Should American constitutional law pay more attention to odds, probabilities, and elementary statistics? That question floated to the surface the other day while the mighty Lexis database was serving up data on the Fourth Amendment. Asked for all state judicial opinions mentioning "school" and "gun" and "exclusionary," Lexis came up with 410 cases.

That figure might seem depressing to your average parent, as it heavily hints at a high level of concern for the constitutional rights of kids who bring guns to school. It is true that lawyers usually get turned down when they invoke the exclusionary rule in a school context--i.e., when they say the offending heater must be excluded from evidence because it was discovered in a process violating the Fourth Amendment (which bars unreasonable searches). State courts typically find that the benefits associated with safe schools outweigh the privacy rights of kids bearing rods.

But that's in normal states. Here in New York we have judges wedded to the exclusionary rule, as evidenced by the instantly infamous September 17 ruling on the kid at Taft High School in the Bronx. Back in 1992, he was stopped by a school security aide who was patrolling the hallways, thought he saw a suspicious bulge in the kid's leather jacket, grabbed at the jacket, and found a loaded .45. After four years of litigation and endless courtroom palaver about what, exactly, the security aide saw, a state appeals court has pronounced the presumably final word on his search: He did not have any reasonable grounds for conducting it. So the evidence of the gun must be thrown out, so there was no good reason to suspend the kid from school.

Here is where the odds come in. There are, one now knows, some 4,000 kids in Taft High School. The security aide fingered one, and that one proved to have a gun. Let us be wildly pessimistic and assume the guy with the .45 was not the only armed student that day. But even if there were as many as 20 others, a security aide acting with no informational basis for his suspicion--who was guessing--would be bucking odds of almost 200 to 1. Doesn't a clean win in this fearless betting situation suggest he wasn't just guessing? to state the general question: In determining after the fact whether a searcher had reasonable grounds for suspicion, should any probative value be assigned to the fact that the search was successful?

An average oddsmaker, legal or otherwise, would surely say yes. What the courts say is: No dice. After conferring with some veterans of the Reagan and Bush justice departments, one gathers that statistical arguments in support of searches were occasionally made in court during the Eighties, typically in cases in which suspected drug couriers were stopped in airports and found to be carrying the stuff. But nobody can cite a high-level judicial opinion supporting any such statistical reasoning.

Here in New York a lot of folks are ready for it.


Yes, yes, one knows they have come and gone in the workplace for years. But one hadn't realized until recently that truly difficult people will be increasingly hard to sever, as the antibias laws have finally gotten around to protecting royal pains in the fundament.

Consider: The Equal Employment Opportunity Commission reports that mental illness has been accounting for one-eighth of all complaints brought under the Americans With Disabilities Act (ADA). So what counts as mental illness? Congress's answer: anything listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. It is an amazing compendium. Familiar disorders like paranoia, schizophrenia, and depression are, of course, included. But a fellow browsing through the latest (1994) edition gets the eerie sensation that he is also revisiting numerous royal pains not previously viewed as disabled. Like antisocial personality disorder ("a pervasive pattern of disregard for...the rights of others"). Avoidant personality disorder ("social inhibition...and hypersensitivity to negative evaluation"). Narcissistic disorder ("grandiosity, need for admiration"). Psychiatry is "medicalizing character"--the title of a complaint about it all, by psychologist G.E. Zuriff, in the spring Public Interest.

To be sure, having a listed disorder does not in itself protect you in the workplace. You must also show that the illness "substantially limits a major life activity." And how do you show that? One way is to prove that the illness leads to "difficulty in securing [or] retaining...employment."

Think about it: The trait that makes you unemployable is alchemistically transformed into a trait that protects your job rights. The egomaniac who kept getting fired because he was insufferable gets diagnosed as a victim of narcissistic personality disorder. Then, if "otherwise qualified," he is protected by ADA, and the employer may have to "reasonably accommodate" the ego--by, say, restructuring the job so that other workers get less exposure to it.

How widespread are such scenarios? Hard to say. EEO lawyers are still exploring ADA's potential. But one intuits they will not end up discriminating against obnoxious people.