Search and Seizurein Public Schools

William Allan Kritsonis, PhD

Basis

• Fourth Amendment to the United States Constitution

• “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Basis cont

• Fifth Amendment to the United States Constitution (Due Process) – school officials who plan to discipline a student or employee must first provide the alleged wrong-doer with

• Specific information about the charges and the evidence behind it

• A chance to tell his or her side of the story

• “The challenge for school districts and the courts is to balance students’ constitutional rights with the need for safety and preventing violence or disregard for school rules (www.centerforpubliceducation.org).”

School Specific Situations

• Drug testing students in extracurricular activities

• Drug-sniffing dogs on campus• Locker searches and metal detectors• Backpacks, wallet, and personal computer

searches• Searching a student’s car in the parking lot

Court Precedents

• New Jersey v. T.L.O. (1985)

• “The purse of a female high school student was searched upon suspect of her smoking in girls’ school restroom. Student denied the incident. Her purse was searched by a school administrator who uncovered not only cigarettes, but also marijuana and writings indicating the student had been selling marijuana (Lacroix, 2008).”

Ruling

• School officials act as representatives of the state, not merely as surrogates for parents

• School setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject

• “Neither the warrant requirement nor the probable cause standard is appropriate (caselaw.lp.findlaw)”

• Simple reasonableness governs all searches of students’ persons and effects by school authorities

• “Reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school (caselaw.lp.findlaw)”

Supreme Court Ruling in New Jersey v. T.L.O. (1985)

• “Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather they act in furtherance of publicly mandated educational and disciplinary policies.”

• “School searches must be reasonably related in scope to the circumstances justifying the interference, and “not excessively intrusive in light of the age and sex of the student and the nature of the infraction (caselaw.lp.findlaw)”

Court Precedent:Strip Searches

• Board v. Whitmore Lake School

• Female student reported $364 missing from her gym bag during PE class. In response, teachers searched the entire class in their locker rooms. Boys were required to undress down to their underwear, girls were required to do the same in front of each other. No money was found.

Sixth Court of Appeal Ruling The Board v. Whitmore Lake School

• Strip Search Unreasonable• Recovery of money was primary basis for

search, which did not pose a threat to health or safety

• Search involved a large group of students who did not consent to the search

• School personnel had no reason to suspect any of the students individually

• “Strip searches should be avoided except under extreme circumstances involving health and safety of other students (Essex, 2005).”

Drug Testing

• In his 2004 State of the Union Address, President Bush stated

• “I propose an additional 23 million dollars for schools that want to use drug testing as a tool to save children’s lives. The aim here is not to punish children, but to send this this message: We love you, and don’t want to lose you.”

• “Random, suspicionless drug testing of public school students will distance students from school personnel as long as it remains in the school’s arsenal (Lacroix, 2008).”

Court PrecedentRandom Drug Testing

• Vernonia v. Acton (1995)• Vernonia teenagers became noticeably

attracted to the “drug culture” and student drug use was on the rise. Students boasted “there was nothing the school could do about it.”

• The Vernonia School District instituted a policy requiring all student athletes to submit to random drug testing by urinalysis in order to play sports

Supreme Court Ruling

• The privacy expectations of public school students were less than those of the general public

• Legitimate privacy expectations are even less with regard to student athletes. An element of communal undress is inherent in athletic participation, with open locker rooms, community showers, and even doorless toilet stalls

• Athletes subject themselves to regulation just by signing up for a team. They have to keep their grades up, submit to a pre-season physical exam, and comply with the coach’s rules, among other things.

• School sports are not for the bashful.

• Voluntary nudity in front of peers, a minor consequence of athletic participation, constitutes implied consent to being observed during the very personal process of urination by an adult who is present only for that reason, and whose ultimate purpose is to perform scientific tests on the urine to discover if something very major is going on in the athlete’s private life.

Supreme Court Ruling on the Character of Intrusion

• The manner in which the samples were taken was typical of the environment of public restrooms, and therefore the privacy interests compromised were neglible.

• The government’s scientific examination of a citizen’s bodily fluids – is not significant because the urine is tested only for drugs and the results given only to a few people.

Board of Education v. Earls (2002)

• The right of a school to randomly test for drugs in the urine of all students involved in an extracurricular activity was upheld.

• “The courts have thus spoken on the issue, and the war on drugs lawfully extends to the government’s collection and scientific inspection of the bodily fluids of the hockey-playing, trumpet-blowing, debating, cheerleading youth of America (Lacroix, 2008).”

Ingraham v. Wright (1977)Corporal Punishment

• “The inferior legal status of children thus explains why students in schools can be subjected to searches, violations of free speech, and corporal punishment much more frequently than adults are (Lewis, 2006).”

• 27 states currently sanction corporal punishment

References

• Essex, N. L. (2005). Student privacy rights involving strip searches. Education and the Law, 17(3), 105-110.

• Lacroix, T. (2008). Student drug testing: the blinding appeal of in loco parentis and the importance of state protection of student rights. 2, 251-2790.

• Lewis, T. E. (2006). The school is an exceptional space: rethinking education from the perspective of the biopedagogical. Educational theory, 56(2), 159-176.

• U.S. constitution: fourth amendment, Findlaw for legal professionals, retrieved 9/30/08. www.caselaw.lp.findlaw.com/data/constitution/amendment04/

• Search and seizure, due process, and public schools. The center for public education, retrieved 9/30/08. www.centerforpubliceducation.org