Search and Seizure, Due Process, and Public Schools

— Center for Public Education
Updated on May 5, 2014

The mission of public schools is to maximize the academic and social development of their students. In performing that function, occasional misdeeds by youngsters or employees cause districts to investigate violations and mete out punishment. The situations in which school officials can conduct a search, what level of suspicion is necessary to legally justify it, when contraband can be seized, and what process must precede any consequences are all subject to the U. S. Constitution and the special protections it extends. The Fourth Amendment prohibits “unreasonable” searches and seizures. The Fifth Amendment’s Due Process Clause is triggered as the follow-up step, commanding that school officials who plan to discipline a student or employee must first provide the alleged wrongdoer with two rights:

  • Specific information about the charges and the evidence behind it.
  • A chance to tell his or her side of the story.

That’s known in legal circles as “notice and an opportunity to be heard.” Without following these due process steps, any punishment that is given—no matter how legitimate—can be overturned. The Fourth Amendment is concerned with privacy and making sure that government entities, such as public schools, do not get overzealous in investigating violations. Investigatory techniques in a school setting often mirror activities used by police officers, but school probes lack the criminal enforcement power. The Fifth Amendment is concerned with fundamental fairness. It means that school officials cannot hold or punish a student without stating the reason and providing an opportunity to contest the charges. Courts over the years have said that a hearing does not have to be elaborate. When the offense and potential penalty are small, the due process requirement can be met with an informal conversation in the principal’s office. When the offense is great and penalties such as long-term suspension, expulsion, job loss, or referral for criminal charges loom, then a formal, “full-blown” hearing with an adversarial process and potential legal representation are more in order. 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 schools rules. The hurdles erected by the U. S. Constitution’s Fourth and Fifth Amendments are exclusive to the nation’s public schools. Private K-12 institutions have far more leeway to conduct unfettered investigations, withhold findings if they choose, and unceremoniously ask a student or faculty member to leave. Tuition and employment contracts rule private school relationships, while America’s social compact and legal contract (the Constitution) governs how public officials must act. Situations where the Fourth Amendment (and depending on the results, the Fifth Amendment) might apply:

  • 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.

Given the need for school safety, the authority to conduct searches and reprimand students frequently pre-empts a student’s right to privacy or demand for greater process. But it’s hardly an open invitation. Schools routinely lose court cases when searches they conduct are not reasonable at the start or become too sweeping once they begin.

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