Legal Guide - Student Search and Seizure by

1. Professional Perspective/Audience/Topic

mhill259 — 2022-09-29 12:10:42 UTC

The professional perspective for this legal guide is that of a school administrator who is responsible for student discipline and school safety.
The intended audience for this legal guide are those school administrators that wish to increase their knowledge of the issues, potential liabilities, and best practices relating to student search and seizure.
This topic, Student Search and Seizure, is a relevant issue for all educators and was chosen as the topic for this legal guide in the hopes that the legal and professional perspectives contained herein will assist school administrators in balancing the rights of their students with the need and the duty to maintain safe schools and positive learning environments.

2. Interview

mhill259 — 2022-09-29 16:01:12 UTC

This interview was conducted with Jason Inman, Assistant Superintendent for Compass Academy Charter School in Odessa, Texas. Prior to assuming his current position, Mr. Inman served a number of years as the Secondary School Principal at Compass. The website for this school is
https://www.mycompassacademy.com/

Mr. Inman confirmed that the issue of student search and seizure is a relevant, ongoing concern for school administrators. Administrators are charged with maintaining a safe learning environment within their respective schools. They are also responsible for respecting and guarding the civil rights of all students.

Mr. Inman described to me his own best practices when dealing with this issue:

1. When investigating a suspicion that a student might be in possession of something illegal or something that poses a threat to the safety and security of the school, an administrator must make sure that he or she is acting from the best possible information at their disposal.
2. When in doubt, consult a legal professional. Mr. Inman often consults with the local police department and/or the school attorney for guidance on these issues.
3. Where possible and advantageous, involve parents. Mr. Inman advised that many times over the years he has called a parent and had them come to the school to assist in going through the belongings of their child when that child was alleged to be in possession of something illicit.

An emerging issue related to this topic is associated with the relatively recent rise in violent crimes on school campuses and the increase in drug abuse among school-age children. Both of these issues are of great concern to all stakeholders in our school system. The seriousness of these issues and the potential danger to the health and well-being of students could easily lead to an overreach on the part of well-meaning administrators. Now, more than ever, it is important to strike that crucial balance between safeguarding students physically and constitutionally.

3. Professional Association

mhill259 — 2022-10-01 21:17:27 UTC

One very helpful resource from a professional association is a guide entitled "Legal Issues in Student Searches" published by the Texas Association of School Boards.

This resource provides guidance for school administrators by clarifying what constitutes a search and outlining the legal requirements that must be met. The resource goes even deeper in discussing the different standards for searches that are initiated by school personnel as opposed to those that are initiated by law enforcement personnel. Finally, this resource contains a helpful discussion pertaining to a students' reasonable expectation of privacy in electronic communications found on their personal devices.

This resource can be found at:
https://www.tasb.org/services/legal-services/tasb-school-law-esource/students/documents/legal-issues-in-student-searches.pdf

4. Current News Article #1

mhill259 — 2022-10-01 23:33:58 UTC

The first article that is informative to this topic relates to the issue of student safety. The article originates from the state of California and pertains to the practice of the Los Angeles Unified School District policy of random searches involving the use of a metal detector wand. The explicit purpose of these searches was to detect the presence of firearms on school campuses.

Pursuant to this policy, school officials would randomly select classrooms and then randomly select students from those classrooms to be subjected to a wand search of their persons and belongings. This policy, which had been in place for 26 years, was recently called into question based upon ethical principles.

Students at LAUSD reported feeling "violated" by the searches (although no direct contact with students occurred) and they expressed their feelings that they were being viewed as "suspects" instead of students (Kohli, 2019).

Search logs from many years of this policy indicated that no firearms had been found as a direct result of the policy implementation. Items recovered from the searches revealed instead items such as pepper spray, scissors, knives, and vape pens. Firearms had regularly been found on campus, but were usually located as a result of student tips to campus law enforcement officials.

As a result, LAUSD board members voted to suspend the policy in light of the perceived harm it was causing to student-teacher and student-administrator relationships, as well as the lost instructional time involved in the conduct of the searches.

Kohli, S. (2019, July 6). When LAUSD's random searches of students end, what's next for school safety? Los Angeles Times. Retrieved October 1, 2022, from https://www.latimes.com/local/education/la-me-edu-lausd-random-metal-detector-search-analysis-20190706-htmlstory.html

5. Current News Article #2

mhill259 — 2022-10-02 00:25:18 UTC

The second news article identified as relevant to the topic at hand relates to the issue of drug possession on school campuses. While this issue does not dominate headlines in the same manner that issues of school safety do, it could easily be argued that this problem is more pervasive than the problem of school violence and has the potential to cause at least an equal, if not not greater, threat to the health and safety of students.

The article details how the odor of burnt marijuana in a classroom led a teacher to alert school administrators. A search of the belongings of all students in the class resulted in finding marijuana stems, marijuana seeds, rolling papers, and two lighters in the backpack of one student. It was further reported that other students in the class identified the student in whose belongings these items had been found as the person who, in fact, lit a marijuana cigarette in the classroom (Childress, 2022).

Armed with this information, school administrators ordered a strip search of the student in the counselor's office. When no evidence was found during the initial search, a second search was ordered in which the student was required to expose her most intimate parts to the (female) counselor. Reportedly, sufficient care was not taken to ensure that the student could not be observed through any window in the counselors' office.

While there was no indication that anyone outside the counselors' office observed the student in her state of undress, the mere possibility prompted an appeals court to rule that the students' Fourth Amendment rights had been violated and that a civil suit against school officials could proceed.

Childress, J. (n.d.). Case involving student strip search allowed to proceed against school officials. Education 311. Retrieved October 1, 2022, from https://ed311.com/case-involving-student-strip-search-allowed-to-proceed-against-school-officials/

6. Original Sources of Law: Constitutional

mhill259 — 2022-10-02 00:45:54 UTC

The Fourth Amendment to the Constitution of the United States holds that:

The right of the people to be secure in their persons, houses, parers, 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 makes it clear that the right to privacy is paramount in a free society. School administrators are, thus, charged with balancing the rights of students with the mandate to maintain a safe learning environment.

U.S. Constitution - Fourth Amendment | Resources - Congress. (n.d.). Retrieved October 2, 2022, from https://constitution.congress.gov/constitution/amendment-4/

7. Original Sources of Law: Case Law (Federal)

mhill259 — 2022-10-02 01:13:24 UTC

In the landmark case New Jersey v. T.L.O. (1985) the Supreme Court found that "students have some legitimate expectation of privacy at school. However, the students’ expectation of privacy must be balanced against the needs of school authorities to maintain an educational environment. As such, school authorities do not need to obtain a warrant or have probable cause that a crime occurred before searching a student. Rather, the reasonableness of a search, under all circumstances, will determine its legality" (Facts and Case Summary, New Jersey v. T.L.O.).

Facts and case summary - New Jersey v. T.L.O. United States Courts. (n.d.). Retrieved October 1, 2022, from https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-new-jersey-v-tlo

8. Original Sources of Law: Texas State Constitution

mhill259 — 2022-10-02 20:44:55 UTC

The Constitution of the State of Texas affirms and restates the provisions of the Fourth Amendment to the United States Constitution in Article I Section 9 of that document.

It states:

"The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation."

The Texas Constitution Article 1. Bill of Rights. (n.d.). Retrieved October 2, 2022, from https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm

9. Original Sources of Law: Case Law (Texas State Courts)

mhill259 — 2022-10-02 20:59:42 UTC

In the case In Re S.M.C. (Court of Appeals of Texas, El Paso, 2011), the appellate court decided that a prohibited weapon found in a students' locker could be admitted as evidence in a criminal proceeding. The defendant had filed for a dismissal of the case based upon the fact that the original search was conducted under the reasonable suspicion that the student might be in possession of an illegal drug(s). The court held that the discovery of the weapon in the students' locker pursuant to a lawful search based upon reasonable suspicion (the correct standard for school officials) was not a violation of the students' rights and that any evidence discovered as a result of the search, even if unrelated to the original suspicion, was admissible.

In re S.M.C., 338 S.W.3d 161 (Tex. App.—El Paso 2011, no pet.).

10. Local Administrative Law/Policy/Rule

mhill259 — 2022-10-02 21:22:13 UTC

A local ISD policy pertaining to investigations and searches of students includes policies pertaining to the questioning of students, the search of district-owned property, the search of students' personal property, the use of trained dogs in searches, and the district policy on drug testing.

In summary, the policy as it relates to this topic advises students that they have no expectation of privacy in their desks, lockers, or any electronic devices that are owned by the district and provided to the students for convenience and educational purposes. The policy further states that searches of students and their personal property may also take place if reasonable suspicion exists that a violation of school policies/rules or of a criminal statute is being perpetrated. Finally, the policy explains that a students' belongings may be searched by a trained dog and searched if the dog alerts to the presence of an illegal substance, but that a trained dog cannot be used on a students' person unless individualized reasonable suspicion exists.

Board policy manual. TASB. (n.d.). Retrieved October 2, 2022, from https://pol.tasb.org/PolicyOnline/PolicyDetails?key=421&code=FNF

11. Ethical Principle

mhill259 — 2022-10-02 21:45:47 UTC

The ethical principle that an educator may encounter in the course of investigating and/or searching a student suspected of possessing an illicit item in violation of law or policy is found in section 247 of the Code of Ethics and Standard Practices for Texas Educators.

Subsection 3(A), Standard 3.1 of that section states that: "The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law".

Investigations and searches of students are, by their very nature, very sensitive matters. In the case that a reasonable suspicion search is based upon information that proves to be unreliable, an educator must take care not to do or say anything that might besmirch the reputation or standing of a student within the school of attendance. Therefore, an educator must keep any suspicions or details confidential unless and until a reasonable suspicion is determined to be founded or unfounded. Only in the case that a potential threat to the student body at large exists should an educator make immediate notifications. Even then, those notifications should only be made to the appropriate individuals so that protective measures can be brought to bear.

Chapter 247. educators' code of ethics - texas education agency. (n.d.). Retrieved October 2, 2022, from https://tea.texas.gov/sites/default/files/2016_10_ch247-two.pdf

12. Personal Connection to the Legal and Ethical Standards

mhill259 — 2022-10-02 21:54:42 UTC

The legal and ethical standards outlined in this guide helped me to understand the concerns of educators and administrators in balancing the rights of students with their responsibility to maintain a safe learning environment. As a former law enforcement officer search and seizure was something I dealt with on a daily basis for more than twelve years. As a result I was well-versed on the legal and ethical principles of this subject from a law enforcement point of view. However, the world of education provides a different paradigm under which I must now serve and work to ensure the safety of the students in my charge. As the leader of our School Safety Team, I have additional responsibilities in this area. Researching the legal and ethical principles for this guide has given me a clear idea of how search and seizure policies should now be implemented on my campus.

13. Recommendations/Best Practices for Compliance

mhill259 — 2022-10-02 22:35:29 UTC

Investigate any claims or information as thoroughly as possible (without compromising the source or alerting the subject) before taking action.
Make a determination as to the proper course of action (i.e. should law enforcement be involved immediately, does reasonable suspicion for a search exist, etc.).
Determine as near as possible the persons and areas to be searched and take any logistical matters into consideration before approaching the subject(s) of the search.
Ensure that only those with a direct need to know are informed of the details prior of the search.
Carry out the search as privately as possible and with the least amount of exposure to the general student population as is possible.
Make sure that there is at least one faculty/staff witness to the search for your protection and the protection of the student.
If the search yields any illicit items make sure that everything is documented fully and that any items that are seized are logged for chain-of-custody purposes.
Take any disciplinary measures necessary and/or make law enforcement notifications as appropriate.
Contact parents/guardians as soon as reasonably possible to make proper notifications.