ERIC Identifier: ED414345
Publication Date: 1997-05-00
Author: Beyer, Dorianne
Source: ERIC Clearinghouse on
Urban Education New York NY.
School Safety and the Legal Rights of Students. ERIC/CUE
Digest, Number 121.
In ensuring school safety, the courts have sought to balance students'
constitutional rights with the need for safety and freedom from violence in the
schools. At present, the balance is thoroughly tilted towards efforts to effect
tough safety and drug policies in the schools and against any extension of the
current scant constitutional rights students enjoy. As the preoccupation with
drugs and gang paraphernalia in the schoolhouse has escalated, school searches
of students and seizures of their property in accord with the Fourth Amendment
comprise a cutting edge issue for the courts and school authorities.
This digest presents a brief review of recent Fourth Amendment decisions that
affect the rights of students and the parameters of schools' authority to
maintain a crime-free environment. It is important to state, however, that
education is almost exclusively a matter of state and local laws, regulations,
and policies. It rarely involves the Federal government or Federal powers,
except for the Federal courts' interpretations of constitutional protections in
the school setting. Thus, although the Federal decisions illustrated below apply
nationwide, and do serve to mark the boundaries of permissible state and local
action, they are no substitute for an understanding of the many legal issues
that are primarily a function of state and local laws. State and local school
authorities must check the laws, regulations, legal precedents, and policies of
their own jurisdiction to ascertain the lawful limits of their own actions,
rather than rely upon the examples cited here.
GENERAL FOURTH AMENDMENT ISSUES
Over several decades, in a
series of cases involving public school students, the U.S. Supreme Court and
state courts have very gingerly both bestowed and limited Fourth Amendment
rights. These cases suggest that the delicate balance between students, rights
and school safety procedures is strongly tilting towards the rights of school
authorities to proactively isolate and reduce perceived causes of school
violence. Starting in 1968 and culminating in 1984, the law of the land
concerning the status of students vis-a-vis school authorities shifted to a more
constitutional basis. Prior to that time, student-school rights were defined by
the common law doctrine of "in loco parentis, which for centuries posited that
school officials had the "right, duty, and responsibility to act in the place of
a parent. Their right to act included the exercise of many parental powers, such
as the right to search students for illegal items, or for those items merely
considered as contraband under state or local law or school district policies,
without the warrant or probable cause mandated for all other citizens under the
The doctrine of in loco parentis began crumbling in 1968, when Tinker v. Des
Moines Independent School District (1969) found for the first time that
constitutional rights--in this case, the First Amendment right to wear a black
armband in school as symbolic speech in protest against the Vietnam War--were
applicable to students. In landmark language that has been repeatedly cited, if
not always upheld, the court said, "It can hardly be argued that either students
or teachers shed their constitutional rights to freedom of speech or expression
at the schoolhouse gate" (pp. 506, 511).
Tinker left unanswered the question of whether Fourth Amendment protections
against unreasonable searches and seizures applied to students when searched by
school authorities, and if so, with what restrictions, if any. It was not
resolved until 1985, in New Jersey v. T.L.O. (1985). In that case, an assistant
vice principal opened and searched the purse of T.L.O. (as the student involved
was identified to protect her identity), after she had been accused of violating
the school's policy of smoking a cigarette on high school property. His search
disclosed not only a pack of cigarettes but also rolling papers associated with
marijuana use, marijuana, a pipe, plastic bags, a large sum of money, a list of
students who owed T.L.O. money, and two letters that involved her in dealing
marijuana. When she was arrested on drug charges, she claimed that the evidence
found in her purse should be suppressed as the fruits of an unreasonable search
The court decided in [the case of] T.L.O. that students subjected to school
searches are, in fact, citizens covered by the Fourth Amendment. Also, for the
first time, the court considered school officials, when acting in furtherance of
publicly mandated educational and disciplinary policies, far more akin to
government agents--the very subject of Fourth Amendment restrictions--than to
parental surrogates who, under the doctrine of in loco parentis, were free from
The final question considered by the court was whether the search was
reasonable, as guaranteed by the Fourth Amendment. The Amendment requires a
warrant and probable cause before a search is considered reasonable, although
there are several exceptions to the imposition of that formulaic and high
standard. The T.L.O. court carved out another such exception to the usual
standard; it found that the Fourth Amendment's requirement of reasonableness was
met if school authorities acted without a warrant, but with "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. Such a
search will be permissible in its scope when the measures adopted are reasonably
related to the objectives of the search and are not excessively intrusive in
light of the age and sex of the student and the nature of the infraction" (p.
733). Thus the "reasonable suspicion" standard was definitively asserted. It
permitted school authorities to lawfully search students upon meeting its
two-pronged test: the search must be (1) reasonable in inception, and (2)
reasonable in scope.
Some recent search cases in which the two-pronged "reasonableness test" was
successfully applied include these:
*A school dance monitor, who, upon seeing that some students were inebriated,
in contravention of school policy, took them to a private office and asked them
to blow on her face (Martinez v. School District No. 60, 1992).
*Upon hearing an unusual thud when a student threw his bag onto a metal
cabinet, a security guard rubbed his hand along the bag to feel for a gun
(Matter of Gregory M., 1992/1993).
*Upon a student's report to a guidance counselor that another student
possessed an illicit drug, the administrator searched the latter student's book
bag, because the administrator also had knowledge that the student had been
previously disciplined for possession of a controlled substance (State v. Moore,
The case law on student search and seizure has yielded a few other useful
factors to consider when conducting a search to ensure that it is reasonable at
the inception and in scope. They include the student's age, history, and school
record; the seriousness and pervasiveness as a school problem of the suspected
infraction or crime; the urgency that required the search without delay; the
school official's prior experience with the student; and the evidentiary value
and reliability of the information used to justify the search (Rapp, 1994).
What cannot and will not be condoned by the courts are searches that are
performed with malicious intent to deprive students of their rights, those where
school officials know or should have known that their actions violated students'
rights, those that are capricious or discriminatory, and those that do not
closely follow school search policies.
The T.L.O. [case] rule and its progeny have been applied to the rights of
school authorities to engage in the following acts:
*Search students' school lockers to look for contraband or illegal materials
(Student searches and the law, 1995; S.C. v. State, 1991).
*Search a student's car in the school parking lot (State v. Slattery, 1990;
Student searches and the law, 1995).
*Organize searches by drug-sniffing dogs (Doe v. Renfrow, 1980; Horton v.
Goose Creek Independent School District, 1982; Jennings v. Joshua Independent
School District, 1989; Jones v. Latexo Independent School District, 1980) or
metal detector machines (People v. Dukes, 1992; National Treasury Employers
Union v. Van Raab, 1989).
*Perform a visual or manual body cavity search (Student searches and the law,
DRUG TESTING LAW
As contentious as Fourth Amendment issues
have been, the lessons of the T.L.O. case were not substantially reviewed until
the courts assessed the issue of mandatory and voluntary drug testing. Until
1995, the short answer to the question of whether schools could mandate all or a
class of students to submit to blood or urine tests for drugs could be clearly
answered: "no" (Price, 1988). Such testing was seen as a violation of students'
reasonable expectation of privacy (Jones v. McKenzie, 1986), and repugnant not
only to the U.S. Constitution, but also to the nation's common sense of
students' integrity (Anable v. Ford, 1985; Odenheim v. Carlstadt-East Rutherford
Regional School District, 1985). The courts did, however, make a distinction
between mandatory and voluntary drug testing, with the latter subject to no
Fourth Amendment protections, as it is based upon consent.
That distinction blurs, though, when the tests are used as a precondition for
school enrollment or for participation in extracurricular activities. Until June
27, 1995, the courts were split on drug testing as a precondition for
participating in extracurricular activities, with some courts approving it
exactly because these activities are voluntary (Student Searches and the Law,
1995). Then came Acton v. Vernonia School District 47J (1991), which involved a
high school student, James Acton, who wanted to be on his school's football
team. His parents refused to sign a form consenting to a urinalysis that would
test their son for a variety of drugs, if James were randomly selected by school
authorities to comply with the school's newly instituted mandatory, random drug
testing program. There was no claim that James was suspected of drug use, but
school authorities asserted that their random urinalysis drug testing policy was
the result of their being at their "wits' end" over how to solve a perceived
growing drug problem (Daniels, 1995). James Acton, as a consequence of his
parents' refusal to consent to such a test, was denied a spot on the football
team. In courtroom after courtroom, ending at the U.S. Supreme Court, school
officials pressed their claim that they were justified in implementing their
random testing program in order to stop the rowdy, anti-authoritarian behavior
of their athletic teams that resulted from increased drug use in their rural
Oregon school. The 9th Circuit Court of Appeals agreed with the Actons, found
the mandatory policy an "unreasonable search," and rousingly stated that
"children, students, do not have to surrender their right to privacy in order to
secure their right to participate in athletics."
The U.S. Supreme Court did not agree, and once again tipped the scale in
favor of educators' efforts to maintain perceived school order and discipline
and against the preservation of an individual student's rights to privacy as
guaranteed by the Fourth Amendment (Vernonia School District 47J v. Action,
1995). In this final appeal of the Vernonia case, the Court, in a 6-3 ruling,
reversed the lower courts and found that the district's policy conformed with
the Fourth and Fourteenth Amendments. It ruled that although the urine test was
a "search" it was a "reasonable" one because legitimate governmental interests
outweighed any intrusion on a student's privacy rights. The Court found that
athletes have an even further reduced expectation of privacy than other
students, as they are more closely regulated in many areas, such as grades and
medical condition, and they participate in communal undressing and showering,
further obviating any claim of physical privacy. In addition, the Court found
that the urine test procedure was negligibly intrusive, even though students had
to divulge the prescription drugs they were taking at the time, since the
process was akin to public restroom conditions and the test was being used only
to determine illicit drug use rather than to identify any medical situation. In
an outright reversal of any previous rationales, the Court emphasized that a
random drug testing policy was better than suspicion-based testing because the
latter would turn the process into a badge of shame and would also permit
teachers to arbitrarily test "troublesome but not drug-likely students."
CASE LAW TRENDS
The citation of Vernonia has served as the
precedent for several constitutional decisions on the Federal district court or
circuit court of appeals levels during the few years since its issuance. Stigile
v. Clinton (1996) found a strong governmental interest in permitting random drug
testing of high school athletes, when such testing is "undertaken in furtherance
of the government's responsibilities, under a public school system, as guardian
and tutor of children, entrusted to its care."
Thompson v. Carthage School District (1996) permitted the generalized search
of all males in the sixth through twelfth grades in an Arkansas school district
that required them to empty their pockets and to submit to a "pat-down" for
weapons by school authorities. The Thompson court applied T.L.O.'s two-pronged
"reasonable test" and then applied the lessons of Vernonia. It found that
Vernonia--which established that random drug testing in the absence of
individualized suspicion, was "reasonable," and that even the significant
privacy invasion of a urinalysis was justified by the important government
interest, as students' "reasonable guardian and tutor" in reducing drug abuse by
student athletes--could buttress the court's rationale in permitting the
invasive "pat-down" and emptying of pockets.
In Wallace by Wallace v. Batavia School District (1995), the court cited
Vernonia when it permitted as a reasonable seizure a teacher's grabbing a high
school student's wrists and elbow and escorting her out of the classroom, after
observing the student participate in a screaming match with another student and
then threaten that student with physical violence. The finding of
"reasonableness" was based upon Vernonia's dictum that the nature of students'
"rights is what is appropriate for children in school."
Cheema v. Thompson (1995) extended the previously abandoned legal theory of
schools' functioning in loco parentis. The court noted that Vernonia held that
for many purposes "school authorities act in loco parentis" when it decided, on
other grounds, that Sikh students in California cannot be forced to utterly
abandon their possession of religiously mandated ceremonial knives or cease
attending public elementary school. After Cheema, it could be posited that there
are still legal grounds to argue that school authorities are endowed with
parental rights when assuring students' safety and drug-free status, and that
students' constitutional protections are subservient to those parental rights.
With respect to students' rights in school, the
current direction of Fourth Amendment law reflects society's fears of and
disrespect for children and the paucity of alternatives to police-type
enforcement measures that are both in use and under consideration in the
schools. It also indicates that school authorities no longer have to grant
students the civil rights considered inalienable by the rest of the nation's
citizens. Thus, the first line of defense of school administrators is to bring
in more policing measures, such as car searches, metal detectors, urinalyses,
and drug-sniffing dogs. The cases reported here, as well as many others not
discussed, result from the shared frustration felt by administrators trying to
stop the perceived violence and drugs without restraint and alternative.
There is, however, a wealth of information and experience about alternatives
to such draconian school violence prevention strategies. Law-related education
(LRE) is a fresh approach to reducing the causes of school violence early and
continually throughout a student's education. It is a generic, interdisciplinary
direction in education that combines particular kinds of content (related to
rules, laws, and legal systems) with interactive instruction (McBee, 1995).
Student conflict resolution and mediation training, including student courts,
represent another approach. Peer counseling has also proven effective in
breaking the impasse between violent students and the school system (Sachnoff,
1988). Using trained students as helpers, friends, counselors, mediators, and
educators to ease the school tensions and conflicts that result in violence is
an educational and effective first line of defense against school disruptions
and crime. The use of dress codes and uniforms to change a school's violent
culture has also dramatically reduced crime and violence in many school
districts ("Restricting Gang Clothing," 1994; Kennedy, 1995; "Long Beach
Schools," 1995; "Regulating Student Appearance," 1994). Parental and other adult
participation not only bolsters school anti-violence programs, but also aerates
the school system and demonstrates the entire community's concern with students'
education and progress. All of these initiatives provide early and ongoing
education and experience in nonviolent means of violence prevention for grades
K-12. In fact, the list of such innovative strategies to combat school violence
is as extensive as society's creativity and commitment to empower rather than
Reliance on prevention programs is not only an issue of efficacy and
morality, but is also one of international law. Children have human rights,
regardless of their behavior or the school setting. The Convention on the Rights
of the Child sets the basic, minimum standards for juvenile justice procedures,
children's access to education, their rights to bodily integrity and mental
health, and the provision of other resources to enable children to become
healthy and productive adult citizens. One of the main tenets of the Convention
is that children's human rights rest on a bedrock of their right to be heard, to
be listened to, and to participate in the decisions and environments that affect
their lives. Certainly, violence prevention training, as opposed to criminal
enforcement techniques, is the course most consistent with a recognition of
children's human rights. At this date, the Convention has been ratified by over
180 nations worldwide; only the United States, Somalia, and the Cooke Islands
have not ratified it.
Acton v. Vernonia School District 47J, 23 F.3d
1514, 9th Cir. (1991).
Anable v. Ford, Civil Action No. 84-6033, W.D. Ark. (1985).
Cheema v. Thompson, 67F.3d 883, 9th Cir. (1995).
Daniels, L. (1995, March 29). Vernonia's day in court. The Oregonian.
Doe v. Renfrow, 632 F.2d 91, 7th Cir. (1980).
Horton v. Goose Creek Independent School District, 690 F.2d 475, 5th Cir.
Jennings v. Joshua Independent School District, 877F F.2d 313, 5th Cir.
Jones v. Latexo Independent School District, 499 F. Supp. 223, E.D. Tex.
Jones v. McKenzie, 628 F. Supp. 1500, D.D.C. (1986).
Kennedy, M. (1995, August 19). A fashion statement with real meaning. The Los
Angeles Times, p. A1.
Long Beach schools favor dress codes as violence declines. (1995, August 19).
Oakland Tribune, p.12.
Martinez v. School District No. 60, 852 P.2d 1275, Colo. Ct. App. (1992).
Matter of Gregory M., 184 A.D. 2d 252, N.Y. App. Div. (1992), aff'd., 82 N.Y.
2d 588 (1993).
McBee, R. H. (1995, Spring). Law-related education and violence prevention.
School Safety Journal, pp. 24-28.
National Treasury Employees Union v. Van Raab, 489 U.S. 668 (1989).
New Jersey v. T.L.O., 1055 Ct . 731 (1985).
Odenheim v. Carlstadt-East Rutherford Regional School District, 211 N.J.
Super. 54 (1985).
People v. Dukes, 580 NY2d 850, NY Crim. Ct. (1992).
Price, J. R. (1988). The rights of students. New York: Wiley-Liss.
Rapp, J. (1994). Education law. New York: Matthew Bender.
Regulating student appearance: A new trend. (1994, March). School Safety
Update, p. 6.
Restricting gang clothing in public schools. (1994, March). School Safety
Journal, pp. 1-4.
Sachnoff, I. (1988, Winter). Peer counseling for troubled youth. School
Safety Journal, pp. 26-27.
S.C. v. State, 583 So 2d 188, Miss. (1991).
State v. Moore, 254 N.J. Super. 295, N.J. Super., App. Div. (1992).
State v. Slattery, 56 Wash. App. 820, Wash. Ct. App. (1990).
Stigile v. Clinton, 932 F. Supp. 365, 367 Dist. Ct. D.C. (1996).
Student searches and the law. (1995). Malibu, CA: Pepperdine University,
National School Safety Center.
Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).
Thompson V. Carthage School District, 87 F.3d 979, 8th Cir. (1996).
Vernonia School District 47J v. Acton, No. 115 S. Ct. (1995).
Wallace by Wallace v. Batavia School District., 68 F.3d 1010, 1017, 7th Cir.
This digest is based on an essay, "School Violence and the Legal Rights of
Students: Selected Issues," by Dorianne Beyer, published in the monograph,
Preventing Youth Violence in Urban Schools: An Essay Collection.