The Fourth Amendment of the Constitution ensures 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, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment does apply to students in public schools, but somewhat differently. Generally, to conduct lawful searches, the government is required to establish “probable cause.” In New Jersey v. T.L.O, 469 U.S. 325 (1985), the Supreme Court held that because of the special context of public schools, the legal standard for school officials under the Fourth Amendment is not probable cause but reasonable suspicion. Although this is a lower standard, what it means is that a school still must have some reasonable grounds to believe that a search will produce evidence of wrongdoing. Other factors that play into the search are the age and sex of the student and the nature of the infraction.
Quick bullet points on popular school search & seizure situations include:
• Strip searches are generally disfavored and require additional elements of proof beyond the T.L.O. test.
• If items are in “plain view,” there is no reasonable expectation of privacy.
• Generally, there is no reasonable expectation of privacy in property owned and controlled by the school. This would include school lockers and school computers, including school issued lap tops that students take home.
• Things that are stored in a student’s personal electronic devices like smart phones and tablets are electronic versions of “papers, and effects.” These items can be searched, but only under the guidelines of T.L.O.
Generally, Fourth Amendment protections do not apply to private schools. Many times private schools will make parents sign waivers as a condition of acceptance. One Federal Circuit Court of Appeals, however, has decided differently. In Michael C. v. Gresbach, 526 F.3d 1008 (7th Cir. 2008), the Seventh Circuit Court of Appeals held that it is a violation of a child's constitutional rights to conduct a search of a child at a private school without a warrant or probable cause, consent, or exigent circumstances. This case though concerned a state health and family services worker conducting under-the-clothes examinations of each child's body during separate interviews at their private school, as part of a child abuse investigation. When considering those facts, Michael C. is in line with other cases that have said that if a police officer conducts a search in a public school, the higher probable cause standard applies.
While the standard is a bit lower, public school students still have the protections of the Fourth Amendment to protect them from unreasonable searches and seizures. Private school students generally do not have these same rights. Nevertheless, common principles of decency and dignity should still apply. In addition, private school parents and students should check their school’s handbook to see if any school policies detail what the school can and cannot do.
Richard Asselta is an education law attorney and the founder of Asselta Law, PA, located in Broward County, Florida. Asselta Law concentrates on Education and School Law, as well as Appeals. Mr. Asselta was the attorney for a large public school district. He draws upon the knowledge gained from the other side of the table to work with teachers and students on legal issues in all education settings. Asselta Law represents clients throughout the state of Florida and the United States. Contact us today for a free consultation with a knowledgeable education lawyer. Credit cards accepted. Affordable payment plans available.