Can a school search a student?
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.
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.
- 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!
He 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.”
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.
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.
This post was written by Tom Jacobs. 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.
Know your kid's rights at school: Can Property Be Searched and Seized?
http://www.askthejudge.info/can-my-property-be-searched/44/
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].
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.)
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).
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).
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).