Running Header: The Right of Search and Seizure with the School Setting

The Right of Search and Seizure within the School Setting Sarah Perry Oakland University

Search and Seizure within the School Setting

Abstract The rights afforded by the Constitution of the United States are examined in the context of the school setting. Specifically, the rights a student has in regard to Fourth Amendment are scrutinized. Although all United States citizens are protected under the Constitution, the expectations for these rights are slightly less for minors within the constraint of the school. The expectation necessary for a school official to conduct a search or seizure of a students belongings is less than that of a law official, provided that the search has a reasonable basis and serves maintain order and safety of the educational environment.

Keywords: Fourth Amendment, Bill of Rights, Constitution, search, seizure, New Jersey v. T.L.O., probable cause, reasonable suspicion

Search and Seizure within the School Setting

The Fourth Amendment to the Constitution of the United States provides protection of U.S. citizens with regard to search and seizure. There has been much debate about the rights guaranteed by the Constitution once minors enter through the doors of a school. How do schools guarantee the rights of each student afforded by the Constitution and simultaneously assure their safety? It is perhaps most beneficial to gain an understanding of the Amendments of the Constitution through real life incidents and the court decisions that guide the decision making process of school officials. In my first month as an assistant principal I was faced with critical decisions to make in order to ensure the safety of all students. The conundrum was, in order to ensure the safety of the entire student body, would I be infringing upon the rights of one eighth grade student that is provided by the Fourth Amendment? Three students approached me and said that they had witnessed a fellow male student using a lighter in the locker pod area of the hallways. He was igniting the lighter and burning the combination locks of several lockers. While investigating these allegations, the student was escorted to a faculty office by the principal and me and was asked to empty his pockets. Two lighters and a cell phone were presented upon the search. The student was then asked to empty the contents of his locker out of concern that there was a possibility that there were further inappropriate items located there. After no inappropriate items where found in his locker, we then escorted the student to the office with his backpack. The student emptied the contents of his backpack and it contained four pairs of scissors, a seam ripper, a screwdriver, a corkscrew with a blade, and a kitchen paring knife. While questioning the student about the need for a lighter and all the dangerous utensils, we looked through the received / sent log of phone

Search and Seizure within the School Setting calls and the text messages on his cell phone. Had we infringed on his right and executed

an unlawful search of his person and belongings? Was our search reasonable? Yes and no. According to the Fourth Amendment of the Constitution, the student is provided protection against unreasonable searches. The Fourth Amendment states, the right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause (Essex, p. 64). The landmark case, though twenty-six years later, that continues to guide school officials across the United States is New Jersey v. T.L.O. (1985). In 1980, in a New Jersey high school, two students were accused by a teacher that they had been smoking in a restroom. The two students were brought to the office of the vice principal and one of the admitted to smoking and the other, T.L.O., denied it. The school official demanded to see her purse and upon opening it, found a pack of cigarettes and several other items of considerable more concern. While removing the cigarettes, a pack of rolling papers were noted and as these are often connected to marijuana, the vice principal advanced his search of the purse. Upon his continuation of the search, several more items related to drug usage were discovered: drug paraphernalia (a pipe and empty plastic bags), a considerable amount of money, list of names that was viewed as possible clients, two letters implicating the student in dealing illegal drugs and marijuana itself were all discovered. New Jersey v. T.L.O, 469 U.S. 325 (1985). Due to the nature of the incident, delinquency charges were filed. T.L.O was sentenced to one years probation (428 A2d 1327) by a New Jersey juvenile court. However, The Appellate Division overturned the juvenile courts claim of delinquency but rather focused on the issue of if it infringed upon her Fifth Amendment rights. Had she

Search and Seizure within the School Setting voluntarily waived these rights? The case then went to the New Jersey Supreme Court

which decided to suppress the evidence of the contents of her purse on the grounds that the search was not reasonable (463 A2d 934). The case then went to the United States Supreme Court, reversing the decision of the New Jersey Supreme Court. The U.S. Supreme Court supported that the provisions of the Fourth Amendment do cover unreasonable searches of the students while at school. As established in a case dating back from 1969, students do not shed their constitutional rightsat the schoolhouse gate. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506. However, the rights of students must be balanced against the needs of the school setting. New Jersey v. T.L.O., 469 U.S. 325 (1985). This landmark case still governs the abilities of schools to search students based on the decisions that were made. This case founded the principle that a search must be justified at its inception. New Jersey v. T.L.O., 469 U.S. 325 (1985). Under ordinary circumstances, a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rule of the school, and such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. New Jersey v. T.L.O., 469 U.S. 325 (1985). The case established that school officials do not need a warrant to search a student. A search of a student should depend simply on the reasonableness, under all the circumstances, of the search. New Jersey v. T.L.O., 469 U.S. 325 (1985). Though students still are afforded a right to privacy, the schools equally legitimate need to maintain an environment in which learning can take place requires some easing of the restriction to which search by public authorities are ordinarily subject. New Jersey v.

Search and Seizure within the School Setting T.L.O., 469 U.S. 325 (1985). Justice Powell, in agreement with Justice OConnor, stated that students within the school environment have a lesser expectation of privacy than members of the population generally. New Jersey v. T.L.O., 469 U.S. 325 (1985). Furthermore he acknowledged that, it is simply unrealistic to think that students have the

same subjective expectation of privacy as the population generally. New Jersey v. T.L.O., 469 U.S. 325 (1985). The Court established that there are clear cut differences between the roles a school has with its students and the role law enforcement has with children. Apart from education, the school has the obligation to protect pupils from mistreatment by other children, and also protect teachers themselves New Jersey v. T.L.O., 469 U.S. 325 (1985). Law enforcement has the responsibility to investigate criminal activity, to locate and arrest those who violate our laws, and to facilitate the charging and bringing of such persons to trial. New Jersey v. T.L.O., 469 U.S. 325 (1985). Law enforcement officers take on an adversarial role whereas the attitude of the typical teacher is one of personal responsibility for the students welfare as well as for his education. New Jersey v. T.L.O., 469 U.S. 325 (1985). While law enforcement officers need probable cause to conduct a search, the threshold for school officials is significantly less astringent. Justice White noted that a school official may properly conduct a search of a students person if the official has a reasonable suspicion that a crime has beencommitted, or reasonable cause to believe that the search is necessary to maintain school discipline. New Jersey v. T.L.O., 469 U.S. 325 (1985). Flash forward to present day and the incident with the paring knife and sharp objects I previously described, how does New Jersey v. T.L.O. (1985) impact my ability to

Search and Seizure within the School Setting

search that students belongings? Reflecting back on the incident, I feel asking the student to empty the contents of his pockets, locker, and backpack was a reasonable request based on the knowledge I gained that he had been putting himself and others in harms way by igniting a lighter in the hallway. I am confident that the search of the locker and backpack was justified at inception and that there was a reasonable amount of suspicion based on the eye witness account of the use of a lighter. Unfortunately, I do feel a mistake was made when we searched through the text messages on the students phone. I suppose one could argue that by the amount of sharp utensils in the backpack there might have been grounds to suspect he brought the items for other students and that they may have organized a plan to use them to cause harm. The use of a cell phone to send text messages would be a logical way for students to communicate the execution of such a plan. This was not what I was thinking when I opened the phone and looked for sent/received calls and text messages. My intent was solely to protect the safety of other students. After reading this case and in lieu of the discussions we have had in class, I do not think that the search of the cell phone was justified at inception; it was a stretch for me to assume there would be information on the students cell phone to provide such knowledge. At the time that this incident occurred, I was not thinking about the difference between reasonable suspicion and probable cause. As the various infractions occurred during this incident, the police liaison was asked to intervene and assist. At the time, I thought this was a logical step in order to ensure that the school was acting strictly by the proverbial book. I recall reporting what I knew to the police liaison, and he requested I again look through the phone after I reported there were two text messages of grave concern. The student was sending messages to a fellow student boasting about stealing

Search and Seizure within the School Setting

marijuana from behind a neighbors house in the students neighborhood as well as stealing items from inside another house in the neighborhood. Looking back, I feel that the police liaison used my inexperience and lack of knowledge that he needed probable cause to search that phone whereas I only needed reasonable suspicion, to find further information for him. Would my report of these delinquent activities been enough to establish probable cause for him to complete a search of the students phone or other belongings? There is critical judgment calls made each day working in a school. It is often difficult to keep up with the amount of information reported to me daily. There are so many variables that weigh into the decision of how to proceed with each report; credibility and intent of the person reporting, likelihood that the accused would engage in what is being alleged, etc I prefer to error on the side of caution and not overlook the priority of maintaining order and safety. This being said, it is a tremendous responsibility as an administrator to use what I consider sound judgment to decide how to proceed once information is reported. Ive been told by my mentor it becomes easier with more experience, but on the flip side, it may be easy to become callous to the urgency of situations with so many things being reported daily. Understanding the law makes it easier when discussing incidents like above with parents. Sticking to the facts and the requirements of the law keeps the emotion out of the decision making process. It is complicated to deliver the news of what consequences a student may face in an incident like the one I described. Parents become angry at the school official and assume their only goal is to punish their son or daughter. Stating the facts and explaining that the difficult decision is required by law helps prevent the parents from becoming angry and viewing the school official as the adversary. I have found that

Search and Seizure within the School Setting using this approach often strengths the relationship between the parents and the school

allowing the opportunity to work together to educate and protect the child. It imperative to be knowledgeable about the decisions of these landmark court cases, but also to understand that there are cases being decided almost daily that impact our lives as school administrators.

References Essex, N. (2012). School law and the public schools: a practical guide for educational

Search and Seizure within the School Setting leaders. Upper Saddle River, New Jersey: Pearson. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506. [Online] Retrieved from http://www.lexisnexis.com/us/Inacademic. T.L.O. v. New Jersey, 469 U.S. 325 (1985) [Online] Retrieved from http://www.lexisnexis.com/us/lnacademic.

10