Search and seizure, due process, and public schools
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.
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.
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.
Generally, school district employees are deemed to have a reasonable expectation of privacy in their offices, lockers, personal effects, and persons.
Courts determine whether a search is reasonable by whether it is justified at the start—in other words, what evidence existed to prompt officials to conduct a search—and whether the search’s scope was reasonably related to the circumstances. In short, if you are looking for a crate of contraband, there is no right to look in cabinets and crevices. The more personally intrusive the search, the more compelling the circumstances must be to justify it.
Exceptions to the rule include emergency circumstances, such as when officials are searching for a gun or when an individual gives consent to a search.
Urinalysis for employees has generally been upheld for people in safety sensitive positions: those who interact regularly with students, use hazardous substances, operate dangerous equipment, or drive a bus.
Issues of privacy, search and seizure, and due process rights can be highly charged and emotional. Because it calls for balancing school safety and discipline versus student rights, many of these cases never get to court, but are settled by discussions with school officials.
The collision between the need to keep students safe and give them due process and the desire to let them learn and grow will continue to be a central question for schools for years to come. The results will say a lot about how much we value both privacy and process.
Encyclopedia of Everyday Law|Fifth Amendment
This online document is available from enotes.com, a web site featuring study guides, lesson plans, and other reference materials in various academic areas.
National School Boards Association, Council of School Attorneys (NSBA). First, Fourth and Fifth Amendment Rights.
The student rights and discipline page of the NSBA web site provides information about the challenges school districts face in balancing students’ First, Fourth, and Fifth Amendment rights with their educational mission to maintain a safe nondisruptive learning environment.
ERIC Clearinghouse on Urban Education. School Safety and the Legal Rights of Students. ERIC/CUE Digest, Number 121.
This web site makes it easier to find ERIC Digests that were produced prior to the end of the former ERIC system. The site is privately owned and is in no way related to any Federal agency or ERIC unit. It exists to provide the text of the public domain ERIC Documents previously produced by ERIC.
This document was prepared by Edwin C. Darden for the Center for Public Education. Darden is an attorney, writer, and consultant specializing in school law and public policy.
Posted: April 5, 2006
Copyright 2006 Center for Public Education