Search and Seizure, Due Process, and Public Schools (page 2)

— Center for Public Education
Updated on May 5, 2014

Fourth Amendment

The Fourth Amendment prevents unjustified government intrusion into private places, such as clothes, lockers, and one’s body. In cases outside the school setting, the overriding question is whether someone has a reasonable expectation of privacy. The standard for the Fourth Amendment is different and considerably lower in the school context. The criminal standard requires law enforcement officials to demonstrate that they have “probable cause” that a crime has been committed. Often that means presenting evidence to a judge and obtaining a warrant before police can take the intrusive steps of conducting a search of private property. On school grounds or when students are within school district care—like a field trip—the standard is “reasonable suspicion” and no warrant is necessary. While privacy is still a factor, that relaxed approach allows school officials to conduct a search when one might be prohibited by the police. The reason the U. S. Supreme Court has recognized the need for a different standard for public schools is to take into account the age and vulnerability of the student population and the need of school officials to look out for their health and safety. In 1999, when two students gunned down classmates at Columbine High School in Littleton, Colo., school officials across the country saw a need to impose more stringent disciplinary measures. In the wake of the incident, which drew nationwide horror and attention, schools became more vigilant about investigating potential violations. Most significantly, perhaps, many passed “zero-tolerance” policies that specified strict punishments for certain offenses. The circumstances behind the infraction didn’t matter. A zero tolerance policy is unflinching, faithfully mandating punishment if certain offenses have been committed. For example, when a student is found on campus with a knife, the policy might provide for immediate placement in an alternative high school. It does not matter that the student might have taken it from a student intent on committing suicide. The zero-tolerance approach raised questions about both the investigatory techniques being employed and whether a student’s due process was being sufficiently respected. Although schools are somewhat more relaxed now than in the immediate aftermath of Columbine, the ripples of that debate continue today.

Students’ rights

If contraband items are in plain view, then they can be seized without probable cause, reasonable suspicion, or a warrant. Lockers: Although there is an expectation of privacy, it is low, and courts have generally upheld locker searches. Purses and book bags: School officials need reasonable suspicion to search personal items. The key case, decided by the U. S. Supreme Court in 1985, was New Jersey v. T.L.O. In that case, an assistant principal opened and searched a purse after a student was accused of violating the school’s no-smoking policy. The search turned up a pack of cigarettes, rolling papers, marijuana, a pipe, money, and other items. The court concluded that school officials acted within the Constitution and did not need a warrant because they had reasonable grounds for suspecting that a search would turn up a violation of school rules. Body Searches: Pat-down searches are minimally intrusive, but strip searches are seen as highly invasive. Some states prohibit no-clothes searches by law. Canine Searches: Generally seen as non-intrusive since there is no expectation of privacy in the air around objects. Drug-sniffing dogs only explore what is within “plain smell.” Student Drug Testing: An Oregon school district’s drug-testing policy reached the U. S. Supreme Court in 1995. In Vernonia School District 47J v. Acton, justices ruled that it is fine for a district to require students participating in interscholastic athletics to submit to a urinalysis. Opponents argued that the policy violated the Fourth Amendment, because it was not based on specific suspicion of the person. The Supreme Court said the school had accurately judged that athletes were the leaders of the drug culture. Because students voluntarily participated in athletics, they placed themselves under the rule. The Court also noted that the test’s purpose was not punishment, but remediation and health. That idea was expanded upon by the Tecumseh, Okla., school district. Its Supreme Court case established that school districts have a right to impose random drug testing as a condition for students to participate in virtually any extracurricular activity.

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