Free Speech Rights
With the advent of increased availability of drugs and weapons for juveniles during the last twenty years, search and seizure laws have been challenged by many students who felt their constitutional rights were violated by unreasonable searches at school. Prior to 1968, the constitutional rights of students took a back seat to the doctrine of loco parentis, which meant that the school and its officials took the place of the parent. Under this philosophy, students had few constitutional rights. The first serious challenge to this philosophy came in 1969 when the Supreme Court decided in Tinker v. De Moines Independent School District that students should be allowed to wear black arms bands as a symbol of protest against the United States involvement in the Vietnam war. The court held that this was an expression of free speech and therefore was a First Amendment right.
Fourth Amendment protection against search and seizure was argued in the courts for years and was finally resolved in New Jersey v. T.L.O. (1985). In this case, a teacher had searched a student's possessions after the student was found smoking a cigarette. Subsequently, the teacher found marijuana and drug paraphernalia. There were two major questions raised by this case. First was whether students who are searched on school property have Fourth Amendment privileges and, second, what determines probable cause for a search. In other instances, a warrant is required before a search can be conducted.
The courts held that Fourth Amendment Privileges do extent to students, but school authorities can search without a warrant provided the search is reasonable in inception and reasonable in scope. However, in order for law enforcement personnel to conduct a search, a warrant must be procured. This point becomes important in light of the number of schools which have their own police officers. Thus, in order for a search to take place, there must be the following conditions:
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. Such a search will be permissible in its scope when the measures adopted are reasonable and related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction. (New Jersey v. T.L.O. 1985, p. 733)
Whether a search is reasonable in inception has been interpreted as a search based on reasonable suspicion, which is very similar to probable cause. The extent of reasonable suspicion must be much higher for more intrusive searches. For example, a search of a student's locker requires a low level of reasonable suspicion, but in order for a student to be strip searched, there must be a much higher degree of reasonable suspicion. A body cavity search can only be conducted by law enforcement personnel after a warrant has been procured. Further, in order for the search to comply with the law, the search must be in proportion to the suspicion. A student should not be strip searched to find ten dollars that has been stolen.
One example of a situation in which a court determined a search to be reasonable is Martinez v. School District No. 60 (1992) in which a school dance monitor asked two students to blow on her face after observing them acting in a manner consistent with drunkenness. A second example is the Matter of Gregory M. (1992/1993) in which a security guard ran his hand along a student's school bag to feel for a gun after the bag had made an unusual noise on contact with the student's locker.
Locker searches are also affected by individual school policies. Some schools maintain that lockers are school property and, therefore, school administrators can conduct random searches of lockers. The courts have held this is permissible provided that students are notified of this policy in writing.