The tobacco use intervention strategies of the past may have low relevancy in today’s landscape – especially among our youth. The clandestine design of modern e-cigarettes along with the absence of any noticeable stench has led to students mastering the “stealth vape” – or vaping in stairwells, hallways, and/or bathrooms…in plain sight. We have even heard of students vaping in classrooms. Fighting against student tobacco use is a familiar plight for schools, but the data regarding student vaping indicates that we are less versed in combatting covert tobacco use – a.k.a. vapes.
In this law briefing, we share some of the most practical legal issues that are unique to student vaping.
Inconspicuous Device, Inconspicuous Issues Ironically, it is obvious that the inconspicuous nature of vapes is the feature that makes them the most difficult for schools to address. The 14.1% (2.14 million) of high school students and the 3.3% (380,000) of middle school students who reported current e-cigarette use have likely been able to successfully conceal their usage during school hours and on school property. Although students are vaping in conspicuous locations, teachers have reported that student vaping is such commonplace that it is impossible for them to describe the “typical” student who vapes. Further, while there is a general understanding and agreement that vaping is bad for your health, vaping devices have not been around long enough for experts to identify the long-term effects. The difficulty of detecting vaping, the lack of determinate characteristics among students who vape, and the absence of persuasive data makes combatting this crisis very difficult for schools.
Detection Detection is one of the most dangerous characteristics of vaping because students know that so long as they do not slip up, they can engage in illegal behavior while evading discipline or any negative stigma. As such, the presence of vape detection systems in those popular vaping areas may be highly effective for dissuading a student from beginning to smoke or continuing their habit. Most detection devices work by monitoring the quality of air and detecting chemicals – these device features would not impede a student’s right to privacy. Still, there are some devices that pick-up sound for the purposes of reporting potentially violent behavior. If this is the case with a device that you have or are considering, be sure that the device is measuring the loudness of a sound in decibels yet not recording audio.
Searching One of the consistent legal issues that arises when responding to a report of student vaping is the Fourth Amendment’s prohibition against illegal searches. Searching for a vape and related contraband is not unlike searching for other impermissible material brought to school. Video, staff observation, reliable witnesses, and admissions are all examples of evidence that could permit a search. And the invasiveness of a search for vape contraband is likely reasonable, so long as the search stops short of the removal of clothing (other than coats, hats, etc). Invasive searches beyond the removal of outer clothing should only be done by law enforcement and at their own discretion. If you have a rule about cooperation in an investigation, you may also choose to discipline for not permitting a reasonable search. For a detailed review of the reasonableness standard, we suggest looking at the seminal Supreme Court case: New Jersey v. TLO.
Due Process Another common issue that arises is assurance of due process prior to disciplining a student. This is particularly important if you are considering exclusionary discipline. Most critical is using reliable evidence for the rule and/or law violation. And the most common misstep from a school leader is attempting to use drug test result to establish something that the evidence does not establish. For example, a positive test to establish use on school property. Another example is to ensure that the testing on substances themselves are reliable and accurate.
Education While violating a school policy and/or the law provides grounds for discipline, it does not necessarily get to the heart of the issue. Vaping can have lifelong negative effects. A 2018 Truth Initiative study found that nearly two-thirds of JUUL users aged 15-21 were not aware that the product always contained nicotine. The fact that students are taking up this habit despite their lack of awareness is, in part, due to highly intentional marketing tactics. While this marketing has been reigned in through law and litigation, it isn’t going away altogether. Schools can distribute facts and information to combat misinformation. Similarly, staff should be informed of what vaping, especially “stealth vaping” looks like.
Policies As you consider your polices for addressing the vaping issue, it is important to remember that the goal is not to punish students for a single bad act, but to encourage them to avoid vaping altogether, forever, and with conviction about it. We recommend that your policies give you flexibility to consider the circumstances of each situation and not be perceived as zero tolerance. Whether it be a conversation involving the student and their parent(s), a suspension from school or an activity, or mandatory counseling.
Navigating state and federal regulations can be challenging. For more information, contact the KGR Education Law and Public Policy team.
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