Student freedoms and their institutional contexts

¶ … limits that should be placed upon search and seizure in public schools.

Apply specific legal rulings to support your position.

Analyze the New Jersey v. T.L.O. case and explain how it supports or undermines your argument.

Recommend changes to existing (specific) laws to create a fairer educational setting in terms of search and seizure.

It seems to me that search and seizure of student and faculty member possession should be scrupulously directed by the Fourth Amendment and the Fifth Amendment and that searches conducted on students should be implemented with the same dignity and in the same manner as they are conducted on faculty members. Research shows that schools are becoming increasingly restrictive in their investigation and that they, frequently, fail to protect even the basic Fourth Amendment privacy rights of the students (Berger, 2003)

The Fourth Amendment prohibits "unreasonable" searches and seizures. It is concerned with the manner that the school may conduct the investigation and ensures that the school does not act in an overly zealous manner. On the one hand, the school cares about the safety of other students and faculty members. This is particularly so given today's rising manifestation of violence in school settings. On the other hand, schools have lost many a case due to their overly severe and sweeping investigations. The school wishes to tread a balanced line. And this is where the guidelines of the Fifth Amendment come in.

The Fifth Amendment is a follow-up to the Fourth Amendment. It says that search and seizure should be preceded by the following two steps:

The employee should give the faculty member / student a chance to tell his or her story

He should inform the faculty member / student about what he intends to do and why

A comparatively minor offence can be addressed by a 'chat' in the principal's office. A more significant offense (such as smuggling of drugs) for instance where penalties that involve criminal charges, potential job loss, and expulsion loom need a more intensive hearing with, possibly, legal representation present.

Instances of where the Fourth Amendment applies would be in the following cases. These, depending on results, may be followed by practice of the Fifth Amendment:

Searching the student's car

Metal-detectors and locker searches

Drug-sniffing dogs on campus (Pinard, 2003))

However, there is a great deal of difference between the tone and intensity of the search conducted on the faculty member and those conducted on students. Contrast will point this out. Faculty staff seems to be accorded more rights than students in regards to the state of search and seizure of their belongings. They are generally granted a greater amount of privacy in regards to their offices, lockers, personal effects, and persons. Schools know that were their case to come to court, they must be prepared to fully justify reasons for their search and the intensity of their search. Searches of possession of faculty member are, therefore, conducted less frequently and on a far less intensive level than they are for students. Exceptions exist in rare cases such as for the search of a gun or when a staff member has permitted the search.

Urinalysis for employees is generally given only on personnel insensitive safety positions, such as on a bus-driver, or on hose who use hazardous substances or operate dangerous equipment and are in frequent contact with students.

Students should also be given greater dignity and certain rights in regards to investigation and seizure. These rights exist on paper, but are not always rigorously followed. They should be followed more closely and more consistently. Details include the following:

Contraband items can be seized instantaneously without asking for a warrant or reason. Lockers, however, are seldom checked and then only if there is reasonable suspicion for the need to check them. The same applies with purses and school bags. The famous case, New Jersey v. T.L.O., decided the law in this instance. In that case, an assistant principal opened a student's purse after she had violated the no-smoking rule. The search discovered a pack of cigarettes, rolling papers, marijuana, a pipe, money, and other suspicious items. The judge concluded that the investigation was warranted since reasonable suspicion existed for the search to be conducted. The case serves as precedent for similar situations (Beyer, 1997).

The convention of body searches and whether, and to what extent, it can be conducted in school is something that varies according to particular states. In some states, body searches are disallowed, whilst others permit perfunctory pat-down searches. Strip searches are absolutely prohibited. On the other hand, drug-sniffing dogs are seen as posing little problem since they are non-invasive and only follow their 'smell'. States allow their presence with no demur.

Student drug testing came about as a result of the Vernonia School District 47J v. Acton where an Oregon court in 1995 permitted the school to perform a urinalysis on students participating in interscholastic athletics. Opponents argued that it violated the Fourth Amendment, but the Supreme Court noted that athletes were prone to taking drugs in order to improve their performance. Testing the students for drugs, therefore, was no punishment but rather served as remediation and health prevention. The Supreme Court of the Tecumseh, Okla., and school district extended that ruling to all extra-curricular activities where, it said, that schools were permitted to conduct random drug tests on students.