To:George Forehire, Attorney
Re:McKinley v. Department of Education
Our Ref.: 94061
Challenge Agency’s Decision
Date:December 7, 2008
1.Is it unlawful for an agency to require all public school students to undergo a search of their clothes, backpacks, lockers, and desks each morning? 2.Is it unlawful for an agency to permit random searches to take place of students’ clothes, backpacks, lockers, and desks? 3.Is it unlawful for an agency to give no notice or hearing prior to the enactment of new rules and regulations? 4.Is it unlawful for an agency to refrain from sending an interested party a notice of hearing? 5.Is it unlawful for an agency to deny an interested party the right to representation or counsel? 6.Is it considered an abuse of power when an agency denies an interested party due process in general? 7.Is it unlawful for an agency to permanently confiscate an individual’s personal property? 8.Is it unlawful for an agency to knowingly allow one of its programs to discriminate on the basis of sex in its processes and procedures? 9.Did Congress act unconstitutionally by delegating CES the power to enforce the regulations at issue? 10.Can an individual seek review of an agency’s decision in a court of law? 11.Are there remedies afforded to aggrieved parties by reviewing courts?
1.Yes. It is lawful for an agency to require students to undergo searches when reasonable suspicion exists. 2.Yes. It is lawful for an agency to conduct random searches of students when reasonable suspicion exists. 3.Yes. It is unlawful for an agency to not give notice or a hearing of new rules and regulations prior to their enactment. 4.Yes. It is unlawful for an agency to refrain from sending notice of a hearing to an interested party. 5.Yes. It is unlawful for an agency to deny an interested party the right to counsel. 6.Yes. An agency abuses its power when it denies an interested party due process. 7.Yes. It is unlawful for an agency to permanently confiscate an individual’s personal property when the property is not considered a danger or harmful to others. 8.Yes. It is unlawful for an agency to discriminate on the basis of sex. 9.Yes. Congress was unconstitutional in its delegation of judicial authority to CES for the enforcement of the regulations at issue. 10.Yes. An individual may seek judicial review of an agency’s decision. 11.Yes. There are several orders that the court can enforce in order to remedy the situation or problem.
STATEMENT OF FACTS
Because of Congress’s concern with the ability of students to cheat on exams and other tests by using their cell phones, as well as the concern of the inability of school administrations to address and control the problem, Congress passed the Cell Phone Education Regulation Act (CPERA). Within this act, Congress established the Cellular Educational Service (CES). This agency was delegated the tasks of overseeing and enforcing the necessary rules and regulations to meet the objectives of CPERA. CES enacted a series of rules and regulations that required all students to submit themselves to a search of their clothes, backpacks, lockers, and desks every morning. Besides daily morning searches, the rules also permitted random searches to take place. Additionally, a hidden provision in the regulation permitted enforcement officials to focus their investigations more towards female students than male students, since studies had shown that females spend more time talking on their cell phones than males.
The penalties for violating CES rules and regulations depend upon whether or not it is a student’s first, second, or third offense. For a first offense, no hearing is held and the student receives a written warning. For a second offense, a hearing conducted by school officials is held and the student is automatically suspended. For a third offense, a full hearing is held by a board for the CES,...