Dear Legal Mailbag:
As you know, vaping in schools has become a big problem, and we administrators struggle to put a stop to it. Recently, students at our school have been going into a dark stairwell by our auditorium and we have suspected that they are vaping there. To add to our concern, at the end of a recent week, we found some empty vape packaging at the bottom of this stairwell.
Yesterday our security team watched three students walk into this stairwell and loiter there, and one had a backpack on. Our security team did not observe them doing anything, and by the time I got down to them the students were just leaving the stairwell. Nonetheless, our security team told me that I should search the students, as well as the one student’s backpack. However, while reasonable suspicion is a low bar to meet, I did not search the students or the backpack because I did not think the facts presented in this situation met the standard of reasonable suspicion for a student search.
I am still having this friendly debate with our security team, and we all would love for Legal Mailbag to settle this! What say you? Thank you!
The specific facts of a situation will establish whether there is or is not reasonable cause to search a student. Here, Legal Mailbag concurs with your decision not to search these students or the backpack, because the facts seem not to establish the “reasonable cause” that is required before school administrators can search students without violating their constitutional rights.
As you apparently know, the United States Supreme Court decided in 1985 that Fourth Amendment protections apply to students in school, even though teachers and administrators stand in loco parentis and have quasi-parental rights to supervise students and direct their actions. In T.L.O. v. New Jersey, the Court ruled that school officials do not need a warrant or probable cause to search students, but they do need “reasonable cause.” Moreover, the Court stated that “reasonable cause” must meet a two-prong test: (1) there must be reasonable cause for the search at the inception of the search, and (2) the scope of the search must be reasonably related to the object of the search and not excessively intrusive in light of the age and sex of the student(s) involved.
The answer to your question turns on the first prong – was there reasonable cause for a search at its inception? Here, the facts are that students were seen congregating in an area for which there was evidence of past vaping. That’s it, and Legal Mailbag does not believe that those facts justify a search of any of these students.
In determining whether there is reasonable cause for a search at its inception, the school administrator should be able to articulate what he or she is looking for and why he or she reasonably believes that a search of a specific student will yield evidence of a violation of school rules or a crime. Here, the evidence of vaping in that location is over a week old, and neither you nor your security team observed any vaping behaviors. Moreover, you don’t mention any tips from other students, particular odor, or other facts that would give you reason to believe that one or more of the students would be in possession of vaping equipment. You can and should remain vigilant, and additional facts may at some point establish reasonable cause for a search. However, the facts you describe do not.
Finally, Legal Mailbag notes your reference to a backpack, and anticipates that you may wonder whether the standards for a search of the backpack are different than a search of the student’s person. They are not. In either case, you are expected to articulate the basis for your belief that a search will yield evidence of a violation of school rules or the law and, in a particular situation, the basis for searching the backpack may be different from that for searching a student’s person. But, in either case, your search will be appropriate only if you have reasonable cause at the inception of the search as described above.
Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.