Phoebe Prince, the first-year student at West Hadley High School in Massachusetts committed suicide after relentless bullying.  This story has been covered by media around the country for the past several weeks. 

This truly is a tragedy that has the ingredients to fashion a major advance in student rights. 

Elizabeth D. Scheible, a district attorney in Massachusetts is taking on Phoebe’s bullies through the criminal justice system.  At least nine teenagers identified in the bullying tragedy are facing criminal charges, including criminal harassment which carries with it a two and one-half-year jail sentence a fine, or both.

Elizabeth D. Scheible, a district attorney in Massachusetts is taking on Phoebe’s bullies through the criminal justice system.  At least nine teenagers identified in the bullying tragedy are facing criminal charges, including criminal harassment which carries with it a two and one-half-year jail sentence a fine, or both.

Now, Phoebe’s parents are suing the school in civil court.  Schools have a duty to protect children from the harms of bullying. If the school administrators had knowledge of the harassment, bullying and intimidation of Phoebe by her classmates and didn’t act reasonably to stop it, they can be held liable for her death.

Civil lawsuits have been the norm.  But now, in addition to civil suits, if their state laws cover criminal harassment, prosecutors can file criminal charges against individual students.  If convicted, these students can spend time in jail.

This new arsenal in the assault on school bullying requires strong criminal harassment laws and prosecutors who apply those laws to the outrage of harassment in schools.

If the case in Massachusetts leads to convictions and jail time for Phoebe’s bullies this will user in a shift in student rights – one that will provide students protection under both the civil and criminal justice system.

Keep an eye on Massachusetts.

In 2003, Savana Redding was an eighth-grader in a small town of Safford, Arizona near the border of New Mexico.  That fall, a boy had gotten violently ill from taking pills at school.  When another girl was found with several white pills in a folder, she told Vice Principal Kerry Wilson that she got them from Savana.  The pills were prescription-strength ibuprofen and equivalent to two Advil tablets.

Savana said she knew nothing of the pills.  Her backpack was searched.  When no pills were found, Wilson sent her to the nurse’s office where she was told to remove her outer clothing and to pull out her bra and underwear to check for hidden pills.  Nothing was found.  Her parents filed a lawsuit against the school.

Under federal law, public officials can be sued and held liable if they violate a person’s “clearly established” rights under the Constitution.  Judges around the nation were divided over whether conducting a strip-search at school was unconstitutional.

In an 8-1 decision by the Supreme Court on June 25, 2009, the justices indicated that school officials lacked justification for such an invasive search of a 13-year-old girl who was suspected of hiding ibuprofen pills.

Forty years ago, the Supreme Court assured public school students that they do not shed all of their constitutional rights at the schoolhouse gate.  And twenty four years ago, it included the right of privacy among the constitutional protections students retain while in classrooms, hallways and on school grounds.  Nonetheless, public school students do not have rights fully equal to those enjoyed by adults.

The Court allows mandatory and random drug testing of students as a condition for taking part in nearly any facet of school activity.  The Court has been largely unwilling to second-guess school officials’ claims that there is a drug problem at their particular school, even if the evidence is not very strong.  Because the Court has accepted the idea that drug abuse is harmful to kids, it has fashioned a modified constitutional regime that governs searches of students.  In a technical sense, the Court has not demanded that school officials have “probable cause” before they may search students when drug abuse is suspected.  Some “reasonable” basis is the standard in the public school.

The Court dealt with this issue in Savanna’s case.  It explored how the constitutional regime, involving public school students’ rights, is to be applied when officials’ have suspicion about a possible substance abuse problem just with a specific student – not within a school-wide setting.

What was missing from the suspected facts, which pointed to Savana, was any indication of danger to the students from the power of the drugs, their quantity and/or any reason to suppose that Savana was carrying pills in her underwear.  The combination of these deficiencies was fatal to finding the search reasonable.

Should school officials be able to search students for prescriptive drugs when there is evidence that, in the particular school, there is a problem with students selling these drugs to their friends?