Civil Rights in School Search and Seizure
by Roger T. Manwaring

Alarming reports from our public schools make clear that drugs and weapons in school pose serious, sometimes life-threatening dangers to our children. In response, often with wide spread support, school authorities have taken measures to protect the students in their charge, ranging from searching the lockers of a students suspected of illegal conduct to random drug testing and narcotic sniffing dogs. The courts, in turn, have been called upon to determine when school policies intended to promote safety and discipline become too intrusive and violate students’ Fourth Amendment protection against unreasonable searches. What is permissible depends on the circumstances.
 

The validity of searches often has important practical consequences for the student involved. Where a search discloses that a student has illegal drugs or weapons, the student may suffer not only school discipline but the items seized may be used as evidence in criminal proceedings as well. The student often claims a constitutional violation in order to suppress such evidence.
 

Students have lesser constitutional rights in school. The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, gives every person the right not to be subjected to unreasonable search and seizure. Of course, this right applies only when, under the circumstances, the person has a reasonable expectation of privacy. The Supreme Court of the United States had made clear that students “do not shed their constitutional rights ... at the schoolhouse gate.” The constitutional prohibition on unreasonable searches applies to public school employees in their dealings with students.
 

However, because they are students, and due to the unique needs and characteristics of the school setting, students have lesser rights than members of the general public.
 

Reasonable suspicion is usually enough. To comply with the Fourth Amendment, any search must be both reasonable at its inception and reasonably limited in its scope. To be reasonable at inception, a search by the police usually requires: (1) probable cause to believe the suspect has committed a crime and (2) a warrant issued by a court on the basis of that probable cause. However, a less demanding standard applies to schools. A school’s search of a student can be reasonable at its inception even without a warrant and without probable cause. Instead, school authorities need only have a “reasonable suspicion” that a search will turn up evidence that the student has violated either the law or a school rule. Such a reasonable suspicion is not a hunch, nor is it a mere possibility or speculation. Rather, it is a common sense conclusion about human behavior upon which government officials are entitled to rely. Courts have indicated that reasonable suspicion can be based on information supplied by another student. Notably, even under this reduced standard, the school authorities must have reason to suspect a particular student before searching that student or his belongings.
 

While not a requirement of absolute certainty, there must be sufficient probability to justify the search. For example, a Massachusetts court held invalid a search of a student for drugs based only on that students truancy, holding that the school lacked reasonable suspicion.
 

Even when a search is justified by reasonable, particularized suspicion, its scope as actually conducted must be reasonably related to the circumstances forming the basis of that suspicion. It must not be excessively intrusive in light of the age and sex of the student and the nature of the student’s suspected infraction.
 

Applying this test, the courts have held that, unless the school has a stated policy to the contrary, students have a reasonable expectation of privacy in their lockers and book bags. However, they have found searches of such areas reasonable (and therefore legal) in appropriate circumstances. While individualized reasonable suspicion is required, school officials retain substantial power to search students. For example, under appropriate circumstances (those involving a high degree of individualized suspicion and a sufficiently serious suspected infraction), school personnel may strip search a student. In addition, one court has held that a school may require a student to take a pregnancy test if it has a legitimate concern about the health of the student or unborn child. In general, as the search becomes more intrusive, the level of reasonable suspicion required to justify the search also increases.
 

What if the search is conducted by school officials but at the request of police? The reasonable suspicion standard does not apply if the search is conducted by school authorities but at the behest of the police. In that situation, probable cause and a warrant are required. However, if the police merely assist in a search instigated by the school, then the lower standard for school searches continues to apply.
 

Are students accorded greater rights off the school premises? The short answer is “no.” When on field trips, or otherwise off campus but under school supervision, students have only the limited Fourth Amendment rights they have in school. For example, one court upheld the search of a hotel room occupied by a student while on a school trip.
 

Does the Massachusetts Constitution provide greater rights to students than the federal Constitution? It remains possible that Article 14 of the Massachusetts Declaration of Rights provides public school students greater protection against school searches than does the federal Constitution. The Massachusetts courts have yet to decide whether the Declaration of Rights requires more than reasonable suspicion.
 

Random searches, without grounds for suspicion, are sometimes allowed. In their effort to control the use and sale of drugs, some schools have adopted policies requiring random drug testing of certain groups of students (e.g. athletes). Because even the reasonable suspicion standard requires some objective grounds for suspecting a particular student, random searches represent a further extension of the powers of school authorities and a further erosion of the rights of students subject to those searches.
 

The United States Supreme Court has held that in limited circumstances, where a search is designed to serve special needs beyond the general need for law enforcement, even reasonable suspicion is not required. In such cases, the propriety of a suspicionless search depends on the nature of the privacy interest involved, balanced against the nature and immediacy of the government’s concern, and the efficacy of the random search as a means for meeting that concern. This balancing test has been applied to determine the constitutionality of random drug testing of railway executives, customs officers and, sometimes, high school students.
 

In a 1995 decision, the Supreme Court upheld a school policy requiring that all students involved in interscholastic athletics submit to random drug testing through urinalysis. With respect to the nature of the students’ privacy interest, the Court noted: (1) that, due to the routine of lack of privacy in locker rooms, athletes had a lesser expectation of privacy with respect to their bodies than the average student and (2) the drug testing policy affected only students who voluntarily “went out for the team.” As to the school’s concerns, the Court referred to the dangers of drug use and, with reference to the immediacy of the threat, evidence that a substantial segment of the school’s population was in “rebellion,” largely led by the athletes. It also said that a non-random, suspicion-based type of drug testing policy would not be workable. In 2002, the Supreme Court extended its 1995 ruling to allow random drug testing of all students involved in “competitive extracurricular activities,” athletic or not, without requiring the school to demonstrate the existence of a drug abuse problem.
 

While the rules for random drug testing have been liberalized, there remain limits. The Supreme Court’s decisions were limited to students voluntarily taking part in extracurricular activities and courts have invalidated random searches aimed more generally at all students.
 

Do private school students have the same rights? No. Public school officials are subject to Fourth Amendment limitations on searches because public schools are government entities and those officials are government employees. Because a private school is not a government entity, private school students have no constitutional protection against unreasonable searches by private school teachers or administrators. Private school personnel may search a student's person, his or her belongings, locker or field trip hotel room even if they have no basis for reasonable suspicion. A police officer may assist in such a suspicionless search with the private school's consent.
 

The law of school searches continues to evolve. It represents an attempt to balance the needs of the school system against the rights of individual students, taking into account the unique challenges posed by the school environment. While providing school authorities substantial discretion in maintaining safe and disciplined schools, the law seeks to prohibit abuses.
 

Roger T. Manwaring is an attorney and legal researcher. He can be reached for questions at rtm@barronstad.com or 617-531-6584.