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Do School Children Have Fourth Amendment Rights?
To ask the question that the title of our article asks appears almost specious. Why, of course! School children do have rights under the Fourth Amendment when attending public schools! Yet, as we look through the history of United States Supreme Court cases, it is often difficult to see where the substance of those rights is.
On June 27, 2002, the United States Supreme Court handed down another decision designed, perhaps, to clarify what the rights of school children are. The case is Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls et al., 122 S.Ct. 2559 (2002). Since the case name is quite a mouthful, we will be referring to it later on in this article simply as Pottawatomie County v. Earls. Before we discuss this most recent “clarification,” we have to look back to how the courts have traditionally viewed the legal rights of school children when it comes to search and seizure in the educational sphere.
All law enforcement officers–and most citizens–know that the Fourth Amendment protects people only from those searches and seizures by officials of the government that society has decided to recognize as legitimate and reasonable. Thus, police are not prohibited from arresting and searching a person whom they have probable cause to believe has committed a crime, or from seizing his property if they have a lawfully issued search warrant. But how do these “rights” play out in schools when directed against school children?
The common law did not confer many rights on minors. As the Court said elsewhere, “Traditionally, at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination–including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them. In fact, the tutor or schoolmaster is the very prototype of that status.” Vernonia School District 47J v. Acton, 515 U.S. 646, 654 (1995). And the power exercised by parents or by those who stand in their place (in loco parentis), like school officials, is not subject to the Fourth Amendment.
Legal questions centering on the rights, or lack thereof, of school children began to be addressed by the Supreme Court only in the last two decades. And one of the questions faced first was whether the lack of rights of children attending private schools applied equally to those required to attend public schools because of the compulsory education laws that exist today. And if public school children had “rights,” then what would these rights be?
The first significant modern case to address those issues was New Jersey v. T.L.O., 469 U.S. 325 (1985). In that case, the Court rejected the argument that public schools stand on the same footing as private schools (which exercised only parental power – a power not subject to the constitutional constraints of the Fourth Amendment) because students were “required” to attend school. T.L.O recognized that some earlier court cases had afforded school children constitutional rights in other contexts, such as First Amendment rights with regard to wearing armbands to demonstrate their beliefs, due process rights with regard to corporal punishment or to suspension or expulsion from school, and in yet other settings. For those reasons, the Court decided, in T.L.O., that the Fourth Amendment rights of children would not be “shed at the schoolhouse gate” either. But what do these rights entail?
SEARCHING A STUDENT’S PURSE . . .
In T.L.O., a high school teacher had discovered two girls smoking in a lavatory in violation of school rules prohibiting such conduct. The respondent in the case, identified by the Court only by her initials T.L.O. as is customary in the case of juveniles (and whom we will refer to as Terry) was one of them. Terry was at that time 14 years old. The teacher took the girls to an assistant principal, Mr. Choplick, before whom Terry denied she had been smoking, though her companion admitted the violation. After taking the girls to his office, Choplick demanded to see Terry’s purse. He hit the jackpot and discovered, in Terry’s purse, a pack of cigarettes, cigarette rolling papers, a small amount of marihuana, a pipe, empty plastic bags, a lot of money in one-dollar bills, a list of students who appeared to owe Terry money, and two letters that suggested to the principal that Terry was implicated in dealing marihuana.
All of this evidence was turned over to the police and, after Terry’s mother, who had been summoned, took Terry to police headquarters, she ended up confessing to selling marihuana at the high school. When delinquency charges were brought against Terry, her lawyer moved to suppress the evidence retrieved from her purse as having been obtained in violation of her Fourth Amendment rights. There were a number of court proceedings, but when the issue reached the New Jersey Supreme Court, that court held that the Fourth Amendment not only applied to searches conducted by school officials, but also that Terry’s rights had been violated. The State appealed the case further to the United States Supreme Court, which held that the search by the school principal did not violate Terry’s Fourth Amendment rights.
The T.L.O. decision was a lengthy one. Therefore, we will distill its main points in brief. The Fourth Amendment does apply to searches conducted by school authorities, the Court said. But to know when such searches are reasonable requires us to engage in balancing competing interests. How should that be done?
SHOULD A SEARCH WARRANT BE REQUIRED?
One categorical statement found in T.L.O.’s majority opinion was that warrants were totally unsuited to the school environment. Requiring a teacher to obtain a warrant before conducting a search of a child suspected of violating either the law or a school rule is just impractical and would “unduly interfere with the maintenance of swift and informal disciplinary procedures needed in schools.”
The question of the degree of suspicion which would warrant a school official to search a student also requires some modification, said the Court, from what applies in police searches. While law enforcement searches require “probable cause,” that is not always an absolute command of the Constitution, as long as the interference with an individual’s rights is deemed “reasonable.” Thus, the Court held that “a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.”
This is a broad standard. We know that police searches require probable cause to believe that a crime is committed, but in T.L.O. the Court said that school officials can search students not only when they are suspected of committing a crime, but also for mere violations of school rules.
The remaining question for the Court was whether the search was “reasonable” in Terry’s case. She was suspected of smoking in the lavatory in violation of school rules, and denied doing so. Under those circumstances, searching the purse for cigarettes  – even though it was not illegal under state law for minors to possess cigarettes at that time – was deemed reasonably related to the offense she was alleged to have committed, even though finding cigarettes would not conclusively prove that she had in fact been smoking. The Court called the principal’s suspicion that finding cigarettes in Terry’s purse would contradict her denial to be “the sort of common-sense conclusion about human behavior upon which practical people – including government officials – are entitled to rely.”
Once the principal saw not only the cigarettes, but also the rolling papers upon removing the cigarettes, Choplick’s belief Terry was carrying marihuana was also a reasonable one. It justified a further search that resulted in the other drug items being seized. Thus, the New Jersey Supreme Court’s decision that Terry’s Fourth Amendment rights had been violated, was reversed.
To summarize, T.L.O. recognizes that the student’s Fourth Amendment rights are not lost at the school gate, but at the same token also specifically states that searches by school officials do not require warrants. Further, such warrantless searches are lawful as long as the official conducting the search reasonably suspects that the search will produce evidence of a crime or of a violation of a school regulation.
DRUG TESTING IN THE SCHOOLS
In the Vernonia School District 47J v. Acton case, cited earlier, the Court faced a school search in an entirely different context. In that case, a rural school district that operated one high school and three elementary schools in an Oregon logging community had been faced with a sharp increase in drug use by students. School athletes were said to not only be among the drug users, but were said to be the rebellious “leaders of the drug culture” who openly boasted the school could do nothing about it. After the school district’s attempt to deal with the problem by offering special programs to raise the awareness of the drug problem and deter drug use had been for naught and the disciplinary actions against students had reached “epidemic proportions,” it decided on a different approach.
With overwhelming parental support, the District enacted a Student Athlete Drug Policy, for the purpose of preventing student athletes from using drugs, protect their health and safety, and provide drug users with assistance programs. The policy applied at all students who wanted to participate in interscholastic athletics: “Students wishing to play sports must sign the written consent of their parents. Athletes are tested at the beginning of the season for their sport. In addition, once each week of the season the names of the athletes are placed in a ‘pool’ from which a student, with the supervision of two adults, blindly draws the names of 10% of the athletes for random testing.” Testing was to occur that same day, if possible, by the taking of urine samples. The urinalysis was to be conducted at an independent laboratory which was to test the samples for amphetamines, cocaine and marijuana. Lots of safeguards were included in the policy document. It required doctor’s authorizations for prescription medicines, adult same sex monitors of the urine sample taking process, and retesting in the event a positive result was obtained.
A seventh-grader, James Acton, seeking to play football, challenged the policy by bringing an action for declaratory and injunctive relief when he was not permitted to participate in football because he and his parents refused to sign the consent forms. The District Court denied his petition, but was reversed by the Ninth Circuit Court of Appeals which held that the policy violated the Fourth and Fourteenth Amendments. The Supreme Court agreed to review the case and vacated the Ninth Circuit Court of Appeals’ decision, holding that the school district’s policy did not violate the Fourth Amendment.
EXPLORING “REASONABLENESS”
As the Court had indicated in prior cases, “reasonableness” of a challenged practice is the ultimate measure of its constitutionality. The standard of “probable cause” which the Fourth Amendment specifically mentions in the context of police conduct does not necessarily apply to all government searches, especially not “when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirements impracticable.” And such “special needs” had already been found to exist in the public school context. As T.L.O. had held, the warrant requirement does not apply because it “would unduly interfere with the maintenance of swift and informal disciplinary [school] procedures.”
Let’s consider the differences between this case and T.L.O. Even though the Supreme Court had found that students in public schools had a lesser expectation of privacy in the school environment than members of the population generally enjoy, in T.L.O. the school officials did have particularized suspicion of wrongdoing on the part of Terry, the student involved. In Acton’s case, on the other hand, there was no such suspicion of wrongdoing as to him, since he challenged a blanket search policy that applied to all students participating in athletic events. Does the lack of particularized suspicion invalidate the policy? Though the resolution of this question involves some complex legal issues that we must of necessity cover in a superficial manner because of our space limitations, suffice it to state that the Court upheld the drug testing policy as valid under the Constitution.
The Court had, once before, dealt with drug testing in the context of state-compelled collection and testing of the urine of railway conductors, and it had upheld such policy for the overall safety of the traveling public in preventing railway accidents. That earlier case had that there was a compelling need for such a program. In Acton the Court found the identical compelling need to be at play in the school environment:
“Deterring drug use by our Nation’s schoolchildren is at least as important as . . . deterring drug use by engineers and trainmen . . . School years are the time when the physical, psychological, and addictive effects of drugs are most severe. Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound; children grow chemically dependent more quickly than adults, and their record is depressingly poor.”
After discussing the evils and destructiveness of drug addiction in schools at some length, the Court stressed that the drug problem was exacerbated by the fact that athletes serve as role models for the entire school community. A thorough consideration of these and other arguments led the Court’s majority to conclude that Vernonia’s Student Athlete Drug policy was “reasonable” and therefore also constitutional under the Fourth Amendment, especially since the overwhelming number of parents who had voted in favor of the policy at a public meeting found that it was in the best interests of their children.
The Vernonia case applied only to school athletic programs. Can the same rationale be applied to participation in other school activities? Or are student athletes in a special category when it comes to the Fourth Amendment? That is the issue that confronted the Court in the most recent case of Pottawatomie County v. Earls.
OTHER SCHOOL ACTIVITIES DISCUSSED
The Pottawatomie County case also involved a drug testing policy, one that was implemented in the rural area of Tecumseh, Oklahoma. In the fall of 1998, the school district adopted a policy that required all middle and high school students who wanted to participate in any extracurricular activity to consent to drug testing. The policy was being applied at the time of the challenge only to competitive extracurricular activities, among them the Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, pom pon, cheerleading, and athletics. In its operation, the policy did not differ significantly from that already approved by the Court in Vernonia School District 47J v. Acton. Nevertheless, two high school students, one a member of the show choir, the marching band, the Academic Team and the National Honor Society, another student who sought to participate in the Academic Team though he might have been ineligible, and their parents contested the policy in Pottawatomie County v. Earls.
Like in Vernonia, the District Court dismissed the challenge and after the United States Court of Appeals for the Tenth Circuit had reversed that decision, finding the Fourth Amendment to be violated in the absence of a showing of some identifiable drug abuse problem among a sufficient number of those subject to such testing, the Supreme Court agreed to review the case. As it had done in the previous school cases, the United States Supreme Court’s most recent 5-to-4 decision again reversed the Court of Appeals and upheld the Tecumseh policy as valid.
Not surprisingly, the nature of the privacy interest at stake in the public school environment was again one that was found to be much more limited that applies outside the schoolhouse: “Schoolchildren are routinely required to submit to physical examinations and vaccinations against disease. Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults. Without first establishing discipline and maintain order, teachers cannot begin to educate their students. And apart from education, the school has an obligation to protect pupils from mistreatment by other children, and also to protect teachers themselves from violence by a few students whose conduct in recent years has prompted national concern.” The Court had already recognized these premises in the earlier cases.
Addressing itself specifically to the Tecumseh policy, the Court recognized that students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes: “Some of these clubs and activities require occasional off-campus travel and communal undress. All of them have their own rules and requirements for participating students that do not apply to the student body as a whole. . . . This regulation of [all] extracurricular activities further diminishes the expectation of privacy among schoolchildren.”
What remained to be decided was whether the manner of obtaining the samples for urinalysis testing met the standards set out in the Vernonia case. After holding that the Pottawatomie County procedure used in Tecumseh was even more solicitous of children’s privacy interests than that approved in Vernonia, the Court examined next whether there was a need for a drug policy in Pottawatomie County.
In that regard, the Court found that there was ample specific evidence of drug use at Tecumseh schools and the adoption of the particular drug testing policy was therefore deemed to be reasonable. It is not necessary that a school system justify the adoption of a drug testing program by proving the problem is one that is either pervasive or out of control. The Court refused “to fashion what would in effect be a constitutional quantum of drug use necessary to show a ‘drug problem.’” Equally rejected was the challengers’ argument that drug testing must presumptively be based upon an individualized reasonable suspicion before testing can be permissible. The Fourth Amendment does not require such a finding in the school context, said the Court, suggesting that adopting a policy requiring individualized suspicion might be counterproductive in that it might unfairly target members of unpopular groups.
We began this article by agreeing that schoolchildren do have Fourth Amendment rights which are not lost when they enter upon school premises. Yet, with respect to the intrusive searches by school officials enforcing random drug testing, these rights do not appear to amount to a lot. A question that might arise following the Pottawatomie County case is whether random drug testing might be required of all school children, even those not engaged in extracurricular activities.
Perhaps the Court would not uphold such a policy. Certainly, the dissent of Justice Ginsburg, in which three other Justices joined, emphatically demonstrates the sharp disagreement on the Court as to these issues. Yet, there is language in the majority opinion that might be read to support an even wider drug testing policy: ”The safety interest furthered by drug testing is undoubtedly substantial for all children, athletes and nonathletes alike. We know all to well that drug use carries a variety of health risks for children, including death by overdose.” Will the Court uphold even broader random drug testing programs? The answer to that will have to await a future case that would without a doubt make it up to the Court if a local authority seeks to impose such a policy.
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