In order to keep schools safe, it is at times necessary to investigate malicious or suspicious behavior or personal property. The difficulty arises when trying to balance the constitutional rights of students and faculty, specifically in regards to the Fourth and Fifth Amendment.
As school policies and state regulations can vary, this article will help you understand the general methods and considerations to acknowledge when these situations occur. At the conclusion, we will provide you links to resources you can use to develop your own policies or to view the source of the information provided.
Before we delve into the “meat and potatoes” of student search and seizure policies and rules, let us first discuss the governing body of legislation in regards to students’ and staffs’ rights. There are two main items of legislation to be aware of.
First is the Fourth Amendment. The Fourth Amendment is concerned with personal privacy and ensuring that government entities, such as schools, do not get overzealous in investigating violations.
Second is the Fifth Amendment. The Fifth Amendment is concerned with overall fairness. In this application it means that schools cannot punish or hold a student without stating the reason and providing the student the opportunity to contest the charges or allegations.
Thus, the balancing act for school administrators and policy makers of the students’ rights and the safety and prevention of school violence or misconduct. These governing policies, clarified though recent lawsuits, will provide you sufficient information to educate yourself to develop concrete policies and procedures.
The cornerstone principle of whether a search or seizure is justified is if there was reasonable grounds to those actions. The following guidelines are taken directly from the Center of Public Education.
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.
In conclusion, common sense and reasonable actions should be taken to ensure the safety of your schools. As promised, below are a few resources which, when used create policy, will help you to both protect your school and your students rights.