A large number of juvenile offenses happen at school. I recall once telling a prosecutor who seemed particularly disturbed by the fact that my 14 year-old client had graffiti’d, of all places, a school—A SCHOOL!!—that his chosen location seemed perfectly logical to me: he spent half his day at school or at home, and why the hell would someone graffiti their own home?!? As a result, searches of backpacks, lockers, students’ person and other possessions are a routine occurrence at schools.

 

As I wrote about last time, schools and prisons are, at rudimentary level, alike in that the objective of both is maintain order. Further, as the Supreme Court sees it, the need to maintain order at both prisons and schools requires that both populations be subject to surveillance.

 

When I use that term, “surveillance,” I mean both populations can have their persons or property searched. Most of us (non-students and non-prisoners) can be searched, but we have the full protection of the Fourth Amendment, which prohibits unreasonable searches and seizures. What constitutes “reasonable,” for us, is a higher bar than for prisoners and for students.

 

 

The Fourth Amendment As to You and I, Students, and Prisoners

 

So, if students (like prisoners) are not subject to the same (high) level of “reasonable” as to searches and seizures that we are, the issue then is what are the limitations on surveillance (searches) at a school? Or put another way, what level, if any, of Fourth Amendment protection against unreasonable searches and seizures students are entitled to at school?

 

While the Court has held that prisoners have no legitimate expectation of privacy, and thus little or no Fourth Amendment protection when incarcerated, the Supreme Court has stated that it “is not ready to hold that schools and prisons need to be equated for purposes of the Fourth Amendment.” New Jersey v. TLO, 469 U.S. 325, 340 (1985). That said, it is critical to note that the Fourth Amendment prohibition against unreasonable searches and seizures applies to searches conducted by public school officials. Id. This is different than at prisons.

 

While the fact that the Fourth Amendment applies to school officials might seem, at first blush, obvious, consider the alternative argument: that school officials act as surrogate parents (loco parentis), and therefore—like parents—are not subjected to the limits of the Fourth Amendment. Prior to TLO in 1985, Texas felt this way: it granted teachers immunity from the Fourth Amendment as to searches of students by virtue of the “special nature” of their authority over children. See RCM v. State, 660 S.W.2d 552 (Tex.App. 1983)(overruled in part by TLO.)

 

The Supreme Court of the United States, however, was not buying it. “[I]n carrying out searches and other functions pursuant to [school] disciplinary policies mandated by state statutes, school officials act as representatives of the State, not merely as surrogates for the parents of the students, and the cannot claim the parents’ immunity from the Fourth Amendment’s strictures.” TLO, 469 U.S. (1985).

 

This makes sense as school officials are subject to the First Amendment and the Due Process Clause of the Fourteenth Amendment (see Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)(holding First Amendment applicable to school officials); Gross v. Lopez, 419 U.S. 565 (1975)(holding DP Clause of Fourteenth Amendment applies to school officials; and see my blog about University Code of Conduct hearings and the Procedural Due Process requirements applicable in such situations.)

 

Why wouldn’t the Fourth Amendment apply to them as well?

 

 

“Reasonable Expectations of Privacy” at School

 

The next step in determining if, and to what extent the Fourth Amendment applied to searches school officials was to decide if students had expectations of privacy in their backpacks, purses, etc. Why? Because the Fourth Amendment does not protect unreasonable or illegitimate expectations of privacy. Hudson v. Palmer, 468 U.S. 517 (1984); Rawlings v. Kentucky, 448 U.S. 98 (1980).

 

The Court explicitly stated that students at a public school have an expectation of privacy—this makes sense: think of all that a fourteen year old might wish to keep privately secreted in a backpack or purse. TLO, 469 U.S. (1985). This is markedly different than prisons. See Hudson, 468 U.S. (1984)(holding prisoners have no reasonable expectation of privacy in his prison cell entitling him to protection from unreasonable searches and seizures.)

 

 

Schools Have Legitimate Interest in Maintaining Order

 

But, on the other hand, schools have a legitimate interest in maintaining an environment that facilitates learning and ensures security. Id. Or, in other words, schools have an interest (like prisons) in maintaining order among the population.

 

So, a student’s Fourth Amendment rights at a public school must be calibrated by weighing the student’s legitimate expectation of privacy against the school’s legitimate interest in maintaining a safe environment. Id. But, how is this done?

 

 

Standard for School Searches

 

“The legality if the search of a student should depend simply on the reasonableness, under all circumstances, of the search.” Id. In order to be “reasonable,” school searches must be (1) justified at their inception (i.e. justifiable when the search began), and (2) reasonably related in scope (i.e. who or what is searched, and to what extent) to the circumstances that justified the interference in the first place.

 

But, what exactly does “justified at inception” and “reasonably related in scope” mean?