Thank you.
Thank you for watching.
Maintaining effective discipline often requires school administrators to conduct student searches.
The law in this area is complex, and administrators need to know what is permissible and what is not
in conducting searches in a variety of circumstances and settings.
This video on the law of student search and seizure is jointly produced by the law firm of Walsh, Anderson, Underwood, Schultz, and Aldrich,
a professional corporation with offices in Austin and San Antonio, Texas,
and by the Texas School Administrators Legal Digest, a monthly legal periodical.
Featured is school attorney Jim Walsh, senior partner in the Walsh-Anderson law firm,
and his guests, attorney Chris Elizalde with the Austin office of the same firm,
Tyra Adams, a Denton High School student who plays the part of the student in the video,
and Frank Kemmerer, Regents Professor in the College of Education at the University of North Texas.
Please note that the videotape you are about to see is protected by copyright.
It reminds you that counting and holding a part is strictly prohibited.
This video is designed to provide general information on the subject discussed,
but is not intended to provide legal advice with regard to a specific situation.
You should not be relied upon in dealing with specific cases where legal advice is called for.
As the law changes, portions of the videotape that reflect the law as it existed when the video was made may no longer be accurate.
Advice from legal counsel should be obtained to guide you through a specific situation.
And now, here is school attorney Jim Walsh.
School boards, parents, and students today expect our public schools to be an environment that is
free and appropriate for students to go to school safely. We certainly expect our public schools to
be gun-free, to be drug-free, and even to be tobacco-free. But if the principal is going to
maintain that kind of environment, the principal needs to have a firm grasp on the basics of the
Fourth Amendment and its application to the public schools. The Fourth Amendment is that provision in
the Bill of Rights that protects our right of privacy. It protects us from unreasonable
searches and seizures. Now, if we were to look at the Fourth Amendment, you would not
find the expression right of privacy, but that's really what it's all about. The Fourth
Amendment tells us that the government cannot conduct an unreasonable search into our personal
belongings. We're to be free from that sort of thing. But does the Fourth Amendment apply
in the public school setting? After all, if we looked at the language of the Fourth Amendment,
doesn't say anything about public education or about public schools, but the court cases over
the past 25 years or so have analyzed that issue extensively. Does the Fourth Amendment apply to
the school setting, and if so, to what extent? Now, when we talk about that kind of analysis
and that kind of litigation, we have to talk about the situation that took place in the New Jersey
School District a number of years ago that led to the landmark case of New Jersey v. TLO.
This case had a very ordinary beginning. It began with girls smoking in the bathroom.
One of the students, now known as TLO, was brought down to the assistant principal's office.
Now, this case is really memorable, if for no other reason than because of the assistant
principal's name. His name was Mr. Choplick, which I've always thought was the perfect name
for an assistant principal in charge of discipline. T.L.O. was brought down to Choplik's
office, and he confronted her. I understand you were smoking in the bathroom. Oh, no, sir, Mr.
Choplik, I was not. In fact, I don't even have any cigarettes. Well, Mr. Choplik decided to check
this out, and he required T.L.O. to produce her purse so that he could look into it. He opened
the purse, he looked in, and the first thing he found was a pack of cigarettes. T.L.O. had not
been truthful. But as he found that pack of cigarettes and he reached in and he pulled it out,
the contents of the purse kind of got jumbled up. Mr. Choplick saw some other things
that interested him. As he dived down to the bottom of the purse, he found a wad of dollar
bills kind of rolled up. He found a list of, quote, people who owe me money. He found what
appeared to be drug paraphernalia, and he did find a quantity of marijuana. Criminal prosecution
ensued, and the case worked its way all the way to the U.S. Supreme Court. Now, TLO's argument was
that when Mr. Choplick investigated her purse, when he opened her purse, looked into it, and
pulled things out, he was conducting a search. Not only was he conducting a search, she argued that
it was an illegal search, it violated her right of privacy under the Fourth Amendment, it was an
unreasonable search and seizure, there was no warrant, and the evidence produced from the search
should not be admitted into court. So the Supreme Court was faced with this issue for the first time.
Does the Fourth Amendment apply to the public school setting, and if so, to what degree?
The court said, yes, the Fourth Amendment does apply in the public school setting. But if you
look at this opinion and the other cases, I think it really lays out a spectrum as far as the law
of search and seizure. The court very carefully said that a school principal is not the same as
the parent. We use the expression sometimes in loco parentis, meaning that the school officials
are acting in the place of the parents and they can do at school whatever it is the parents could
do while the child is at home. The court said that that does not apply to the search of a student's
belongings by a school official at the school. On this spectrum, the parents are at one end
and the police are at the other. The parents can conduct any kind of a search of their child's
belongings that they have the moral courage to do. If you have an adolescent child and you have
the courage to go into their bedroom, poke around in their drawers, look into their book bag, look
under the bed, look in the closet, you don't violate the U.S. Constitution by doing that.
You're at the far end of the spectrum. You're not even a government official. The U.S. Constitution
does not restrict your authority in that area. On the other end of the spectrum is the police.
Now, whether we've all been to law school or not,
we've all seen enough television shows and movies
about the law of search and seizure with regard to the police.
We know that the police have to have probable cause
before they conduct a search.
And many times, they may come up with evidence of criminal wrongdoing,
but it will be thrown out by the court because the search was invalid,
because the police didn't have probable cause to look for it in the first place.
School officials are in the middle.
In the TLO case, the Supreme Court said,
we are not going to require school officials to have probable cause.
That is too rigid of a standard.
We're not looking into investigating a crime here.
We're trying to maintain student discipline,
and a more flexible standard would be appropriate.
The court used the expression reasonable cause.
You also frequently will hear courts refer to reasonable suspicion,
and that's just a way of describing a standard
which requires some basis, some facts that we can hang our hat on,
something more than just a hunch.
But on the other hand, it doesn't require us to go to the level of probable cause
that the police would have.
In the TLO case, the Supreme Court basically said,
we're going to look at the reasonableness of the search under all the circumstances.
But they focused on two specific areas.
The Supreme Court said, number one,
we're going to determine whether the search was justified at the inception.
In other words, we look at what did the principal know before conducting the search.
Were there some facts that the principal could articulate that amount to reasonable cause?
Was the search justified at the inception?
The second thing that the Supreme Court said we would look at is, was the search reasonable in scope?
In other words, even though the principal may have had justification to conduct a search,
did the principal possibly go too far with that search?
We look at was it reasonable in scope.
In terms of reasonableness and scope, the court is going to examine were the measures adopted reasonably related to what it is you're searching for.
The court said we'd look at a number of factors in that regard, the age of the child, the sex of the child, the nature of the infraction.
After all, looking for a gun is one thing.
Looking for $2 of missing lunch money is something quite different.
And we would also look at the area that we're looking into.
Are we looking into a school locker that is owned and controlled by the school?
Or are we conducting a strip search to determine if a student is carrying some illegal substance in the student's underwear?
So we look at all those factors to determine whether the scope of the search was reasonably related to what we were looking for in the first place.
And in that light, it's appropriate to look at the variety of circumstances that might come up in a school setting.
Since TLO, cases have dealt with locker searches, they've dealt with car searches,
they've dealt with searches of personal belongings, they've dealt with strip searches.
And one thing we've learned is that as you move along that continuum,
the level of reasonable suspicion needs to be greater
as we move into more personal intrusions of the student's privacy.
Lockers, for example, are owned and controlled by the school,
and the student's expectation of privacy in the locker is not as great.
as the student's expectation of privacy in pockets, in personal clothing, in the automobile
that I own and that I bring to school. The expectation of privacy is a factor that we have
to weigh. Basically, when we look at the law of search and seizure as it applies to schools,
you can see cases differ depending on that student's expectation of privacy. Is it a locker
search? Is it a strip search? Is it something in between? Those are factors we will examine
in the course of this video. As the Supreme Court reviewed all the facts in the New Jersey v. TLO
case, they ruled that what Mr. Choplik did was permissible under the Fourth Amendment. The search
was reasonable at the inception. The search was reasonable in scope. Mr. Choplik's actions were
approved. Since then, there has been a great deal of litigation involving basically the same issue,
the scope of the Fourth Amendment as applied to the public school setting. I think it's safe to
say that most of those cases have ruled in favor of the school districts, but there are
many that have gone the other way. And today's principal certainly needs to have a clear
grasp on the practicalities of the application of the Fourth Amendment in the school setting.
When we talk about those practicalities, I think it comes down to two key questions that
the principal should always ask himself or herself before conducting a search. Number
one, what is it that I think I'm going to find? What do I think I'm going to find? I
I must be looking for something that violates school policy or is prohibited by law.
What do I think I'm looking for?
Number two, why do I think I'm going to find it there?
When you're conducting a search, you should have in mind where you're going to look
and have some basis for the belief that you will find something there.
Now, as we go through this video, we're going to take a look at some situations
that arose in the Blusterville High School involving Principal D.W. Do-Right.
Principal Do-Right, it seems, bumps into the Fourth Amendment just about every week.
But we can learn from Mr. Do-Right's experiences.
We will examine how Principal Do-Right engages with the Fourth Amendment in these situations
and then discuss the application of the Fourth Amendment to these cases.
say jason how you doing mr doolittle do right that's do right right i'm doing good how are
you jason perfect good good just caught you on your way back from pe sure you did yeah well good
what you got in your locker there that's my coat yeah safekeeping well that's a good thing to do
What else did you put in there, Jason?
Uh, my car keys.
Safety as well.
You never know when this day and age, you know?
Well, that's right.
I'm glad you're so careful about that, you know, but I just happened to be passing by
and I would have sworn I saw something else go in there.
Are you sure there's nothing else in that locker?
I think I left my iguana at home today.
Well, I was thinking it was more like a pack of cigarettes, Jason.
I don't smoke, sir.
Well, I didn't accuse you of smoking, Jason.
I just said I thought I saw a pack of cigarettes going into that locker when you put your coat away.
No cigarettes in that locker.
Guaranteed.
There's no cigarettes in that locker.
Take my word on it.
So if I were to look in Locker 1153 right now, I would not find a pack of Marlboro cigarettes.
That's especially true since you won't look in a Locker 1115.
Oh, no, I think I'll take a look at Locker 1153.
You'll take a look at a Locker 1153 when I take a look at some court papers.
Oh, is that right, Jason?
That's right.
Oh, you've been watching the Simpson trial proceedings, learning about the law here?
Not really that.
I read a couple of books.
I see.
So, well, you understand that, you know, that's school property.
I do believe I'll take a look at it.
But what's inside is my property.
So I don't think you'll take a look at that.
Well, let me get this straight now.
So I don't have your consent to conduct a search of this locker?
Not in any way, shape, or form.
Hmm.
Chris, what should Mr. Do-Right do now?
Well, Mr. Do-Right is the one who saw the cigarettes go in the locker.
locker. It was nice to try to get consent, but he didn't need it. I think he could go
forward and open that locker.
So let's suppose that Jason stands in front of the locker. Remember, he said,
I will not open the locker unless you produce some court documents. So Jason stands in front
of the locker and says, you'll have to do it over my dead body. Now what?
Well, the principal's going to have to be reasonable about how far he's willing
to go, but I think he could…
Push Jason out of the way?
I think he could gently push Jason out of the way and open the locker, yes.
Jim?
Well, I think he can clearly conduct the search.
And I think every principal in the state of Texas would conduct the search under those
circumstances with a student like Jason.
But you know, he had, was the search justified at the inception?
Well, he saw it.
I mean, he wasn't even relying on a third party giving him information.
He saw the cigarettes go in the locker.
So he clearly had reasonable suspicion.
And it was, you know, it's not a terribly intrusive search to go into the student's
locker.
wasn't going into his personal pockets or even into his book bag or anything. It was kind of a
low-level search. But you have a very, what should we say, assertive young man here who is pretty
adamant about not opening that locker. Can you physically touch Jason and move him off? I mean,
there's some problems associated with that. If he absolutely refuses and stands in front of the
locker and says, you'll have to move me in order to get in the locker, there is a point at which
your principal has to retreat, right?
And I'm wondering at what point that is,
where you have a student who is absolutely defiant.
I think every case is different, depending on how defiant they are.
But I think the principal, having been justified to open the locker,
could take whatever reasonable actions he needs to take to conduct the search.
If it means that first he's going to remove the student
and take him to the office or escort him to the office
or have someone come and help him and escort the student to the office
so that he can conduct the search, that's a reasonable approach also.
I don't recommend that a principal enter into some sort of fist fight, you know, in the
locker area, but if there is a reasonable method by which he can sort of diffuse the
situation, perhaps get the student out of the way first with the help of someone, he
has a right to do that, I think.
Jim, during the earlier part of the video, you talked about in loco parentis, the concept
of a school official seemingly to have the rights of a parent.
What if Jason were an elementary student?
Would it be any different?
Would his rights be the same as you have discussed?
And in this situation, would he have, in effect, very little grounds to protest this search?
Or with elementary students, does your authority suddenly become much greater and you could
actually do more with regard to his obstinance than in this situation?
Well, you know, the court said in the TLO case that the age of the student was one of
the factors you would take into account in terms of the intrusiveness of the search.
Courts have not really articulated a lot of exactly what they mean by that.
One thing I think that comes up, though, with regard to the age of the student has to do
with the effectiveness of the consent.
For example, in this vignette that we just showed, Jason did not consent to the search.
If he had consented to the search, he's clearly one of the older students, he's a high school
student, he's articulate, he seems to understand, he would seem to understand what consent means.
When you deal with a little kid, when they quote consent to the search, I think that's
pretty meaningless because they are told to do what their parents and what their principals
tell them to do.
And for them to consent to a search I think is kind of a thin reed for a principal to
hang his hat on.
What about calling the parents in either of these situations, dealing with Jason who says,
I'm not going to open this locker, or an elementary student who says the same thing?
A wise strategy?
Not necessarily wise.
It might help.
The problem with that is you never know how parents are going to react.
And in my view, you're better off trying to determine on the spot
whether you have reasonable cause to conduct the search in the first place.
And if you do, then it doesn't matter whether you call the parents or whether you get consent.
If you've got reasonable cause, reasonable suspicion, you conduct the search
and you do whatever reasonably it takes to do that.
So we learn in this particular scenario that there's no question about reasonable cause.
And Mr. Do-Right saw the cigarettes in the locker.
We just have the question of just how assertive does he want to become in conducting this search.
But basically, the ball is in the court of Mr. Do-Right here.
Hey, Jason.
How are you doing?
I'm doing good. What do you got in your locker today there, Jason?
Oh, you know, same old, same old. Coat, car keys.
Just the usual?
Sure.
Yeah? Well, I know you've had some problems with me looking into that.
You got any problem with me looking into that locker today?
Oh, 1153?
1153 is the one I'd like to look at.
Oh, it's Monday, and it's a bad day, and everything.
That was yesterday.
It's Tuesday.
Take a look-see.
No problem.
It's all yours.
I just want to be sure.
You've got no problem with me looking at 1153 today.
All right, well, let's see.
Jason, I think it's about time to get a new jacket.
Oh, it's a great jacket.
You should wear it.
Try it on.
You'll love it.
What do we got here?
What?
I don't...
What's this, Jason?
Original.
Did you know that was in your locker?
I haven't seen it.
You can fingerprint it.
It doesn't got mine on it.
I guarantee it, whatever it is.
Well, I do think we're going to have to take a look at it.
Now, let's go on down to my office.
Jim, this time, Jason consented to the search,
unlike the first scenario, so no problem, right?
Maybe, maybe no problem.
But, you know, Jason consented there in the locker room.
When we go to court on this,
And since they did discover something, they might end up in court over this deal.
When they go to court, Jason is very likely to argue that although he said yes,
that it was not really effective consent, that because the principal has authority and so on,
that he didn't really effectively, validly, voluntarily give consent,
and therefore that it was not a valid search.
And we don't know how the court would deal with that.
Some courts would rule with Jason on an issue like that.
And in light of that, I think it's always wise for the principal to have something beyond the student's consent that the principal can hang his hat on.
It goes back to those two questions I mentioned, you know, what do I think I'm going to find and why do I think I'm going to find it there?
In this particular little scenario, Mr. Do-Right really didn't have any reason to believe he was going to find anything.
Well, let me ask Chris. You watched it, and if you were to articulate the basis for Mr. Do-Right's search in this particular scenario, what would it be?
I'd have a real hard time figuring out whether he had reasonable cause or not. I don't think he did.
Why did he conduct the search, do you suppose?
Well, a lot of times principals from past experience suspect that certain students are
guilty of something, but a hunch or a feeling or just because the student looks kind of
scuzzy or something like that, doesn't look like one of the good kids.
Sometimes principals feel like there's something there, this kid is acting suspicious.
It looks to me like a personality conflict here between Do-Right and Jason.
He doesn't like Jason.
And maybe he doesn't, but the fact remains that he didn't have any facts, nothing that
he could really articulate that would indicate there might be something there in the locker.
He didn't have a witness telling him there was something there.
He didn't see anything in there.
He's just had a run-in with Jason before on another occasion and thought, well, if he
consents, maybe it's okay, but he didn't have any reasonable grounds or a reasonable cause.
We have a kind of a weighing here between the consent issue and the lack of articulable
facts.
Now, on the other hand, when he opened the locker, DeWright took the coat out and then
found what appears to be an illicit substance in the locker.
The fact that that was discovered, does that change the whole circumstances and suddenly
validate this search because after all something was found that appears to be illegal?
That doesn't make it okay, doesn't justify it.
the key issues are was the search justified at its inception before he ever opened that locker
if all he had was a hunch and he opened it anyway it was not justified at its inception therefore
anything he finds i mean even if this turns out to be some illicit substance
it probably is not going to validate the search in fact it's not and in fact if there were
prosecutions later on down the road because of the possession of that illicit substance the
evidence will probably be thrown out you alluded to this in an earlier discussion in this video but
here's a question suppose he did have i'm changing it just a little bit suppose he did have
articulable facts he had heard a rumor that jason might have cigarettes in his locker or some such
and so he's looking in the locker and pulls the code out and he finds something that he was not
looking for but he found it can he nevertheless use that in a disciplinary proceeding with respect
to jason absolutely if it's justified at its inception that's the key then he opens that it's
not an unreasonable search to begin with then whatever he finds he can use in a disciplinary
proceeding and that's often the case in the TLO case for example he was this
principal was looking for cigarettes and although he did find the cigarettes he
also found all of the indications of marijuana use he wasn't looking for
marijuana but the use of that evidence was upheld in that case because the
search was justified at its inception and it was reasonable to look in the
girl's purse. Let's talk just a second about a policy that most districts have if they subscribe
to the TASB policy manual, which is policy FNF that deals with searches, and specifically there's
a provision in there with regard to locker searches. I think there are some school officials
that believe in Texas that they can search the lockers on a general basis, that if they have
some reason to believe that a locker search is warranted, that they can just simply open
all the lockers.
Does policy FNF allow that kind of general search or not?
No, it doesn't, Frank.
Policy FNF that most school districts have adopted specifically says you have to have
reasonable cause or reasonable suspicion before you conduct a locker search.
You know, I think on the continuum of areas of privacy that the locker search is less
intrusive than looking into a book bag and so on and some of the court cases
have have used language that would indicate that nevertheless the court
case that's cited in the TASB policy takes a view of a locker that it is a
place where it's the students home away from home so to speak where they stash
their personal belongings while they're at school and they have some degree of
of expectation of privacy there. So regardless of what court cases may have said from around
the country or what principals may believe, it's very important they be aware of what
their policy is. And if they've got the FNF that most school districts have, they're going
to have to have probable — I mean, not probable cause — reasonable cause before conducting
a locker search, meaning individualized search, right, meaning individualized reasons for
suspicion.
Let's suppose that Mr. Duride had gotten a rumor that someone had a loaded pistol in their locker or a bomb threat and that a bomb was in a locker.
Does that change this scenario any with regard to having articulable facts and individualized suspicion to conduct a locker search even though FNF seems to require that?
How would you respond, Chris?
Well, there are going to be exceptions to the general rule.
Lockers are, as Jim said, going to have some degree,
there's going to be some degree of expectation of privacy.
But what the courts have done sometimes in these cases
is deviate a little bit away from the general two-part test,
but only in real crisis situations, in an emergency,
when a person's life might be in danger, for example.
And really, if it's a bomb threat, what I would want to know as a principal is,
where did that information come from?
Just a generalized rumor, or did I get some specific information from a tip or something
that tells me there may be a bomb in the building, and I will need to open all the lockers.
That kind of emergency situation, I think, is a real good example of where you could, I think,
open up all the lockers and see whether there's a bomb around.
But that's a real unusual situation.
You wouldn't do that to find drugs.
You would do it to find perhaps a loaded weapon, perhaps a bomb, something that's going to be a danger.
The courts will let the school districts get away with a generalized kind of search,
only where there is that kind of danger involved
and that immediate danger of a weapon or a bomb.
Would you take time, Jim, to call a lawyer and say, a school lawyer or,
well, I guess it would be the school lawyer, certainly the superintendent,
and say, I have this problem on campus.
Is it all right for me to open the lockers?
I think that would be a real wise thing to do because, you know,
as is obvious from our discussion here, these are not precise standards.
No.
There's a lot of ambiguity.
There's a lot of room for interpretation, and you're kind of balancing some things here.
We're balancing the student's right of privacy and the thing like the locker versus very
serious things, you know, like gun possession or a bomb threat or something like that.
And it's not easy to balance those things out, and I think it would be appropriate to
call or contact a school lawyer and get some specific advice about this situation.
I think at a minimum that gives some sort of cover, more or less, to the principal for what the principal does.
If the lawyer says, I think this gives you a reasonable cause, then the principal is clearly acting in good faith,
has checked out the legality of it, has been advised that it's appropriate to go forward, and does go forward.
I think that's going to help the principal in case of any litigation directed to the principal personally.
But wouldn't you also, Jim, call law enforcement officers?
I mean, they're the ones that know what they're looking for.
And you can't always reach the lawyer.
Yes, it's good to try to get some protection that way.
But I think law enforcement needs to be brought in.
I mean, school officials are not expected to be law enforcement officials.
And if there indeed is a bomb threat or indeed there is a danger of a loaded weapon at school,
let's call law enforcement in.
Yeah, that would be a good strategy too.
So what we learned from this scenario is that the one problem that do-right might have
is that he has no articulable facts under the circumstances of this scenario
to go into Jason's locker, even though Jason has consented.
Right.
And I've found from working with school people
that their hunches are accurate about 90% of the time.
So, Jason, Mr. Price tells me that you weren't in your third period class,
that you were skipping.
So what's the story this time?
Skipping's such a harsh word, Dudley.
My name's Mr. Do-Right, Jason.
Right, right, whatever.
You see, I've got this grandfather.
He's my grandfather, and he's been sick lately.
You know, heart problems, kidney failure, lungs full of fluid.
ICU for three weeks.
I've been calling home every now and again, trying to see what's going on.
Well, I called right before third period, and he passed away.
Your grandfather died.
Yeah.
Is this on your mother's side or your father's side, Jason?
It's paternal.
Your dad's father passed away.
Well, I'm sorry to hear that.
I mean, now, you are telling me the truth about this.
Death is not something that we Smiths like to kid about, Mr. Do-Right.
All right.
Well, because, you know, I've had some conversations with you in the past, Jason,
that I have to tell you give me some pause, some reason for concern.
You recall we talked about whether or not you were dealing drugs.
You remember that conversation about a week ago?
Yeah, yeah.
And you recall what you told me at that time?
I asked you if you had been dealing drugs?
I told you I don't do that stuff on campus, Mr. Durite.
That's right.
You told me you don't do that on campus, and that was kind of an interesting response.
I mean, I just want to be sure that that's all that's going on here is that your grandfather died.
I'm surprised at you.
He's dead.
Okay.
He's not going.
He's cold.
Well, Jason, I better let me call your folks and just express my concerns.
You want to call my dad?
Yeah.
Fine.
You just call my dad.
Where would I be able to reach him right now?
What's the number?
He's probably at the funeral home.
Well.
Fine, you want the work number, okay.
If he's at work, yeah.
497-2346.
Mr. Smith, please.
Mr. Smith, this is D.W. Do-Right from Blusterville High School.
Well, I've got Jason in here with me, and he just told me about the death of your father, sir,
and I just wanted to—the death of your father.
Oh, really?
Well, that's very interesting.
Well, he was skipping class, and so I called him in here,
and he told me that he'd gotten a call from home, or that he called home
and was told that his grandfather had passed away, not even sick.
okay well that tells me what i need to know we'll take it from here thank you sorry to bother you
sir well jason didn't exactly match up with your story uh and i just wonder about the truthfulness
of some other things you say you do you bring your book bag in here this morning well sure i
was let me take a look at what you have in your book bag please let's put it up here let's just
take a look at what you have there because this causes me some concern about our earlier conversation
about drugs on campus and so on?
I don't bring that stuff on campus, sir.
Well, I don't see anything in here.
Some textbooks.
Glad to see that, Jason.
They're law books.
That's good.
I think heading for law school is probably just the right thing for somebody like you.
What do we have here?
Boxers?
Okay.
And a change of clothes.
That's a good...
It's for gym class.
T-shirt.
What's this?
It's for my girl.
All right.
Well, I'm not trying to probe into anything along those lines.
Well, let me take a look at what's in your jacket.
Why don't you take off your jacket, and let's get that up here on the desk,
and we'll just take a look at it.
I don't think this is necessary, sir.
Well, I understand that, Jason, but when you're telling me a story, as you were,
it just causes me some concern about the truthfulness of some other things that you've said.
What is all this?
Red sticks?
Well, no, thank you.
all right nothing in there I'm telling you there's nothing here okay well I
don't see anything there you got anything in that shirt nothing here's
the only pocket okay no other pockets on that shirt nope no sir all right Jason I
want to go take a look at what's in your locker now why don't we just head on
down to the lockers right down the hall this way okay let's go on down there
and we'll take a look. Jim, did Mr. Do-Right get it right this time? Well, I think he did, Frank. I
think Do-Right did right. But, you know, this particular vignette is based on a real court
case called Coronado versus State. And in that case, the fact situation was very similar. But
when the principal was asked about it later, he claimed that the only thing he was really looking
into was whether or not the student was truant.
He said he didn't have any reason to suspect anything else.
He just knew that the student was cut in class and so he was looking into that.
And in the Coronado case, they ended up going out into the locker and going out into the
parking lot and looking in the car and looking in the trunk of the car and they finally found
something.
But when the court analyzed it, that second question from the TLO case, was it reasonable
in scope, the principal in that case said, I was just concerned about the student being
truant.
Well, if that's all you're concerned about, you don't need to go look into the student's car.
But in our scenario, the way we presented it, I think that if Mr. Dew write his question,
he's going to say, no, I had a reason to suspect that Jason had drugs with him at the time.
After all, I know he's lying to me.
I know he's trying to conceal something.
I've asked him about drug usage in the past,
and he gave me kind of a cute answer about I don't do it on campus.
because I suspect that whether he does it on campus or not, he's got some substance with him now,
and that if I look in his personal belongings, I'll probably find it.
I think this probably constitutes reasonable suspicion.
So he has, in effect, satisfied the first question that you've asked and the second question as well.
The search is justified at the inception, and certainly from what we saw in the vignette,
That was reasonable in scope, I think.
He looked into the pockets of his clothing and so on.
But it's imprecise.
All I can say is it looks to me like from previous cases a court would be likely to
say that this search was permissible under the Fourth Amendment.
MR.
Chris, you know, many administrators have a hard time differentiating, I think,
between what we talked about before in terms of a hunch versus articulable facts or what
we're calling reasonable cause or reasonable scope well let's just deal with reasonable cause
what is can you give us some examples of what might be reasonable cause as contrasted with
what we saw earlier just he had a kind of a gut feeling that jason was up to no good and that's
not sufficient but but what is reasonable cause well the difficult thing about reasonable cause
is that every case is going to be different every case is going to be rise and fall on its own facts
on its own merits but generally the courts have given us some examples of
what they view as reasonable cause the most common form of reasonable cause is
going to be a tip a good reliable tip that the principal or someone in
administration receives what's a reliable well sometimes it's the person
that you look at you know the principal knows that the tipster the informant so
to speak knows that he would have no reason to lie to him or finds him to be
a credible person has no reason to doubt what he's telling him and the
information is is pretty specific sometimes though the principal doesn't
know this person say they don't call in the morning yeah and some adolescent
voice says Jason has drugs on his person today click very often the tip is
anonymous or it's a telephone call from someone the principal doesn't know then
he can't tell whether the person is reliable if that's the case you can
still get reasonable cause if the information is so specific that and it's
and it's so immediate that the principal finds it to be reliable one of the
examples from one of the cases he does get a call principal does get a call in
the office and parent has said that that morning she had a discussion with her
own child and her son she discovered had been smoking marijuana they get into a
discussion about how he got it and the student says to his mother in that
conversation that he got it at school from a certain student who kept it in a
certain locker in a certain kind of box and he even described it as a cigarette
box and that he was going to have some more for him that day that very same day
well the principal didn't know the mother who called but the information
was so specific knew who had it where it was going to be the very day that it was
supposed to be there was very contemporaneous principal went and
conducted the locker search and the court said that was justified it was
plenty of cause to justify a search okay that sounds good we'll talk about it
after school today then okay good thanks Jason come on in pretty nice office you
got here mr. do right pretty nice office what is that what's what what is that
you've got in your pants nothing you shouldn't be jealous of oh is that right
that's right well Jason I've got some concerns about that now the reason I
called you in here is I got three reports on that from three separate
teachers they want my number well they didn't want your number that's not what
they said Jason they said Jason's got something in his pants now we've gotten
don't we all we've had problem well this is not funny Jason now let me tell you I
know that you've had some drug usage in the past at least it's been reported to
me you know i got a report at one time about you smoking marijuana on the bus who tells you things
like i've got a number of sources i also heard that you were bragging one time about crotching
drugs when there was something going on at your home who doesn't brag and we've had problems with
you've heard the expression crotching drugs sure everybody's heard it well and then i get three
independent reports these people didn't talk to each other and they all three say the same thing
something is odd going on here and that doesn't uh that doesn't quite add up young man
you got any explanation for this new math new math well listen i'm gonna i'm gonna contact you
i'm gonna contact the coaches and let's uh let me see if i get them to help me out on this just
you just sit tight yeah coach listen i got a student here jason smith you know jason
well uh i have a strong suspicion here that jason is hiding something in his pants but we're not
going to be able to find it unless uh unless i get you involved now here's here's what i want
you to do and I want you to listen real carefully. I want to do this just right. I'm going to send
him down to the locker. I want you to come to get him and take him down to the locker room
and I want you and another coach to watch him change clothes. Jason, you do have a set of gym
clothes here, don't you? Yeah, I got some gym clothes. We'll get him to change into a set of
gym clothes and if I'm right, something's going to drop out of these pants he's got. Now, I don't
want you to touch him. I want the two of you to sit 10 to 12 feet away from him. Make sure
nobody else comes in. Make sure nobody else can see what's going on. Just be the three
of you in there and just have him change clothes and you go through the clothes that he's taken
off. What's that? Now, I know that might make you feel a little bit funny, coach, but that's
just what we have to do today. Now, if you find something, bring him down here to me
right away, and we'll take action. If you don't find anything, well, we'll refer him to Gifted
and Talented. All right, we'll sit still. I'll see you in a minute. He's on the way.
Are strip searches ever justified, Chris?
They might be justified, but I think as far as for a school official, they're
they're off limits. I think they're just too, too risky. What the courts have said is that with
strip searches, you need to have probable cause because it's such an intrusive search to have all
the clothes removed from a student. Let's talk about probable cause. We've been discussing
reasonable cause up to this point. What is probable cause? That's a new term.
Well, it's a term that law enforcement officers are quite familiar with. They have to
have probable cause it's in a very high standard lots of information to justify
a search of an area 75% or 80% chance that you would find what you're looking
for well I hate to put it in terms of percentages but yes uh-huh a very high
degree of certainty probability that what you're going to what you're looking
for you're going to find there so when school officials in my mind have
probable cause to conduct a search then you might as well involve the law
enforcement officers who are trying to recognize what probable cause is in up
until very recently the courts have said that under no circumstances are you
going to be justified in conducting a strip search as a school official
recently there's been a few little little developments but it's still a
highly risky proposition let's before before you respond let me ask Chris you
watch the video I mean of the scenario involving the Jason and the bulging
crotch what would you advise a principal like mr. do right to do you know what he
did he picked up the phone and contacted the coaches and then we assume that this
more intrusive search was actually conducted but what are some
alternatives that you think would be more appropriate for him to to employ in
this scenario well again it's going to be a case-by-case basis but there were
several things he could have done also that would have been other options one
he could have said to Jason there is something there take it out you know
what do you have on you and Jason says no other option is to call law
enforcement officers share whatever information you have with law
enforcement and let's see what they feel like they can do law enforcement
officers do have the authority to conduct a search with probable cause
conduct the strip search with probable cause as well and again they have more
experience in recognizing what that means this the the strip search is just
too risky a proposition in my mind so you would really prefer that he'd not do
what he did in this scenario I personally would feel more comfortable
defending him if he didn't if he hadn't had the student take off all his clothes
change. I would say the same thing, Frank. Why the scenario, of course? Well, the scenario is based
on a case that's fairly recent from the Seventh Circuit, where they did exactly what Mr. Dureich
has told his coaches to do, and the court ruled that the search was valid. Now, as Chris indicated,
that's kind of a new development. We've had a couple of cases recently that have said that
under certain circumstances, with certain precautions, a strip search can pass muster
under the Fourth Amendment, but I agree with her.
Until we get a Texas case that's more directly on point, I would stay away from it.
I basically say if you have to strip the student to find what you're after,
then you better contact the police and let them handle it under the probable cause standard.
I realize that may mean that somebody has drugs and we don't find it,
but we have to stay in compliance with the Fourth Amendment as well.
But I think there's a couple of reasons why this Seventh Circuit approved
of the procedure in this particular case. For one thing, although the student was required
to strip completely, nobody touched him. In fact, the coaches were 12 to 15 feet away
from him. They just observed him. He didn't have to stand there for a long period of time
naked in front of them. He took off one set of clothes he put on his gym clothes. They
watched him. They literally watched him change clothes. The court said that that was permissible.
But I'm still antsy about it.
I think that I would agree with Chris to try to steer clear of that kind of intrusive search.
All right.
Let's, in the closing minutes, turn to some other kinds of searches that we haven't dealt
with here and just briefly talk about what a principal should and should not do.
Let's start with the concern of many urban and suburban districts about weapons on campus
and talk about installing magnetometers or metal detectors through which students move
as they enter the building.
Legal or illegal?
Where are we on metal detectors and magnetometers?
Either.
So far we've got one reported court case.
It's from the state of New York and it says that the use of magnetometers under those
circumstances was permissible.
The thing about magnetometers is it's a random search.
There's no individualized suspicion.
When you go to the airport, everybody walks through the magnetometer, and they don't have
any reason to suspect you're carrying a weapon.
And so for that reason, it's suspect.
On the other hand, it's not very intrusive.
You know, you don't have to – it only shows metal.
It doesn't really get into anything else.
It doesn't delay you a lot.
It doesn't invade your privacy to any significant degree.
And weighing those factors together, the court in New York said that the search was permissible.
But there's a couple of significant factors there.
One, they did say it is a search.
The use of a magnetometer is a search, so you do have to use this Fourth Amendment analysis.
The second thing they said was that this school district had a significant problem with weapons,
and they were acting in response to that.
And I think that before a school district uses random magnetometers, they would have
to have some sort of fact-finding by their board that there's a significant problem here
and that this is the way we choose to address the situation.
This policy would have to be carefully developed in association with the school's attorney, I would assume.
Yes, and one of the things in that New York City case is part of the evidence included testimony by administrators
and law enforcement officers about how many weapons had been recovered the year before.
In fact, there was a rumor of a shootout, I think, on the campus or headcount.
Well, there was more than a rumor.
There had been shootings at the campuses in the city.
And there was also discussion about another one that might be coming up,
information from other students.
So they presented a lot of evidence of dangerous, prevalent gun problem, weapons problem at the school.
And, in fact, in this particular case, there was a switchblade knife that was recovered.
With that background, then you're getting closer and closer to that balancing test we talked about earlier where in a crisis emergency type situation where the danger is high, like the bomb threat and the locker search, you might be able to justify the magnetometers.
One of the concerns also with them is, you know, one of the things that the courts will look at in terms of the differences between schools and airports is that you have a choice not to fly, whereas you don't have a choice about going to school, the public schools, most of the time.
So the jury is out on the magnetometer and metal detector.
What about drug testing before students can participate in extracurricular activities?
We've had litigation in Texas.
There is a case pending before the U.S. Supreme Court now with regard to this issue.
What advice can we give with regard to that type of search?
Well, Frank, we're filming this video in December of 1994,
and just within the past month the Supreme Court has announced they will take up this issue.
So the advice is wait and see.
Let's see what the Supreme Court does.
The case is from Oregon.
It's a school district that decided that they wanted to do something about what they perceived to be a pretty serious drug problem.
And so they required drug testing on a random basis of any student who was involved in extracurricular activities.
Part of the theory there is that extracurricular activities are voluntary.
You don't have to do it.
But in that particular school district, if you wanted to play, you had to agree to this random drug testing.
And the Ninth Circuit ruled that that was an unconstitutional invasion of the students' privacy.
Now, prior to that, we have a Seventh Circuit ruling that says that that type of thing, at least with regard to athletes, is permissible.
And so the Supreme Court has two circuit courts that disagree, and they're going to take up the issue.
so I would hold off on that at this point and let's see what the Supreme
Court has to say about it it's really since TLO I think this is the first
search and seizure case involving schools that has made it to the Supreme
Court so this will be their first opportunity to comment on all of these
issues that have come up since TLO this case is Acton versus Vernonia right
Acton versus Vernonia school district from Oregon I think it's also important
In June 1995, the U.S. Supreme Court, by a 6-3 margin, reversed the Ninth Circuit Court of Appeals and upheld the Vernonia School District's drug testing policy.
In the face of a serious drug problem among student-athletes, the district implemented a drug testing program in 1989.
The components of the policy are central to understanding the Supreme Court's decision.
Only those students involved in interscholastic sports are tested.
The policy does not test students in other extracurricular activities, nor does it test students generally.
Students wishing to participate in interscholastic sports sign a consent form that includes parents' permission.
Those taking medication provide a copy of the prescription or a doctor's authorization.
The Supreme Court assumed that students could provide this information in a sealed envelope that is forwarded to the testing agency.
student privacy here now you'll have some athletes are tested at the beginning of the season and then
randomly on a weekly basis thereafter adult monitors the same sex as the students accompany
male and female students to the locker room that gets kind of to a fundamental issue that we really
haven't talked about here and that is what is a search female students produce a sample and
close stall and in the sample is given to the monitor who checks it for temperature and tampering
have said and transfers it to a file for shipment to the testing agency inanimate objects like
Tests are conducted for amphetamines, cocaine, and marijuana.
Other drugs may be screened as a request of the district.
Testing is done on a confidential basis.
Results are made available only to selected school personnel and are 99.94% accurate.
Penalties are limited.
If the first test is positive, the second test is administered.
If the second test is also positive, the student is given a choice of participating in a six-weeks assistance program that includes weekly urinalysis or being dropped from athletics for the remainder of the current season and the next athletic season.
Second and third offenses result in longer suspension from athletics.
Testing results are not used for internal school discipline measures and are not turned over to the police.
The court found the Vernonia drug testing policy a reasonable search under the Fourth Amendment, even though it lacks individualized suspicion.
The court decided only the constitutionality of the Vernonia policy and cautioned against assuming that suspicion was drug testing in other contexts would pass constitutional muster.
Texas school officials who are considering instituting any kind of drug testing policy are best advised to contact the school attorney.
attorney. Assuming that the Supreme Court might uphold the Vernonia policy, Jim Walsh coined a
new soundbite for drug testing in the context of athletic competition.
It's no pee, no play, Frank. That's what it will be. No pee, no play.
No pee, no play. Well, we'll have to see how that works out. Let's sum up in terms of the,
we've talked about a lot of things here that we don't know and we speculate about maybe,
maybe not. We have to wait for the Supreme Court's decision in that act in case of
regard to drug testing but we do know some things with regard to conducting
basic types of searches that have been the topic of this video Jim do you want
to sum up what are the key lessons to be learned from the experiences of mr.
do-right and Jason well I go back to the two questions that I always encourage
principals to ask before conducting a search in fact I recommend that if
possible that they take the time to actually sit down and write this out
it's a good discipline and it might save you a lot of trouble in the long run
run. Number one, what do I think I'm going to find? I've got to be looking for something
that violates school policy or violates the law. Number two, what articulable facts can
I cite that make me think it might be where it is that I'm looking? I think if we stick
with that, then we're clearly focusing on individualized suspicion and we should be
okay.
Thank you.