The Fourth Amendment mandates that all searches by governmental agents be "reasonable." Exactly what it takes to make them reasonable is left to the courts to decide. The general rule, of course, is that warrantless searches are presumed to be unreasonable, with the burden on the government to show that any particular warrantless search fits within one of the recognized exceptions to the rule. (Katz v. U.S.)
One category of exception is described by the U.S. Supreme Court as "special needs" searches. These are limited searches that the court considers reasonable because some societal need is thought to outweigh the individual's normal expectation of privacy. "Special needs" searches include probation and parole searches, drug testing for certain occupations, administrative searches of closely regulated businesses, and community caretaking searches. The court has also said that the special need of public school officials to maintain discipline and safety at school presents a justification for relaxing the normal probable-cause standard under some circumstances.
(Because the Fourth Amendment applies only to official searches and not to those conducted by private individuals or organizations, these rules apply only at public schools. U.S. v. Jacobsen.)
New Jersey v. T.L.O.
The principal Supreme Court decision on school searches arose from a New Jersey school principal's search of a student's purse. T.L.O.'s teacher reported her for smoking in the girls' room, in violation of school rules. In T.L.O.'s purse, the principal found drugs, cash, and pay-owe sheets. This evidence of drug possession and sales was turned over to local police, and juvenile proceedings were begun. T.L.O. moved to suppress the evidence, claiming the search was unreasonable because there was no probable cause to suspect that she had contraband or evidence in her purse.
The U.S. Supreme Court upheld the search under the "special needs" doctrine. The court explained that the unique circumstances of the school atmosphere made it appropriate to relax the usual probable-cause requirement for a search of a student's personal property. Said the opinion:
"The school setting requires some modification of the level of suspicion of illicit activity needed to justify a search. The legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.
"A search of a student by a teacher or other public school official will be justified when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." (New Jersey v. T.L.O.)
The court specifically refrained from deciding whether this relaxed standard of "reasonable grounds" for suspecting misconduct or illegality would similarly apply if police were involved in the search. The court also found it unnecessary to decide whether or not the exclusionary rule would apply to evidence discovered during an unreasonable search by public school officials.
Relying on the "special needs" of the public school situation, the court has also upheld suspicionless drug testing of school athletes (Vernonia School District 47J v. Acton) and of members of extracurricular associations. (Board of Education v. Earls)
Safford Unified School District v. Redding
A 2009 decision of the Supreme Court imposed new restrictions when a school search goes beneath the student's outer clothing.
The principal at an Arizona school received information that a 13-year-old student was furnishing prescription-strength ibuprofen and an over-the-counter drug to other students. He called the young lady into the office and confronted her with the accusation, which she denied. A search of her backpack disclosed no pills, so the principal had the student escorted to the nurse's office, where she was searched by female employees, who also found no pills. Finally, the women required the student to pull her undergarments away from her body to see whether any pills were hidden there. Again, nothing was found.
The student brought a federal civil rights lawsuit against the school and the individuals involved in the searches, alleging a violation of her Fourth Amendment rights. After the suit was dismissed, appeals were pursued in the federal court of appeals and the U.S. Supreme Court. The Supreme Court ruled that the invasive scope of the strip search violated the student's right against unreasonable searches, because there was no evidence indicating that pills might be found in her underwear, and the items being sought were not particularly dangerous. Said the court:
"Non-dangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in their underwear.
"We mean to make it clear that the T.L.O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts.
"In sum, what was missing from the suspected facts that pointed to the student was any indication of danger to other students from the power of the drugs or their quantity, and any reason to suppose that she was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to holding the search reasonable." (Safford Unified School District v. Redding)
Notice that this decision does not hold that school officials must show both a risk of danger and a basis for suspecting that contraband is hidden in underwear to justify searching there. Such a search requires either "suspicion of danger or of resort to underwear" as a hiding place. Making either showing would be sufficient. It was "the combination of these deficiencies" that made the search unreasonable in this case. For example, if the student in the Safford case had been suspected of furnishing heroin instead of ibuprofen, or if a student informant had reported seeing the suspect placing pills in her underwear, the scope of this search would have been reasonable.
Note also that public school searches are not limited to attempts to find evidence of criminal activity. Public school officials are entitled to search the student if there are reasonable grounds for suspecting the student of violating the law or any school rule. For example, although it is not generally illegal for a minor to possess a pocket knife, a school that has prohibited possession of knives on school grounds as part of a "zero tolerance" weapons policy would be justified in searching a student for a knife if there were reasonable grounds for suspecting he was carrying one.
Police Searches at School
In New Jersey v. T.L.O., the Supreme Court made a point of saying that its ruling was limited to searches of students carried out by public school officials. The relaxed standard of "reasonable grounds for suspecting" wrongdoing, rather than probable cause, has not been held to apply to municipal or school police officers.
Wherever practicable, student searches not involving weapons or dangerous instrumentalities can be performed by school officials before police are called or arrive on scene. Once law enforcement officers assume direction or become involved in the search, higher justification standards will apply. Timing matters.
Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 12 books, including "Investigative Constitutional Law."
