Legalities did not leash dogs from sniffing school lockers

THE ISSUE A state school board committee has reversed its earlier support for random searches of students' lockers using drug-sniffing dogs.

By a one-vote margin, a state Board of Education committee has backed away from allowing random searches of student lockers using drug-sniffing dogs. The decision is based on concern for students' privacy but should not be regarded as abiding by constitutional restrictions. Extending students' privacy rights to their lockers is respectful but not required by law. The policy may be reviewed in the future.

Board members may have been intimidated by threats of lawsuits, although Attorney General Mark Bennett assured them that locker searches "at any time with or without reason or cause" are permitted by law. Indeed, random locker searches are conducted at many public schools throughout the country and have withstood court challenges.

The San Francisco-based 9th U.S. Circuit Court of Appeals, which has jurisdiction over Hawaii, has not addressed the issue directly. However, the panel indicated in a 1999 ruling that it recognizes the difference between dog sniffing of students and of their lockers.

The ruling subscribed to the rationale of a previous 5th Circuit Court decision that, unlike dogs sniffing students' lockers or automobiles, "the intensive sniffing of people, even done by dogs, (is) indecent and demeaning," constituting a search subject to Fourth Amendment restrictions. The 5th Circuit upheld the use of dogs to randomly sniff lockers and cars but not the students themselves.

The 9th Circuit also referred to the late Justice William J. Brennan's dissent from the high court's 1981 rejection of an appeal by a student who had been sniffed personally. The Circuit Court shared Brennan's recognition that "the sniffing of inanimate and unattended objects" is legal, differing from warrantless sniffs of the students themselves.

The state Department of Education proposed the systemwide random sniffing of lockers by dogs after a golden retriever found traces of marijuana at all three public schools in a pilot program on Maui.

The school board's Special Programs Committee voted 7-4 last month to approve the dog-sniffing locker searches. The American Civil Liberties Union and the Drug Policy Forum opposed the move, and the full board, concerned about possible legal challenges, sent the issue back to the committee. The committee reversed its decision this week by a 5-4 vote.

Unannounced searches at Hawaii public schools now are allowed only in common areas such as cafeterias, gymnasiums and bushes. Students, lockers, backpacks, purses and automobiles are off limits, requiring reasonable cause before they can be searched.

Use of random searches was proposed because of the serious drug problem in schools, and the school board may reconsider its decision. "It's not over yet," said board member John Penebacker.

Meanwhile, the board should consider other methods of detecting drug use and dealing with parents, as suggested by House Education Chairman Roy Takumi, to steer students away from illicit drugs.