• Can a school official search a student?

    Date: 08.27.07 | by Judge Tom.

    The Fourth Amendment protects you against unreasonable searches and seizures. Does this apply to students at school? Yes. Does it mean that your locker or backpack are off-limits to school personnel? No.

    Your school has a responsibility to you and the community to provide you with an education in a safe environment, and to maintain order in the classroom and on campus. This can only be done when problems are kept to a minimum at school. Keeping guns, gangs, drugs, and violence out of schools has become a priority across the nation. Strict rules regarding these activities are legal and enforceable.

    school locker

    Photo by John Steven Fernandez

    The Gun-Free Schools Act of 1994 mandates expulsion from any school receiving federal funds (which includes most public schools) for bringing or possessing a firearm at school.

    A substantial number of sixth- to twelfth-grade students report high levels of violent crime, weapons, and gangs in their schools. Nearly all students are aware of incidents of bullying, physical attack, or robbery at school.Whether as victims or witnesses, students are equally likely to worry about school violence. The Safe Schools Act of 1994 provides funding for conflict resolution and peer mediation programs in schools. The courts have also addressed the issue of safety at school through a number of cases.

    The leading case on this subject is New Jersey v. T.L.O., the 1985 U.S. Supreme Court decision that set the standard for school search and seizure policy. At a New Jersey high school, a teacher caught T.L.O.* a freshman girl smoking in the bathroom. The girl was taken to the principal′s office, where she denied everything. The assistant principal demanded to see her purse and proceeded to open and search it.

    marijuanaleaf1He found a pack of cigarettes, a small amount of marijuana, a marijuana pipe, empty plastic bags, a substantial number of $1 bills, an index card listing students who owed her money, and two letters that suggested she was dealing drugs. When the girl confessed to the police that she had been selling marijuana at school, she was charged and placed on probation. [Photo by DoobyBrain (Flickr)]

    The court debated whether the search of her purse was a violation of the Fourth Amendment. The court ruled that a school official may conduct a search of a student if there is a “reasonable suspicion” that a crime has been or is in the process of being committed, or that a school rule has been broken.  Since T.L.O. was seen smoking but denied it, the principal had reasonable suspicion to conduct the initial search of her purse. Then when he found not only cigarettes but marijuana he was justified in continuing to search for contraband.

    “Reasonable suspicion” means more than a hunch that you′re up to something unlawful or are about to break a school rule. Based on a totality of the circumstances—time, place, activity, your school record, age, and source of information—the search may pass the reasonable suspicion test.

    Although the court recognized that students have privacy rights at school, these rights are balanced with the school′s need to maintain an environment where learning can take place. The court held that the standard to be applied in school searches is that of reasonableness. This covers not only your person, but your locker, desk, car, and backpack. Some cases have extended the search to off-campus incidents, if reasonably related to the school.

    The Court also stated in T.L.O. that “A teacher’s focus is, and should be, on teaching and helping students, rather than on developing evidence against a particular troublemaker.”

    policedog1

    Photo by Svadilfari (Flickr)

    Schools are going to great lengths to provide a safe school environment. You may have seen metal detectors and uniformed police officers at your school, on city buses, and at school events. School resource and D.A.R.E. (Drug Abuse Resistance Education) officers are being assigned to elementary through high schools in a national campaign against drugs and violence at school. Some high schools are using drug-sniffing dogs to randomly check student lockers.

    Fifth Amendment Right at School?

    If you find yourself in a search situation at school, the principal and teachers have a right and a duty to question you. When you hear someone say they′re “taking the Fifth,” this doesn′t apply at school unless the police are called in and the person is taken into custody. The “Fifth” here refers to the Fifth Amendment. It means that you don′t have to say anything that would help the police charge you with an offense; you have the right to remain silent if charges are filed against you. School officials, however, aren′t police officers. They have the authority to investigate school violations, and they can question you.

    In another case, the North Dakota Supreme Court ruled in April, 2012 that a school resource officer only needs reasonable suspicion of unlawful behavior to conduct a search of a student. In this case, Christian Alaniz, Jr., age 18, was seen in an area known for drug activities. He was brought to the principal’s office and asked to empty his pockets. When he did, a glass pipe and synthetic marijuana was found. Alaniz pleaded guilty and challenged the search on appeal. However, the court upheld the search as constitutional stating that “The search was not excessively intrusive in light of Alaniz’s age, gender, and nature of the suspicion. . . .The search was reasonable.”*

    Similar cases include:

    • An 11-year-old South Carolina sixth grader brought a steak knife to school in October, 1996. Although it seemed to be an accident (she was helping her mom pack her lunch), she was suspended from school and charged with possessing a weapon on school grounds. The charge was dropped a few weeks later, and she returned to school.
    • In Ohio, 14-year-old Kimberly gave her 13-year-old friend Erica some Midol at school. Kimberly was suspended for 14 days for distributing drugs, and Erica for 9 days for possession. TIP: Give all drugs—including prescription drugs and over-the-counter medications—to your school nurse!

    *State of North Dakota v. Alaniz, 2012 WL 1173764 , ___N.W.2d ___.

    Strip Search of Student by School Officials

    In 2003, Savana was a 13-year-old 8th grade girl in Safford, Arizona. She was strip searched in the nurse’s office with two other female school personnel in the room. They were looking for pills that she allegedly had with her and was giving out at school. None were found.

    A federal court ruled in July, 2008 that the search violated her Fourth Amendment right against unreasonable searches and seizures. The court stated in its opinion: “It does not take a constitutional scholar to conclude that a nude search of a 13-year-old girl is an invasion of constitutional rights. More than that: it is a violation of any known principle of human dignity.”  (Redding v. Safford Unified School District, 9th Circuit Court of Appeals).

    Update:  The school district didn’t like the court’s decision and asked a higher court to review it. In April, 2009, the Supreme Court heard arguments in the case and in June, 2009, agreed that the search was unreasonable and that Savana’s 4th Amendment rights were violated. Savana’s six-year battle will end when she reaches an agreement with the school district regarding a monetary settlement.

    Related case:  In 2012, over 200 high schools in England, Scotland and Wales placed cameras in bathrooms and locker rooms. Just the doors to the stalls and sink areas are videotaped with the goal of reducing bullying incidents and in the interest of student safety. The videos are viewed by school officials only when a problem is reported and are kept for up to thirty days. In these countries, such a measure is legal whereas in the United States, the issue is one of “expectation of privacy” and the Fourth Amendment. What do you think about this step to ensure your on-campus safety? Is this going too far?

     

    Judge Tom

    This post was written by Judge Tom. Judge Tom is the founder and moderator of AsktheJudge.info. He is a retired juvenile judge and spent 23 years on the bench. He has written several books for lawyers and judges as well as teens and parents including the recently published 'Teen Cyberbullying Investigated' (Free Spirit Publishing). When he's not answering teens' questions, Judge Tom can be found hiking, traveling and reading.

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    12 Comments subscribe to these comments.

    • Vanessa Van Petten
      Tue, 10 Aug 2010 at 03:30

      Know your kid's rights at school: Can Property Be Searched and Seized?
      http://www.askthejudge.info/can-my-property-be-searched/44/

    • Johnny
      Sun, 19 Sep 2010 at 11:04

      As this is an old post I have recently come about a situation that puzzles me in terms of this. As I was recently punished for profanity in my high school which I understand is just but I was forced into a search which I found confusing as profanity would have nothing to do with it.I say forced because I was told to either allow them or be suspended.Nothing was found as I am not such a person.There is no way this is right there just isn’t.
      Dear Johnny: Talk with the teacher or principal about what happened. To conduct a search of a student at school “reasonable suspicion” that a rule or law has been or is being violated is needed. Teachers don’t have to have the higher standard of “probable cause” as police do before conducting a search. You might also discuss this with your parents to see what they think and how to handle the situation. Good luck.
      [This is information only - not legal advice].

    • Ben
      Mon, 13 Jun 2011 at 10:57

      In school one day, a cell phone rang because someone recieved a message. My teacher didn’t know whose cell phone that was so he threatened to call the principal and tell him to come down and start searching people. My teacher only knew that someone in the first two rows of desks (containing about ten people) had the cell phone that recieved a message. The person gave up the cell phone, but if my teacher did call the principal, would it of been lawful for the principal to search the first two rows of students to find out who had the cell phone? I discovered this website that stated the guidelines of how a search may be conducted (http://www.wps.k12.va.us/sysinfo/policies/JFG.htm) and it said, “This requirement does not mean that the suspicion must always be confined to only one person at a time. There may be special situations in which a group of students is so specific and small that each of the individuals in the entire group may be searched consistent with the individualized suspicion requirement.” Would ten students be “small and specific”?
      Dear Ben: That’s a great question and it really depends on the school’s policies, the specific circumstances of the incident and possibly the laws of the state. Although schools do not need the same level of suspicion that, for example, the police need in order to conduct a warrantless search of a person and/or their property, some suspicion of either criminal activity or a violation of a school rule needs to be present. If the teacher, principal, etc. believe a student’s safety is at risk, then searching several students is most likely going to be warranted. However, if the search is based on a violation of a school rule such as the school’s cell phone policies, the search may need to be more limited. Check your Student Handbook to see what it says about student searches and when the suspicion is not confined to one person as your school’s policy should be laid out in the handbook.
      (This is information only – not legal advice.)

    • Bobby
      Mon, 15 Aug 2011 at 03:11

      At my school in Texas they will have random security checks where they make us put everything in our pockets onto the desk and if we have a cell phone they take it and see if it’s on. If it is they take it away and charge us with a 15 dollar fine. I find this absolutley absurd. This is a rule but it’s my property that I payed for. Not them! They are just liberals who want money. We don’t get them back wither untill we pay for it. Do they have the right to make us pay? Please let me know. Thank you.
      Dear Bobby: These are issues that schools, students, parents and courts are wrestling with as we speak. Check your school’s Student Handbook for their AUP (Acceptable Use Policy) regarding electronic devices on campus. Most schools have AUPs covering cell phones, computers, laptops, iPads, tablets, etc. The policy also spells out the consequences for violating the rule. Most students sign a statement at the beginning of the school year acknowledging receipt of the Handbook and agreeing to the terms contained therein. Talk with your parents about this and go over the policy. You can always request a meeting with the principal or assistant principal. Good luck.
      (This is information only – not legal advice).

    • Akon Revive
      Wed, 19 Oct 2011 at 07:42

      Mr.Jacobs,
      My school has a policy that states that if a phone is phone is seen or heard the teacher is aloud to take it, the phone is then kept for 1-2 days at the teachers discression and it is not responsible if lost in the schools possesion. Is this legal by law, does my 4th amendment protect me for this unfair treatement or is the educational institution immune basic freedoms?
      Thanks for your time.
      Dear Akon: This is an issue in schools across the country. School rules and laws are under consideration about how to handle the regular interruptions during class by phones going off or students texting throughout class. Check your school’s Student Handbook for the policies that apply to you. Many schools have Acceptable Use Policies that specifiy the consequences of violating the rules. That may include confiscating the phone or computer for a period of time. In some schools, a second or third offense means the phone is taken until the end of the school year. If there’s a problem with your cell phone being taken, discuss this with your parents and maybe a meeting with the principal or vice-principal can resolve the issue. Good luck.
      (This is information only – not legal advice).

    • Hayden Hidalgo
      Wed, 14 Dec 2011 at 04:59

      I was told to put my phone away, so i did my phone then would not stop going off(iphone has no silence)so i took it out to decline the call , my teacher then snatches it out of my hand , so i stood up and told him to give it back, he refused so i said “give it to me so i can go to the office and deal with it im not going to be immature and make a scene infront of the class”, he then becomes irate and screaming walking into the office where me and my phone were then handed off to my vice principal. my vice principal then lectures me and would not let me explain, so he asks for the code to my phone and i told him that was not neccisary so he then told me he needs to search me,so i told him before hand that i had my medicine for ADHD on me, he then calls in the security and conducts the search and i comply as i have beeen for the whole time, i had my medicine in a Little pot baggy with no pot residue* rolled up in a straw,(obviously looks very suspicious) but my capsule had broken before i had taken it so it was a powder in the bag. the vice principal kept suggesting it was a “cain-Kit” but i told him it was vyvance. i then agreed to let him look in my phone under my supervision, after reading all of my email,veiwing my photos, videos, calls, and then texts they came to the assumption that i was dealing pills, so i then refused to co-operate with them in anger , my phone locked after 60 seconds of inactivity , i refused to give them the pass code , they then made the initial call to my parents, even though i had asked for it earlier and was denied. the school claimed my phone was “Evidence” and kept it for 6 days untill the meeting with the school diciplinary officer. i was suspended for 10 days or expelled depending on her decission , i meet with her tomorrow!
      *I am finishing up my first semester of senior year.
      Dear Hayden: We suggest you speak with your parents about this before any final decisions are made. You can also speak with a lawyer who specializes in school law. Depending on all of the facts of this incident, you may want to pursue this according to the “due process” procedures available to you under your state’s laws and the policies of the school district. We don’t provide legal advice to adults or teens and it sounds as if that’s what you’re in need of at this point. Good luck.
      (This is information only – not legal advice).

    • School nurse
      Mon, 21 May 2012 at 06:37

      I am a school nurse. I’ve been instructed by my principal to ask the guardian of a student that come to the clinic every morning to have her search his pockets for any weapons. If he has any weapons I’ve been instructed to tell the guardian to take them home. I then have to report to the principal and vice principal if any weapons were taken home by guardian. First of all I do not feel that this is my responsibility! Secondly I fear some sort of legal issue with asking the guardian to do this search and possible seizure!
      Concerned School Nurse
      Dear Nurse: Your concerns are legitimate. However, we don’t provide legal advice to our readers since we don’t have an attorney-client relationship with them. We suggest you discuss your concerns with the principal or school superintendent. You could also contact a local lawyer who practices school or education law to learn about your rights & responsibilities in this regard. Many attorneys offer a free consultation for the first thirty minutes or so. That may be all you need to obtain some advice. Ask about this if you contact one. Good luck.
      (This is information only – not legal advice).

    • Lou
      Mon, 15 Oct 2012 at 05:41

      Hello.
      My question regarding school searches is this; recently my daughter was removed from her class by the principal and assistant, both of which escorted to her to a conference room. After escorted from class they disclosed to her that; ‘an anonymous tip called in said she has an item that she was not supposed to have at school’, those are the exact words. She asked them what they were looking for and they refused to answer except for, ‘we are looking for something you are not supposed to have at school’. They conducted the search of her backpack and pockets which did not yield this unknown item
      that no one but them knows about but this anonymous person. After they conducted their search which had no results she asked them again what they were looking for to which they repeated their answer; they then called her mother who also asked what they were looking for and why; they refused to answer. My problem is that they refuse to say what they were looking for, if they don’t even know what they are looking for, how do they have the right to search anyone under that pretense ? Am i incorrect in my understanding that you have to disclose to someone why they are being search and what for?
      Thank you for your time.
      Lou
      Dear Lou: Good question. You have to look to both the laws in your state that apply to school searches and your daughter’s Student Handbook for any rules on the subject. School officials aren’t held to the same standard as law enforcement when it comes to searches. The police need “probable cause” to search someone with or without a search warrant, depending on the circumstances. School personnel only need “reasonable suspicion” that a law or school rule has been broken. A meting with the principal and/or school superintendent may help answer your questions. Otherwise, you may want to consult a lawyer who specializes in school or education law. Good luck.
      (This is information only – not legal advice).

    • Katie
      Fri, 19 Apr 2013 at 08:11

      I believe they shouldnt be able to look through your backpacks unless they have probable cause like they suspect someone has a gun. At my school they lock all the doors except one and everyone has to wait in this giant line and have evryones bags checked and i think its embarrassing, because this has happened to some girls before that they dump everything out the bag and everyone sees your pads or tampons all over the table and its awkward they have no right to search it. I believe they can confiscate phones but I dont think they should be allowed to look through someones texts and pictures. To avoid that before you hand over your phone just press the lock button that way they wont be able to look through it becuse you have a passcode. If they ask you for a passcode dont tell them. I believe they should be allowed to check lockers but not open any personal items in your locker like makeup bags, backpacks. At least once a month at my school they lock the school down for ten minutes and have police dogs come through and sniff every locker for drugs then i think they should be able to check tour locker if the dog barks.
      Thanks, Katie, for your thoughts on this important subject. The bottom line is safety for students and staff. Sometimes privacy has to give way to what’s in the general best interest of everyone not just one individual.

    • Nick
      Mon, 03 Jun 2013 at 03:39

      Recently I had a friend who video taped a fight in the boys bathroom which is against school rules to take any photos or videos in the bathroom and the School was not aware of these actions but teacher watched him with his phone out showing a video and demanded to see the phone and the student locked his phone and gave it to the teacher and the teacher took the student and his phone down to the principle office and demanded that the school searched his phone so they had a SRO or the police officer on duty at the school come down and he took my friends phone and demanded for the password so after a while the student caved in and put in the password the officer proceeded to search the phones messages and videos/pictures they found the video but was that legal for the school officer and principal to do that search but also after they said he would not be in trouble and wouldn’t have to serve iss or OSS but the next week was called down to the office and had to serve iss and sense he was not aware of it and the school said that they told him even though they didn’t he had to serve OSS for two days and iss for two days also was this whole ordeal legal for the school to do
      Dear Nick: Schools have the authority to enforce their rules and the laws of your state. Take a look at your Student Handbook for the rules about digital devices on campus. If a school administrator, teacher or principal has what is called “reasonable suspicion” that either a law or school rule has been broken or is in the process of being broken, they can take your cellphone, tablet or whatever device you have and search it for evidence. This also applies to school resource officers who oftentimes are acting in the capacity of law enforcement. Talk with your parents about this and read the school’s Code of Conduct closely. Good luck.
      (This is information only – not legal advice).

    • Tom
      Wed, 30 Apr 2014 at 09:57

      Judge Tom,
      My son was among a group of four students accused of using a red laser pointer at the end of a band class. The teacher could not identify the person who used the laser pointer and called a resource officer. The resource officer told the class that laser pointers are extremely dangerous and anyone pointing one at her would get a gun in their face. The resource officer carries a taser or pistol. Paper slips were handed out to the class to anonymously identify possible suspects. My son and three other boys were held by the resource officer for questioning and search. No laser device was found. The student guide for the school does not mention laser devices and none of the students are aware of any school policy prohibiting them. My son, and at least two of the others, has absolutely no record of disciplinary issues. Few questions: Could anonymous slips be considered a “credible source” for “reasonable suspicion?” Would a search be authorized for something that is not considered a weapon and is not even against school rules? Last, could the resource officer’s speech be considered menacing considering she was carrying a weapon at the time?
      Thank you for your time!
      -tom
      Dear Tom: Regarding the slips of paper, it would depend on their content and specific information provided. Reasonable suspicion that a school rule or law was broken may exist taking the totality of circumstances into consideration. A Student Handbook cannot list every possible implement or contraband. Sometimes general language may cover an instrument at school that disrupts the educational environment. Regarding the resource officer’s “menacing” speech, again the entire situation must be reviewed for content and tone. The fact that she carried a weapon or taser could be considered. We suggest that you talk with a local lawyer who practices school or education law. Good luck.
      (This is information only – not legal advice).

    • Tianna
      Fri, 26 Sep 2014 at 07:39

      My child was told to empty her pockets and shoes on a rumor of having cigarette s. Is this legal in the state of MN? She didn’t smell like it and no one seen her smoking or anything. But the principal had called a female resource officer from another school to search her and a friend. But the principal didn’t notify a parent till after. Then the principal said she volunteered to do the search, and that they did it because of a rumor.. I just need to know if this is okay in the state of Minnesota, or other states for this matter.
      Dear Tianna: Schools are authorized to conduct searches of students when they have what’s called “reasonable suspicion” that a crime or school rule has been broken. As you know, there are two sides to every story, so the principal may have had justification to search your daughter. Check the school’s Code of Conduct to see what notification is required in this situation. You can also speak with the principal to learn what was known at the time of the search. Good luck.
      (This is information only – not legal advice).

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