Search Of Student Property& Person

Search of Student Property & Person

A search of a student’s person or property may start as a reasonable search but can quickly escalate into an unreasonable one. The case study “Walkabout” at the beginning of Chapter 6 presents the issue of searching students. Additionally, the issue of drugs (even over-the-counter drugs) on school property is a current problem that should be addressed.

My Last name start with  (W).

For this discussion, if your last name begins with A through M, you will present an argument in full support of the search of Tasha’s property and person. If your last name begins with N through Z, you will present an argument that the search of Tasha’s property and person was unreasonable. (John Doe would argue in support of searching Tasha’s person and property.) Both arguments should keep in mind: Tasha is most likely violating school rules by skipping math class and hiding behind some shrubberies. But, does this justify the search of her purse? Does a tip from an “unreliable” source that Tasha is selling pills during lunch justify a search of her purse? Of her brassiere?

Chapters are uploaded for this discussion:

Chapter 6 Student Search

Introduction

The right to be free from unreasonable searches starts with the assumption that any search is an invasion of privacy. However, at school and school-sponsored events, these rights protect students from only unreasonable searches, not from all searches. The problem is defining what search under what circumstances is reasonable. This chapter addresses this question by examining the law related to a variety of student searches. The decision-making process is further guided by the ethical principles of Jeremy Bentham and selected ISLLC standards.

Focus Questions

1. What legal principles define school officials’ authority to search students?

2. What ethical guides should school leaders use in making search decisions?

3. When may a student search be unreasonable?

4. When may student lockers, automobiles, and book bags be searched?

5. What are the legal parameters of drug dogs and drug testing?

Key Terms

1. Principle of proportionality

2. Probable cause

3. Reasonable cause

4. School resource officers

5. Urinalysis

6. Utilitarianism

Case Study Walkabout

Johnson City Middle School (JCMS) assistant principal LaDonna Fields was participating in her favorite administrative duty: walkabout. JCMS had been built in the early 1960s on the edge of the city. By the 1990s, JCMS was surrounded on all sides by homes, in some cases separated from backyards only by dilapidated fencing and hedgerows. Concerns over school safety had resulted in a board policy officially called territoriality. Territoriality basically required that an administrator walk around the boundaries of JCMS facilities at least 1 day per week to establish a presence in the neighborhood. The activity quickly became known as walkabout.

It was a particularly nice day that LaDonna had chosen for her weekly duty. She was taking her time walking about, looking in parked cars, behind shrubberies, and other potential hiding places for “misplaced” JCMS students. Out of the corner of her eye she glimpsed what looked like a person behind one of the shrubs on a neighboring property. She decided to investigate and to her surprise found eighth-grader Tasha Moore hiding behind the shrub. Dressed in the “school uniform” of skinny denim jeans, a tank top, and an oversized men’s oxford shirt, Tasha did not seem to see LaDonna until she spoke. A smile crossed LaDonna’s face as she said, “Hi, Tasha. I heard you were missing from math class again.”

Tasha was an intelligent and popular student who had been elected class secretary and middle school homecoming queen. Tasha lived with her mother, who worked in a nearby city, and Tasha had many hours of unsupervised time on her hands. Another student had told LaDonna that Tasha often brought “pills” to school and sold them to students during lunch and between classes. LaDonna knew the informant was notoriously unreliable, but she had decided to take a special interest in Tasha and make an example out of her. This was her chance. Or so she thought.

“Well, Tasha, I guess I need to ask you why you are hiding here.”

Tasha replied with as much conviction as she could, “Waiting for my mom. I have a dental appointment.”

LaDonna replied, “Yeah, right, and I’m the tooth fairy. Now why are you not in math class, and why are you hiding here?” When Tasha did not answer, LaDonna said, “Let me see your purse, please.” Tasha hesitated, but did hand the purse to LaDonna, who opened it and immediately found a book of hall passes apparently taken from the administrative offices or a teacher’s desk. Hall passes were used by teachers and administrators to admit students who were late to class or late to school, or to give permission to use the restroom from class. After finding the hall passes, LaDonna continued to search the purse. Further digging revealed a couple of condoms in a zippered inner pocket, some rolling papers normally used to smoke marijuana, three $20 bills, and, most interesting to LaDonna, a single pill. “Come with me, please, Tasha.”

Once in her office, LaDonna asked Tasha, “What kind of pill is this? Where did you get the money? Do you have any more pills?”

Tasha replied, “My mother gave me the money to buy food. The pill is a prescription ibuprofen for cramps. I don’t have any more, and I don’t know how it got in my purse.”

Her suspicions growing, LaDonna asked Tasha to remove her outer shirt and turn her pockets inside out. Finding nothing of interest in Tasha’s pockets, LaDonna asked Tasha to bend over so she could visually examine the contents of Tasha’s brassiere. The examination did not reveal any pills. Tasha was obviously embarrassed and asked to call her mother.

Leadership Perspectives

The Fourth Amendment to the U.S. Constitution reads, in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . but upon probable cause.” The Fourth Amendment, however, does not prohibit all searches, just unreasonable searches. In other words, the Fourth Amendment does not protect all privacy interests, just those that society recognizes as legitimate. Thus, reasonableness depends on the circumstances or context of the search. For example, searches of person and property have become commonplace in airports, at federal courthouses, and at most large sporting events. Just as society has accepted certain searches of persons and property in the name of safety, students in school are likewise required to acquiesce to reasonable searches of their persons and property (ISLLC Standard 3).

ISLLC Standard 3

 

The U.S. Supreme Court has held that even a limited search of a person is a substantial invasion of privacy ( Terry v. Ohio, 1967 ). However, the U.S. Supreme Court has again carved out a special niche for students on school grounds and at school-sponsored events. Consequently, students do not enjoy the same Fourth Amendment rights inside the schoolhouse gate as they do outside. For example, some random searches have been declared unconstitutional in society (see, for example,  City of Indianapolis v. Edmond, 2000 , holding random drug-detection dog searches of stopped vehicles to be unconstitutional) that might very well pass muster at a school (see, for example, Horton v. Goose Creek Independent School District, 1983, finding canine searches of school lockers and automobiles in school parking lots constitutional). However, just as students do not leave all of their First Amendment rights at the schoolhouse gate, they do not lose all of their Fourth Amendment rights to be free of unreasonable searches in schools ( New Jersey v. T. L. O., 1985 ). The problem is defining the term unreasonable. Most educators and parents would agree that stealing hall passes and allegations of selling pills to students during lunch, as illustrated in the case study “Walkabout,” should be taken seriously by school officials. They would also most likely agree that at some point any search could become unreasonable and detract from the greater good of the school culture (ISLLC Standard 5). But, at what point does a student’s expectation of privacy outweigh the obligation of school leaders to maintain good order and discipline in the school? In other words, at what point does a reasonable search become unreasonable?

 

ISLLC Standard 5

 

ISLLC Standard 5D calls for school leaders to consider and evaluate the potential moral and legal consequences of their decision making. This is especially true when deciding to search a student’s person or property. Searches that are initially justifiable can easily slide onto a slippery slope that leads to an unreasonable search. The case study “Walkabout” is an illustration of this slope. Tasha is certainly guilty of skipping class. She may also be guilty of other things, including meeting a boyfriend in the middle of the day, stealing hubcaps, or numerous other misdeeds. Drug use and/or possession with the intent to distribute on school campuses are serious problems that should be addressed. But, does the evidence support the assumption that Tasha is in possession of illegal contraband? Would the search of Tasha’s purse be justified in this situation? Assuming that the search of Tasha’s purse is justified, would finding the single pill justify a search of her pockets and shirt? Would finding the single pill justify a search of an eighth-grade student’s brassiere?

ISLLC Standard 5D

 

To illustrate, visualize the reason for a search and the relative intrusiveness of a search on a continuum. One end of the continuum would include relatively minor items such as a small amount of money. The other end of the continuum would include drugs and weapons. The intrusiveness of the search could be visualized on the same continuum starting on one end with a cursory search escalating to a search of pockets or jackets and culminating with an intrusive strip search. The problem occurs when the reason for the search and the relative intrusiveness of the search become out of balance. For example, a search of an eighth-grade student’s underwear for a $5 bill seems unreasonable, and a cursory search for drugs or weapons violates school administrators’ obligation to keep students safe. The point is this: Starting and stopping a student search at the appropriate point on the continuum is difficult. This is especially true when emotions are high. Consequently, decisions to search a student or her or his property, and the even more difficult decision when to terminate a search, can create considerable legal and ethical dilemmas for school leaders (ISLLC Standard 5D). However, the utilitarian ethics of Jeremy Bentham may provide guidance.

ISLLC Standard 5D

 

Utilitarianism: Student Searches and the Greater Good

Jeremy Bentham (1748–1832), an influential British philosopher, is considered to be the founder of modern utilitarianism.  Utilitarianism , or utility, views the “greatest happiness of the greatest number” to be the goal of all ethical actions and the primary purpose of a just and fair government: in other words, “the greater good” of all concerned. Bentham uses utility to describe the tendency of an action to produce “benefit, advantage, pleasure, good, or happiness” or to prevent the happening of “mischief, pain, evil, or unhappiness” to the affected person or to the community in general. Bentham was concerned about the rights of the individual in society. In fact, he finds it counterproductive to consider society without an understanding of what is in the interest of the individuals within that society. In other words, it is counterproductive to consider the happiness of students within a school without first considering the relative happiness or utility of the individual students in the school. One can assume that individual happiness is promoted by effective strategies that lead to a safe and secure building environment (ISLLC Standard 3). It can also be assumed that some strategies designed to promote a safe and secure building environment can be counterproductive and subtract from the relative happiness of students and others. Utility then considers how an action (for example, a student search policy) tends to add or subtract from the sum of the pleasures or pains of each individual in the school. An action thus promotes utility in respect to the school at large when the tendency it has to augment the happiness of the individual students in the school outweighs the potential for individual student unhappiness ( Bentham, 1970 ).

ISLLC Standard 3

To meet this purpose, Bentham viewed the primary aim of law and government as guaranteeing security for citizens (ISLLC Standard 3). Security, and especially security of expectation, is the foundation of happiness for society and the primary aim of legislation. These same principles are applied, though to a lesser degree, to students in school. Equity, defined as fairness or evenhandedness, also plays an important role in Bentham’s utilitarian philosophy. Although inferior or subservient to security, equity also is a necessary condition for achieving the greater good. Therefore, Bentham’s principle of utility does not mean that the greatest number or those with the most influence have the right to oppress the lesser number, or less influential, just because these actions may increase the total amount of happiness (and freedom from pain) of the majority or more influential. Rather, Bentham’s utility principle seeks an “equal quantity of happiness” for every member of the community in question. He realized that at times happiness or unhappiness could not be distributed equally. Student searches are a good example. The relative unhappiness of an individual student subjected to a reasonable search for illegal drugs or a weapon would be subservient to the overarching need for security of the school at large. However, the relative unhappiness of an individual student subjected to an unreasonable search would detract from the greater good and subvert the overarching need for security of expectation.

ISLLC Standard 3

 

At first glance, Bentham’s principle of utility may seem far removed from efficient and effective strategies for promoting a safe and secure building environment. However, considerations of the principle of utility, or the greatest happiness for the greatest number, serve as the foundation for safe schools and a framework for promoting the types of school cultures called for in ISLLC Standard 3.

ISLLC Standard 3

 

Bentham’s thoughts on the purpose of government also included considerable attention to the authority of the government to punish individuals. To this end, he developed several guidelines concerning the legitimacy of punishment and the proportion between punishments and offenses ( principle of proportionality ). These principles are summarized here:

1. The general object of laws (or policy) should be to augment the greater good of the school community. School rules, policies, and punishments governing student searches should be designed to exclude those actions (or, in Bentham’s terminology, mischief) that subtract from this happiness.

2. However, in Bentham’s view all punishment causes harm. Therefore, punishment should not occur under the following circumstances:

a. Where there is no misbehavior to prevent: in other words, where it is groundless.

b. Where the punishment will not prevent misbehavior or action.

c. Where the harm created by the punishment is greater than the act it was designed to prevent: in other words, where it is arbitrary and capricious.

d. Where it is needless, or where the mischief may be prevented, or cease of itself, without the punishment ( Bentham, 1970 , pp. 11-12).

3. If the object of policy is to prevent harm, then there will be times when punishment is required and therefore worthwhile. In other words, there are times when punishment promotes the greater good. Conversely, a lack of punishment or overzealous punishment detracts from the greater good. Bentham developed four subordinate objects of punishment to guide the development of worthwhile punishment to promote security:

a. The first object is to prevent, insofar as it is possible and worthwhile, all sorts of misconduct.

b. However, if it is not possible to prevent all rule violations, the next object is to induce the person to commit an offense less serious or disruptive, rather than more serious or disruptive.

c. When a person has resolved to commit a particular offense, the next object is to dispose the person to cause no more of a violation than is necessary to accomplish his or her objective: in other words, to cause as little disruption as possible.

d. The last object is, whatever the mischief is, to prevent it at as low a cost as possible.

4. Subservient to these objects or purposes of punishments are several rules (selected by the author) or canons by which the proportion of punishments to offenses is to be governed.

a. Rule One: The amount of the punishment must be proportional to the offense.

b. Rule Two: The greater the disruption, the more worthwhile it is to expend the energy to administer the punishment.

c. Rule Three: Where two offenses come in competition, the punishment for the greater offense must be sufficient to induce students to prefer the less.

d. Rule Four: The punishment should be adjusted in such a manner to each particular offense in a way that would serve as a deterrent or restraint for committing the offense.

e. Rule Five: The punishment ought in no case to be more than what is necessary to bring it into conformity with Bentham’s principles of punishment.

f. Rule Six: Where a particular student’s misbehavior is conclusively indicative of a habit, the punishment may be increased to a point that not only deters the individual offense being addressed, but also other similar offenses that are likely to have been committed with impunity by the same offender.

g. Rule Seven: In adjusting the quantum (amount) of punishment, pay attention to the circumstances by which all punishment may be rendered unprofitable.

Source: These principles were selected and adapted by the author from An Introduction to the Principles of Morals and Legislation (pp. 165–171), by Jeremy Bentham, edited by J. H. Burns and H. L. A. Hart, 1970. New York: Oxford Press.

 

Applying Utility to Decision Making

Bentham points out that the primary purpose of policy should be to exclude those acts that substantially threaten security and interfere with a positive learning climate. Every policy, however, creates an offense ( Bentham, 1970 , p.). In other words, it is only by making a rule against some act that school leaders can implement a punishment for breaking the rule. Certainly school district policies that regulate and punish the taking of property and the possession of illegal drugs or weapons are necessary to protect the learning climate (ISLLC Standard 3). However, as  Habermas (1987)  and Sergiovanni (2000) point out, it is possible (and according to Sergiovanni, common) for these policies and practices designed to protect the learning climate to, in fact, have a negative impact on school culture.

ISLLC Standard 3

The problem is in finding the right proportionality among the need for a policy, the enforcement practice associated with the policy, and the utility of the school community. The case study “Walkabout” illustrates this. Starting with the assumption that any search is an invasion of privacy, Bentham’s principles of proportionality apply to the situation facing assistant principal LaDonna Field in “Walkabout.” Examine Bentham’s four principles governing when a punishment should not occur. Does LaDonna know for sure that Tasha brings pills to school to sell to students, or does she simply suspect that it may be true? It is possible that this search is groundless (Principle 2a). As previously stated, Tasha is more than likely guilty of skipping class. But does skipping class justify the search of a student’s purse? Does finding the hall passes in Tasha’s purse justify a further search of the purse? Does finding the one pill in a zippered pocket inside the purse justify a search of Tasha’s pockets? Her brassiere? Has this search gotten to the point where the harm created by the search is greater than the act (Principle 2c)? Or, as Bentham implies, does the evil created by the search outweigh the good? In this case, it is not difficult to imagine the potential negative consequences for the reputation of LaDonna Field escalating with each step in the search. Is this an example of what is meant by ISLLC Standard 5D: “Consider and evaluate the potential moral and legal consequences of decision-making”?

ISLLC Standard 5D

The last rule concerns the preventability of an act, thus making the search needless. In this case, proper procedures regarding when students may return to the classroom late or use the restroom may be necessary. Bentham’s fourth rule regarding when punishment should not be inflicted is particularly germane. In Bentham’s view, the object of policy is to prevent “mischief.” Thus, policies that are designed to prevent mischief and a need to search students are preferable to policies designed to allow for the search of students.

Even the best policies, however, may not always prevent the need for a search. When this task becomes necessary, Bentham’s seven rules presented in this chapter governing the proportionality of punishment to offense provide guidance. For example, Rule Two states that the greater the potential harm to school utility, the greater the worth of the search. Knowing where to start and more importantly at what point to stop a search for contraband, a $20 bill, or any other item can be particularly difficult. However, Rule Five states that the extent of the search should not be any greater than is necessary to accomplish the purpose of the search. The other rules similarly apply and, in different language, have been applied by the U.S. Supreme Court and federal district and appellate courts considering the search of school children.

Students and the Fourth Amendment

Bentham’s principles of proportionality can be viewed as a balance between the reason for a search and the relative intrusiveness of the search. In decidedly different language, but very similar to Bentham’s principles of proportionality, the U.S. Supreme Court considered the balance between the need for a search and the relative intrusiveness of the search in  New Jersey v. T. L. O. (1985) . This landmark Supreme Court case began when a New Jersey high school teacher discovered T. L. O. (then a 14-year-old freshman) and another student smoking in the school lavatory. When confronted by the assistant principal, T. L. O. denied that she had been smoking and claimed that she did not smoke at all. The assistant principal demanded to see her purse. He found a pack of cigarettes and a package of cigarette rolling papers commonly associated with the use of marijuana. Searching further, he found some marijuana, a pipe, plastic bags, a substantial amount of money, an index card containing a list of students who owed T. L. O. money, and two letters that implicated her in marijuana dealing. The student was referred to law enforcement. After several appeals, the New Jersey Supreme Court ordered the suppression of the evidence found in T. L. O.’s purse, holding that the search of the purse was unreasonable. The U.S. Supreme Court granted certiorari.

The Court first concluded that the Fourth Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials. The Court then confronted the question of whether the search in this case was unreasonable. The Court concluded that it was not. After further thought, the Court did consider the question of the proper standard for assessing the legality of searches conducted by school officials and the application of these standards to this case. The Court took notice of the difficulty of maintaining discipline in the public schools, but found the situation not so dire that students could not claim at least some legitimate expectations of privacy. However, maintaining discipline and security in schools requires some degree of flexibility. Consequently, the Court held that school officials need not obtain a warrant before searching a student under their authority. Further, the Court freed school officials from the probable cause standard of law enforcement and instead found that the legality of a search of a student should depend on the reasonableness under the circumstances of the search. This is an important point.  Probable cause  may be described as when a “fair probability” or a “substantial chance” exists that the search will discover evidence of criminal activity ( Illinois v. Gates, 1983 ). Reasonable suspicion may be described as a “moderate chance” that the search will reveal evidence of wrongdoing ( Safford v. Redding, 2009 ).

In an effort to clarify the parameters of “reasonableness,” the Court established the following guidelines:

1. The search should be justified at inception

2. The search should be reasonably related in scope to the reason for the search

3. The search should be reasonably related to the objective of the search

4. The search should not be excessively intrusive in light of the age and sex of the student and the nature of the infraction

These concepts are fluid in that the decision to search does not occur in a vacuum. Therefore, the context in which the search takes place is the determining factor. For example, reasonable suspicion can include a teacher or other school employee witnessing a student violating school rules. In the case of TLO, the Court found that the teacher’s accusation of smoking justified the hypothesis that TLO, might have cigarettes in her purse. Finding the rolling papers warranted a further search that, ultimately, uncovered the student’s possession of marijuana. The discovery of marijuana justified the further examination of a zipped pocket in the purse that revealed the list of names and the money. Think about the case study “Walkabout.” Does the fact that Tasha is skipping math class and hiding behind some shrubs in violation of school rules justify the hypothesis that she may have contraband (stolen hall passes, drugs, and so forth) in her purse?

Reasonable suspicion can also be established when school officials receive firsthand information from a student, parent, or other member of the school community regarding individual students. For example, the 11th Circuit Court held that a reliable tip from another student with some collaboration provided reasonable grounds to search a student’s coat ( C. B. v. Driscoll, 1996 ). A tip from law enforcement also establishes reasonable suspicion. For example, when a school principal was informed by police that a student might have a gun on school property, the tip established reasonable suspicion to detain, question, and search the student ( In re D. E. M., 1999 ). This decision also established that when school officials act independently on tips from law enforcement, they do not act as agents of the police. In short, reasonable suspicion considerably lowers the bar for the justification of a search of a student or her property at school or school activities. However, school officials should weigh the credibility of the information before making a decision to search (see  Fewless v. Board of Education of Wayland Schools, 2002, as an example of this logic).

Reasonable suspicion can also be justified when a student is the only person (or one of a very few students) present at the time of the rule violation (Stader, 2003). For example, a third-grade teacher discovered that $10 she was holding for a student was missing. There were only three students in the classroom at the time the money disappeared. Therefore, individualized suspicion was not necessary to search the three students ( Watkins v. Millennium School District, 2003 ). It can be assumed that at some point the number of students present would make a search for $10 unreasonable, but three is not the number. This case also illustrates how quickly a reasonable search can become unreasonable. The teacher initially asked the three students to empty their pockets. When nothing was found, she instructed the students to “pull out their waistbands.” When this search did not yield the missing $10, that would have been a good time for the teacher to stop. However, the teacher took each student into a supply closet where she looked into their underwear. The court found this part of the search intrusive and in violation of school policy.

Students can be disciplined for refusing to submit to a reasonable search. For example, the Fourth Circuit Court upheld the suspension of a student for refusing to allow a search of his backpack. The court found that school officials had developed reasonable individualized suspicion, not by way of any particular information but rather by the process of elimination ( DesRoches v. Caprio, 1998).

Reasonably related in scope considers the balance between the reason for a search and the intrusiveness of the search. The U.S. Supreme Court recently considered the balance between the reason for a search and the relative intrusiveness of the search in  Safford Unified School District #1 v. April Redding (2009) . As LaDonna Field in the case study “Walkabout” may learn, the balance between the reason for a search and the relative intrusiveness of a search can get quickly out of hand.

The U.S. Supreme Court granted certiorari in  Safford v. Redding (2009)  to consider two questions: (1) Did the search of Savana’s bra and undergarments by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school violate the Fourth Amendment? and (2) is the official who ordered the search entitled to qualified immunity?

In an 8–1 decision, with Justice Thomas dissenting, the Court held that the search of Savana Redding’s bra and underpants for forbidden prescription and over-the-counter drugs did violate the Constitution. One week before the search of Savana Redding, a fellow student reported to Safford Middle School Principal Kerry Wilson that students were bringing drugs and weapons to school. The student also reported that he had become ill after taking one of the pills offered to him. On the day of the search of Savana, the same student gave Wilson a white pill (later identified as ibuprofen 400 mg, available only by prescription) given to him by Marissa Glines. A search of a binder associated with Marissa revealed illegal contraband including a blue pill, several white pills, and a razor blade. Marissa implicated Savana as the source of the pills. At Wilson’s direction, Marissa was then subjected to a search of her bra and underpants by administrative assistant Helen Romero. The search revealed no additional pills.

Wilson summoned Savana Redding to his office. Marissa’s implication and several teachers reporting that Marissa and Savana were friends justified the search of Savana’s outer clothing and backpack in the privacy of Wilson’s office. As Justice Souter, writing for the majority, explained, “If Wilson’s reasonable suspicion did not support a search of Savana’s bag and outer clothing, it would not justify any search worth making.” No pills were found in her bag or outer clothing.

Wilson then directed administrative assistant Helen Romero to conduct a strip search of Savana. Savana was instructed to remove her outer clothing and pull out her bra and the elastic band on her underpants. No pills or other contraband were found. The Court reasoned that the strip search of Savana violated the second and third prongs of TLO. In essence, at least according to the majority, the intrusiveness of the search of Savana’s bra and underpants did not match the nature of the infraction that justified the search in the first place. The court held that both “subjective and reasonable societal expectations of personal privacy support the treatment of [a strip search] as categorically distinct, requiring distinct elements of justification . . . for going beyond a search of outer clothing and belongings.” A search this extensive of a 13-year-old student’s bra and underpants calls for suspicion that it will pay off. In this case the fatal mistake was a lack of specific suspicion that Savana was hiding drugs in her undergarments. In addition, Wilson should have been aware of the limited threat presented by the prescription ibuprofen and over-the-counter painkillers. In other words, assistant principal Wilson violated Bentham’s principles of proportionality in that the relative harm created by the search of Savana’s bra and underpants was greater than the act it was designed to prevent.

At this point the Court considered the question of qualified immunity. A six-member majority of the Court found enough significant differences among lower court rulings to cast doubt on whether the Court had been sufficiently clear in T. L. O. In short, the discrepancy among lower court interpretations of T. L. O. when applied to strip searches made it difficult for a reasonable assistant principal to know that the strip search of Savana Redding under the circumstances described clearly violated her established constitutional rights.

It is important to note that Justice Stevens and Justice Ginsburg disagreed. The two justices argued that Savana’s right was clearly established at the time of the search of her undergarments. Justice Stevens opined that this was “in essence, a case in which clearly established law meets clearly outrageous conduct.” In his view, just because some lower courts had misread the precedents of T. L. O. did not mitigate a well-established right. In short, Justices Stevens and Ginsburg argued that assistant principal Wilson should be held liable for the unconstitutional strip search of Savana Redding. As this case illustrates, an intrusive search, no matter how justified, is an inherent risk to both the person conducting the search and the students they serve.

Linking to Practice

Do:

· Make sure that district and campus policy outline when, where, why, and by whom students may be subjected to search. Policy should describe reasons for and purposes of the policy.

· Provide a copy of all search policies to parents, law enforcement, students, and staff.

· Attend booster club, PTA/PTO, and other parent organization meetings to discuss and clarify school search policies (Stader, 2003).

· Provide training for all staff in the legal requirements of student searches. Training should stress the importance of the relationship between the reason for the search and the scope of the search (Stader, 2001b).

· Superintendents and school district attorneys should discuss with local boards of education whether or not to ban strip searches of students under any circumstances. As the court pointed out in Safford, several school districts around the country have implemented this policy. Some states have passed laws limiting strip searches by public school employees. For example, Missouri law allows a school employee to strip-search a student only when a commissioned law enforcement officer is not available and when weapons, explosives, or substances that pose an imminent threat of physical harm may be involved (RSMo 167.166.1).

· Generally, the most difficult and risky decision school administrators make is not whether to start a search, but rather when to terminate a search. Therefore, school districts should provide ongoing professional development for principals and assistant principals regarding student searches. The professional development should involve school attorneys and include specific examples of justification, reasonable scope, and reasonable relatedness to the objective of the search (Stader, Greicar, Stevens, & Dowdy, 2010).

· Intrusive searches are most often justifiable when there is reasonable suspicion that the student possesses a weapon or other dangerous item that poses an immediate threat of safety to the student, the student body, or to others (Stader et al., 2010).

· Follow Bentham’s proportionality principle. The greater the potential harm (drugs and weapons, for example), the greater the justification for intrusive searches.

· Stop and think before escalating to a more intrusive search.

· Consider: When in doubt, don’t.

 

 

Do Not:

· Abandon common sense.

· Make search decisions in the heat of the moment.

· Ever conduct or authorize intrusive searches for small amounts of money or items that do not present a danger to others in the school.

Nonintrusive Searches

Most courts recognize the difference between the search of a person or a person’s personal property and a search of objects such as book bags, lockers, and automobiles on school property. This section provides examples of non-intrusive searches such as locker searches, use of metal detectors, and searches of items taken on field trips.

Field Trips and Overnight Stays

Students’ diminished expectations of privacy apply to field trips and school-sponsored overnight trips. However, a written policy makes search decisions more defensible (Stader, 2003). A New York district court upheld a search of a student’s motel room that revealed alcohol and significant quantities of marijuana in a locked motel-room safe. The search was judged to be reasonable based on the facts that students had been asked to sign waivers agreeing not to use or possess illegal substances, that students had been informed that rooms were subject to search (or at least to “room checks”), and, most significantly, that the principal smelled marijuana around a cluster of students outside one of their rooms. The court concluded that “when public school students are acting in a supervised environment, under the control of public school teachers or administrators, the search must merely be reasonable under the circumstances” ( Rhodes v. Guarricino, 1999 ).

Student Lockers

A diminished expectation of privacy also applies to student lockers. This is a good thing since locker searches are relatively common. In 2007–2008, 54% of students age 12 to 18 reported locker checks by school personnel (Robers, Zhang, & Truman, 2010). However, several court decisions illustrate the wisdom of having a clear locker search policy consistent with state law before searching individual student lockers. A U.S. district court in Kansas found that a school policy stating that lockers were the property of the school resulted in a lowered expectation of privacy. Consequently, district personnel had sufficient grounds to search a student’s locker in light of the probability of finding missing contraband ( Singleton v. Board of Education USD 500, 1995 ).

Metal Detectors

Daily metal detector checks are not common in public schools. In fact, in 2007–2008 only about 1% of public schools reported daily metal detector checks and 5% reported at least one random metal detector check for weapons (Robers et al., 2010). The relatively rare use of daily metal detector checks may have more to do with cost of equipment and personnel than legal concerns. Courts have been relatively consistent in considering metal detectors to be minimally intrusive and an effective way to keep weapons out of schools.

Random Sweeps for Contraband

In 2007–2008, about 11% of public schools participated in one or more checks, sweeps, or camera checks for drugs or weapons not including dog sniffs (Robers et al., 2010). These practices are generally applicable only to secondary schools, designed to keep weapons and other contraband out of schools, and are designed to be minimally intrusive (see  State of Florida v. J. A., 1996 ). However, the Eighth Circuit Court found a policy of random classroom searches of secondary students and their belongings by the Little Rock School District (LRSD) to be unconstitutional ( Doe v. Little Rock School District, 2004 ). LRSD had a policy of randomly selecting classrooms, then instructing students in the selected classroom to empty their pockets, place all items including purses and backpacks on their desks, and exit the room. The court reasoned that students do have a diminished expectation of privacy compared to most people in public situations. However, school children are entitled to expect some degree of privacy in the personal items that they bring to school. The balancing act, according to the court, is finding the point at which the needs of the school to maintain discipline and protect students outweigh students’ expectation of privacy. In this particular case, the Eighth Circuit Court held that the LRSD may not deprive students of their Fourth Amendment rights simply by announcing that these rights will no longer be honored. The court concluded by stating, “While the line separating reasonable and unreasonable school searches is sometimes indistinct, we think it plain that the LRSD’s search practices cross it.”

 

Drug Dogs

The quest for drug-free schools has included the assistance of drug detection dogs provided by local law enforcement. In 2007–2008 about 22% of public schools had one or more random dog sniffs to check for drugs (Robers et al., 2010). The Fifth Circuit Court clarified the fundamental legal guidelines for canine searches in Horton v. Goose Creek Independent School District (1983, cert. denied). Goose Creek school district, in response to a growing drug problem, instituted a policy of randomly taking drug detection dogs to the various campuses in the district where the dogs sniffed students’ lockers and cars. The dogs were also taken on leashes into classrooms to sniff the students themselves. The court considered two questions: (1) Is the sniffing of a drug-detection dog a search? (2) To what extent are students protected by the Fourth Amendment from searches by school officials? The court established that dog sniff searches of lockers and cars did not constitute a search and were permissible. Justification to extend the search is obtained when the dog alerts to a particular car or locker. However, the random dog sniffing of persons is not permissible and constitutes a violation of students’ Fourth Amendment rights.

Automobile Searches

Reasonable-suspicion searches of student cars in school parking lots are generally treated in the same manner as other reasonable-suspicion searches of students. For example, the Supreme Court of Mississippi upheld the suspension of a student for possession of alcohol found in his truck in the school student parking lot ( Covington County v. G. W., 2000 ). The school principal and security officer responded to a note from a teacher that a particular student was drinking in the parking lot. The note from the teacher provided the reasonable suspicion necessary for the search of the student’s truck, and the alcohol found in the truck served as grounds for the suspension. Random sweeps of school parking lots for drugs or weapons are also usually upheld. For example, when the Warminster (Pennsylvania) police swept a high school’s premises for drugs, they noticed part of a beer carton in Kristin Ream’s car ( Ream v. Centennial School District, 2001 ). Summoning Miss Ream, the police obtained her permission to search the car. The search unearthed a ring box with 45 Ecstasy pills. Miss Ream was suspended and recommended for expulsion (she was already on probation for possession of marijuana). The Superior Court of New Jersey, Appellate Division, similarly concluded that vehicle searches conducted by school officials need only satisfy the reasonable suspicion standard ( New Jersey v. Best, 2008 ).

Linking to Practice

Do:

· Make random searches of student book bags, backpacks, or other student-carried items part of campus and school district field-trip policy and practice.

· Use campus policy to clarify that lockers are the property of the school and that students have reduced expectations of privacy for personal items such as book bags, backpacks, gym bags, and jackets stored in lockers.

· Make sure that policy clearly states that automobiles in the school parking lot may be subject to search.

· Announce to students, teachers, parents, and visitors that random or mandatory metal-detector searches may be conducted.

· Make sure that the use of drug-sniffing dogs is outlined in policy. The policy should include when dogs will be used and what will be subject to search. The policy should also establish that a dog alert would provide reasonable cause for continued searching.

 

Do Not:

· Initiate drug dog searches, metal detectors, or random sweeps without considering the importance of such actions on the district or campus “utility.” In other words, does the discomfort sometimes caused by the presence of police and drug dogs outweigh the need for such measures?

 

School Resource Officer: Law Enforcement or Educator?

The past few years have seen a fundamental shift in philosophy regarding police officers in schools. Seen at one time to be a liability, police officers, often referred to as  school resource officers  (SROs), are now welcome additions in many schools. In 2007, 69% of students ages 12 to 18 reported the presence of security guards and/or assigned police officers in their school (Robers et al., 2010). Any controversy notwithstanding, there is little doubt that law enforcement should be involved in some school safety concerns with which educators have little if any expertise and experience. For example, searching suspects for weapons and the proper methods of confronting armed suspects are fundamental to law enforcement training. However, the movement to include police officers in an educational setting to enforce school policy may be complicated by some unresolved legal issues. These legal issues are particularly apparent when students are searched. The primary legal question concerns whether or not SROs are bound by the more stringent probable cause standard or by the more lenient  reasonable cause  standard established in TLO. The answer seems to depend on by whom and how the search was initiated. Recently, courts have tended to analyze searches conducted by law enforcement in schools based on the circumstances of the search, the reasonableness of the search, and, most importantly, who initiated the search. If school administrators initiate the search, the lower reasonable cause standard seems to hold ( Shade v. City of Farmington, 2002 ). However, when a reasonable person could assume that the SRO is acting as a law enforcement officer, then the higher standard is necessary. A Tennessee state court of appeals ( R. D. S. v. State of Tennessee, 2008 ) explains the difference this way:

We hold that the reasonable suspicion standard is the appropriate standard to apply to searches conducted by a law enforcement officer assigned to a school on a regular basis and assigned duties at the school beyond those of an ordinary law enforcement officer such that he or she may be considered a school official as well as a law enforcement officer, whether labeled an “SRO” or not. However, if a law enforcement officer not associated with the school system searches a student in a school setting, that officer should be held to the probable cause standard.

The fine line between law enforcer and educator is never more pronounced than when police or child protection agencies come to the school to interview a student. The U.S. Supreme Court reviewed two cases during the 2010–2011 terms that address this particular question. The first case considers whether child-abuse investigators violate the Fourth Amendment rights of students by interviewing them at school without a warrant or parental consent about suspected child abuse ( Greene v. Camreta, 2009 ). Camreta, a state child protective officer, and several other state officials interviewed a 9-year-old girl at school regarding allegations of parental sexual abuse. The Ninth Circuit Court held that seizing the student without a warrant, court order, parental consent, or exigent circumstances violated the Constitution. The court further held that the officials were entitled to qualified immunity. Camreta and others appealed to the U.S. Supreme Court asserting that the requirement for a warrant, court order, or parental permission would place an undue burden on state protection officers in future cases of alleged child abuse. There are two legal questions involved: (1) May state officials appeal a finding of qualified immunity, and, more importantly to educators, (2) should child protection officers be required to obtain a warrant, court order, or parental permission to interview children who may be victims of parental sexual abuse? The Court answered the first question in the affirmative. Unfortunately, the U.S. Supreme Court sidestepped the most important question by finding the case moot and vacated the Ninth Circuit Court holding. The student in question now lives in Florida, is rapidly approaching her 18th birthday, and no longer needs protection from the challenged practice. It is unfortunate that the Court did not consider the question of whether or not child protection officials need a warrant, court order, or parental permission to interview minor students at school regarding suspected or alleged parental sexual abuse ( Camreta v. Greene, 2011).

 

 

The second case considers a decision by the Florida Supreme Court holding that a juvenile burglary suspect interrogated at school by police officers was not in custody during the school interrogation and need not have been given Miranda warnings ( In the Matter of J. D. B., 2009 ). The U.S. Supreme Court disagreed to some extent. Then, 13-year-old special education student J. B. D. was questioned at school by a police officer and school administrator about some neighborhood robberies. He finally admitted to taking part in the robberies. J. B. D. was not informed that he had the right to remain silent or to leave at any time. In addition, his guardian grandmother was not contacted. The Court held that “it is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis.” A child in school being interviewed by a police officer and a school administrator would feel pressured to conform to the questioning and not have a clear understanding that she or he would be free to leave at anytime. The Court remanded the case back to the state court to determine if J. B. D. was in custody at the time of the questioning ( J. B. D. v. North Carolina, 2011 ).

Linking to Practice

Do:

· Initiate discussions and a memorandum of understanding with local law enforcement regarding the role of the school resource officer (SRO).

· Recommend that this agreement become part of board policy.

· Always involve SROs or local law enforcement in searches for weapons, especially when guns may be present.

· It may be advisable for school boards to develop a clear policy regarding police or child protection officials requesting to interview minor children at school.

Do Not:

· Involve the SRO or local law enforcement in minor disciplinary issues or in a search for small amounts of money or inexpensive items such as pens, calculators, or games.

Urinalysis Testing

In an effort to combat drug use among students, several school districts have instituted a policy of drug testing via  urinalysis . Courts have supported reasonable-suspicion drug testing policies. For example, the Seventh Circuit Court upheld a school administrator’s ordering of medical assessment of a student based on a supervising teacher’s suspicion that he was under the influence of an illegal substance while attending an after-school smoking cessation program ( Bridgman v. New Trier High School District, 1997 ).

However, reasonable suspicion does not equate to carte blanche urinalysis testing. The Third Circuit Court overruled a district court decision regarding student urinalysis ( Gruenke v. Seip, 2000). A high school swim team coach, suspecting a team member to be pregnant, required a pregnancy test of the suspected student before he would allow her to continue on the team. The student and her mother sued the coach, alleging violation of the student’s Fourth Amendment rights and interference with privacy regarding personal matters. The suit also included claims under Pennsylvania tort law (see  Chapter 10  for a discussion of the law of torts). Policies aimed at various groups or classes of students also require some discretion. The Seventh Circuit Court reversed a lower court decision supporting the suspicionless drug testing of all students suspended for fighting. The court clearly believed that drug testing based on individualized reasonable suspicion was well within administrator prerogatives. However, being disciplined for fighting did not provide the individualized suspicion necessary to negate students’ Fourth Amendment rights ( Willis v. Anderson Community School, 1998 ).

Random Urinalysis Testing

The issue of random drug testing of student groups was first addressed by the Supreme Court in  Vernonia School District v. Acton (1995) . Faced with a student drug crisis, school administrators in Vernonia School District established that student athletes were the leaders of the drug culture. After several failed attempts to curb the problem by other means, the district resorted to random drug testing via urinalysis of students participating in athletic contests. The Vernonia policy involved the testing of athletes at the beginning of the particular sports season. Once each week the names of participants were placed in a pool, from which a student blindly drew the names of 10% of the athletes for random testing. The selected boys produced a sample at a urinal, fully clothed with their backs to a monitor who stood several feet away. Girls produced a sample from a closed bathroom stall. A monitor waited outside and listened for normal sounds of urination. Samples were sent to a lab and checked for cocaine, marijuana, and amphetamines.

 

A student athlete who tested positive was required to submit to a second test to check the accuracy of the first test. If the second test was positive, the athlete’s parents, the student, and the school principal met and chose between participating for 6 weeks in an assistance program that required weekly urinalysis, or suspension from athletics for the remainder of the current season. A second positive test resulted in suspension from participation for the rest of the season, and a third positive test required suspension for the next two athletic seasons.

The court found that a reasonable nexus between the drug testing and the need to maintain order in the school must be established for this type of search to pass constitutional muster. The court found this method to be a legitimate exercise of school administrative authority for several reasons: (1) student athletes have a diminished expectation of privacy; (2) the privacy interest compromised by the process of obtaining urine samples under the policy was negligible; (3) the district had established that student athletes were leaders of the drug culture; (4) the severity of the need was established; and (5) the district established an increase in injuries to competitive athletes.

A few districts took the leeway granted in Vernonia to include students in other groups, not just student athletes, for random drug testing policies. However, various lower courts remained at odds over the legality of random testing of student groups other than student athletes. For example, the Seventh Circuit Court upheld a lower court decision supporting the random drug testing of all students involved in extracurricular activities as well as those students driving to school (Todd v. Rush County Schools, 1998). The testing included alcohol, illegal drugs, and nicotine. In spite of the district’s inability to demonstrate a correlation between these groups of students and drug or alcohol use, the court believed that Vernonia had substantially lowered the bar for student privacy. In  Joy v. Penn-Harris-Madison School Corp. (2000) , the Seventh Circuit Court was soon faced with another case involving the random drug and nicotine testing of a wide range of student groups: those students involved in extracurricular activities, all students driving to school, students voluntarily submitting to the random testing, and all students suspended for 3 consecutive days for misconduct. The court reluctantly upheld this policy, except for the nicotine testing of students driving to school, based solely on the precedence established by the Seventh Circuit Court in Todd. The justices made it clear that if not for the previous ruling and the strong concept of “let the decision stand” (stare decisis), in their view this policy would not pass constitutional muster.

The various lower court interpretations of Vernonia continued when the Western District Court of Oklahoma issued a permanent injunction enjoining the district from enforcing the provisions of the policy requiring suspicionless testing of students engaged in non-athletic activities including band, choir, FHA, FFA, and cheerleading ( Earls v. Board of Education of Tecumseh Public Schools, 2000 ). Citing a lack of evidence presented by the district to demonstrate some identifiable drug abuse problem among a sufficient number of students in the groups singled out for testing, the 10th Circuit Court supported the lower court decision ( Earls v. Board of Education of Tecumseh Public Schools, 2001 ).

On appeal, the U.S. Supreme Court acknowledged that the reasonableness of a search is balanced by the nature of the intrusion against some legitimate governmental interest. However, student constitutional rights are different in public schools, and privacy interests are limited where the state is responsible for maintaining discipline, health, and safety. In this case, the random drug testing policy was undertaken for just such a purpose, which is to protect students from drug use. Further, the policy had been applied only to those groups governed by the Oklahoma Secondary Schools Activities Association (OSSAA). Consequently, the students affected by this policy had agreed to a limited expectation of privacy ( Board of Education of Independent School District No. 92 of Pottawatomie v. Earls, 2002 ).

Challenges to Random Testing Under State Constitutions

The legality of random urinalysis testing has been challenged with some success under state constitutions. For example, the Colorado Supreme Court overturned a trial court decision that upheld a drug testing policy similar to Todd v. Rush ( Trinidad School District No. 1 v. Lopez, 1998 ). The Colorado Supreme Court gave weight to three factors that distinguished this policy from Vernonia: (1) The policy included students enrolled in for-credit classes; (2) the policy included student groups not demonstrated to have contributed to the drug problem; and (3) there was no demonstrated risk of immediate physical harm to members of the marching band. The court rejected the district’s argument that members of extracurricular programs were “role models” and consequently had diminished expectations of privacy. The court also rejected the district’s argument that random testing of these groups of students was the most efficacious method of addressing a growing drug problem. Similarly, the Pennsylvania Supreme Court ( Theodore v. Delaware Valley School District, 2003 ) and the Washington Supreme Court ( York v. Wahkiakum, 2008 ) also found the suspicionless urinalysis drug testing of students in extracurricular activities (Pennsylvania) and student athletes (Washington) to violate the respective state constitutions. However, the Indiana Supreme Court ( Linke v. Northwestern, 2002) and the Wyoming Supreme Court ( Hageman v. Goshen County School District, 2011 ) found that the mandatory random testing of students involved in extracurricular activities did not violate their respective state constitutions.

 

Linking to Practice

Do:

· Have evidence of a drug problem and communicate carefully with parents and community members before adopting random urinalysis policies. This makes these practices more defensible.

· Discuss the efficacy of these policies and efforts to combat the problem by other, less intrusive, means. This strengthens the rationale.

· Make sure the policy will reach the target group. In other words, it makes little sense to drug test student athletes when the target population (the reason for the policy) is not involved in athletics.

· Follow the urinalysis policies, practices, purposes, collection methods, and treatment options outlined in  Vernonia School District v. Acton (1995)  and  Board of Education of Independent School District No. 92 of Pottawatomie v. Earls (2002) .

Summary

The majority opinion in T. L. O. was an attempt to free school officials from the probable-cause standard of law enforcement. However, students do retain a privacy interest while at school, and the “reasonable under the circumstances” standard established by the Court is at best ambiguous. Therefore, a definitive determination of when school officials’ interests in maintaining order and enforcing discipline outweigh students’ expectations of privacy may not always be possible. Consequently, deciding to search or continue with a search often remains a judgment call that might be open to criticism. However, sound search policies and procedures, based on the ethical principles of Jeremy Bentham and the legal principles established by the courts, make these judgments more defensible. School district written policy should outline the circumstances under which students may be subjected to search and delineate who may conduct student searches. Training for all administrators, faculty, and staff in the legal requirements of student searches is necessary. The training should include examples of minimally intrusive searches and stress the importance of the relationship between the reason for the search and the scope of the search. These policies should be communicated to students, faculty, staff, and parents. Administrators should attend booster club, PTA, and other parent organization meetings to discuss and clarify school search policies.

Connecting Standards to Practice

Hello, Operator

Eighth-grader Susan Smith, captain of the cheerleading squad and an honor roll student at Jefferson Middle School, was quite popular among her classmates and teachers. Everyone admitted that she could be a little recalcitrant, so it was not a big surprise when world history teacher Wendy Morse sent Susan to Jefferson assistant principal Donner. Apparently, Susan had refused to put her cell phone away in class. Arriving in Mrs. Donner’s office, Susan argued that she was text messaging her fellow cheerleaders about a change in bus times to the next game. At first Susan refused to give up her cell phone, but after some thought to the possible consequences, reluctantly relinquished her turned-off phone to Mrs. Donner. Susan was assigned detention the next day and sent on her way. A few class periods later, Susan was again in the office, this time with her mother present. Mrs. Donner had turned Susan’s phone on and read her text messages. The first two text messages were to her fellow cheerleaders and her mother about a change in bus times to the next game. Further searching revealed an arrangement to buy Ecstasy from a local community college student. Susan was referred to the Juvenile Office, dismissed from the cheerleading squad, and charged with criminal conduct (attempting to purchase illegal drugs). Susan’s attorney called Sharon Grey and argued that the search of her cell phone was illegal.

Question

1. Argue for or against the legality of the search of Susan’s cell phone text messages. Clarify the legal question. Cite ISLLC standards, legal guidelines, and Bentham’s principle of proportionality and/or the idea of a well-ordered school to justify your answer. Write a memorandum to the superintendent or school board president outlining your view.