Search and Seizure

in 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 Precedent

Random 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