Routine DNA Sampling of Public School Students?

By Mark Walsh — February 27, 2013 2 min read
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Call it the ultimate school ID card.

U.S. Supreme Court Justice Sonia Sotomayor wondered aloud on Tuesday whether a state’s program of collecting DNA samples from certain criminal suspects might ultimately lead to widespread DNA sampling of students or other citizens with whom the government has a custodial relationship.

“How far do we let the state go each time it has some form of custody over you in schools, in workplaces, wherever else the state has control over your person?” Justice Sotomayor asked during the arguments in Maryland v. King.

It was a brief digression in a case that is primarily about whether Maryland’s routine, warrantless collection of DNA samples from those arrested for certain violent crimes is an unreasonable search in violation of the Fourth Amendment. The high court is weighing an appeal from Alonzo Jay King, whose 2009 arrest in an assault case resulted in officials swabbing his cheek for a DNA sample. The sample linked King to an unsolved sexual assault, and he was convicted and sentenced to life in prison for that crime.

In the Supreme Court on Tuesday, a Maryland prosecutor defended the state’s law as valid for improving the proper identification of arrestees and for helping to solve cold cases, but she quickly disavowed Justice Sotomayor’s suggestion that DNA sampling might be used in schools.

“Those are different situations, Justice Sotomayor,” said Katherine Winfree, the chief deputy attorney general of Maryland. “We’re not suggesting that the police could swab a student for a DNA sample. We’re talking about a special class of people who by their conduct have been arrested based on probable cause.”

Justice Sotomayor’s question comes amid debate over the proper relationship between the police and the schools. Shootings such as the one in Newtown, Conn., have prompted some to call for a greater police presence in school hallways. Meanwhile, some civil rights advocates say the increase in school resource officers has resulted in the criminalization of certain student behaviors that would be best left to school disciplinary procedures.

In a friend-of-the-court brief on King’s side, the American Civil Liberties Union warns that if DNA sampling is a simpler, better way to identify individuals, as Maryland suggests, then “the pressure will inevitably grow to expand its use beyond law-enforcement.”

“We must identify ourselves when we file our taxes, or simply because we are residents of the United States in a census year,” the ACLU brief adds. “Even when it is not an absolute requirement, identifying ourselves to the government is often a necessary part of participating in modern life—enrolling in school, applying for a driver’s license, passport, or firearm license, sitting for the bar, or entering federal buildings. Many of these already require fingerprinting, which—like DNA testing—was initially used only in the criminal-justice system.”

There was much discussion in Tuesday’s argument about DNA sampling serving as the “fingerprinting of the 21st century,” as Justice Samuel A. Alito Jr. put it. The ACLU brief cites a 2003 article in the William & Mary Bill of Rights Journal examining another aspect of the debate: mandatory fingerprinting of public school teachers as part of their background checks. Author Christina Buschmann decried the then-growing requirement that teacher applicants submit their fingerprints as an infringement of their rights.

The question 10 years after the publication of that article is, how soon before teacher applicants will have to open up for a cheek swab?

A version of this news article first appeared in The School Law Blog.