Fear and Loathing in Mt. Lebanon

Steve sent me a note reminding me that my little municipality, Mt. Lebanon recently and quietly eroded a piece our local civil liberties. In the School District's revised "Parking Policy," there is the following language:

"Student vehicles parked on District property are subject to search by the District and/or law enforcement authorities at any time for any reason, with or without notice. General and random searches (including canine sniff searches) are authorized, and no particular suspicion is required. Students should
have no expectation of privacy as to vehicles on District property. Parking is a privilege, not a right, and student parking permits will be issued only where students and/or parents consent to such searches. Refusal to cooperate in such searches may result in loss of parking privileges as well as disciplinary action."

The policy raises a number of problematic questions. I'll leave aside the first two, which are whether this sort of policy is a good idea (I think that it's not, but I'm not interested in debating the matter), and whether the policy oversteps the legitimate Fourth Amendment interests of public school students who aren't reasonably suspected of illegal activity (I think that it does, but the law here is hardly a model of clarity).

Interesting and problematic question number one is the declaration that parking is a "privilege, not a right." Well-informed contemporary lawyers (and philosophers) have abandoned this sort of distinction, precisely because it isn't based on anything except an empty declaration. Suppose I say that parking *is* a right. What then? How do we resolve this debate? It can't be done. We just go 'round and 'round.

Interesting and problematic question number two is the declaration that students should have no expectation of privacy as to vehicles on District property. Aside from some atrocious drafting (What if a students is driving a car owned by one or both parents? Is that a "student vehicle"? Does the student status of the driver deprive the parents of an expectation of privacy? What if a parent parks on District property in order to visit the school, using a student parking pass?), it's pretty clear as a matter of constitutional law that the scope of an expectation of privacy isn't simply a question of what a school district (or some other public entity) says it is. If it were, students would end up with no privacy rights at all, and that's clearly wrong as a matter of both law and logic. Could the district adopt a policy that declares that there is no expectation of privacy in a bookbag that a student carries in the high school hallways--and have that policy enforced by the courts? What about a student's wallet? When it comes to declarations, why is the parking lot any different?

Interesting and problematic question number three is the rule that refusal to consent to a search might result not only in a loss of parking "privileges," but also in "disciplinary action." The coercion implicit in that statement, it seems to me, is just outrageous. Given the vagaries of the Supreme Court's rulings in this area, I can imagine a court (especially the Third Circuit) upholding a rule that says: Don't park here unless you consent to a search. (I don't like the rule, but I can imagine it being upheld.) I have a hard time imagining the constitutionality of a rule that says: Even in the absence of any reasonable suspicion, you may be punished be school authorities if you don't allow them to search your car.


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Pittsblog 2.0 is written by Mike Madison, a law professor at the University of Pittsburgh. Send email to michael.j.madison[at]gmail.com. Mike also blogs at Madisonian.net, on law and technology. Chris Briem of Null Space drops by from time to time.

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