Searches of Students in Public Schools

The Fourth Amendment of the United States Constitution protects people against unreasonable searches and seizures. We have written several blogs on the topic. Click here and here to read more about this topic. Today’s blog focuses on a particular fourth amendment issue – searches of students in public schools.

Public high school students have constitutional rights just like everyone else. However, certain rights are limited. The right against unreasonable searches and seizures is one such right that faces some restrictions. This blog explores what rights public high school students have and do not have with regard to searches and seizures by school personnel.

Public School Versus Private School

First let’s explain a fundamental principle. Public high school students have constitutional rights regarding searches of students because public schools are governmental agencies. Public school officials and employees are state actors, and therefore must abide by constitutional principles. On the other hand, private schools and their staff are not. Thus, if a private school teacher, for example, performs searches of students – there is no question of whether or not the act was constitutional. Of course, these persons and entities could still violate civil or criminal laws, but that is not the focus of this blog.

Reasonable Suspicion and Reasonableness Under the Circumstances – The Gold Standard for School Searches

Generally, a police officer must have a warrant/probable cause to perform a search of a person or their belongings. Additionally, other rules apply to searches, which you can learn about in some of our other blogs. On the other hand, school officials are generally only required to have reasonable suspicion to search a student or the student’s belongings. This means that the school must have reasonable suspicion that the search will turn up evidence that the student violated a school rule or a state law. Note that this is a relatively low standard. Much lower than the probable cause standard. So, how in depth is the search allowed to be?

According to the Supreme Court of the United States, the legality of a search of a student depends simply on the reasonableness, under all the circumstances, of the search. In order to be reasonable, the search must not be excessively intrusive.

Search of Student’s Person/Strip Searches of Students

Generally, a school official can perform a search of a student’s person. But, to what extent is this allowed? As noted above, searches of students must not be excessively intrusive. The Supreme Court has explained this to mean that, with regard to searches of a student’s person/strip searches, the search must not be excessively intrusive in light of the student’s sex and age and the nature of the infraction. Some questions to consider include: was the student particularly young? Was the search performed by a same-sex individual? How invasive was the search? Was the alleged infraction something minor like possession of a cell phone, or did it involve something severe, such as possession of a weapon?

However, the Supreme Court has never said that schools are “prohibited from searching students—even strip-searching students–particularly in cases that involve the suspicion of weapons or contraband on the school grounds.”

Obviously, this leaves us with no bright-line rule and a lot of gray area. Each individual school district will generally have a written policy on searches that will clear some of these questions up. Note that, generally, strip searches are not allowed

Random Searches

Random searches of students are allowed as long as the search is truly random and is based on special school-wide needs, such as ensuring student safety. A random search may never be used to target any individual student.

Consent

Of course, just like in the real world, if a student consents to a search, we don’t even analyze whether or not the search was constitutional. Individuals are permitted to consent to searches and if they give consent, officers or officials can then perform the search without fear of violating the constitution. There may be a question of whether an arrest or seizure that took place prior to the search was constitutional, but as a general principle, consent is an exception to the Fourth Amendment’s protections against warrantless searches.

Objecting to a Search

If a student is being searched, that student does have the right to object to a search. This does not mean that the student can physically resist, but he or she may certainly articulate his or her objections.

Public School Officials and Personnel Versus State/City/County Police Officer

Different rules may apply. Note that for the most part, if the person performing the search is an actual sworn police officer and is not a permanent fixture at the school, students generally have the same constructional rights as anyone else regarding searches. Generally, this means that if an officer comes to a public school, that officer must have probable cause to search a student. You can learn more about these rights in some of our other blogs. This blog focused on searches performed by public school officials/personnel and does not get into the more complicated topic of police officers at schools.