Overview
As public education moves into the second
half of the 2004-2005 school year, several topics remain ripe
for lively discussion. At the top of the list are those topics
related to school security and student discipline; and, among
these topics is a continued interest in exploring the legal and
policy issues associated with student search and seizure. Of
specific interest to legal scholars are issues that have
recently emerged from a renewed use of “strip searches” of
public school students.
Have conditions in public schools become
such, that school administrators and teachers need to “strip
search” students?” Can school officials cite
special needs (e.g., increased gang-related violence,
weapons violations) to justify this intrusive procedure? While
some experts say yes, it is difficult to grant a blanket
approval of this method of search. In this writer’s opinion,
strip searches, especially those that might reveal evidence of
criminal activity (which in turn requires turning over the
evidence to law enforcement officers) are too replete with
potential Fourth Amendment issues to serve as routine
disciplinary options for public school administrators.
The Intrusiveness Factor. As a
general rule, the more intrusive the search of a person and/or
his/her belongings (private property) the more sensitive the
searcher must be to the privacy expectations of the person being
searched. A strip search is by nature intrusive. As once source
suggests, “strip searches constitute a gross invasion of privacy
especially when the subject of the search is a child.”
Virginia School Search Resource Guide (2000) It therefore
follows that the more intrusive the search of a student (his/her
body), and his/her belongings (private property), the more
individualized suspicion is needed to launch the search.
M.M. v Anker (2nd Cir. 1979) Moreover, as
one source specifically written for school principals cautions
practitioners, “With respect to strip searches, because of their
intrusiveness, courts have required probable cause and
substantial evidence.” Drake and Roe (2003)
What Constitutes a Strip Search?
Broadly defined, a strip search can involve everything from
merely asking a student to open a coat, to requesting removal of
one item of clothing (e.g., a shoe), to asking a student
to rearrange his/her clothing, to inspecting undergarments, to
conducting a completely nude examination. Physical examinations
as well as blood tests are considered “highly intrusive” per
se and are automatically subject to strict application of
the Fourth Amendment. Thomas, ex rel. Thomas v Roberts
(11th Cir 2003)
Fourth Amendment Implications. The
Fourth Amendment to the United States Constitution states, in
part: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated….” It is important to note that
the Fourth Amendment does not free citizens from all
governmental searches and seizures, only from unreasonable ones.
Vacca and Bosher (2003) In applying the Fourth Amendment to
searches of public school students the United States Supreme
Court has held that reasonableness is the ultimate measure of
the constitutionality of a search. Vernonia v Acton
(1995)
The Fourth Amendment and Public School
Searches. Initially, the Fourth Amendment only applied to
the federal government. In 1949, however, it was made applicable
to the states (initially in cases involving police officers and
criminal matters) through the Fourteenth Amendment. Wolf v
Colorado (1949) It was not until 1985 that the
protections of the Fourth Amendment were made applicable to
public school administrators and school personnel engaged in
student searches. New Jersey v T.L.O. (1985) In doing so,
the United States Supreme Court deviated from the traditional
judicial application of the in loco parentis doctrine (which
gave nearly unlimited discretion to public school
administrators) when it characterized school administrators as
governmental officials.
T.L.O. Plus Acton
Plus Earls. Until recently, most courts saw strip
searches as too intrusive and therefore in violation of the
Fourth Amendment. Alexander and Alexander (2005) As a general
rule, judges considered such searches as beyond the bounds of
necessity, prudence, common sense, and outrageous in nature.
Vacca and Bosher (2003). As one court opined two decades ago,
strip searches are “demeaning, dehumanizing, undignified,
humiliating, terrifying, unpleasant, embarrassing, repulsive,
signifying degradation and submission.” MaryBeth G. v City of
Chicago (7th Cir. 1983)
Between 1985 and 2002, however, because of
three Supreme Court decisions, judicial attitudes toward student
privacy expectations and intrusive searches began to change.
In New Jersey v T.L.O (1985), the
United States Supreme Court ruled that even though public school
officials engaged in student searches act as government agents,
they are not bound by the probable cause standard applied to
police officers. Instead, public school officials are bound by
the less ridged standard of reasonable suspicion. Three reasons
were articulated for this view. First, the necessity to maintain
school discipline requires flexibility in decision-making.
Second, the prerogative of school officials to maintain
discipline and security in schools outweighs a students privacy
rights. Third, the constitutionality (i.e.,
reasonableness) of a student search depends on the totality of
the circumstances.
The high court in T.L.O. established
the following two-pronged analysis to apply when judging the
constitutionality of a student search: (1) Was the search
justified at its inception? More specifically, did the searcher
have reasonable suspicion to believe that present was something
in violation of school policy, or school rules, or the law? (2)
Was the scope of the search reasonably related to the purpose of
the search? More specifically, is the scope of the search
directly related and reasonably confined to the purpose of the
search? In other words, a student search that is either overly
broad or excessively intrusive will not pass muster under the
Fourth Amendment. Vacca and Bosher (2003)
Vernonia v Acton (1995) involved
issues associated with a local public school district policy
authorizing random urinalysis drug testing of all students who
participated in school sponsored athletic programs. While drug
use and abuse had not been a problem in the school district,
teachers and administrators did begin to see an increase in
student drug-related activities and disciplinary problems. It is
important to note that not all disciplinary problems involved
student athletes. In the fall of 1989 the school board adopted a
random drug testing policy the expressed purpose of which was
prevention (health and safety) and not punishment. As a
precondition to participation in school sponsored sports
activities students had to sign a consent form and had to
present a signed parental consent form permitting random drug
testing. The policy was challenged in federal court on Fourth
and Fourteenth Amendment grounds. Ultimately the United States
Supreme Court decided the matter.
Characterizing the drug-testing program as
a search, the Fourth Amendment’s reasonableness test was
applied. In upholding the policy, Justice Scalia, for the Court,
focused on the following four points: (1) The custodial and
tutelary (i.e., guardian, custodian) responsibility of
school officials for children. (2) The reduced expectation of
privacy of student athletes. (3) The importance of deterring
drug abuse among schoolchildren. (4) The confidentiality of the
process. Of specific significance is the fact that the Supreme
Court did not require that the school system have individualized
suspicion of students prior to their being tested.
The Supreme Court’s rationale in the
Acton opinion created a four-part standard to apply in
future drug-testing cases. To judge the reasonableness of the
policy and procedures applied, the new standard probes the
following elements: (1) the nature and extent of the student’s
privacy expectation, (2) the degree of intrusion on that
expectation, (3) the reasons for and intent of the school
system’s policy and procedure, and (4) the relationship between
the procedure and the purpose of the policy.
Seven years later, by a vote of 5 to 4, the
United States Supreme Court upheld a local public school board’s
policy that required random drug testing (urinalysis) of all
middle and high school students as a precondition to
participation in all competitive extra-curricular activities.
Once again, as in Acton, the school system had not
experienced persistent drug abuse problems among students and
individualized suspicion was not a factor. In writing for the
majority, Justice Thomas applied a special needs (or
circumstances) analysis. The privacy interests of students, he
said, “are limited in a public school environment where the
state is responsible for maintaining discipline, health, and
safety….Securing order in the school environment sometimes
requires that students be subjected to greater controls than
those appropriate for adults.” Board of Education v Earls
(2002)
Emerging Issues and Court
Decisions
In Cornfield by Lewis v Consolidated
High School District (7th Cir. 1993), a male
student in a behavior disorder program, who was suspected to
hiding drugs in the crotch area of his clothing, was strip
searched (his naked body visually inspected and his clothes
inspected) by a male teacher and administrator. No drugs or
contraband were found. However, applying the T.L.O. standard the
court determined that the search was “reasonable under the
circumstances.”
In Jenkins v Talladega
City Board (11th Cir. 1996) two female elementary
school students were twice strip searched after being accused of
stealing money from another student and hiding it in their
backpacks. No money was found. Even though the appellate court
said that school personnel did not exercise good judgment in
conducting the searches, it refused to interfere with their
judgment and decision-making.
Thomas v Roberts (11th
Cir 2001) involved the strip-search of a group of fifth grade
students. The purpose of the search was to find $26.00 reported
missing from a teacher’s classroom desk. Both a federal district
court and the Eleventh Circuit Court held that because
individualized suspicion did not exist, and the scope of the
search was too broad, the search was “egregious’ and therefore
unconstitutional.
Rudolph v Lowndes County Board of
Education (M.D. Ala. 2003) involved a strip search of
secondary school students following a law enforcement
“sniff-dog” drug sweep at the school. While the superintendent
of schools had requested the drug sweep, a law enforcement
officer conducted each strip search. The court upheld three of
four student strip searches. To the court, the constitutional
searches were: (1) based on individualized suspicion, (2)
reasonable at their inception, and (3) narrowly focused and
reasonably related to the objective of the search (the discovery
of drugs).
In Rinker v Siper (M.D. Pa. 2003) an
assistant principal asked a school resource officer to search a
student down to the waistband of his underwear (no nude search
was conducted). He also requested that a school nurse take the
student’s vital signs, and he required a urine sample from the
student. In addition, the student’s locker and passions were
also searched. The assistant principal took these actions based
on a “tip” from another student and the personal observations of
the student (student looked “stoned,” was incoherent, smelled of
marijuana). In the court’s view, the actions of the assistant
principal were reasonable under the circumstances. They were
triggered by sufficient individualized suspicion, reasonable in
scope, and reasonably related to the purpose of the search.
Doe v Little Rock (8th
Cir. 2004) involved a challenge to a local school board’s policy
that allowed random, suspicionless searches of student property.
The court challenge came from students who had been ordered to
empty their pockets and place their belongings, backpacks, and
purses on their classroom desks. Students then went into the
hallway while school officials searched the belongings left in
the classroom. Marijuana was found in one of the purses. While
the school system prevailed at federal district court, the
Eighth Circuit applied the T.L.O. standard, reversed the lower
court, and held for the students. Emphasizing that students
possess a privacy interest in their belongings while at school,
the appellate court said said the school officials could not
deprive students of their Fourth Amendment protections by simply
announcing ahead of time that their privacy expectations “will
no longer be honored.” Characterizing the search as “highly
intrusive,” the court opined that school officials in this case
lacked enough specific and credible information to warrant such
a broadly based search policy.
Policy Implications
In an era when both federal and state laws
require that children receive a meaningful, quality education in
safe, secure, and disruption-free schools, it is little wonder
that the literature in public school law is filled with articles
discussing student discipline and control. And, among the
topics probed by legal scholars, student search and seizure
(especially strip searches) remains one of the most discussed
subjects.
While it is doubtful that school systems
can establish and maintain safe and secure schools absent
effective and enforceable student search and seizure policies
and procedures, as the above case law demonstrates, however, the
potential for issues springing up is very real, especially in
circumstances where student searches are “highly intrusive in
nature.”
What follow are six questions to pose as
existing student search and seizure policies are reexamined and
new policies are drafted. Does the policy make it clear that:
·
The school board recognizes and respects the
Fourth Amendment rights and protections of all students, and
will do its best to balance those rights and protections with
the legal prerogatives of the school board.
·
The school board, administration, faculty, and
staff will do all that is necessary to establish and maintain a
safe, secure, and disruption-free learning environment in every
school in the district so that teachers can teach and students
can learn?
·
The school board, administration, faculty, and
staff will do all that is necessary to keep every school in the
district free from crime, weapons, drugs, and other forms of
dangerous, destructive, and unhealthy behavior?
·
Student search and seizure procedures will be in
place and regularly implemented as a part of the school system’s
efforts?
·
Students can expect that they might be subject to
a search while in school or in attendance at school-sponsored
activities, or as a participant in a school sponsored activity?
·
Students will be
randomly subject to a search of their persons and/or personal
belongings where special circumstances exist or whenever direct,
substantial, and credible evidence exists that individual
students are in possession of weapons, drugs, or other
illegal/harmful/dangerous materials or devices.
One last thought is offered for
consideration. As a general rule “strip searches”
of students are “highly intrusive” in nature. Thus, the
potential for litigation is real. In this writer’s view, “strip
searches” must only be used where the facts of the situation
require this procedure and no other.
Resources Cited
Alexander, Kern. and Alexander, M. David,
AMERICAN PUBLIC SCHOOL LAW, Sixth Edition (Thomson West, 2005)
Board of Education v Earls, 122 S.Ct. 2559
(2002)
Cornfield by Lewis v Consolidated High
School District, 991 F.2d 1316 (7th Cir. 1993)
Doe v Little Rock, 380 F.3d 349 (8th
Cir. 2004)
Drake, Thelbert L. and Roe, William H., THE
PRINCIPALSHIP, Sixth Edition (Merrill Prentice Hall, 2003)
Jenkins v Talladega City School Board, 115
F.3d 821 (11th Cir. 1996)
Mary Beth G. v City of Chicago, 723 F.2d
1263 (7th Cir.1983)
M.M. v Ankor, 607 F.2d 588 (1979)
New Jersey v T.L.O., 469 U.S. 325 (1985)
Rinker v Siper, 264 F.Supp.2d 181 (M.D. Pa.
2003)
Rudolph v Lowndes County School Board, 242
F.Supp.2d 1107 (M.D. Ala. 2003)
Thomas v Roberts, 261 F.3d 1160 (11th
Cir. 2001)
Thomas ex rel. Thomas v Roberts, 323 F.3d
950 (11th Cir. 2003)
Vacca, Richard S. and Bosher, William C.,
LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS,
Sixth Edition (Lexis Nexis, 2003)
Vernonia v Acton, 115 S.CT.2386 (1995)
VIRGINIA SCHOOL SEARCH RESOURCE GUIDE
(Virginia Department of Education, 2000)
Wolf v Colorado, 338 U.S. 25 (1949)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
