Search and Seizure in Public Schools

1. Search and Seizure in Public Schools Caroline Farmer Jennifer Fornera Legal/Ethical-2004

2. What is Search and Seizure? Public School Officials acting in loco parentis have the right to initiate a search based on reasonable suspicion (Essex, 2003).

3. Types of School Searches • School and School Ground – includes students’ personal effects as well as school owned property (lockers, desks, etc), but does not include a students vehicle • Student Vehicles on School Premises • Out of School Extra Curricular Activities • A Student’s vehicle Located near to but Off school Property while the Student is in School Attendance or while a Student is in Transit to/from School

4. According to Czubaj (1995) the4th amendment states that 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 Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. There must be reasonable grounds to conduct a school search with a legitimate goal as end means (Czubaj, 1995). The 4th Amendment is used by courts to determine whether or not a school search was considered constitutional or unconstitutional. 4th Amendment

5. Important Court Cases • New Jersey v. T.L.O (1985) • Verononia School District v. Acton (1995) • Jenkins v. Talladega City Board of Education (1996)

6. New Jersey v. T.L.O (1985) • In 1980, a teacher at Piscataway High School in New Jersey found two girls smoking in a restroom. This was a violation of school rules. • The teacher reported the two girls to the principal’s office, where they met with Theodore Choplick, an Assistant Principal. • One of the girls was T.L.O, a 14 year old freshman student. While one girl admitted to smoking, T.L.O. said she was not.

7. Choplick took T.L.O. into his office and told her to hand over her purse. • He opened it and found a pack of cigarettes. He accused her of lying to him about smoking. • He saw a pack of rolling papers, and thinking it was indicative of marijuana use, searched her purse further.

8. He found a small amount of marijuana, a pipe, empty plastic bags, a significant amount of money in dollar bills, a list of students owing T.L.O. money, and letters implicating T.L.O. as a dealer of marijuana. • He then called the student’s mother and the police. The mother came and took her daughter to the police station, and Choplick turned the purse over to the police. • At the station, T.L.O. admitted to selling drugs and was charged with delinquency.

9. T.L.O. tried to have the evidence from her purse suppressed, saying that the search that procured the evidence was a violation of her 4th amendment rights against search and seizure. • She also said her confession should be confessed as it was tainted by the unlawful search. • The juvenile court rejected this argument, and it conceded that the 4th amendment applies to searches by school officials.

10. However, it held that a school official may search a student if that official has a reasonable suspicion that a crime has been committed and is necessary to maintain school discipline or enforce school policies. • This is a lower standard than the probable cause standard which is required for police to conduct a search. • So because T.L.O. was found smoking in the bathroom, there was reasonable suspicion that she was breaking school rules.

11. T.L.O. appealed the 4th amendment ruling to the Supreme Court of New Jersey. • This court reversed the ruling and ordered the evidence suppressed. They relied on the Supreme Court of the United States precedent to hold that whenever an “official” search violates constitutional rights. The evidence cannot be used! • This decision was later reversed by the Supreme Court.

12. It was determined that: • The 4th amendment’s prohibition of unreasonable searches and seizures applies to searches conducted by public school officials and is not limited to searches carried out by law enforcement officers. School officials are not exempt from the Amendment by virtue of the nature of their job. School officials act as representatives of the State, and not merely surrogates for the parents of the students.

13. Because schools have the need to maintain order in their setting, school officials need not obtain a warrant before searching a student. They also need not be held to the “probable cause” requirement to search. The legality of a student search should depend on reasonableness. Determining the reasonableness of any search involves determining whether or not the search was justified. There needs to be reasonable evidence that the student is, or will be violating school rules, or the law.

14. In this case, the search was not unreasonable for 4th amendment purposes. The initial search for cigarettes was reasonable. Because she had been smoking, there was reasonable suspicion that she was breaking school rules. The discovery of rolling papers gave rise to reasonable suspicion that she was carrying drugs as well.

15. Vernonia School District v. Acton • The Vernonia School District in Oregon operates two schools. • Between 1985 and 1989 the district began to see a marked increase in disciplinary problems, drug use by students, athletic injuries, use of drugs by athletes and generally a student body preoccupation with the drug culture.

16. The district adopted a policy requiring students who desire to participate in interscholastic athletics to sign a consent to both routine and random drug testing. • A 7th grade student, James Acton, who had no history of drug use or disciplinary problems, refused to sign the consent form and was suspended from interscholastic athletics. • He sued claiming violation of his fourth amendment right to be free from unreasonable searches and seizures.

17. The federal district court ruled in the school district’s favor but the Ninth Circuit Court of Appeals reversed stating that although the district had laid foundation for the drug policy, that interest was not so compelling as to justify a random testing program.

18. The school district appealed. • And in 1995, the U.S. Supreme Court reversed the appeals court and ruled in Vernonia's favor. • A subsequent request to send the case to the Oregon Supreme Court for a ruling on the legality of Vernonia's policy under the state constitution was denied by the Ninth Circuit.

19. Jenkins v. Talladega City Board of Education • Casandra Jenkins and Onieka McKenzie were 8 year old 2nd graders at Graham Elementary School in Talladega Alabama. • On May 1st, a classmate told the teacher that $7 was missing from her purse. • Another classmate told the teacher that Cassandra had taken the money and stashed it in Onieka’s backpack.

20. After searching the backpack and finding no money, the teacher questioned the students in the hallway. • They accused each other and another classmate of the theft. • Another teacher summoned the guidance counselor and took over the investigation. • They told the students to take off their shoes and socks. No money was revealed so they took the girls into the bathroom. • They told them to go in the stall, and come back out with their underwear around their ankles. The children complied and found no money.

21. They were taken to the principal’s office, questioned, and when no money was found, released back to the teacher. • The teacher and the guidance counselor took them back to the restroom and ordered them to take off their dresses, which they did. • No money was found. • The BOE conducted an investigation after a parent saw the search and said that the teacher committed “a gross error in judgment” regarding the way she investigated the theft.

22. They said that the guidance counselor was in error to have assisted her. • In addition, the principal was not immediately contacted and the parents were not called. • No teachers were fired, and no serious sanctions were imposed and the parents sued on behalf of their children. • The court held that these strip searches were unreasonable and unconstitutional.

23. Some other decisions on search and seizure • School locker searches • School lockers are under the joint control of the student and school officials. • Zamora v. Pomeroy: • The court ruled that a search without warrant of school lockers conducted by trained police dogs was reasonable under the Fourth amendment, even when no reasonable suspicion existed. • Vehicle searches • Shamberg v. State of Alaska • Determined that School officials may search a student,s vehicle that is left in a school parking lot or on school grounds when they have reasonable grounds for suspecting that the search will disclose evidence that the student has violated or is violating either the law or the rules of the school.

24. Sniff Searches (using dogs) • Very divided!! • The majority of the courts have ruled that a canine sniff of a person is a search. You must have reasonable suspicion to conduct a canine sniff of a person. • Metal detector searches • Opinion of the Attorney General(August 30, 1994) "It is constitutionally permissible for school officials to use a metal detector to determine if students are carrying weapons into school; however, the school district should adopt policies to ensure the reasonableness of the metal detector search."

25. When can a search and seizure be done? • Reasonable Suspicion – School officials have some evidence regarding a particular situation, which may include a violation of school rules. • When school officials are given information, as long as the informant appears to be credible. • When a police officer assigned to a school has probable cause to search an individual.

26. Administrative Guides to Search and Seizure Adapted from Essex, 2003 • A student’s freedom from unreasonable search should be carefully balanced against the need for school officials to maintain order, maintain discipline, and protect the health, safety, and welfare of all students. • Before initiating a search, administrators should consider factors such as the needs for the search; the student’s age, history and record of behavior; the gravity of the problem; and the need for an immediate search. • A school search should be based on reasonable grounds that something contrary to school rules or significantly detrimental to the school and its students will be produced by the search. • Strip searches should be avoided except where imminent danger exists. Such searches can be justified only in cases of extreme emergency when there is an immediate threat to health and safety of students and school personnel. In such cases, school authorities should be certain that their actions are fully justified by convincing information. • School personnel should conduct the search in a private setting. At best, a search is demoralizing experience; care should be taken to minimize embarrassment to the student as much as possible.

27. Administrative Guides to Search and Seizure Continued • A “pat-down” search of a student, if justified, should be conducted by a school official of the same sex and with an adult witness of the same sex present. Personal searched conducted by persons of the opposite sex can be very risky. • Arbitrary searches or mass shakedowns cannot be justified as reasonable and are illegal. Both violate the privacy rights of students and generally will not be supported by the courts. • School officials should judiciously follow district policies and procedures in all matters relating to search of students. District policy provides direction for school leaders by indicating actions that are permissible regarding student search. Violation of policy and/or procedures may form grounds for serious disciplinary action by the board, particularly in situations where the rights of students are violated.

28. Strategies to deal with Search and Seizure • Set a visible, clear, specific search and seizure policy for your school. • As a guidance counselor, and an advocate for students, it will be important for us to sit in on this process to make sure that the students’ best interests are represented. • This policy should be written with the assistance of a qualified attorney. • When approved, it should be shared with ALL school employees so that there is no question as to what staff can and cannot do when it comes to searches and seizures. • In addition, we should encourage staff to contact the SRO or an administrator when a search needs to occur.

29. The next step is to educate the students. • Students need to be aware of their rights in a school setting. They need to know that anything they have on school grounds, a purse, a bag, a locker or even a car, can be searched if there is reasonable suspicion that they are violating the law or school rules. • In addition, if they are participating in sports or other after-school activities, they need to be aware of your policy of drug testing. The more they know, the less chance of law suits.

30. What can we do to decrease search and seizure in our schools? • Determine the needs of training that will be helpful in your school. • Utilize interagency sharing. • Utilize local resources. • Call the FEDS • Check out the state training facility loan library. • Try the internet. • Enlist in the military. • Think creatively.

31. References Anonymous, 2004. Law Review Digest: Primary & Secondary Education. Journal of Law and Education. 33, 109-114. Bell, Andrea, 2001. Students’ Rights in Court. Principal Leadership. 1, 71-72. Brooks, Michael, 2004. Cases in Point. Principal Leadership. 4, 63-64. Czubaj, Camilia A., 1995. A Legal Analysis of School Searches. Education. 115, 548-549. Essex, Nathan L., 2003. Intrusive Searched Can Prove Troublesome for Public School Officials. The Clearing House. 76, 195-197. Foldesy, George & King, Dan, 1995. Strip Search in Schools: Beyond the Boundaries of the law? The Clearing House. 68, 275-277. Fossey, Richard & Roberts, Nathan, 2002. Random Drug Testing of Students: Where will the Line be Drawn? Journal of Law and Education. 31, 191-209. Harris, Welsey, 2002. Cost Effective Training Strategies. Law & Order. 50, 44-46. Russo, Charles J. & Stefkovich, Jacqueline A., 1998. Search and Seizure in Schools. National Association of Secondary School Principals. NASSP Bulletin. 82, 66-33.