School Law Issues

Search & Seizure

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• U.S. Constitution: Fourth Amendment

• 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. (Emphasis added)

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NEW JERSEY V T.L.O. (1985)469 U.S. 325

• In 1980, a teacher at Piscataway High School in New Jersey found two girls smoking in a restroom.

• The girl who was with T.L.O. admitted that she had been smoking; T.L.O., however, denied the allegation, and said that she did not, in fact, smoke at all.

• Choplick (the assistant principal) took T.L.O. into his office and instructed her to turn over her purse. He opened the purse and found a pack of cigarettes.

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• As he removed the cigarettes, he noticed a package of cigarette rolling papers, which he believed were an indicator of involvement with marijuana. Therefore, he proceeded with a more thorough search of T.L.O.'s purse.

• This search yielded the following items: a small amount of marijuana, a pipe, empty plastic bags, a significant amount of money in one-dollar bills, a list of students who owed T.L.O. money, and letters implicating T.L.O. in dealing marijuana.

• Choplick then called T.L.O.'s mother and the police. She later confessed to dealing in marijuana at the police station.

• As a result of T.L.O.'s confession and the evidence from her purse, the State of New Jersey brought delinquency charges against T.L.O. in the Juvenile and Domestic Relations Court of Middlesex County. 4

• T.L.O. tried to have the evidence from her purse suppressed, contending that the search violated the Fourth Amendment.

• She also claimed that her confession should be suppressed on the grounds that it was tainted by the unlawful search.

• The juvenile court concluded that Choplick's search was reasonable. Therefore, Choplick was justified in searching the purse.

• This court held that schools were held to the lower level of suspicion, referred to as ‘reasonable suspicion’ rather than the constitutional level of ‘probable cause’.5

• T.L.O. appealed her conviction to the appellate division, which found no violation of the Fourth Amendment.

• The Supreme Court of New Jersey reversed the appellate division's ruling and ordered the evidence found in T.L.O.'s purse suppressed.

• In 1983, the Supreme Court of the United States granted the State of New Jersey's petition for certiorari. In 1985, the Court handed down its decision.

• ..\..\history of n.j. v. t.l.o..docx

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Appellate Division of New Jersey

T.L.O. appeals her conviction. The Appellate Division finds no Fourth Amendment violation.State in Interest of T.L.O. (1982)

Juvenile Court of New Jersey

T.L.O. is held to be a delinquent on the basis of evidence from the search of her purse and her confession. She is sentenced to one year of probation.State in Interest of T.L.O. (1982)

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Supreme Court of New Jersey

T.L.O. appeals the Appellate Division's Fourth Amendment ruling to the Supreme Court of New Jersey. The Court overturns the conviction and holds the search to be a violation of T.L.O.'s Fourth Amendment rights.State in Interest of T.L.O. (1983)

Supreme Court of the United States

The Supreme Court reverses the New Jersey Court's ruling, holding that searches by school officials are constitutional without a warrant as long as they are "reasonable."New Jersey v. T.L.O. (1985)

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Key Excerpts from the Majority Opinion

• “In determining whether the search at issue in this case violated the Fourth Amendment, we are faced initially with the question whether that Amendment's prohibition on unreasonable searches and seizures applies to searches conducted by public school officials. We hold that it does.”

• “In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents' immunity from the strictures of the Fourth Amendment.”

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• “Against the child's interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems . . .”

• “[W]e hold today that school officials need not obtain a warrant before searching a student who is under their authority. “

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•“. . . [T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search . . . Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are 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. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” 11

• “. . . Because the search resulting in the discovery of the evidence of marijuana dealing by T.L.O. was reasonable, the New Jersey Supreme Court's decision to exclude that evidence from T.L.O.'s juvenile delinquency proceedings on Fourth Amendment grounds was erroneous. Accordingly, the judgment of the Supreme Court of New Jersey is

• Reversed.”

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Searches of Student’s Persons, Desks and Lockers, and Possessions

RS 17:416.3

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Parish and City Public School Systems are the exclusive owners of:

• all public school buildings; and

• all desks and lockers assigned to any student within the building; and

• any other area of any public school building or grounds set aside specifically for the personal use of students.

• http://www.legis.state.la.us/lss/lss.asp?doc=81035

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Searches of Buildings, Desks, Lockers or School Grounds

• The following Louisiana public school employees may search any school building, desk, locker, area, or grounds for evidence that the law, a school rule, or parish or city school board policy has been violated:

– a teacher;

– a principal;

– a school security guard; or

– an administrator.

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Searches of a Student’s Person or Personal Effects

• A teacher, principal, school security guard, or administrator may search a student’s person or personal effects when:

– based on the attendant circumstances at the time of the search, there are reasonable grounds to suspect that the search will reveal evidence that the student has:

• violated the law;

• a school rule; or

• a school board policy.

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Searches of a Students Person or Personal Effects• Such a search must be

conducted in a manner:

– that is reasonably related to the purpose of the search; and

– not excessively intrusive in light of the age or sex of the student and the nature of the suspected offense.

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Searches of a Student’s Person or Personal Effects

• Random searches of students or their personal effects with a metal detector may be conducted at any time, provided that the search is conducted without deliberate touching of the student.

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Reports to Law Enforcement

• The principal or the principal’s designated administrator must report the confiscation or seizure of :

– any firearm, bomb, knife, or other implement that can be used as a weapon and the careless use of which might inflict harm or injury; or

– any controlled dangerous substance, to appropriate law enforcement officials.19

Reports to Law Enforcement

• The principal or the principal’s designated administrator may report the confiscation of any other implement or material to appropriate law enforcement officials.

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Retention of Confiscated Materials

• Any such implement or material must be retained and secured by the school principal in a manner that will prevent the destruction, alteration, or disappearance of the implement or material.

• The implement or material must be retained until the law enforcement authority either:

– takes custody of the implement or material; or

– provides the principal with notice that it no longer needs to be retained.

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Retention of Confiscated Materials

• When the implement or material is no longer needs to be retained, the principal must comply with the School Board’s policy for disposal of the item.

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Failure to Retain or Secure Confiscated Items

• The school board must take disciplinary action when the law enforcement authority reports to the school board that the principal or designated administrator:

– failed to report the confiscation of any of the above-listed items; or

– failed to retain and secure such an implement or material.

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School Board Policies

• On or before January 1, 1995, each parish or city school board was required to adopt a policy to provide for the reasonable search of student’s persons, desks, lockers, and other school areas by public school teachers, principals, and other school administrators.

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School Board Policies• At a minimum the policy is required to

include:

– standards for procedures for searching students to prevent excessive intrusion;

– standards for retaining and securing confiscated implements and materials;

– directions for the disposal of implements and materials reported to law enforcement authorities when those law enforcement authorities notify the principal that the implements and materials do not need to be retained.

– a specification of disciplinary action when a principal or designated administrator violates any provision of this section.

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Immunity for Liability• When a teacher, principal,

school security guard, or administrator follows school board policies adopted under the statute, they may not be held personally liable for any action authorized by the statute.

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Legal Defense for Employees Sued Based on a Search

• When a public school system teacher, principal, school security guard, or administrator is sued for damages based on a search of the student’s person, desk, locker, or other area of the school building or grounds set aside for the student’s personal use, the School Board must provide a legal defense for that employee including:

– reasonable attorney’s fees;

– investigatory costs; and

– related expenses.

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Legal Defense for Employees Sued Based on a Search

• However, the School Board’s obligation to provide a legal defense to an employee applies only when the search occurred:

– when that employee reasonably believed:• that the student had weapons, illegal

drugs, alcohol, stolen goods, or other materials or objects, the possession of which is a violation of the school board policy on his or her person; or

• that the desk, locker, or other area contained weapons, illegal drugs, alcohol, stolen goods, or other materials or objects, the possession of which is a violation of the school board policy; or

– based on a search using a metal detector.

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Legal Defense of Employees Sued Based on a Search

• The School Board must fully indemnify an employee cast in judgment for damages in the suit, including all principal, interests and costs.

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Legal Defense of Employees Sued Based on a Search

• A School Board is not required to indemnify a teacher, principal, school security guard, or administrator against a judgment where there is a specific finding that the action of that person was maliciously, willfully, and deliberately intended to harass, embarrass, or intimidate the student.

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Legal Defense of Employees Sued Based on a Search

• The School Board is not required to provide a defense or indemnification for suits regarding search and seizure unless:

– the employee’s acts were in accordance with the school board’s policy; and

– the policy is declared to be reasonable by a court of competent jurisdiction.

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•Lesson for the day ...A turkey was chatting with a bull. "I would love to be able to get to the top of that tree," sighed the turkey, "but I haven't got the

energy."

•“Well, why don't you nibble on some of my droppings?" replied the bull. "They're packed with nutrients." The turkey pecked at

a lump of dung and found that it actually gave him enough strength to reach the first branch of the tree. The next day,

after eating some more dung, he reached the second branch. Finally after a fortnight, there he was proudly perched at the top of the tree. Soon he was promptly spotted by a farmer,

who shot the turkey out of the tree.The moral of the story:

•Bull**** might get you to the top, but it won't keep you there.

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Horton v Goose Creek Ind. School District

690 F 2d 470(5th Cir 1982)

In this Texas case parents sued to stop the practice of having drug dogs sniff groups of

students.

Fifth Circuit ruled that this was a highly intrusive search, and except in a case of “individualized suspicion” the application of sniffing dogs was

unconstitutional33

Search of Persons Entering Public School Buildings or Grounds

• Any school principal, administrator, or school security guard may search the person, handbag, briefcase, purse, or other object in the possession of a person who is not a student enrolled at the school, or a school employee while in any school building or on school grounds.

• The search may be made:– by conducting a random search with a

metal detector; or

– when there is reasonable suspicion that the person has weapons, illegal drugs, alcohol, stolen goods, or other materials or objects, the possession of which is a violation of the School Board’s policy.

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Indemnification of Employees• If a principal, administrator, or

school security guard is sued for damages by any person based on a search, the school board is responsible for indemnifying that employee fully against such a judgment, including principal, interests, and costs.

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Indemnification of Employees

• However, the School Board is not responsible for providing indemnification to an employee when there is a specific finding that the employee’s action was maliciously, willfully, and deliberately intended to harass, embarrass, or intimidate the visitor.

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DRUG TESTING OF STUDENTSVERNONIA SCHOOL DISTRICT 47J v.

WAYNE ACTON 515 U.S. 646 (1995)

On WRIT of CERTIORARI FROM THE NINTH CIRCUIT COURT OF APPEALS

Issue: Can a school require students to be drug tested to participate in extra-curricular activities?

Circumstances: An Oregon public school district required student to be drug tested for participation in extra-curricular activities.

Parents of a 7th grader filed suit saying that the policy violated is 4th and 14th Amendment rights.

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VERNONIA SCHOOL DISTRICT 47J v. WAYNE ACTON 515 U.S. 646 (1995)

• Federal District Court dismissed the suit.

• Parents appealed and the Court of Appeals reversed the District Court.

• The school system appeal to the Supreme Court:

• Ruling: the state's interest in preventing drug addiction among students was compelling, student athletes had a decreased expectation of privacy, and the urinalysis and accompanying disclosure requirements were not significant invasions of privacy.

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Recent Strip Search Case• Redding, Plaintiff, vs. Safford Unified School

District # 1; et al., Defendant.Case No. CIV 04-265-TUC-NFF

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

2005 U.S. Dist. LEXIS 46933March 15, 2005, Decided

March 22, 2005, Filed

In searching for prescription and OTC medication the 13 year old Redding’s under-ware was searched after

nothing was found on her backpack and outer clothing. Parents sued claiming 4th Amendment

violation.

District court gave a summary judgment in favor of the school and the employees!

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APRIL REDDING v. SAFFORD UNIFIED SCHOOL DISTRICT #1;

No. 05-15759 UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT 504 F.3d 828; 2007 U.S. App. LEXIS

22521 March 8, 2007, Argued and Submitted,

Tempe, Arizona September 21, 2007, Filed

OUTCOME: The order granting summary judgment in favor of the school district

and school officials was affirmed.

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APRIL REDDING v. SAFFORD UNIFIED SCHOOL DISTRICT # 1 No. 05-15759

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

531 F.3d 1071; 2008 U.S. App. LEXIS 14756 March 26, 2008, Argued and Submitted, San

Francisco, California July 11, 2008, Filed

A rehearing of the 2007 case was granted and the court sat ‘en banc’

OUTCOME: The court reversed the district court's determination that there was no violation of the student's constitutional rights and reversed the grant of qualified immunity as to the assistant

principal. The court affirmed the grant of qualified immunity to the administrative assistant and the

school nurse.41

• Safford Unified School District #1, et al., Petitioners v. April Redding.

No. 08-479. SUPREME COURT OF THE

UNITED STATES 555 U.S. 1130; 129 S. Ct. 987; 173

L. Ed. 2d 171; 2009 U.S. LEXIS 585; 77 U.S.L.W. 3412

January 16, 2009, Decided

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• Question: 

• 1) Does the Fourth Amendment prohibit school officials from strip searching students suspected of possessing drugs in violation of school policy?

• 2) Are school officials individually liable for damages in a lawsuit filed under 42 U.S.C Section 1983?

•  Because the suspected facts pointing to Savana did not indicate that the drugs presented a danger to students or were concealed in her underwear, Wilson did not have sufficient suspicion to warrant extending the search to the point of making

Savana pull out her underwear.

•  Although the strip search violated Savana’s Fourth Amendment rights, petitioners Wilson, Romero, and Schwallier are protected from liability by qualified immunity because “clearly established law [did] not

show that the search violated the Fourth Amendment ,43