Originally appeared in the CAS Weekly Newsletter

Dear Legal Mailbag:

Next week, we have our junior prom, and as principal I will be stationed at the door once again, deciding which students to let in and which to send home. I have prided myself in the past as being quite perspicacious. Looking students in the eye, I could tell when they were nervous, and the consequent search would often confirm that they were trying sneak liquor or worse into the prom. Unfortunately, however, last year a student slipped through and attended the prom with a boatload of weed that he then freely shared with other students, causing quite the problem.

I certainly don’t want to let that happen again, and this year I am upping the ante. This year, as a condition for entry into the prom, we are going to have students submit to a search of their purses, their pockets and anything else that could contain contraband. When I shared my plan with the administrative team, however, I got some push-back. One of my colleagues just finished a school law course in the UCAPP program, and he is concerned that my plan might violate student rights. He was yammering on about the Fourth Amendment, but I didn’t quite follow (nor much care about) what he was saying.

Prom is no time for the faint of heart, and I told him we need to do these searches to keep students safe. But I really don’t want to get sued. Can Legal Mailbag give me some assurance that these searches will be legal so that we can do our jobs and do them right?

Open ‘Em Up

Dear Open:

Legal Mailbag wonders why you would describe your colleague’s expressing concern for the constitutional rights of students as “yammering on.” However, concern for student safety and the voluntary nature of attending the prom may well establish that your plan conforms to constitutional requirements.As faithful readers of Legal Mailbag (and anyone who has taken a school law course) know, special rules apply to student searches. In T.L.O. v. New Jersey(U.S. 1985), the United States Supreme Court rejected the idea that school administrators would need a warrant or probable cause to search a student. Instead, in light of the special circumstances of the school setting, the Court set up a two-part test to consider the legality of a school administrator’s search of a student:

  • Does the information presented establish a reasonable cause for the search at its inception?
  • Is the scope of the search reasonably related to the object of the search and not excessively intrusive in light of the age and sex of the student involved?

That said, one may reasonably ask whether there is any reasonable cause for searching every purse, backpack or other repository for student possessions. Said another way, if T.L.O. were the whole story, one might conclude that searching all student possessions without any individualized suspicion would be unreasonable and violate the first prong of the T.L.O. test.

As you may suspect, there is more to the story. In 2002, the Court decided that suspicionless drug testing of students who participate in non-athletic extracurricular activities did not violate the Fourth Amendment. Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls(U.S. 2002). Writing for the majority, Justice Thomas relied and expanded upon an earlier case in which the Court had upheld suspicionless drug testing of student athletes. Vernonia School District 47J v. Acton (U.S. 1995, the case in which Justice Scalia famously remarked, “School sports are not for the bashful”). In Earls, the Court found that the program of suspicionless testing was justified by three factors:

  • the activities in question were voluntary, which permitted a diminished expectation of privacy;
  • the concern about drug use was significant; and
  • the intrusion into student privacy was minor (given the specifics of the drug testing program).

One may apply the same analysis to students attending the prom, whose possessions will be subject to search under your plan.

Interestingly, that is precisely what one court did in considering whether a search protocol established for admission to the prom as well as the graduation ceremony met constitutional requirements. In Herrera v. Santa Fe Public Schools, 792 F.Supp.2d 1174 (D. New Mexico 2011), the federal district court considered a Fourth Amendment claim by a student over a search protocol for participating in the prom and graduation that involved a pat-down search of her person and a search of her possessions. Relying on Earls, the court ruled that the search of possessions as a condition for attending the prom was reasonable:

[T]he search of C. Herrera’s possessions in this case was at voluntary events, which C. Herrera chose to attend. Given the less intrusive nature of searching possessions than searching persons, the Court believes that there is not a substantial likelihood on the merits that C. Herrera will show that all searches of her possessions would be unreasonably intrusive. Finally, as the Court has noted, the governmental concern regarding drugs, alcohol, and weapons at school events are important in modern society, and the Defendants also have a legitimate interest in banning distracting contraband at some voluntary events, such as graduation. Searching possessions for contraband effectively serves these interests [citing Earls].

Given the court’s holding in this case, you can take comfort that your plan will likely pass muster under the Fourth Amendment.

In closing, however, Legal Mailbag shares with you a cautionary tale from the same case. As mentioned above, the search protocol also involved a pat-down search of all students entering the prom without any individualized suspicion. The court described these searches of the students’ persons as highly intrusive without any concomitant justification, and it held that there was a substantial likelihood that the student would prevail on her claim that the pat-down search violated her rights under the Fourth Amendment. The litigation continued on this point, and three years later, as reported in the Santa Fe New Mexican on September 12, 2014, the school district settled the Fourth Amendment claim based on the pat-down searches by paying $475,000 to the student and her sister (who was also searched in this manner). In short, don’t get carried away with your suspicionless searches at prom this year. But do have fun!