Protecting student rights is a delicate task

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  • By Chen Tien-ting 陳添丁

The Department of Education has added some procedural specifications to its “Important Notes on School Regulations for Teacher Guidance and Student Discipline,” one of which requires searches of students and their personal belongings to be recorded and students to be accompanied by a parent association representative, a representative the student union or a teacher to protect their rights.

Social groups such as the Humanistic Education Foundation (人本教育基金會) have expressed doubts about the changes, saying that teachers should not be allowed to search students as the ministry’s guidance is set at the level of administrative rules and regulations . School bags.

The Criminal Code prohibits a teacher from searching students or their belongings. Article 307 of the Code states that “any person who, contrary to law or order, searches a person, dwelling, structure, vessel, transport unit or aircraft of another, shall be punished with imprisonment not exceeding two years, short-term imprisonment or a fine not exceeding NT$9,000.

Article 128-2 of the Code of Criminal Procedure (刑事訴訟法) adds that “a search shall be conducted by an officer of the public prosecutor’s office, a police detective or a criminal investigation officer, unless it is conducted in person by a judge or prosecutor.”

Since teachers are not mentioned in the article, there is no legal basis for a teacher to conduct a student search.

Regarding the Department’s interpretations and jurisprudence, the Teachers’ Rights Handbook grants teachers permission to search students’ schoolbags for two reasons: “special authority” theory and the realization of educational goals.

However, the first line of reasoning has gradually been superseded by constitutional interpretations by the Council of Grand Judges, while the “achievement of educational goals” is often considered by courts.

In the first case in which a parent sued a teacher for invading a student’s privacy by conducting a school bag search, the Taipei District Court ruled in 2017 that the search was legal.

Teachers have the right to maintain order on campus, protect students’ safety and provide guidance to achieve their educational goals, the court said, adding that the school bag search was within the teacher’s goal of “life counseling.” admit.

According to the ruling, a search of a student’s school bag is at the discretion of a teacher. Although a search could violate a student’s privacy, it should not be considered illegal in the sense of an “affirmative defense”.

Similar lawsuits are often filed in the United States.

Those opposed to searching students cite the Fourth Amendment of the US Constitution, which states that a school should obtain a search warrant before searching a student. US courts have established a number of principles for such cases: A school has the constitutional right to search a student for reasonable cause or suspicion, but it should observe the “principle of proportionality” during the process.

With growing awareness of human rights on campuses in Taiwan, there is room for debate as to whether the ministry’s guidance in its “important guidance” equates to constitutional or legal protections for students’ right to privacy when their bags are left on the Grounds are searched by “Give Life Guidance”.

Such discussion can protect a teacher’s right to direct and discipline students along with a student’s right to privacy.

Chen Tien-ting is an education administrator.

Translated by Eddy Chang

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