Fourth Amendment Rights of Students in School

By Allen Coe

As children return to school it’s a good time to reflect on how far the public schools can go to search them for evidence of misconduct. Children may believe they should be treated as adults, but the U.S. Supreme Court has held their rights are limited by the “special needs” of the school environment. New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S. Ct. 733, 748, 83 L. Ed. 2d 720 (1985), (Blackmun, J., concurring). As is discussed below, these “special needs” allow schools to search students without a warrant, without probable cause, and in some cases even without suspicion of any wrongdoing.

Limits on the Fourth Amendment

The ordinary Fourth Amendment rules governing law enforcement searches do not apply. When you are sitting in your office you know that when the police come and demand to search your desk you can simply say, “no,” forcing them to produce their warrant obtained with probable cause. The student in high school will find that same response has very little significance. The Supreme Court has equated the “special needs” of schools in maintaining discipline to the regulation of conduct in prisons, the probation system, government offices and regulated industry.

Special Needs v. Privacy Expectations

Fourth Amendment analysis balances student expectations of privacy against the schools “special needs.” Although the “special needs” of the school are only one part of the balancing test, it is increasingly becoming the dominating factor. As the threat of drugs and guns in our schools has increased, the Supreme Court has increasingly emphasized the schools “special needs.” As the security required in our schools approaches the security required in our prisons children may lose their expectation of privacy entirely.

The “special needs” of schools give teachers broad powers to search personal possessions of children without a warrant or probable cause. School officials may search the possessions of any child at any time any school official suspects the child of wrongdoing. No warrant is required. Probable cause is not required. Only the following minimal requirements must be met:

1. The teacher must have reasonable grounds before searching 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; and

2. The scope of search must be 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. T.L.O., 469 U.S. at 341-342.

Smoking in the Girls’ Room

Evidence of criminal drug dealing will be admissible, even though it was found while searching for evidence of smoking in the bathroom. In T.L.O., a high school Assistant Vice Principal found out just how much could be held in 14-year old girl’s purse. The Assistant Vice Principal demanded to search the girl’s purse after she denied she had been smoking in a school bathroom in violation of school policy. He quickly found cigarettes and rolling papers. He then did a thorough search of the purse and found some marijuana, a pipe, plastic bags, a substantial amount of money in one-dollar bills, an index card containing a list of students who owed respondent money, and two letters that implicated her in marijuana dealing. The Court held the search by the Assistant Vice Principal was reasonable under the Fourth Amendment given the “special needs” of the school. It was reasonable that the girl might have cigarettes in her purse which would support a claim she had been smoking in the bathroom. T.L.O., 469 U.S. at 346. It was further reasonable when the Assistant Vice Principal saw rolling papers for him to suspect their might be further evidence of drug crimes in the purse. T.L.O., 469 U.S. at 347.

The requirement of reasonable suspicion in T.L.O. has so far distinguished school children from prisoners. In Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), the Supreme Court emphatically held that prisoner’s cells and belongings could be searched at any time. The Court held the prisoners had no reasonable expectation of privacy in their prison cells and therefore no Fourth Amendment protection. Hudson, 468 U.S. at 527. Prison authorities could legally search without particularized suspicion the prisoner had done anything wrong.

No Carte Blanche Searches

Although the reasonable suspicion standard is a relatively low threshold, school officials don’t have carte blanche. Recently, in State v. B.A.S., 103 Wn. App. 549, 13 P.3d 244 (2000), a juvenile court conviction was reversed when school officials were found to have overstepped their bounds. In B.A.S., the school had a policy prohibiting students to leave the school during school hours. School policy also required searches of any students found outside the school before they were allowed to return to class. A school attendance officer found B.A.S. and three other students outside the school. He had B.A.S. empty his pockets as required and out popped some marijuana. The Court found the blanket school policy to search because of safety concerns was not enough. There still had to be a reasonable suspicion the search of B.A.S. would turn up evidence of a violation of law or school rules. The court found there was no such suspicion.

Random Drug Testing

Despite B.A.S., the U.S. Supreme Court has held there are circumstances where school authorities can conduct searches without suspicion. In two cases the Supreme Court upheld random drug testing of students involved in extracurricular activities. Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995); Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S. Ct. 2559 (2002). In Vernonia, the Supreme Court wrestled with the issue of allowing an arguably more intrusive search than in T.L.O., i.e. bodily fluids instead of merely possessions, with an arguably less persuasive justification, i.e. no requirement of reasonable suspicion. The primary dissent came from Justice O’Connor who previously supported the T.L.O. opinion. Vernonia, 515 U.S. at 666. The majority was left defending itself from concerns that it was equating the Fourth Amendment status of school children and prisoners. Vernonia, 515 U.S. at 664 n.3. The majority found the schools “special needs” outweighed the minimal expectation of privacy of student athletes.

In Earls, the Court extended the reach of random drug testing from student athletes to all students participating in extracurricular activities. This caused another defection: Justice Ginsberg, who supported Vernonia, dissented in Earls. In Earls, the Court again held the “special needs” of the school trumped any student expectation of privacy.

The Court in Earls cautioned that its opinion was limited to random drug testing of students in any extracurricular activity. The Court made the distinction that students in extracurricular activities voluntarily subjected themselves to additional restrictions not applied to the general student body. However, the main emphasis was on the school’s “special needs” in deterring illegal drug use. The opinion is also limited to the drug testing context, although it raises the prospect of other random searches.

Students Distinguished from Prisoners

As the Supreme Court stated in T.L.O., students are not treated exactly like prisoners: “We are not yet ready to hold that the schools and the prisons need be equated for purposes of the Fourth Amendment.” T.L.O., 469 U.S. at 338-339 (1985). Teachers still must normally show they suspect the student of wrongdoing before they search. Schools haven’t yet been permitted to conduct random body cavity searches of schoolchildren like prisons may conduct on prisoners. Bell v. Wolfish, 441 U.S. 520, 558, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). However, the more schools resemble prisons, with guards and gates and metal detectors, the less rights schoolchildren may have.