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Overview
The Fourth Amendment to the United States Constitution
establishes that “The right of the people to be secure…against
unreasonable searches and seizures, shall not be violated….”
This past November, the Fourth Amendment rights of students
became a topic of heated discussion when the news media featured
a story (with pictures) of students being searched by police
officers during a drug sweep at a public high school in South
Carolina. While stories of police-initiated drug searches in
contemporary public schools are no surprise to most people, what
made the story newsworthy, and somewhat shocking, was the way in
which this particular drug sweep was carried out. In what the
media described as a “frantic scene,” fully armed police
officers dressed in SWAT-type gear, some with weapons drawn and
some with drug-sniffing dogs, searching students in a school
hallway. No drugs were found. The Post Currier
(Charleston, South Carolina), December 6, 2003, page 1B
Subsequently, a class action lawsuit on
behalf of the students was filed in a federal district court.
The plaintiffs alleged in their complaint that the Fourth
Amendment’s prohibition against “unreasonable searches and
seizures” had been violated by the actions of the police
officers during the drug sweep. In the opinion of a lawyer for
the students, “this incident represents an open and shut case of
excessive police force against innocent children.” Post
Currier, page 1B As of this writing, the status of the
lawsuit is not known.
Because the above situation happened in a
public school building during school hours, this commentary is
devoted to a brief review and restatement of what the courts
have said regarding search and seizure in public schools.
Especially important in the discussion is the critical
difference between school searches and police searches.
Search and Seizure in Public Schools.
Through out the early years of American public education, search
and seizure issues were few. Prior to the early 1960’s,
consistent application of the traditional in loco parentis
doctrine (standing in place of the parent) granted broad
discretionary authority to school administrators and classroom
teachers to do what was necessary to take immediate possession
of any item that was in violation of school board policy and/or
rules. Application of the in loco parentis doctrine gave
principals and teachers a “private person” status, thus taking
them out from under the restrictions of the Fourth Amendment.
The Impact of In re Gault (1967). As
public education moved through the late 1960’s, however, the
scene changed as protections of the United States Constitution
were extended to children. In a landmark decision involving
juvenile justice, and not schools, the United States Supreme
Court held that children are “persons” under the United States
Constitution. It therefore follows, said the high court, that
children are entitled to “due process of law” under the
Fourteenth Amendment. In re Gault (1967)
In the late-1960’s application of Gault
to student disciplinary matters was consistent. The modern era
in student discipline and control (including search and seizure)
had begun, and educational policies had to keep in step with the
times. Vacca and Bosher, (2003)
Drugs and Violence in Schools. By
the late 1960’s public school systems across the country
experienced a growing number of incidents of violence and
drug-related activities on school grounds and at school related
events. Thus, an immediate need to enact policies enabling
administrative search and seizure efforts in schools was of
paramount importance.
By the early to mid-1970’s local public
school system policy-makers assumed a proactive approach.
Cooperative arrangements with local law enforcement agencies
were crafted and implemented, including but not limited to the
use of police K-9 units in schools. These efforts were intended
to effectively deal with growing problems, especially where
criminal activity was suspected. As such, what had existed as a
relatively simple process in the “in loco parentis era”
now became more complicated. Litigation was inevitable.
School Searches v Police Searches.
Between 1975 and 1985, search and seizure issues dominated the
literature in public school law, as court decisions grew in
number in every jurisdiction. Federal and state courts were busy
trying to decide whether or not public school administrators
exercised in loco parentis (in place of the parent) authority or
whether they acted as government officials. Elenberger (2002)
A major issue producer during this period
involved student searches where both school administrators and
local police officers were present. It was during this same
period that many school systems employed school security
officers, while other school systems relied on School Resource
Officers. One result was that the distinction between school
searches and police searches became blurred.
New Jersey v T.L.O. (1985). In
T.L.O. the United States Supreme Court specifically
addressed search and seizure in public schools. In an opinion
written by Justice White, the high court made it clear that (1)
Fourth Amendment search and seizure protections apply to public
school students, (2) school officials are government officials
and as such are not acting in loco parentis when conducting
student searches, (3) the Fourteenth Amendment protects the
rights of students “against encroachment by public school
officials,” (4) school searches are different from police
searches, and (5) the constitutional standard applied to school
searches is “reasonable suspicion,” while the standard
applied to in police searches is “probable cause.”
Moreover, said the Court, “[t]he warrant requirement, in
particular, is unsuited to the school environment….” T.L.O.
(1985)
The T.L.O. Standard and School
Searches. To evaluate the constitutionality of a school
search the Supreme Court iterated the following two-pronged
standard: (1) To launch a search a school official must have
reasonable suspicion to believe that present in the
situation is something in violation of school policy or rules,
or the law. (2) The search, as carried out, must remain directly
related to the reason for the search and must remain reasonable
in scope. In Justice White’s view, this standard will “strike a
balance between the schoolchild’s legitimate expectations of
privacy and the school’s equally legitimate need to maintain an
environment in which learning can take place.” T.L.O. (1985)
In the post- T.L.O. era, policies
and procedures dealing with student search and seizure needed
serious revision. One reason for this was the Supreme Court’s
distinction between the strict probable cause standard
applied to police searches, and the more subjective and flexible
reasonable suspicion standard applied to school searches.
Reasonable suspicion, said the experts, means “reasonable
suspicion under the circumstances.” In other words, “Given the
facts of a particular situation, what would a reasonable and
prudent school official do?” Hudgins and Vacca (1985)
Emerging Issues
Over the past two decades judges have been
busy deciding cases involving a variety of issues. The list
below contains 10 examples of questions that came before the
courts post-T.L.O:
·
To classify as a school search, must a
search of a student be solely initiated by and remain under the
exclusive control of a school administrator?
·
Does the mere presence of an officer of the law
during a student search conducted by a school administrator
classify the search as a police search?
·
Is the standard applied to a student search
conducted by a School Resource Officer probable cause or
reasonable suspicion?
·
Does a student search conducted by a school
security officer (who is not a sworn officer of the law)
classify as a school search or is it a police search?
·
Is a student suspected of engaging in criminal
behavior on school grounds, who is being questioned by a school
administrator within the confines of the administrator’s office,
entitled to a Miranda warning? Does the answer to this question
change if a police officer is present? What if the police
officer does not actively engage in the questioning? What if a
School Resource Officer is present during the questioning? What
if a school security officer is present?
·
Which standard applies to a student search where
both school administrators and police K-nine unit officers are
cooperatively engaged in a drug sweep within the school
building?
·
Does the reasonable suspicion standard
equally apply to administrator searches of school lockers,
student book bags, and cars parked on the school parking lot?
What about searches of a student’s person?
·
What happens to the reasonable suspicion
standard when a school administrator uses a metal detector, or
conducts a “pat down” search, or a “strip search?”
·
When does a school administrator need
“individualized suspicion?”
·
Is student drug testing classified as a school
search?
Case Law
Contemporary public school administrators
have come to rely on police officers and school system security
personnel to maintain discipline and control of students,
especially where drugs and weapons are present. A random sample
of case law on point demonstrates how recent courts have ruled
on matters of search and seizure.
In Patman v State (2000), a police
officer on special detail in a public high school was told by a
school secretary that a particular student smelled of marijuana.
The officer stopped the student in a school hallway and frisked
him. He felt some stamp sized bags in the student’s pocket. At
that point the student said: “Come on and let me slide.”
Hearing the student’s words the officer reached into the
student’s pocket and removed bags of marijuana. The officer
treated the situation as a police matter, even though the search
took place on school property. Subsequently, a lawsuit was filed
on behalf of the student contesting the search on Fourth
Amendment grounds. Even though the search took place on school
property, the court applied the probable cause standard.
The court held that the police officer did have probable cause.
When the officer felt the packages, smelled marijuana, and heard
the student’s statement he had probable cause to search
the student.
In re D.D (2001) involved a search
conducted by a school principal, with the assistance of a school
resource officer, and school security personnel. The principal
received information that there was going to be a fight on
school grounds. He alerted the school resource officer. Four
juveniles were spotted in the school parking lot. They were
identified as “non-students.” The principal, the resource
officer, and school security went to the scene. Subsequently the
kids were asked to empty their pockets. A box cutter was found.
The kids were taken to court on delinquency charges, where a
motion was filed to suppress the evidence. The motion was
denied. On appeal the court applied the reasonable suspicion
standard and held that the search was reasonable. In the
opinion of the court, (1) the search was initiated by and
remained under the control of the school principal, and (2) the
purpose of the search was to maintain a safe and proper
educational environment at the school and not to collect
evidence of a crime. The fact that a resource officer and a
security officer were present did not make the search a police
search.
A.N.H. v State (2002) is a Florida
case involving a search conducted by a school staff member and
not an administrator. A school counselor asked a student to
empty his pockets, because in the counselor’s opinion “the
student was not acting right.” Marijuana was found.
Subsequently the matter went to court where the court ruled in
the student’s favor. In the court’s opinion insufficient
evidence existed to create reasonable suspicion that this
student was involved in activities that were either in violation
of school rules or the law. In other words the first prong of
the T.L.O standard had not been satisfied.
In M.W. v Madison County (2003) a
federal district court in Kentucky heard a case involving a
female, ninth grade student who was taken to the principal’s
office by her ROTC/physical education teacher. The teacher left
the student in the principal’s office and returned to class. The
principal asked the student to identify herself, but she did not
answer him. The principal asked a police officer who was
assigned to the school to help in the identification process.
The student remained silent. Ultimately the police officer took
her to the police station where she was placed in detention.
The student’s parents filed suit in federal
district court alleging that their daughter’s removal from
school and placement in detention were violations of the Fourth
Amendment’s protection from unreasonable seizure. In the
court’s opinion the principal’s conduct in detaining the student
to establish her identity and his turning the matter over to the
police were reasonable under the circumstances. Just because a
student is removed from school by a police officer does not
establish a constitutional violation.
United States v Aguilera (2003) is a
California case involving the arrest of a non-student who had
come onto school grounds. In response to an anonymous tip that a
“male who had flashed a weapon by lifting his shirt above his
waist was approaching the school,” two school security rushed to
a portable classroom area where they confronted the intruder.
Subsequently they searched him and found a sawed-off shotgun in
his waistband. The intruder was arrested and charged with
possession of an unregistered firearm on school property. The
non-student/intruder filed suit in federal district court
alleging that he had been subject to an “unlawful search and
seizure.” The court did not agree, based on the following points
of law: (1) Under California law a school official is allowed to
make subjective judgments involving the removal of persons from
school property, (2) school security personnel had reasonable
suspicion to search the non-student intruder, and (3) the search
as conducted by the security officers was [a] directly related
to its initial purpose, and [b] reasonable in scope. Finally,
the court did not consider the search of the student’s clothing
(he was initially subjected to a pat down search of his
clothing) “excessively intrusive.”
Policy Implications
According to recent reports (2001-2002
figures) regarding discipline, crime, and violence in public
schools (involving students from five years old to nineteen
years old), the number of alcohol, drugs (including look alike
drugs), weapons (including look alike weapons), and youth
gang-related activities has increased. Needless to say, public
school boards and administrators realize that they alone cannot
keep school grounds safe, secure, and disruption free. Thus, the
need to cooperate with law enforcement agencies has never been
greater, especially in situations where student search and
seizure procedures are required. To place this relationship on a
strong foundation and be proactive, the following suggestions
for school system policy are suggested. All policies must
·
Be written in non-legal, non-education jargon, and
unambiguous language.
·
Clearly state the school board’s belief that
effective education only takes place in a non-disrupted, safe,
secure, and crime-free learning environment.
·
Clearly state the school board’s intent to
consistently and vigorously enforce all policies and rules
regarding student discipline and control.
·
Clearly state that while the board recognizes and
respects the constitutional and legal rights of students, no
student is immune from discipline and control.
·
Empower all school building principals to take all
disciplinary actions necessary to maintain a safe, secure, and
non-disrupted learning environment; and, that they (the school
principal) possess the discretionary authority to involve school
staff members, school security personnel, school resource
officers, and community police agencies when the situation
requires them to do so. (As a part of this statement, the policy
must clearly differentiate between the terms School Resource
Officer and School Security Personnel.)
·
Empower school building principals to conduct
routine inspections of school property.
·
Empower school building principals to initiate and
conduct searches of students (including but not limited to their
belongings), and non-students who are on school property or in
attendance at school sponsored functions, when in the
principal’s judgment reasonable suspicion exists to believe that
present is something in violation of school policy and/or rules,
unlawful, or otherwise harmful, or disruptive. These searches
will be conducted using the least intrusive means available and
appropriate to the particular situation.
·
Clearly state that the school system intends to
fully cooperate with federal, state, and local law enforcement
agencies in a effort to keep students, administrators, teachers,
and staff safe and secure, and to keep school grounds
crime-free. (Formal agreements and plans of action
must be crafted, on file, and implemented.)
·
Clearly state that all prohibited items discovered
during a school search will be immediately seized and kept in
the control and custody of the school building principal.
·
Clearly state the intent of the school board to
inform and involve parents and legal guardians in the early
stages of the disciplinary process.
All student disciplinary policies, rules,
and procedures (including but not limited to police involvement)
must be made available and fully explained to students and their
parents, and school system staff at the beginning of each school
year.
One final note is important. Based upon a
review of the case law and literature available at this time, it
is the opinion of the author that school officials should only
resort to a “strip search” of a student as a last resort, and
only after consultation with the school system’s attorney.
Resources Cited
A.N.H. v State, 832 So.2d 170 (Ga.
App.2002)
Discipline, Crime, Violence Statistics
2000-2001, 2001-2002 (Virginia Department of Education, Data
and Publications 2003)
Elenberger, Kate, The Right to Search
Students, Educational Leadership (December 2001/January
2002)
Hudgins, H.C., Jr. and Vacca, Richard S.,
LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS,
Fourth Edition (Michie Company, 1985)
In re D.D., 554 S.E.2d 346 (N.C.Ct. App.
2001)
In re Gault, 387 U.S. 1 (1967)
M.W. v Madison County Board of Education,
262 F.Supp.2d 737 (E.D. Ky. 2003)
New Jersey v T.L.O., 105 S.Ct. 733 (1985)
Patman v State, 537 S.S.2d 118 (Ga.App.
2001)
Post Currier (Charleston S.C., December 6,
2003), p.1B
United States v Auilera, 287 F.Supp.2d 1204
(E.D.Cal. 2003)
Vacca, Richard S., and Bosher, William C.,
Jr., LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS,
Sixth Edition (LexisNexis 2003)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
