Back to Basics: Student Searches

This month’s Back to Basics article addresses the legal parameters of student searches. When conducting a student search, school officials must understand and evaluate the Fourth Amendment issues that may be implicated.

The Fourth Amendment to the U.S. Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreason­able searches and seizures” from the State, including public schools. Generally, students have a reasonable expectation of privacy in their personal items, like clothing, bags, vehicles, and cell phones. A school offi­cial conducts a “search” by inspecting a student’s person or property. A search includes opening a back­pack; reviewing the contents of a cell phone or personal electronic device; or requiring a student to empty their pockets or undergo a “pat down.”

Whether a search is “reasonable” usually depends on balancing the intrusiveness of the search with ap­propriate privacy protections. In New Jersey v TLO, 469 U.S. 325 (1985), the U.S. Supreme Court held that the Fourth Amendment applies to students in public schools but concluded that student privacy rights are often diminished in a school environment. Schools do not need a warrant or even “probable cause” before searching a student. Instead, the general standard for student searches is “reasonable suspicion.” School pol­icies and student handbooks may alter or eliminate students’ privacy expectations in school-owned items by notifying students that no privacy exists in desks, lockers, and district-issued technology. Further, Re­vised School Code Section 1306 provides that “[a] pupil who uses a locker that is the property of a school dis­trict . . . intermediate school district, or public school academy is presumed to have no expectation of privacy in that locker or that locker’s contents.” Any limits on privacy expectations in school-owned items must be clearly stated in student handbooks.

Reasonable Suspicion Required

The fundamental factor determining the legality of any student search is the reasonableness of the search involved. Determining the reasonableness of a student search in the school setting is a two-part inquiry:

1. Was the search justified at its inception?
2. Was the search reasonable in scope?

For a search to be justified at its inception, school officials must have reasonable suspicion. In other words, where students have an expectation of privacy and school officials want to conduct a search, school of­ficials must have reasonable grounds to suspect that the search will produce evidence that a student violated either the law or school rules.

Whether a search is reasonable may depend on what the school official is searching for. When search­ing a student’s person or belongings, reasonable suspicion exists when a school official has objective, ar­ticulable grounds to suspect that the search will provide evidence that the student is violating the law or a school rule. For example, reasonable suspicion is likely established if the school official sees drug para­phernalia or alcohol or if the school official observes physical factors indicating intoxication, e.g., slurred words, glassy eyes, or smell of alcohol or drugs. 

To be reasonable in scope, the technique used to conduct the search must be “reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

“Suspicionless” Searches

A school official may only conduct a “suspicionless” search (a search that does not require reasonable sus­picion) in limited circumstances where the student has no expectation of privacy. Board policy and handbook provisions can establish that a student does not have an expectation of privacy in school-owned items such as desks, lockers, and district-issued technology. There is also no expectation of privacy in items that are in plain view of a school official or in any smells coming from a student’s personal belongings. For example, school of­ficials may use detection dogs to conduct indiscriminate sweeps of student vehicles on school property, lockers, and student belongings without rea­sonable suspicion. Note, however, that suspicionless drug sniffing searches of students’ bodies are not per­mitted. Because suspicionless searches may be subject to higher scrutiny, before conducting such searches, school officials should consult with legal counsel to en­act policies governing the scope and process of these searches. School officials should also notify parents and students about the potential for such searches.

Best Practices

Both suspicion-based and suspicionless searches must be reasonable in scope. Reasonableness, within the context of a search, requires the search to be related to a circumstance that justifies the intrusion. When con­ducting a search, a school official should consider the following best practices to ensure the search is reasonable:

• Give the student a chance to surrender the item the official believes the search will find;
• Have a witness to the search but conduct the search outside the presence of other students, where possible;
• Do not search personal items that could not realistically contain the contraband;
• When searching a student’s person, have the search conducted by a staff member of the same gender as the student;
• No strip searches - do not require the removal of clothing or accessories other than jackets or shoes;
• Do not touch intimate or private areas of the student’s body;
• When the contraband is found, stop the search if there are not reasonable grounds to believe additional searching would reveal more evidence;
• Involve the school resource officer or law enforcement in a search of a student’s cell phone if the allegations involve inappropriate photos or videos of students. School officials should not search the phone themselves; and
• Document the search by recording:
  • The bases relied upon for conducting the search and for searching that particular location; and
  • Whether the search ceased when the contraband was found or explain the reasonable bases that the school official relied upon to continue the search.

In this age of social media, school officials are scrutinized more than ever before. Ensuring that you follow board policies and document the reasonableness of student searches may help manage that scrutiny.