Search and Seizure

and some of their parents have raised legal objections to school actions. Educators are responding by reviewing their policies and attempting to maintain strong discipline while also taking into account the students’ individual situations and circumstances.44

discipline Often shifting to the police Given the apparently increasing incidence of fatal shootings and other homicides in and near schools, as well as the exploding media attention they frequently ignite, educators and other government officials have moved toward stationing police officers and other full-time security personnel to protect students and staff at school. Thus, funds have been made available to support a growing police presence in US schools.

Although increase in police personnel at many schools probably has led to overall improvements in safety, several problems and issues also have been produced. For one thing, police interventions often result in legal charges being filed against students, sometimes contributing to students’ entry or continuation in a so-called “pipeline” from school to prison. In addition, vigorous policing can encourage some students to believe they are in a coercive environment, and relatively innocent actions discouraged by zero-tolerance policies can result in arrest and even legal confinement. For example, one seventh-grader was arrested and charged with disturbing the peace after a minor hallway altercation, a teenager was charged with theft after sharing food from a classmate’s meal, and some in-school fights have resulted in assault-and-battery charges. In response, some school districts are trying to reduce police intervention in minor infractions by students, and the US Department of Justice has advised schoolbased police to “not become involved in routine school disciplinary matters.”45

9-3f search and seizure

A legal search usually requires a lawfully issued search warrant. But rising drug use in schools and accompanying acts of violence have led some school officials (particularly in big-city high schools) to install metal detectors or x-ray machines to search for weapons. Some schools have banned cell phones, which are sometimes used in drug sales; required students to breathe into alcohol-analysis machines; searched students’ backpacks and book bags; and systematically examined lockers. Court challenges of such practices have usually centered on the Fourth Amendment, which states, “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 person or things to be seized.”

Legal terms express suspicion in differing degrees. The “probable” cause mentioned in the Fourth Amendment means that searchers believe it is more probable than not that evidence of illegal activity will be found. This is the degree of suspicion required for police searches. In contrast, where school searches have been upheld, courts have said “reasonable” cause was sufficient for school officials to act. Searches usually are conducted because administrators have reason to suspect that illegal or dangerous items are on the premises.

These principles were considered in a case involving a teacher who discovered two girls in a school restroom smoking cigarettes. This was a violation of school rules, and the students were taken to the vice principal’s office and questioned. One of the girls admitted smoking, but T.L.O., age 14, denied all charges. The vice principal opened T.L.O.’s purse and found a pack of cigarettes. While reaching for the cigarettes he noticed some rolling papers and decided to empty the purse. The search revealed marijuana, a pipe, some empty plastic bags, a large number of dollar bills, and a list entitled, “People

44Sarah Carr, “How Strict Is Too Strict?” Atlantic (November 2014), available at www

.theatlantic.com

45Gary Fields and John R. Emshwiller, “For More Teens, Arrests by Police Replace School Discipline,” Wall Street Journal (October 20, 2014), available at www.wsj.com.

who owe me money.” T.L.O.’s mother was called, and the evidence was turned over to the police. T.L.O. confessed to the police that she had been selling marijuana at school.

After she was sentenced to one year’s probation by the juvenile court, T.L.O. appealed, claiming the vice principal’s search of her purse was illegal under the Fourth Amendment. In finding for school authorities in New Jersey v. T.L.O., the US Supreme Court set up a two-pronged standard to be met for constitutionally sanctioned searches. Courts consider (1) whether the search is justified at its inception, and (2) whether the search, when actually conducted, is “reasonably related in scope to the circumstances which justified the interference in the first place.” Using these criteria, the Court found the search of T.L.O.’s purse justified because of the teacher’s report of smoking in the restroom. This information gave the vice principal reason to believe that the purse contained cigarettes. T.L.O. denied smoking, which made a search of her purse necessary to determine her veracity. When the vice principal saw the cigarettes and came across the rolling papers, he had reasonable suspicion to search her purse more thoroughly.46

Courts have also ruled that the suspicions of school officials sometimes were not sufficiently reasonable to justify the searches that followed. Using trained dogs to sniff student lockers and cars for evidence of drugs has been accepted because it occurred when the lockers and cars were unattended and in public view. The use of such dogs with students, however, can raise problems. In Highland, Indiana, 2,780 junior-high students and senior-high students waited for hours in their seats while six officials using trained dogs searched for drugs. A school official, police officer, dog handler, and German shepherd entered the classroom where Diane Doe, age 13, was a student. The dog went up and down the aisles sniffing students, reached Diane, sniffed her body, and repeatedly pushed its nose on and between her legs. The officer interpreted this behavior as an alert signaling the presence of drugs. Diane emptied her pockets as requested, but no drugs were found. Finally, Diane was taken to the nurse’s office and strip-searched. No drugs were found. Before school, Diane had played with her own dog, and this smell remaining on her body had alerted the police dog.

The Does filed suit. Both the district court and the appeals court concluded that although the initial procedures were appropriate, the strip search of Diane was unconstitutional. The court of appeals said, “It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: It is a violation of any known principle of human decency.” In a similar ruling in 2009, the Supreme Court ruled that a strip search of a girl accused of providing ibuprofen to a friend was unconstitutional because “directing a 13-year-old girl to remove her clothes, partially revealing her breasts and pelvic area, for allegedly possessing ibuprofen, was excessively intrusive.”47

In sum, when searches are conducted without a specific warrant, the following guidelines seem appropriate:48 ● Searches must be particularized. Reasonable suspicion should exist that each student being searched possesses specific contraband or evidence of a particular crime. ● Lockers are considered school property and may be searched if reasonable cause exists.

46New Jersey v. T.L.O., 105 S. Ct. 733 (1985). See also Perry A. Zirkel, “Outstripping Students Again,” Phi Delta Kappan (March 2008), pp. 538–541; and Mark Walsh, “Judge Rejects Administrators’ Search of Student’s Cellphone,” Education Week (September 12, 2014). 47Doe v. Renfrow, 635 F. 2d 582 (7th Cir. 1980), cert. denied, 101 US 3015 (1981). See also Perry A. Zirkel, “Searching Students,” Principal Leadership (September 2005), pp. 64–68; David L. Stader et al., “Drugs, Strip Searches, and Educator Liability,” Clearing House (March 2010), pp. 109–113; and Frank LoMonte, “Supreme Court Cellphone-Search Ruling Sends a Cautionary Message to Schools,” June 25, 2014, posting by the Student Press Law Center, available at www.splc.org. 48Kate Ehlenberger, “The Right to Search Students,” Educational Leadership (December 2001/ January 2002), pp. 31–36; Edwin C. Darden, “Trouble on the Line,” American School Board Journal (January 2007); and Richard S. Vacca, “Search and Seizure 2014,” CEPI Education Law Newsletter (April 2014), available at www.cepi.vcu.edu/publications/newsletters.