¶ … School Policy Involving Students' 4th Amendment Rights Some of the nation's public schools are beginning to resemble medieval fortresses with armed guards stationed at entrances equipped with metal detectors. Although these steps have helped to prevent the introduction of weapons onto school grounds, more problematic are other types of contraband that inevitably find their way into the nation's schools, including tobacco, alcohol and drugs of all types, as well as pornography. When school officials believe violations of laws or school rules have been committed, they must of course take action to address such violations but there are some important issues that must be taken into account concerning when such searches are permissible and how they can be conducted in order to pass 4th Amendment muster. To determine what these issues are and how they affect school policies involved students' 4th Amendment rights, this paper provides a review of the relevant peer-reviewed and scholarly literature, followed by a summary of the research and important findings in the conclusion.

Review and Discussion

On its face, there would appear to be little room for equivocation with respect to the application of the Fourth Amendment to the U.S. Constitution in the public schools. For instance, the Fourth Amendment clearly states that, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Although the Bill of Rights and such constitutional protections do not end at the schoolhouse door, Staros and Williams emphasize that the Fourth Amendment "only applies to 'unreasonable' searches and seizures, and even then only restricts police or other governmental officials who are acting in their official capacities. Thus, in a school setting, teachers and school administrators may be governed by the Fourth Amendment, while a student's parents (or classmates) would not be" (2007, p. 27).

A number of recent decisions by the courts have assigned school authorities with greater latitude in monitoring the welfare of the students in their charge. For instance, suspected drug and alcohol use in public schools was addressed by the seminal case of New Jersey v. T.L.O. (1985). In this case, the court held that searches that were conducted by school authorities are constitutionally acceptable provided they were reasonable from the outset and were not overly intrusive (Johnston & O'Malley, 2006). Generally speaking, such reasonable grounds or suspicion that precipitate a search and/or seizure on school property must be focused on a specific individual or individuals to be searched. Although the New Jersey v T.L.O. case did not specifically address wholesale or "blanket" searches of every student in a school based on the expectation that contraband would be discovered, a number of cases (i.e., (i.e., Burnham v. West, 681 F. Supp. 1160, E.D. Va. 1987; Bellnier v. Lund, 438 F. Supp. 47, N.D.N.Y. 1977; Kuehn v. Renton Sch. Dist. No. 403, 694 P.2d 1078, Wash. 1985; Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 5th Cir. 1982) have since held that this type of search is not constitutionally acceptable (Imber & Van Geel, 2004).

In other cases, though, the courts have upheld such blanket searches even absent individualized suspicion based on the fundamental need to maintain safe and secure school facilities, but these practices come under especially strict scrutiny when there are strip searches of juveniles involved (Imber & Van Geel, 2004). According to Imber and Van Geel, "The more intrusive the search, the more likely that the courts will insist that school officials have good reasons to suspect the student" (2004, p. 176). In one such case, the Sixth Circuit allowed the strip search of a student based solely on information received from an informant because the court had received assurances that school authorities only allowed the strip search to proceed after they had been convinced the informant was not acting out of malicious intent (Williams v. Ellington, 936 F.2d 881, 6th Cir., 1991 in Imber & Van Geel, 2004 at p. 176). Furthermore, the purpose of any intrusive strip search conducted on school grounds must be based on the need to discover evidence...

This need was also established by the New Jersey v T.L.O. case wherein school authorities confirmed such violations prior to their more intrusive searches (Imber & Van Geel, 2004). Taken together, these precedential cases make it apparent that students are not necessarily "little adults" when it comes to the protections afforded other citizens by the 4th Amendment and there are some exceptions that are routinely allowed because of the unique nature of the school environment.
To help students understand what is allowed and what is not on school grounds, as well as what behaviors are regarded as acceptable, schools typically publish student handbooks that contain information concerning school policies with respect to contraband and what steps will be taken if school officials have reasonable suspicions that a violation has taken place (West, 2010). A review of the Clark High School Student Handbook shows that 4th Amendment search and seizure issues are covered in the areas described in Table 1 below:

Table 1

4th Amendment-Related Provisions in the Clark High School Student Handbook

Handbook Section

Content

Student Athletics

VI. Loss of Interscholastic Athletic Eligibility (applicable to athletes only)

A. Violation of Training Rules

1. Tobacco - Any student using tobacco will be denied the privilege of participation in all extra-curricular activities for a minimum period of one (1) week.

2. Alcoholic Beverages - Any student using or in possession of an alcoholic beverage will be denied the privilege of participation in all extracurricular activities for a period not to exceed 90 academic days, not including summer school attendance. A student may appeal for full eligibility after 45 academic days of suspension.

3. Controlled Substance and Narcotics - Any student using or in possession of a controlled substance and/or narcotic will be denied the privilege of participation in all extracurricular activities for a period of one (1) calendar year. A student has the right to appeal for full eligibility after a six-month suspension (pp. 48-49).

Attendance and Discipline (applicable to all students)

Weapons: Possession, use, transmittal, or concealment of any operable or inoperable weapon. . . .

Firearms: Including, but not limited to pistol, rifle, a zip gun, shot gun, BB gun, explosive propellant, or destructive device -- whether operable or inoperable, loaded or unloaded.

Knives: Including, but not limited to switch-blade, pen knife, pocket knife, hunting knife, and similar objects.

Other: Including, but not limited to razor blade, ice pick, dirk, other sharp instruments, nunchakus, brass knuckles, pipe, Chinese star, billy club and machete, explosive/inflammable material, including, but not limited to bombs, fireworks or firecrackers, or any other item that may cause bodily injury or death. The use of any normally non-dangerous implement, such as a stone, table fork, board, stick, or baseball bat, as a weapon is included as well.

THOSE COMMITTING THESE CRIMES WILL BE REFERRED FOR PROSECUTION TO THE FULLEST EXTENT OF THE LAW (p. 58).

Special Notice Regarding School Security

For your safety, these school premises, including auto parking lots, may be scanned by metal detectors and trained dogs. Desks and lockers to which students are allowed a limited right to use are subject to search at any time. Students are on notice that they have no expectation of privacy when using this type of district-assigned property and that routine searches of district property will occur (emphasis added) (p. 58).

The warrant and reasonableness requirements for searches and seizures set forth in the 4th Amendment have been interpreted differently by the courts with respect to their applicability to public schools (Shutler, 1996), but it appears that all of the 4th Amendment-related provisions contained in the Clark High School Student Handbook are well written and would pass constitutional muster. For instance, the "Special Notice Provisions Regarding School…