United States citizens have certain rights when it comes to searches. There are some types of searches that are legal, and that seek to protect the individual rights of the citizen. In other situations, searches are illegal.
Unfortunately for your child, they will have more limited rights in school than in the eyes of the law. When a child is at school, the school stands in for you (the parent). This means that the school will make decisions for your child and you don’t necessarily need to consent to certain things such as interrogations with school employees. Some searches that would be illegal for a police officer to perform are acceptable if performed by a school employee. You can learn more about school searches here.
Dealing with Officials
Many times, kids don’t think that they have any other choice but to answer questions from a principal, a dean, or even a school resource officer. But the problem is, a principal or a staff member of the school can then tell everything that the child said to the police, if they choose to call the police.
Because the police department wasn’t the one directly interrogating the child, that right to counsel or an attorney doesn’t trigger. But, the police can still find out what the child told the school employee. This is something you must tell your school age child so that they can protect themselves. It is always better to say nothing than to speak to school officials.
Students’ Fourth Amendment Right
In general, school officials are deemed to be government actors. They are required to act to protect student’s Fourth Amendment right to be free from unreasonable searches and seizures. This means that in order to search a student, the search must be reasonable. In New Jersey vs. T.L.O., 469 U.S. 325 (1985), the United States Supreme Court outlined the rules applying to school officials conducting searches of students’ bodies and personal effects.
Judges have considered whether school searches are lawful under the law. The Fourth Amendment to the United States Constitution protects all of us against unreasonable warrantless searches by the police or other agents of the government. The United States Supreme Court has ruled that school officials (principals, teachers, nurses, etc.) are agents of the government. Because of this, students have limited privacy rights while at school.
However, the Supreme Court has also ruled that school officials do not always need a warrant to conduct a search of a student or their property. The Supreme Court believes that the school officials need timely practical authority to maintain a safe school free of crimes and disruptions. So, school officials are not normally required to get a warrant before conducting a search.
There are some limits on school searches:
- The search must be justified– there must be a reasonable suspicion that the search will find evidence of a violation of the law or of school policy.
- The search conducted must be reasonable in scope – not excessively intrusive in light of student’s age and gender– to the circumstances that led to the search in the first place.
Basically, if the search is reasonable under all of the circumstances, the judges will uphold it. Judges have allowed all of the following searches under our law:
- Searches of lockers, purses, gym bags, and backpacks.
- Searches by metal detectors.
- Dog sniff searches of student bags, lockers, and cars parked on school grounds.
- Breathalyzer use at proms and other extracurricular activities to test for alcohol use.
- Drug testing by urinalysis for participation in sports and other extracurricular activities.
- Pat-downs and even strip searches of students.
Once the school officials start a search, if they find something other than what they were looking for, the search is still valid. For instance, if your teenager was patted-down looking for cigarettes, and a knife was found, the search is still valid even though no cigarettes were actually found. And of course, your teenager faces arrest for weapon possession.
When Searches Can Happen
Although the court held that school officials, as government agents, are subject to the Fourth Amendment, they do not have to obtain a warrant before conducting such searches. The court found that school officials do have to meet the following standards in assessing whether a search of a student’s person or effects is reasonable and, therefore, permissible: (1) the search must be reasonable at its inception, which means that the school officials have “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”; and (2) the search’s scope must be reasonably related to the purpose of the search and not excessively intrusive. The determination of whether or not a search is excessively intrusive considers the age and sex of the students as well as the nature of the infraction.
Information for Parents
Schools are different places from when we grew up. Now Connecticut high schools have at least one School Resource Officer present in the school building. Make no mistake about it, these School Resource Officers are full police officers. Their patrol area is the high school. They are not just there to protect the students from the public. They are there to enforce the law inside the school, and to investigate evidence of crimes.
Unlike when we were students, and our typical in-school punishments were detention or suspension from school, if your teenager breaks the law while they are at school, they can be arrested and charged with crimes. They will be prosecuted in either juvenile or adult courts depending upon the circumstances of their arrest.
A current “hot button” issue is whether or not school officials can search the contents of your teenager’s cell phone without getting a warrant first. It is clear that school systems can make policies restricting the use of cell phones on school grounds. Even if cell phone use is allowed, teachers can certainly seize a disruptive cell phone without a warrant. Whether the teacher can then look on the phone and search the student’s texts, emails and other data use without first getting a warrant is still an undecided question. We suggest that you and your teenager should password protect the contents of the cell phone. Recent cases have suggested that if an adult’s cell phone is password protected, both the password and the information contained on the cell phone might be considered privileged. The same might apply to a student’s cell phone.
When it comes to cell phones, searches can also occur. The school official must first have reason to confiscate the cell phone. Typically, if a student violates the cell phone use policy of the school, the seizure is justified. However, the actual search of inside content from a cell phone must be aligned with the initial reason for the seizure.
For example, a teacher is justified in taking a cell phone, due to a student’s policy violation of cell phone use during class. The teacher can then look (but not open) text messages to see at what time they were sent in order to determine if the student was texting during class. Reading the contents of the text messages would be outside of the scope of the teacher’s initial reason for confiscating the phone and searching for the time. If you think that the school took information that they should not have from your child’s phone, you should inform your attorney.
Right to Privacy
A child doesn’t really have a full right to privacy in school. The school can search a child’s locker or their person. There are specific instances in which the school can’t conduct a search, and in those cases they would need to get a search warrant. But usually all they would need is a reasonable basis to search a student.
The school is standing in the shoes of the parents, in loco parentis. This means that they are charged with protecting your child. But, they also have to protect every other student in the school. Because of this, the standard for searches is a lot lower than a normal standard. If the school suspects that your child has drugs in their locker or on their person, and it is substantiated even just a little bit, they’re justified in searching the child. This is because they need to make sure that they are keeping all children in the school safe.
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