Dear Legal Mailbag:
While I applaud the interest Legal Mailbag expressed last week in showing elementary administrators more love (“Wishing Elementary Got More Mailbag Love”), let’s get real. When it comes to searches of students, older students pose greater challenges.
At our high school, we must frequently search students for contraband such as vapes or drug paraphernalia when we have reasonable suspicion that the search will yield evidence of a violation of school rules or the law (did I get that right?). Our practice is to inform the student of the protocol, and 99% of the time the student complies and permits us to conduct the search. In some instances, however, a student will refuse to hand over his bag, actively clutch it in his arms or put it on his shoulders. To make matters worse, parents will sometimes tell us on the phone that they do not agree to a search either.
In these cases, we suspend the student for insubordination, and his parent must pick him up immediately. Despite issuing consequences, I still feel uneasy about letting the student leave without determining what was in his or her possession. Hence my question: in these instances, are we allowed to force a search by summoning police rather than allowing the student to leave campus?
Book ‘Em Danno
Dear Book ‘Em:
Legal Mailbag cherishes readers at every level and can offer three options for you to consider when you deal with intransigent students.
First, Legal Mailbag questions your practice when you have reasonable suspicion that a student is in possession of a prohibited item. When he or she refuses to submit to the search, the student is simply suspended for a different infraction – insubordination – without consequences for possession of contraband as suspected. Please consider that the search is not only an opportunity for you to determine that the student was in violation of school rules, but also an opportunity for the student to prove otherwise. When the student refuses to consent to the search, you may inform him or her that you will therefore infer that he is guilty of the offense alleged (e.g., possession of a vape device) and impose consequences for that offense as well as for the insubordination.
Second, the law contemplates situations in which educators may use reasonable physical force, and those situations include seizing contraband: Conn. Gen. Stat. § 53a-18 provides:
The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:
* * *
(6) A teacher or other person entrusted with the care and supervision of a minor for school purposes may use reasonable physical force upon such minor when and to the extent such teacher or other person reasonably believes such force to be necessary to (A) protect such teacher, other person or others from immediate physical injury, (B) obtain possession of a dangerous instrument or controlled substance, as defined in section 21a-240, upon or within the control of such minor, (C) protect property from physical damage, or (D) restrain such minor or remove such minor to another area, to maintain order. (Emphasis added).
Legal Mailbag wants you to know all of your options, but attempting to overpower a recalcitrant student to conduct a search of his or her person or possessions against his or her will carries its own risks and should be considered a last resort in an urgent situation.
Finally, you are always free to tell the student to stay put, call the police, describe the facts, and find out if the police officer believes that there is probable cause for an arrest. If so, the police officer may conduct a search incident to the arrest without a warrant to safeguard the police officer against harm from a weapon and to preserve evidence.
This is not a perfect solution for two reasons. First, the standards for a search differ for school administrators and the police. Rather than the reasonable suspicion antecedent to a search for administrators that you eloquently described in your question, the police must have probable cause before they can arrest a student, and the police officer may decide that he or she does not have probable cause. Second, the student may just walk out before the police officer arrives (and Legal Mailbag does not recommend that you attempt to restrain the student physically).
Given the foregoing, Legal Mailbag prefers the first option – warn the student that you will presume that he or she is in possession of the prohibited item if the student does not consent to the search. If the student refuses, go ahead and discipline the student both for possession of the contraband item and also for his or her insubordination.
On that cheery note, Legal Mailbag wishes peace and joy for the holidays for faithful readers and their families!