Last week, Attorney Lisa J. Schmidt presented Straight Talk on Students’ Rights at the Ferndale Public Library. Previous posts covered free speech and freedom of religion. This post will address the how the 4th Amendment applies in public schools.
Students may not ”shed their constitutional rights . . . at the schoolhouse gate,” but their 4th Amendment rights are much more limited than the 1st Amendment rights discussed earlier. Schools have a compelling government interest in the safety of their students that often justifies searches impermissible outside of school.
The pivotal question is who performed the search. Even within the walls of the school, if a police officer is conducting a search, it must be based on “probable cause” – an objective probability that a crime has been committed and that the search will uncover evidence of that crime.
But if a school administrator is doing it he or she must only have reasonable suspicion that a law or school rule has been violated. Reasonable suspicion is significantly lower than probable cause, and is often little more than an anonymous tip.
When schools use “enforcement officers” the question is even more difficult. Whether probable cause applies can come down to who signs the officer’s checks rather than the training received or the job description.
Sometimes searches are allowed without suspecting any individual student. Searches instead are based on some “special need” of the school, like safety or preventing disruption of the educational process. Courts have allowed schools:
- To search lockers (based on the school’s published policy);
- To do drug dog sweeps of schools and students;
- To require drug testing of students in sports or extracurricular activities, or who drive to school;
- To require a pregnancy test to participate in sports; and
- To pat down the clothing and backpacks.
An early court case allowed schools to install 2-way mirrors in the bathrooms based on the students’ lower reasonable expectation of privacy in school. However, a later court decision said a school could not put video surveillance in locker rooms because the students still have a reasonable expectation against someone of the opposite gender seeing them undressed.
A court has even allowed a principal to strip search a student suspected of carrying drugs in his crotch, holding that requiring a student to undress in front of a same-sex administrator was less invasive than a pat down of the student’s genital area.
The latest issue is whether schools are allowed to search a student’s cell phone. Some schools have suspicionless search policies. Those have yet to be challenged in court, but a recent case struck down a search done after a student was texting in class. Earlier searches were justified though because the student had made suicidal comments.
The rights of students to be free from unreasonable searches is very narrow in the school setting, but this most recent case shows that the schools are not the ultimate authority. Searches still need to be directly tied to some compelling school interest.