Dear Legal Mailbag:
As the assistant principal at a large middle school, I am often called upon to search students. I am quite the charmer, and most often I am able to obviate the need for a search simply by asking in my friendliest voice whether the student would mind emptying his or her pockets or opening his or her book bag. It is actually surprising how cooperative students are, even when they know that they are in trouble.
Things were not so easy last week. After one student told me confidentially that another student was in possession of drugs, I called the girl down to the office. I smiled supportively, and I told her that I heard that she may have some drugs. I asked her to empty her pockets and book bag, which she did, but she did not produce any drugs. Given the danger that drugs pose, I couldn’t just drop the matter, and I asked her where she was hiding the drugs. The student was obviously startled by my accusation, and she sure acted guilty. But after a moment, she collected herself and again denied having any drugs.
By this time, I was getting annoyed, and I asked her rhetorically whether I would find drugs in her bra if I called the nurse in and searched her person. However, she was steadfast (if not convincing) in her denial. I thought for a moment about conducting such a search, but I chickened out. I told the student that it was good that she didn’t have drugs on her, because that would be a serious problem, and then I sent her back to class.
Should I have gone ahead and conducted the search?
Dear Second Thoughts:
Legal Mailbag would not describe your decision to be respectful of the student despite your suspicion as “chickening out.” Indeed, under the circumstances, you made the right decision.
Many educators are familiar with the seminal 1985 case, T.L.O. v. New Jersey, in which the United States Supreme Court ruled for the first time that students have Fourth Amendment protections against unreasonable searches and seizures by school officials. There, the Court announced the well-known two-part test to determine whether a search in the school setting will be permitted:
- First, there must be reasonable cause for the search at its inception. Significantly, the Court stated that school officials do not need probable cause, but rather there must simply be a reasonable basis for conducting a search of a student.
- Second, the scope of the search must be reasonably related to the object of the search, and, as stated by the Court in T.L.O., the search must “not [be] excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
The courts are generally deferential to school officials when they receive information that they believe warrants a search, i.e., whether there is reasonable cause for the search at its inception. However, in the only other case the United States Supreme Court has decided on school searches, the Court held that the scope of a search similar to the one you contemplated was excessively intrusive and, as such, violated the Fourth Amendment.
In Safford Unified School District v. Redding, 557 U.S. 364 (2009), (found at https://www.supremecourt.gov/opinions/08pdf/08-479.pdf), the Court considered a claim by a thirteen-year-old student that school officials violated her rights under the Fourth Amendment. In very similar circumstances, an assistant principal accused Savana Redding of distributing prescription drugs to her middle-school classmates. She denied the accusation, and she submitted to a search of her possessions, which turned up empty. The assistant principal, however, then asked a female colleague and the school nurse to search further:
[These school officials] asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.
On a vote of eight to one, the Court found that this search was excessively intrusive, and, as such, in violation of the Fourth Amendment. In so doing, the Court elaborated on the second prong of the T.L.O. test regarding the scope of a school search, explaining that an intrusive search must be based on cause along a continuum. The more intrusive the search, the greater the need for school officials (1) to show why they think the contraband will be found where they are searching, and (2) to show a danger that justifies the intrusion. The Court explains:
We do mean, though, to make it clear that the T.L.O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.
This case serves as a cautionary tale for school officials. An intrusive search will be justified only in the most compelling of circumstances. Indeed, Legal Mailbag suggests that, if ever confronted with such compelling circumstances, an administrator should call the police and let the police decide what to do.
Finally, Legal Mailbag notes your general strategy of nicely asking students to empty their pockets or open their book bags “to obviate the need for a search.” Your strategy is fine, but you should be aware that you are conducting a search even when you politely ask, and that search must meet the T.L.O. requirements described above. Given your position of authority as an administrator, your “request” will be considered a directive that constitutes a search of the student.