Student Searches

The constitutionality of student searches in public schools has been hotly contested since at least 1985, when the US Supreme Court adopted an “unclear, unprecedented, and unnecessary departure from generally applicable Fourth Amendment standards” in response to the case of New Jersey v T. L. O. As Justice Brennan warned, this did indeed seem to “portend a dangerous weakening of the purpose of the Fourth Amendment to protect the privacy and security of our citizens.” Subsequent cases, those of Vernonia School District v Wayne Acton of 1995 and Board of Education of Pottawatomie County v Lindsay Earls et Al. of 2002, showed that this was indeed correct, in that the interpretation of the T. L. O. case became gradually more lenient, allowing for greater restriction of students’ right to privacy.

New Jersey v T. L. O concerned the search of a student’s purse. T. L. O. had been discovered smoking in the bathroom and denied not only that she had been smoking but also claimed she did not smoke at all to the Assistant Vice Principal Theodore Choplick. In response, Mr. Choplick proceeded to search her bag. He found cigarettes and removed them, despite the fact that possession of cigarettes was not against school rules, merely smoking. When he took out the cigarettes, he saw wrapping papers in T. L. O.’s purse, and expecting to find marijuana, searched her purse in greater detail, including a zippered pocket. Mr. Choplick found not only marijuana but also evidence that she was selling it to other students, and this evidence was turned over to her mother and the police. When she was prosecuted in juvenile court, T. L. O. moved to suppress the evidence, which she said “was tainted by the allegedly unlawful search” under the Fourth Amendment. The New Jersey Supreme Court upheld that Mr. Choplick’s search of T. L. O.’s purse was indeed a violation of her Fourth Amendment, and moved to suppress the evidence.

While the Supreme Court ruled that “the Fourteenth Amendment protects the rights of students against encroachment by public school officials,” it also created a new test to judge the “reasonableness” of a search, which it said “depends on the context within which a search takes place.” This test of reasonableness entirely discarded the previous precedents of the necessity to either obtain a warrant for the search or to prove “probable cause to believe that a violation of the law has occurred.” This reasonableness test required only that the test was based on a suspicion that the test would turn up evidence that the student was violating either school rules or laws, and that the test was not “excessively intrusive.” By this test, the Supreme Court stated that the initial search for cigarettes in T. L. O.’s purse was reasonable, and that upon committing the “natural reaction to finding them”–that of picking them up–his suspicion that the rolling papers had to do with marijuana was enough to justify the second search. Thus the Court overturned New Jersey’s previous decision. The dissent argued that this new “reasonableness” test was too vague for officials to interpret, that the right to privacy was not given sufficient weight in the decision, and the subsequent search of T. L. O.’s purse for marijuana was unconstitutional.

In Veronia School District v Wayne Acton, the policy under discussion was that of the athletics programs. All students that wished to participate in school athletics were required to undergo urine testing for drugs before they started, at random times during their participation, and under suspicion of drug-related behavior. Any student that refused was not allowed to play, as in the case of Wayne Acton, a seventh grader at the time. The administration testified that “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion.” Thus, the problem was widespread and demonstrated “a compelling need for the program.”

The Supreme Court found that “special needs made the warrant and probable-cause requirement impracticable.” Since students participating in athletics already experienced a lessening of privacy, especially in the locker room, the addition of a urine-testing program was “negligible.” Also, T. L. O. emphasized that school officials acted, in essence, as the children’s parents, “permitting a degree of supervision and control that could not be exercised over free adults.” They found that the “risk of immediate physical harm” to a drug-user playing sports was “particularly high,” as were the harmful “physical, psychological, and addictive effects” of drug use during school years. As children’s safety was one of the school officials’ responsibilities, any policy that could curb the use of drugs would be at least partially justified. The Court did take care to include the caveat that suspicionless drug testing would “pass constitutional muster in other contexts.” They remanded the case to the Court of Appeals for “further proceedings consistent with this opinion.”

The dissent made sure to point out that blanket searches, “because they can involve ‘thousands or millions’ of searches, ‘pose a greater threat to liberty’ than do suspicion-based ones.” Justice O’Connor states that since a suspicion-based search would not necessarily be ineffectual, the Court has no right to declare blanket searches as a viable alternative. Only once suspicion-based searches were declared unviable could other alternatives be approved. The dissent also feels that the concern for abuse with such a program has been overblown, seeing that “schools already have adversarial, disciplinary schemes to investigate student wrongdoing.” Justice O’Connor also points out that most of the evidence used to demonstrate the need for a drug-testing program would seem to give rise to “reasonable suspicion” that could then be used as reason to test specific students for drug use. While the suspicion-based scheme “may not be as effective,” “there is nothing new in the realization that Fourth Amendment protections come with a price.” Finally, the dissent would overturn the decision against Acton, especially seeing as there was “virtually no evidence” of a drug problem in the grade school Acton attended, only within the district high schools.

The most recent case, decided in 2002, was that of Board of Education of Independent School District No. 92 of Pottawatomie County et al. v Lindsay Earls et al. This case was similar to that of Vernonia, except that the mandatory testing was extended to all participants of extracurricular activities, not just sports. Also, it was argued that there was no “special need for testing students” because the “drug testing policy neither addressed a proven problem nor promised to bring any benefit.”

Applying “the principles of Vernonia to the somewhat different facts of this case,” the Supreme Court concluded that “Tecumseh’s policy is also constitutional.” Students supposedly were subject to rules under their extracurricular activities that were different from those of the regular school, and so had “a limited expectation of privacy.” Also, the collection of urine was again deemed to be a “negligible intrusion” upon students’ privacy. Finally, the Court “had not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing.” In this vein, the policy of Tecumseh “effectively serves the School District’s interest in protecting the health and safety of its students.”

This creates a dangerous precedent. By this justification, practically any search could be justified as “protecting the health and safety of students,” even if the privacy of those students is unequivocally compromised. The dissent stated this well: “many children, like many adults engage in dangerous activities on their own time; that the children are enrolled in school scarcely allows government to monitor all such activities.” While they uphold the Vernonia decision, they state that the voluntary nature of athletics, combined with the increased danger of drug-use related injuries, were the only things that created “risks that schools have a duty to mitigate.” Finally, if there was “no concrete danger, evidence of a particular problem, or increased risk,” the need revealed was not “special.”

Beginning with the creation of the test of “reasonableness,” the individual rights of students to privacy deteriorated over time. Gradually, the need for the safety of the students gained increased precedence over the right to privacy. This interpreted reading of the Fourth Amendment did away entirely for the need for a warrant or “probable cause” before a search. Students were left with very little, except that the cases still only apply to mandatory testing for voluntary programs. It is not difficult, however, to see how the growing precedent could be applied favorably towards mandatory blanket testing for all public school students.

-Ellen