I. Child Advocacy
A. School Law
2. Civil Rights
Students Have the Right to Be Secure Against Unreasonable Searches and Seizures in School
If a student is subject to an unreasonable search or seizure at school, the law can provide recourse for the violation of the student's constitutional rights. This article discusses how the Supreme Court of the United States has applied the Fourth Amendment in the school setting.
The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. As always, in applying the Fourth Amendment in the school context, "the nature of those rights is what is appropriate for children in school." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995).
"A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." U.S. v. Jacobsen, 466 U.S. 109, 113 (1984). The Supreme Court has recognized that, "schoolchildren may find it necessary to carry with them a variety of legitimate, non-contraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds." New Jersey v. T.L.O., 469 U.S. 325, 339 (1985). Thus, the Fourth Amendment provides protection to the owner of "every container that conceals its contents from plain view." Id. at 337.
Types of Searches
Searches can be bifurcated into two categories: individualized searches and suspicionless searches. An individualized search is a search of an individual based upon suspicion of wrongdoing. A suspicionless search is a blanket or random search of all members of a chosen population. This article will discuss individual searches before moving on to suspicionless searches.
The test for reasonableness of an individual search has two parts. First, the search must be justified at its inception. In order to justify a school search at its inception, the school official must have knowledge that raises a "moderate chance of finding evidence of wrongdoing." Safford Unified Sch. Dist. # 1 v. Redding, 557 U.S. 364, 371 (2009). Second, the search must be reasonable in scope. A school 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." T.L.O., 469 U.S. at 342.
Due to the intrusiveness of a strip search, the Supreme Court has ruled that school officials face a higher standard before they can strip-search a student. In order to justify a strip search at school, the school official must have reasonable suspicion (1) of danger or (2) of resort to underwear for hiding evidence of wrongdoing. A strip search for drugs violates the Fourth Amendment when there are no reasons to suspect that the drugs presented a danger or that they were concealed in the student's underwear. Missouri has a specific strip search statute, which is the subject of another article.
A search that is not based upon probable cause can be constitutional when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. The Supreme Court has stated that "special needs" exist in the public school context. A common type of suspicionless search is a drug test of all student athletes or of all students participating in extracurricular activities. The Supreme Court has upheld this type of suspicionless drug testing by public schools.
In Vernonia, a school district policy that required student athletes to give urine samples for drug testing in order to compete in athletics was reasonable and constitutional because students have a decreased expectation of privacy, the search was relatively unobtrusive, and the need met by the search was severe. In Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002), the Court allowed suspicionless drug testing of all students in extracurricular activities in less severe circumstances that those that were present in Vernonia. It is unclear how far the Court as presently constituted will allow school districts to go with suspicionless drug testing.
While the issue of unreasonable searches has received a good amount of attention from the courts, unreasonable seizures have not been analyzed as thoroughly. A seizure occurs when, "by a show of authority or use of force, [a person's] freedom of movement is restrained." People v. Parker, 672 N.E.2d 813, 815 (Ill. App. Ct., 1st Dist. 1996). If you are not free to walk away from an official, you are being seized within the meaning of the Fourth Amendment.
The federal appellate court whose decisions bind the federal courts in Illinois has stated, "in the context of a public school, a teacher or administrator who seizes a student does so in violation of the Fourth Amendment only when the restriction of liberty is unreasonable under the circumstances then existing and apparent." Wallace v. Batavia Sch. Dist., 68 F.3d 1010, 1014 (7th Cir. 1995). The question of what "unreasonable under the circumstances" is vague, and the courts typically give some deference to school authorities. So, the federal appellate courts have provided little guidance to students as to whether or not they have been unreasonably seized.
A student whose Fourth Amendment rights have been violated can sue the violator under § 1983 of the Civil Rights Act. Howlett v. Rose, 496 U.S. 356 (1990). A plaintiff who prevails in a § 1983 suit may be awarded a reasonable attorney's fee.
If a criminal case arises from the events involving the search or seizure, the exclusionary rule will likely apply to suppress evidence obtained illegally "absent significant intervening circumstances that purged the [stain] of" the illegal search or seizure. Parker, 672 N.E.2d at 817. However, in school disciplinary proceedings, the exclusionary rule need not apply. Thompson v. Carthage Sch. Dist., 87 F.3d 979, 982 (8th Cir. 1996).
Contact a School Law Attorney
Fourth Amendment analysis is difficult because attorneys and courts "must still slosh [their] way through the factbound morass of 'reasonableness.'" Scott v. Harris, 550 U.S. 372, 383 (2007). This article could only begin to discuss the issue of unreasonable searches and seizures. Moreover, the rules can be different in different jurisdictions. If you have an issue with a search or seizure at a public school that you believe was unreasonable, you should contact a school law attorney who can help you understand and pursue your legal rights.
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