Many students heading back to school are being greeted by more police and metal detectors, but few, if any, counselors — this is especially true for students of color. Beyond having more police officers who could be armed, Education Secretary Betsy DeVos is reportedly considering a plan to allow states to buy guns for teachers using federal funds. 

Despite the research demonstrating that harsh “school safety” and disciplinary measures are detrimental to students of color, public schools across the country are enhancing efforts to lockdown classrooms, partly in response to the Parkland school shooting that shook the nation. 

As state legislatures take up the Trump administration’s call for increasing “law and order” with more school police, and as DeVos considers whether to undo the Obama administration’s reforms to curb racial bias in school discipline, it's important to take a close look at what’s happening in schools. A series of reports produced by the ACLU with UCLA (Center for Civil Rights Remedies, Civil Rights Project) analyzes new data from the U.S. Department of Education, collected from all 96,000 public schools in the country. Part I of our publication focuses on the 11 million days of school students lost to suspension in the 2015-16 school year. 

Dramatic disparities exist at the school, district, state, and national level. Black students were just 15 percent of students nationally, but they accounted for 45 percent of all of the days lost due to suspension. This discipline gap contributes to the achievement gap. The 11 million days of lost instruction translates to over 60,000 school years, over 60 million hours of lost education, and billions of dollars wasted in a single school year. 

Part II of our report, which is expected to be released in September, focuses on the serious offense data that has been highlighted by the Trump administration in its Data Highlight on School Climate and Safety. Our review of the data examines the severity of the offenses as well as the reporting of school shootings. 

Although schools reported over a million “serious offenses” in the 2015-16 school year, over 96 percent of these concerned fights, physical attacks, or threats without weapons. Only 3 percent of the million offenses actually involved a weapon, and less than 3 percent of all public schools reported any incident of physical attack or fight with a weapon. 

Every public school in the country was also required to report occurrences of school shootings on campus in this serious offense data, regardless of injury. Without verifying the data, the Department of Education reported ‘‘nearly 240“ schools reported shootings for the 2015-16 school year. 

A look at the data would have revealed apparent errors from entire school districts that reported a shooting at every one of its schools. For example, just two school districts accounted for 63 of the reported shootings. The federal data sharply contrast with initiatives like Everytown Research, which found less than 30 school shootings occurred in K-12 settings in the 2015-16 school year by tracking news articles across the country. As we’ve reached out to schools individually, over half have confirmed errors while only 11 have confirmed school shootings. An extensive investigation published by National Public Radio confirmed errors with over 160 schools. 

At Liberty Podcast: Criminalizing Schoolkids

One of the most important findings of Part II of our report focuses on the abysmal gaps in school support staff across the country. The study finds nearly 60 percent of schools enrolling 36 million students did not meet the American School Counselors Association’s recommended ratio of 250-to-1 student-to-counselors. Instead, American schools on average have a 444-to-1 student-to-counselor ratio. 

Also, up to 1.7 million students were in schools with cops and no counselors, and over 10 million students were in schools that reported police officers (also called school resource officers) and no social workers in the 2015-16 school year. Nationally, schools reported 27,000 sworn law enforcement officers compared with just 23,000 social workers. In his address to school resource officers, Attorney General Jeff Sessions boasted about nearly $75 million in funding that could be coming to schools under the STOP School Violence Act of 2018. Yet not a single penny goes toward equipping schools with support staff required to meet the needs of students. 

Lastly, Part II of our report also discusses the 290,000 student arrests and referrals to law enforcement in the 2015-16 country by state, race, and disability status. An alarmingly high and disproportionate number of student arrests or referrals to law enforcement were reported despite the failure of large districts like New York public schools, the Los Angeles Unified School District, and Boston public schools to report either arrests or referrals. 

In 2015-16, Black students represented 15 percent of enrollment nationally, but 31 percent of students referred to law enforcement or arrested. This is actually an increase from the 2013–14 school year where Black students were 16 percent of the student enrollment and 27 percent of students arrested or referred. As our forthcoming publication with UCLA highlights, persistent disparities also exist with students with disabilities and Latino, Native American, and Pacific-Islander students. 

As summer ends, students are entering schools where their liberties are being unnecessarily constrained even when the risks to their safety are minimal. Too many schools are wrongly investing in security systems and hiring police officers rather than spending their scarce resources on counselors, mental health support, and other services that could enrich students’ lives while preparing them for the future. In doing so, school administrators and state and federal policymakers are unintentionally harming the very children they have a duty to protect.

The data doesn’t lie.

A week before his confirmation hearing, the public record on Judge Brett Kavanaugh’s possible involvement in some of the Bush administration’s most abusive policies and programs is woefully incomplete. 

Kavanaugh, President Trump’s nominee for the Supreme Court, served in the White House soon after 9/11 when the Bush administration launched many of its most infamous programs in the name of national security. Leading senators have said that, during his 2006 confirmation hearing for the D.C. Circuit Court of Appeals, Kavanaugh may have provided misleading or inaccurate information about his involvement in developing those policies. Senators have rightly called for access to and public release of all documents from his White House stint, so we know any role he might have played in developing or reviewing the Bush administration’s torture, detention, and surveillance programs.

But despite these holes, Kavanaugh does have a well-developed record in cases involving national security, civil liberties, and human rights from his time on the D.C. Circuit. That record shows extreme deference to presidential claims to act unchecked in the name of war or national security. It also demonstrates hostility to international law as a constraint on government action as well as an unwillingness to hold the government to account when it violates the constitutional and human rights of U.S. citizens and noncitizens.

READ MORE: ACLU REPORT ON JUDGE BRETT M. KAVANAUGH

A clear example of this approach came in Meshal v. Higgenbotham, a case concerning Amir Meshal, a U.S. citizen who was secretly and unlawfully detained in 2007 by FBI agents in three African countries for four months. The agents threatened Meshal with torture, disappearance, and death unless he admitted terrorism connections — which he consistently denied. He was finally brought home to the United States and never charged with a crime. Represented by the ACLU, Meshal sued the FBI agents for violations of his Fourth and Fifth Amendment rights. He argued that he was entitled to sue his abusers under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, in which the Supreme Court held that citizens whose constitutional rights were violated are entitled to seek a legal remedy.

But in a divided opinion, the court of appeals refused to recognize that Meshal could sue the FBI agents, holding that Bivens did not apply to abuses by federal agents conducting a criminal counterterrorism investigation overseas. Kavanaugh agreed and wrote a separate opinion to emphasize a more extreme position. He argued that federal courts should not recognize a Bivens remedy for any conduct by U.S. officials overseas. He noted that permitting these claims might make officials “more hesitant in investigating and interrogating suspected al Qaeda members abroad. Some might argue that would be a good thing. Maybe so, maybe not.” But in Kavanaugh’s view, unless Congress opens the courthouse doors in cases involving national security abuses abroad, the courts should not provide a U.S. citizen with a remedy.

Kavanaugh’s refusal to recognize that victims and survivors can turn to the courts when their fundamental rights have been violated is a common thread running through his national security decisions. Whether by carving out exceptions to judicial doctrines allowing victims their day in court, as in Meshal, or by interpreting national security abuse cases as raising “political questions,” Kavanaugh has written or joined opinions that leave victims of U.S. policy without any remedy at all. Those victims include the U.S. citizen widow of a Guatemalan man, who sought to hold CIA agents accountable for conspiring to imprison, torture, and execute her husband. They also include Iraqi nationals seeking a remedy against U.S. military contractors who allegedly beat, electrocuted, and raped them at Abu Ghraib prison. 

Kavanaugh has also made clear his belief that that the president has inherent authority to hold prisoners in wartime without congressional authorization and without the need to abide by international law. In a case called Al-Bihani v. Obama, which concerned a Guantánamo detainee, Kavanaugh wrote separately to argue that the president’s war powers allowed him to hold prisoners — or at least noncitizen prisoners — without authorization by Congress. Kavanaugh’s approach would give the president exceedingly broad and dangerous powers.

In that case, and others, Kavanaugh has repeatedly asserted that courts should ignore binding international treaties in interpreting laws, at least when the treaties constrain the president’s war powers. That extreme view is contrary to the judicial mainstream and to Supreme Court precedent, which instructs courts to interpret domestic statutes consistently with international law unless Congress clearly states otherwise. Other judges on the D.C. Circuit have rejected or not joined these aspects of Kavanaugh’s opinions. 

Kavanaugh has also joined or written numerous D.C. Circuit opinions that turned judicial review of Guantánamo detention into a virtual rubber stamp of the executive branch’s claims. As a result, the D.C. Circuit now applies a more deferential standard to the government’s arguments and requires the government to put forward only minimal evidence when it seeks to justify the indefinite detention of prisoners at Guantánamo— a far lower standard than in other cases involving the deprivation of liberty.

Moreover, in Kavanaugh’s view, the government may use the Guantánamo military commissions to prosecute purely domestic terrorism-related crimes, significantly expanding the role of the controversial commissions beyond what courts historically have permitted. Kavanaugh expressed his view in al-Bahlul v. United States, a controversial case involving conspiracy, which is not a war crime under international law and which therefore should be prosecuted only in federal criminal courts. As other judges on the D.C. Circuit pointed out, the logic of Kavanaugh’s view is that the United States could take “three U.S. citizens [who] sent $200 to the humanitarian wing of an organization that the United States designated a foreign terrorist organization, earmarked for training in human-rights advocacy that the donors hope will turn the organization away from terrorist activities” and “ship [them] off to a military base” to be tried by military commission. 

Finally, Kavanaugh has defended as constitutional the mass surveillance of Americans’ phone records. The case arose after Edward Snowden’s disclosures in 2013, when the public learned that the NSA was collecting the call records of millions of Americans in bulk under Section 215 of the USA Patriot Act. In an appeal in the case, Kavanaugh asserted that the Fourth Amendment did not bar the program because it involved the collection of phone numbers, not the content of the calls made. Kavanaugh relied on an inapt case from the 1970s, which held that the government did not need a warrant to collect a particular criminal suspect’s phone records, over a few days, from a telephone company. But, from a privacy perspective, the continuous bulk collection of millions of Americans’ phone records is an entirely different issue. Kavanaugh also argued that even if the Fourth Amendment applied, the national security interest the government claimed outweighed the impact on Americans’ privacy.

No other judge on the D.C. Circuit joined Kavanaugh’s analysis.

If confirmed, Kavanaugh would replace Justice Anthony Kennedy, who at key points in the post-9/11 era helped preserve the role of courts as a check on unlawful executive action. In a landmark case, Kennedy wrote to uphold Guantánamo detainees’ right to habeas corpus review, reasoning that it is a safeguard of liberty required by the Constitution. For Kennedy, “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

In contrast, Kavanaugh’s record shows he would likely defer to — and not even scrutinize — a president’s security-based claims, even at the expense of individual liberty and access to justice.

In June 2018, the Supreme Court decided in a groundbreaking ruling that law enforcement must obtain warrants before demanding cell phone companies hand over information showing where we’ve been in the past and when. 

This month, courts in New England will consider cases that test what that landmark ruling means in other surveillance contexts where police seek to search sensitive digital location data without a warrant. While the 2018 Supreme Court decision concerned historical location data stored by cellphone companies, it provides a roadmap for the protection of all manner of location data. Courts considering warrantless police access to digital data should heed its example. 

On Wednesday, the Massachusetts Supreme Judicial Court — the state’s highest — will hear arguments in three cases dealing with location privacy. The court will be asked to answer three questions: Must police obtain a warrant to track a cell phone’s location in real time? Can police officers access historical location information derived from an ankle shackle without a warrant? And does it violate constitutional rights to put an ankle shackle on someone who is on probation without any individualized justification for the monitoring? 

Likewise, the Maine Supreme Judicial Court is presently considering a case involving whether police violate the Fourth Amendment when they obtain a person’s real-time cell phone location data without a warrant. 

The courts in these cases and others can look to the Supreme Court’s June 2018 decision in Carpenter v. United States for answers to these questions. 

Carpenter, which was argued by the ACLU, concerned information revealing where the ACLU’s client, Timothy Carpenter, had traveled with his phone over a period of months. The police wanted the information to link Carpenter to the scene of various robberies, which had occurred months prior to the investigation. The cops obtained these records without a warrant in what the Supreme Court ruled was an unconstitutional search. 

In his ruling in that case, Chief Justice John Roberts wrote that cell site location information is protected by the Fourth Amendment in part because it affords the government “near perfect surveillance, as if it had attached an ankle monitor to the phone's user.” The Carpenter ruling echoes a decision from 2012, in which the Supreme Court ruled that placing a GPS tracking device on a car implicates the Fourth Amendment. 

The Supreme Court acknowledged in those rulings that privacy principles need to adapt for the digital era. (The Massachusetts Supreme Judicial Court ruled similarly in a location tracking case that helped to lay the groundwork for Carpenter.) It might be constitutionally appropriate for a police officer to follow someone around town without a warrant. But 21st century technology enables persistent, real-time, and even retroactive tracking of not just one of us, but of all of us — merely with the click of a button.

The New England cases provide an opportunity for courts to apply Carpenter to different, but no less important facts. Two of the cases, Commonwealth v. Almonor in Massachusetts and State v. O’Donnell in Maine, deal with real-time tracking of phones instead of the historical location data at issue in Carpenter. Another Massachusetts case, Commonwealth v. Johnson, concerns law enforcement’s warrantless search of a government database containing detailed historical location records of a suspect. A third Massachusetts case, Commonwealth v. Feliz, asks whether the government can mandate the ankle shackling of all “non-contact” sex offenders for the duration of their probation for the purposes of location tracking — even if there is no individualized reason to justify the tracking.

The ACLU of Massachusetts filed friend of the court briefs in Almonor and Johnson, arguing law enforcement in both cases violated the constitutional rights of Mr. Almonor and Mr. Johnson by performing warrantless searches of their location information. The ACLU of Maine and the national ACLU filed a similar brief in O’Donnell.

In the Johnson case, police investigating a string of robberies searched five months of Mr. Johnson’s archived GPS location data, obtained from an ankle monitor he had previously worn as a condition of his probation. Police performed this warrantless search of Johnson’s data in the state’s electronic monitoring database, despite the fact that his probation term had ended more than a year before the warrantless search. The search ultimately resulted in his arrest.

The amicus brief, co-signed by the ACLU and the state’s public defender office, the Committee for Public Counsel Services, argues that this search violated Article 14 of the state constitution. The Massachusetts high court has previously held that Article 14, which served as the inspiration for the Fourth Amendment to the United States Constitution, requires that even probation officers need individualized suspicion and judicial approval before they may search probationers. And where — as in this case — the search is conducted by police, the same court has ruled that it must meet the traditional constitutional standard of a warrant supported by probable cause.

Almonor and O’Donnell involve challenges to law enforcement’s warrantless acquisition of real-time location information from cell phones. Without seeking or obtaining warrants, police in both cases directed suspects’ cellphone carriers to “ping” their phones to consistently reveal their locations in real time. Thanks to these warrantless searches, police traced Mr. Almonor to a private residence and Mr. O’Donnell to a Motel 6. Both were arrested at those locations.

The ACLU’s friend of the court briefs, co-signed by the Electronic Frontier Foundation and the criminal defense lawyer associations of Massachusetts and Maine, argue that these searches violated the defendants’ constitutional rights. Electronically tracking a person’s cell phone in real time reveals locations within constitutionally protected spaces, such as homes or hotel rooms, that are normally shielded from warrantless police searches. It also can reveal a person’s “privacies of life,” as the Supreme Court wrote in Carpenter, by laying bare “the whole of their physical movements” over time. More fundamentally, cellphone tracking without a warrant gives police the unprecedented power to pluck any person’s precise location out of thin air, and thus, as Carpenter warns, threatens to facilitate a “too permeating police surveillance.”    

The trajectory of judicial decisions in recent years is clear: If law enforcement wants to use high-tech tools to track our physical locations, either in real time or historically, they must first get a warrant.

Despite that clear trajectory, whenever statutes or courts have not explicitly and in detail spoken to a specific method of surveillance, law enforcement often continues engaging in constitutionally questionable electronic surveillance. Indeed, even statutory protections sometimes don’t prevent abuse: Maine has a strong law requiring police to get a warrant before tracking a cell phone except in emergencies. In Mr. O’Donnell’s case, however, police claimed an emergency when there wasn’t one, sidestepping the state’s warrant requirement.

The cases before the Supreme Judicial Courts of Massachusetts and Maine will, we hope, provide both the public and law enforcement with more clarity about what is permissible under the law and what is not. In a post-Carpenter world, it should be abundantly clear that law enforcement needs warrants to mine sensitive personal location data.