t rong language to say, in equally stro n gl a n g u age, the opposite. The languageap p roved by the 2008 Board for wh atwould become "Section 8-19-14 Po l i cy onopening and inspection of student lock-e rs" reads as fo l l ow s :

S chool locke rs provided to thestudents on campus are subject to opening and inspection (andex t e rnal dog sniffs) by sch o o lo fficials at any time with or without c a u s e, p rovided that such searches a re not because of the student's ra c e, c o l o r, n ational origin, a n c e s t ry,s ex , gender identity and ex p re s s i o n ,re l i g i o n , d i s ability or sex u a lo r i e n t at i o n . Section 8-19-15 shall h ave no ap p l i c ability to the opening

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and inspection (and ex t e rnal dog s n i ffs) of student locke rs. None ofthe restrictions in Section 8-19-15 t h rough Section 8-19-18 or Section 8-19-19 or re l ated to ge n e ra ls e a rches and seizures shall in any way be construed to cre ate an ex p e c t ation of p r iva cy in student l o cke rs. Students should assume t h at their locke rs are subject to opening and inspection (andex t e rnal dog sniffs) any time with or without cause.

This proposed provision would thusa l l ow intru s ive searches in school l o cke rs ata ny time by any school off i c i a l, without anyneed for any part i c u l a r i zed reason for thes e a rch . The fo rmal adoption of this pro-posed language would mark a completet u rn a round from the language now fo u n din Section 8-19-14 and, as explained inm o re detail below, would be inconsistentwith the holdings of the Hawaii Supre m eC o u rt in In Interest of Jane Doe, 77 Hawa i i4 3 5 , 4 3 6 - 3 7 , 887 P.2d 645, 646-47 (1994)( s t ating that "indiv i d u a l i zed suspicion" is"a necessary element" in determ i n i n gwhether a search of a student's pers o n a le ffects is re a s o n able under the U. S. a n dH awaii Constitutions.7 This ap p ro a chwould also be inconsistent with the hold-ing of the U. S. C o u rt of Appeals for theNinth Circuit in B. C. v. Plumas UnifiedS chool District, 192 F.3d 1260, 1268 (9thC i r. 1999) (ruling that "the random andsuspicionless dog sniff s e a rch of B. C. wa su n re a s o n able in the circ u m s t a n c e s " ) . I fthe Board we re to adopt the present pro-posed language, l i t i gation challenging sus-picionless searches can be pre d i c t e d .

The General Fe d e ra lConstitutional Standard Gove rn i n gS e a rches of Students in Publ i cS ch o o l s. The U. S. S u p reme Court inN ew Je rs ey v. T. L . O., 469 U. S. 325 (1985),made the fo l l owing rulings gove rn i n gs e a rches of students in public sch o o l s :

* Students in public schools do havel eg i t i m ate ex p e c t ations of p r iva cy wh i cha re protected by the Fo u rth A m e n d m e n t .8

* Public school officials are gove rn-ment officials and must comply withFo u rth Amendment re q u i rements wh e nconducting searches or seizure s.9

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* School officials do not need searchwa rrants or pro b able cause to search as t u d e n t , but they must still have a "re a s o n-able suspicion" that the student beings e a rched has violated a school rule andt h at evidence of the violation will befound in the particular place beings e a rch e d .1 0 The search conducted must beconsistent with its original objective andmust not be exc e s s ive ly intru s ive in re l a-tion to the nat u re of the suspected infra c-tion or the student's age or sex .1 1

Tra d i t i o n a l ly, American citizens havehad an ab h o rrence of random and suspi-cionless search e s.1 2 The U. S. S u p re m eC o u rt has, h oweve r, p e rmitted ra n d o mu r i n a lysis testing of s t u d e n t - athletes ando t h e rs students who engage in ex t ra c u rr i c-ular activ i t y, because of the school's "cus-todial and tutelary" responsibilities for itss t u d e n t s.1 3 C o u rts have also upheld theuse of metal detectors at entrances tos chools when the use or thre at of we ap o n shas become a pro blem at the part i c u l a rs ch o o l .

The Gove rning Hawaii LawRega rding Searches of S t u d e n t s.The Hawaii Supreme Court has fo l l owe dthe T. L . O. ruling and has found that "ch i l-d ren in school have leg i t i m ate ex p e c t a-tions of p r iva cy that are protected by art i-cle I, section 7 of the Hawaii Constitutionand the fo u rth amendment to the UnitedS t ates Constitution,"1 4 and that "indiv i d u-a l i zed suspicion" is "a necessary element"in determining whether a search of a stu-dent's personal effects is re a s o n able underthe U. S. and Hawaii Constitutions.1 5 I n2 0 0 4 , the Hawaii Supreme Court con-f i rmed those ru l e s, p a rt i c u l a rly that indi-v i d u a l i zed suspicion is a necessary pre c o n-dition to conduct a search , and concl u d e dt h at an anonymous Crime Stoppers' tipwas not sufficient to serve as re a s o n abl egrounds to search a student for contra-b a n d .1 6

The Gove rning Ninth Circ u i tDecision Rega rding Canine Sniff s.The U. S. C o u rt of Appeals for the NinthC i rcuit (wh i ch includes Hawaii within itsjurisdiction) add ressed the question ofcanine searches in B. C. v. Plumas Unified

S chool District, 192 F.3d 1260 (9th Cir.1 9 9 9 ) . In that case, the Principal and Vi c ePrincipal of Q u i n cy High School inPlumas County, C a l i fo rn i a , i n s t ructed thestudents to va c ate their cl a s s ro o m , and topass by "Keesha," a dru g - s n i ffing dog." The dog was always three to four fe e tf rom the students as they exited and re -e n t e red the cl a s s room," and "did not sniffa round each student [or] touch the stu-dents in any manner. "1 7 After they dep a rt-e d , Keesha "sniffed back p a ck s, j a cke t s,and other belongings wh i ch the studentsleft in the ro o m . "1 8 Keesha alerted on onestudent on two sep a rate occasions, but nod rugs we re found on the student, i n d i c at-ing a "false positive. "1 9

The court's majority opinion in B. C.does not sep a rate the two aspects of t h es e a rch - the students passing by the dogand the dog's subsequent search of t h ebelongings of the students - but concl u d e st h at the eve n t , t a ken as a wh o l e, " c o n s t i-tutes a search," because it "infringed B. C. ' sre a s o n able ex p e c t ation of p r iva cy. "2 0 Th ec o u rt emphasized that it is this "ex p e c t a-tion of p r iva cy" that is key, and that "there a ch of the Fo u rth Amendment cannott u rn on the presence or absence of a phy s-ical intru s i o n . "2 1

In re a ching the conclusion that "therandom and suspicionless dog sniff s e a rcho f B. C. was unre a s o n able in the circ u m-s t a n c e s, "2 2 the court distinguished Ve rn o n i a,s u p ra, on two gro u n d s : (1) Ve rn o n i a i nvo l ve ds t u d e n t - athletes "who vo l u n t a r i ly part i c i-p ate in school athletics [and who] havereason to expect intrusions upon norm a lrights and priv i l ege s, i n cluding priva cy, "2 3

while "the search in this case took place ina cl a s s room wh e re students we re engage din compulsory, e d u c ational activ i t i e s, "2 4

and (2) the Ve rnonia School District "wa ss u ffering an immediate drug crisis," wh i l e"the re c o rd here does not disclose thatt h e re was any drug crisis or even a dru gp ro blem at Quincy High in May 1996."2 5

Because of "the absence of a drug pro b-lem or crisis at Quincy High, the gove rn-ment's important interest in deterring stu-dent drug use would not have been 'placedin jeopardy by a re q u i rement of i n d iv i d u-a l i zed suspicion.'"2 6 The Ninth Circ u i tthus re q u i red the gove rnment to carry thebu rden that the search was necessary to

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s e rve its go a l s, and that no other less intru-s ive altern at ive was ava i l abl e. The courtalso emphasized that "[i]t is well settledt h at students do not 'shed their constitu-tional rights . . . at the schoolhouse gat e. ' "2 7

Other Decisions Re c og n i z i n gP r iva cy Interests in StudentL o cke rs. Although the cases are incon-sistent on this point, m a ny courts haveagreed with Hawaii's traditional positiont h at students have priva cy interests in theirs chool locke rs. The Califo rnia Supre m eC o u rt ruled in 1985, for instance, t h at astudent has the "highestp r iva cy interest in hisor her own pers o n ,b e l o n g i n g s, a n dp hysical encl ave s,

s u ch as locke rs. "2 8 This conclusion wa sc o n f i rmed more re c e n t ly by a Califo rn i aap p e l l ate court wh i ch explained that "[i]nC a l i fo rn i a , a student has an ex p e c t ation ofp r iva cy in his school locke r. "2 9 O t h e rdecisions have re a ched the same concl u-s i o n .3 0 One of the most eloquent stat e-ments rega rding the importance of p ro

tecting students' priva cy interests in thecontents of their locke rs is found in In reA d a m, 120 Ohio Ap p.3d 364, 3 7 5 - 7 6 , 6 9 7N.E.2d 1100, 1108 (11th Dist. L a keCounty 1997), wh e re the court ex p l a i n e dt h at students have a leg i t i m ate ex p e c t at i o no f p r iva cy in their school locke rs, and thatthis ex p e c t ation is not eliminated by a signposted on all locker bays that said:

The locke rs supplied by the Board o f E d u c ation and used by thestudents are the pro p e rty of the B o a rd of E d u c at i o n . Th e re fo re, the student locke rs and the contents of

all the student locke rsa re subject to

r a n d o ms e a rch at any time

w i t h o u t

Feb ru a ry 2009 H AWAII BAR JOURNAL 1 1

rega rd to whether there is are a s o n able suspicion that any locker or its contents contains evidence ofa violation of a criminal statute or a s chool ru l e.

Random searches of l o cke rs may i n clude a search with the assistance o f d ogs trained to detect thep resence of d ru g s.3 1

The Ohio court explained that such as chool policy, even when accompanied byp ro m i n e n t ly posted signs, could not elimi-n ate the students' constitutional rights:

I n d e e d , one cannot envision any rule t h at minimizes the value of our Constitutional freedoms in the minds ofour youth more dra m at i c a l ly than a s t atute pro claiming that juveniles have no right to priva cy in their personal p o s s e s s i o n s. The contents of astudent's book bag in all likelihood rep resent the most personal of all student belongings. I n cluded within this eve r- p resent rep o s i t o ry would be letters wh i ch are never meant to be sent, diaries wh i ch are not intended to be read by anyo n e,p h o t ographs of long lost friends or

p e t s, and any other unmistakable evidence of the part i c u l a rly unique s t ages of growing up. Th egove rnment simply has no right to p ro claim that , c o n t ra ry to the right ofp r iva cy guaranteed by the United States C o n s t i t u t i o n , these personal art i cles will be subject to observation andd i s s e m i n ation by the adult community at w i l l. It is hypocritical for a teacher to lecture on the grandeur of the United States Constitution in the m o rning and violate its basic tenets in the aftern o o n .3 2

H awaii's Right to Priva cy.H awaii's Constitution contains two priva-cy prov i s i o n s, emphasizing the part i c u l a ri m p o rtance we give to priva cy in our com-mu n i t y. A rt i cle I, section 7 lays out thet raditional fo rmu l ation to provide pro t e c-tion from unre a s o n able searches ands e i z u re s :

The right of the people to be secure in their pers o n s, h o u s e s, p ap e rs and e ffects against unre a s o n abl es e a rch e s, s e i z u res and invasions ofp r iva cy shall not be violat e d ; and no wa rrant shall issue but upon

p ro b able cause, s u p p o rted by oath or aff i rm at i o n , and part i c u l a rly describing the place to be searched and the persons or things to be s e i zed or the commu n i c ations sought to be interc ep t e d .

The wo rds re fe rring to "invasions of p r i-va cy" and "commu n i c ations sought to bei n t e rc epted" we re added by the 1968Constitutional Convention to "protect thei n d ividual's wishes for priva cy as a leg i t i-m ate social interest" and to protect aga i n s t"undue gove rnment inquiry into and reg-u l ation of the areas of a person's lifewh i ch are defined as necessary to insure'man's individual and human dignity. ' "3 3

In a ve ry recent decision interp re t i n gthis prov i s i o n , S t ate v. H e apy, 113 Hawa i i2 8 3 , 151 P.3d 764 (2007), the plura l i t yopinion of the Hawaii Supreme Courtpointed out that our Court has stat e drep e at e d ly that this provision provides ab roader protection to individual priva cythan does the Fo u rth Amendment to theU. S. C o n s t i t u t i o n :

S i g n i f i c a n t ly, this court has decl a red

12 Feb ru a ry 2009 H AWAII BAR JOURNA L

t h at , c o m p a red to the Fo u rth A m e n d m e n t , a rt i cle I, section 7 ofthe Hawai'i Constitution guarantees p e rsons in Hawai'i a "moreex t e n s ive right of p r iva cy [ . ] "34 In the N ava s c a s e, the court explained that A rt i cle I, Section 7 of H awaii's Constitution "was 'designed top rotect the individual fro ma r b i t ra ry, o p p re s s ive, and harassing conduct on the part of gove rnment o ff i c i a l s ' "3 5 In the Ta n a k a c a s e, the H awaii Supreme Court held that police cannot search opaque, closed t rash bans placed on the street or l o c ated in a trash bin without a s e a rch wa rra n t , even though fe d e ral c o u rts have interp reted the Fo u rth Amendment to allow such search e s.A l s o, in S t ate v. Ro t h m a n, 70 H awaii 546, 779 P.2d 1 (1989), the H awaii Supreme Court found that p e rsons using telephones have are a s o n able ex p e c t ation of p r iva cy under the Hawaii Constitution to the telephone nu m b e rs they call or re c e ive on their private lines, even though the U. S. S u p reme Court had ruled prev i o u s ly in Smith v.M a ry l a n d, 442 U. S. 735 (1979), t h at the Fo u rth Amendment did not re q u i re a wa rrant for thei n t e rc eption of s u ch nu m b e rs.

The H e apy case invo l ved whether apolice officer had the necessary "re a s o n-able suspicion" to justify stopping a drive r,based on the driver's decision to turn awayf rom (and thus avoid) an alcohol ch e ck-p o i n t . The Court's conclusion was thatthe driver's decision to turn away did notp rovide evidence of o p e rating the ve h i cl ewhile intox i c at e d , and there fo re that thepolice officer had no "objective basis-spe-cific and art i c u l able facts" to justify stop-ping and searching the drive r,3 6 eve nthough courts in other jurisdictions hadre a ched the opposite re s u l t .

Th e n , the 1978 ConstitutionalC o nvention added an entire ly new prov i-s i o n , wh i ch has become A rt i cle I, S e c t i o n6 , to protect each individual's "pers o n a la u t o n o my." The language of this newp rovision is:

The right of the people to priva cy is re c og n i zed and shall not be i n f r i n ged without the showing of a compelling state intere s t . Th el eg i s l at u re shall take aff i rm at ive s t eps to implement this right.

This language thus emphasizes that priva-cy interests can be limited only when thegove rnment has a "compelling" need todo so, and that leg i s l at ive action isre q u i red to protect priva cy concern s. Th ecommittee rep o rt supporting this rightquoted from Justice Brandeis' opinion inO l m s t e a d, s u p ra, and emphasized that theright was designed to protect each indiv i d-ual's "right to personal autonomy, to dic-t ate his life s t y l e, to be oneself. "3 7 A ga i n ,the Hawaii Supreme Court has interp re t-ed this provision to ensure that the peopleo f H awaii have broader priva cy pro t e c-tions than are affo rded under the U. S.C o n s t i t u t i o n .3 8

D og Sniffs A re Fa l l i bl e. As indi-c ated ab ove, the Ninth Circuit noted inthe B. C. c a s e, t h at the dog Keesha hadtwice alerted on a student, but that nod rugs we re found on the student. In hisdissent in Illinois v. C ab a l l e s, 543 U. S. 4 0 5 ,411-12 (2005), Justice David Soutere m p h a s i zed that "[t]he infa l l i ble dog,h oweve r, is a cre at u re of l egal fiction" andexplained that "the evidence is clear thatthe dog that alerts hundreds of times willbe wrong dozens of t i m e s." He cited ev i-dence introduced by the State of Illinois inthe C ab a l l e s case showing "that dogs ina rtificial testing situations re t u rn false pos-i t ives any wh e re from 12.5% to 60% of t h et i m e," and he listed rulings from otherc o u rts that had rep o rted that dogs gavefalse positives from 8% to 38% of t h et i m e.3 9 These many fa i l u res re s u l t , in part ,f rom the fact that a "substantial portion ofUnited States curre n cy . . . is tainted withs u fficient traces of c o n t rolled substancesto cause a trained canine to alert to theirp re s e n c e. "4 0

C o n cl u s i o n. The ch a n ge beingc o n s i d e red by the Board of E d u c at i o nwould reve rse long-standing Hawaii poli-cies rega rding the priva cy rights of o u rs t u d e n t s. The proposed new language isd i re c t ly inconsistent with (1) the principlesfound in A rt i cle I, Sections 6-7 of H awa i i ' sC o n s t i t u t i o n , (2) the consistent rulings ofthe Hawaii Supreme Court wh i ch havere q u i red indiv i d u a l i zed suspicion fo rs e a rches of s t u d e n t s, and (3) the gove rn i n gruling of the U. S. C o u rt of Appeals for theNinth Circ u i t , wh i ch decl a red a canine

s n i ff o f students and their possessions tobe unconstitutional. The people ofH awa i i , by the ch a n ges made after the1968 and 1978 State ConstitutionalC o nve n t i o n s, h ave pushed hard to ex p a n dthe scope of p e rsonal priva cy, but this pro-posed ch a n ge would move in the opposited i re c t i o n . The adoption of this pro p o s a lwould constitute a rejection of the va l u e so f i n d ividual freedom that citizens of t h eUnited States and of H awaii have fo u g h tand died for during many previous ge n e r-at i o n s, and it would send a completelyi n ap p ro p r i ate message to our students,who will become active members of o u rpolitical community soon. It must behoped that the reconstituted 2009 Boardo f E d u c ation will take a new look at thisp roposal and will reject or modify it.

A Sugge s t i o n. Th e re may be cir-cumstances when the use of a tra i n e dd ru g - s n i ffing dog might be re a s o n able todeal with a disru p t ive outbreak of d ru ga c t ivity in a sch o o l , a n d , i f the Board con-t i nues to believe that some proper role fo rcanine sniffs ex i s t s, the fo l l owing languagewould allow school officials the fl ex i b i l i t yto call upon a trained canine in such a cir-c u m s t a n c e :

I f a school principal has a we l l -founded belief, based on art i c u l able c re d i ble ev i d e n c e, t h at illegal drugs h ave been brought into a sch o o l , the principal may authorize a trained d ru g - s n i ffing dog to go to the area wh e re the drugs are believed to be,for the purpose of obtaining further evidence to justify a search of t h at a re a .

This language would reduce the open-endedness of the search , would re q u i rethe principal to make the decision to bringin a dog, and would re q u i re the principalto be able to explain the ev i d e n t i a ry basisfor such a decision. This ap p ro a ch wo u l da ch i eve the goals of those who believe thatd ru g - s n i ffing canines can reduce the use ofd rugs in schools while also protecting thep e rsonal priva cy rights our pre d e c e s s o rsh ave fought for during previous ge n e ra-tions and wh i ch are now pro m i n e n t ly pro-tected in the U. S. and Hawa i iC o n s t i t u t i o n s._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Feb ru a ry 2009 H AWAII BAR JOURNAL 1 3

1 E ff 5 / 2 3 / 8 6 ; am and comp 7/19/93;comp 5/19/97; comp 2/22/01 (Au t h : H R S§302A-1112) (Imp: H awaii Const. A rt . X , § 3 ;HRS §§302A-1101, 3 0 2 A - 1 1 1 2 ) .2 E ff 5 / 2 3 / 8 6 ; comp 7/19/93; c o m p5 / 1 9 / 9 7 ; comp 2/22/01 (Au t h : HRS §302A-1112) (Imp: H awaii Const. A rt . X , § 3 ; H R S§ § 3 0 2 A - 1 1 0 1 , 3 0 2 A - 1 1 1 2 ) .3 E ff 5 / 2 3 / 8 6 ; am and comp 7/19/93;comp 5/19/97; comp 2/2/01 (Au t h : H R S§302A-1112) (Imp: H awaii Const. A rt . X , § 3 ;HRS §§302A-1101, 3 0 2 A - 1 1 1 2 ) .4 E ff 5 / 2 3 / 8 6 ; am and comp 7/19/93; a mand comp 5/19/97; comp 2/22/01 (Au t h :HRS §§302A-1112, 703-309(2)) (Imp: H awa i iC o n s t . A rt . X , § 3 , HRS §§302A-1101, 3 0 2 A -1 1 1 2 , 7 0 3 - 3 0 9 ( 2 ) ) .5 E ff 5 / 2 3 / 8 6 ; comp 7/19/93; c o m p5 / 1 9 / 9 7 ; comp 2/22/01 (Au t h : HRS §302A-1112) (Imp: H awaii Const. A rt . X , § 3 ; H R S§ § 3 0 2 A - 1 1 0 1 , 3 0 2 A - 1 1 1 2 ) .6 Olmstead v. United Stat e s, 277 U. S. 4 3 8( 1 9 2 8 ) .7 I d . at 443, 887 P.2d at 653); In re Doe, 1 0 4H awaii 403, 91 P.3d 485 (2004) (confirm i n gt h at indiv i d u a l i zed suspicion is a necessary pre-condition to conduct a search , and concl u d i n gt h at an anonymous Crime Stoppers' tip wa snot sufficient to serve as re a s o n able grounds tos e a rch a student for contrab a n d ) .8 I d . at 334.9 I d .10 I d . at 341-42.11 I d . at 342.12 S e e, e. g., C o m m o n wealth v. M i s t l e r, 912 A . 2 d1265 (Pa . 2006) (explaining that "ge n e ra l i ze d ,suspicionless searches" are permitted only ift h ey serve "a paramount public interest" thatcannot be ach i eved in other way s ) .13 Ve rnonia School District 47J v. A c t o n, 515 U. S.6 4 6 , 655-56 (1995); B o a rd of E d u c ation ofI n d ependent School District No. 92 of Po t t awat o m i eCounty v. E a rl s, 536 U. S. 822 (2002).14 In the Interest of Jane Doe, 77 Hawaii 435,4 3 6 - 3 7 , 887 P.2d 645, 646-47 (1994)15 I d . at 443, 887 P.2d at 653.16 In re Doe, 104 Hawaii 403, 91 P.3d 485( 2 0 0 4 ) .17 I d . at 1270 (Bru n e t t i , J. , d i s s e n t i n g ) .18 I d . at 1263 (majority opinion).19 I d .20 I d . at 1266.21 I d . at 1266 n. 8 (quoting from Katz v. U n i t e dS t at e s, 389 U. S. 347 (1967)).22 I d . at 1268.23 I d . at 1267 n. 10 (quoting fro m 515 U. S. at6 5 7 ) .24 I d .25 I d . at 1268.26 I d . at 1268 (quoting from Chandler v. M i l l e r,520 U. S. 3 0 5 , 314 (1997), and Skinner v. Ra i lwayL abor Exe c u t ives' A s s ' n, 489 U. S. 6 0 2 , 624 (1989)).27 I d . at 1267 (quoting from T i n ker v. Des MoinesI n d ependent Community School Dist., 393 U. S. 5 0 3( 1 9 6 9 ) ) .28 In re William G., 40 Cal.3d 550, 5 6 5 , 2 2 1C a l . R p t r. 1 1 8 , 709 P.2d 1287 (1985).29 In re Cody S. , 121 Cal.Ap p.4th 86, 1 6

C a l . R p t r.3d 653, 657 (4th Dist. 2 0 0 4 ) .30 I n cluding S t ate v. M i chael G., 106 N. M .6 4 4 , 6 4 6 , 748 P.2d 17, 19 (Ct.Ap p.1987) ("Th es t ate concedes that the T. L . O. s t a n d a rd ap p l i e sto searches of l o cke rs, as well as the student.We agre e. " ) ; S t ate v. B ro o k s, 43 Wa s h . Ap p. 5 6 0 ,718 P.2d 837 (Div.1 1986) (ap p lying the T. L . O.s t a n d a rds to a locker search ) ; and S t ate v. Jo s ep hT., 175 W. Va . 5 9 8 , 336 S.E.2d 728 (1985)( s a m e ) .31 120 Ohio Ap p. at 368, 697 N.E.2d at1 1 0 3 .32 I d . at 375-76, 697 N.E.2d at 1108.33 S t a n d . C o m m . Rep. N o. 55 (Majority),reprinted in 1 PROCEEDINGS OF T H EC O N S T. CONVENTION OF HAWAII OF1 9 6 8 , at 233-34 (1973).34 S t ate v. N ava s, 81 Hawaii 113, 1 2 3 , 9 1 3P.2d 39, 49 (1996); see also State v. D i xo n, 8 3H awai'i 13, 2 3 , 924 P.2d 181, 191 (1996) (not-ing that "art i cle I, section 7 of the Hawa i ' iConstitution provides broader protection thanthe [F]ourth [A]mendment to the UnitedS t ates Constitution because it also pro t e c t sagainst unre a s o n able invasions of p r iva cy " ) ;S t ate v. Ta n a k a, 67 Haw. 6 5 8 , 6 6 1 - 6 2 , 701 P. 2 d1 2 7 4 , 1276 (1985) ("In our view, a rt i cle I, § 7 ofthe Hawaii Constitution re c og n i zes an ex p e c-t ation of p r iva cy beyond the parallel prov i s i o n sin the Fe d e ral Bill of R i g h t s. " ) . 113 Hawaii at2 8 3 , 151 P.3d at 764.35 81 Hawaii at 123, 913 P.2d at 49 (q u o t i n gf rom Nakamoto v. Fa s i, 64 Hawaii 16, 2 3 , 6 3 5P.2d 946, 952 (1981), and S t ate v. Q u i n o, 7 4H awaii 161, 1 7 7 - 7 8 , 840 P.2d 358, 3 6 5 - 6 6( L ev i n s o n , J. , c o n c u rr i n g ) ) .36 I d . at 268, 151 P.3d at 767.37 S t a n d . C o m m . Rep. N o. 6 9 , in 1 PRO-CEEDINGS OF THE CONSTITUTION-AL CONVENTION OF HAWAII OF 1978,at 674-75 (1980).38 S e e, e. g., S t ate v. Ka m, 69 Hawaii 483, 7 4 8P.2d 1372 (1988) (dep a rting from fe d e ral pre c e-dents to find a priva cy right to sell porn o-graphic material for personal use in the priva-cy of one's home).39 I d . at 412.40 I d . (quoting from United States v. C a rr, 25 F. 3 d1 1 9 4 , 1214-17 (Becke r, J. , c o n c u rring and dis-senting in part ) ) .

This art i cle is a modification of t e s t i m o ny pre s e n t e dto the Board of E d u c ation in 2007 and 2008. P ro fe s s o rJon M. Van Dyke has been teaching Constitutional Law atthe William S. R i ch a rdson School of L aw for 32 1/2 ye a rs.In 1987, he wo rked with Melvin M. S a k u rai under a con -t ract from the Dep a rtment of E d u c ation to prep a re guide -lines to school administrat o rs on the proper way to conducts e a rches and seizures of p u blic school students consistentwith the United States Constitution and with the laws andConstitution of H awa i i . After this project was completed,it was expanded to examine the situation in all 50 stat e s,a n d , since 1992, Van Dyke and Sakurai have published ana n nual update of the law on this topic, p u blished byTh o m p s o n - We s t , entitled C h e cklists for Searches andS e i z u res in Public Sch o o l s.