Dear Legal Mailbag:

Now that the Governor has announced that schools will remain closed for the remainder of the current school year, we are starting to think about closing down our school for the summer break. The school closures were rather sudden, as Legal Mailbag will recall, and we wonder what surprises students left behind in their lockers. We need to clean out those lockers, disinfect them, and get them ready for the next school year.

As the principal of a middle school, I met with my team yesterday, and we came up with a plan to clean out the lockers. However, one of the assistant principals recently took a school law course and she freaked out, raising all sorts of questions: What is our authority to do this? Should we have witnesses? Are we violating student privacy rights? Do we need a warrant? With all these questions, the assistant principal gave me a headache for sure. But she also gave me pause.

Can I ignore her blather about student privacy rights and just clean out the lockers?

Mr. Clean
Dear Clean:

Let’s start by quoting Alexander Pope:

A little learning is a dangerous thing;
Drink deep, or taste not the Pierian spring.
There shallow draughts intoxicate the brain,
And drinking largely sobers us again.

Said another way, your assistant principal knows just enough to be dangerous.

To be sure, we have a statute in Connecticut concerning locker searches. Conn. Gen. Stat. § 54-33n provides that boards of education can authorize school officials and law enforcement officers to search lockers and other property available for use by students if “(1) the search is justified at its inception and (2) the search as actually conducted is reasonably related in scope to the circumstances which justified the interference in the first place.” That two-part test is a direct reference to the seminal decision of the United States Supreme Court decision in T.L.O. v. New Jersey (1985). There, the Court held that students retain their Fourth Amendment rights to be free of unreasonable searches and seizures in the school setting, albeit with the special rules that the Court announced in the T.L.O. case, as reflected in Conn. Gen. Stat. § 54-33n.

The problem with the assistant principal’s concern is that she is framing the cleaning out of your school’s lockers as a “search.” It is not. A search occurs when one intrudes on the privacy interests of an individual while looking for something. A school administrator who sees a bong on the dashboard of a student’s car did not conduct a “search,” but the administrator is certainly able to take disciplinary action against that student. Similarly here, the administrative need to clean out lockers at the end of the school year is not a search, but it is rather simply taking care of business.

Typically, students themselves clean out their lockers at the end of the year, and in this unprecedented health crisis they likely did not have the chance to do that. Consequently, it is possible that your administrative team will come across more contraband than would normally be the case. In this strange time, Legal Mailbag urges you and your team to exercise restraint. If you come across items that give rise to concern for student safety, you should inform the parents and you may wish to take disciplinary action. However, your team will not want to make a federal case out of every item of contraband.

Finally, your team will also need to exercise judgment in dealing with the detritus of the last school year. You are not free simply to toss whatever you find into the trash. Some items you find in lockers may actually have material or sentimental value, and the school district may have some responsibility for the safekeeping of such items under the legal principle of bailment. If you come across student property of apparent value during your clean-up, Legal Mailbag recommends that you identify the likely owner by noting the locker number, keep the property safe, and give the parent an opportunity to retrieve the property.

Now get on with the clean-up and stay safe!

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.