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Justice Scalia Foresees DNA Sampling of Students

U.S. Supreme Court Justice Antonin Scalia warned in a dissent on Monday that the upholding of police taking the DNA of criminal suspects may one day lead to the universal collection of such samples in non-criminal contexts, including from children entering school.

The court ruled 5 to 4 in Maryland v. King (Case No. 12-207) to uphold a state law authorizing DNA swabs of suspects arrested for serious crimes such as murder, rape, kidnapping, and arson.

Justice Anthony M. Kennedy, writing for the majority, said that DNA collection is an important advance in law enforcement techniques and that under the proper circumstances, is a legitimate police booking procedure, like fingerprinting and photographing of suspects, that is reasonable under the Fourth Amendment. The court upheld the conviction of a Maryland man, Alonzo Jay King Jr., whose DNA sample taken when he was arrested for one crime led to his conviction for an unsolved rape.

Justice Scalia, joined by three of his more liberal colleagues—Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—issued a blistering dissent that compared such warrantless DNA swabs of arrestees to the sweeping searches carried out by British authorities on the American colonists.

"I would not want to have been the royal officer charged with swabbing the cheek of Patrick Henry," Scalia said in remarks from the bench.

The method approved by the majority will "to be sure, have the beneficial effect of solving more crimes," Scalia said in his written dissent. "Then again, so would the taking of DNA samples of anyone who flies on an airplane ... , applies for a driver's license, or attends a public school."

Scalia put it slightly differently in his dissenting statement from the bench on Monday. The majority's promise to limit DNA sampling to those arrested for serious offenses is a line that "will not last," he said. "Make no mistake about it: because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason. This will solve some extra crimes, to be sure."

But, Scalia continued from the bench, "so would taking your children's DNA when they start public school."

Scalia's comment reflects a concern expressed at oral arguments in the case in February, when Justice Sotomayor wondered whether approval of Maryland's DNA testing would lead to widespread sampling of students.

As I noted then, the American Civil Liberties Union filed a friend-of-the-court brief on King's side arguing that embracing DNA sampling as a better way of identifying criminal suspects—a rationale embraced by the majority in Monday's opinion—would inevitably lead to more uses of DNA identification beyond law enforcement, including for children enrolling in school.

Justice Kennedy did not respond directly in his opinion to Scalia's barbs. His opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, and Samuel A. Alito Jr., did cite for support some of the Supreme Court's school-related Fourth Amendment decisions. For example, he cited Vernonia School District v. Acton, a 1995 decision (written by Scalia) in which the court upheld suspicionless drug testing of high school athletes and other students participating in competitive extracurricular activities.

"The reasonableness of any search must be considered in the context of the person's legitimate expectations of privacy," Justice Kennedy said. "For example, when weighing the invasiveness of urinalysis of high school athletes, the court noted that 'legitimate privacy expectations are even less with regard to student athletes. ... Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.'"

Likewise, "the expectations of privacy of an individual taken into police custody necessarily are of a diminished scope," Kennedy said.

Scalia said in his dissent today that "we have approved suspicionless searches in public schools—but only because there the government acts in furtherance of its responsibilities as guardian and tutor of children entrusted to its care."

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