Student Searches in Schools

Juvenile students have Fourth Amendment rights, and possibly rights under a state constitution’s privacy clauses, but those rights are diminished in a school setting.

Michael W. Flynn
October 17, 2008


First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is searching juvenile students in a public school.

Brady wrote:

If a school teacher or administrator asks to search your backpack or bag what rights do you have assuming that you are under 18.

Thanks Brady. This question essentially asks what a juvenile student’s Fourth Amendment rights are in a public school setting.

The short answer is that juvenile students have Fourth Amendment rights, and possibly rights under a state constitution’s privacy clauses, but those rights are diminished in a school setting. Courts will weigh the student’s expectation of privacy against the school’s need to maintain a safe learning environment. A teacher may conduct the search where it is reasonable under all the circumstances, and the reasonableness standard takes many factors into consideration.

Before getting to the meat of the question of when a search at a school is reasonable, it is necessary to address two preliminary points: warrants and consent.

First, a school is not required to get a warrant to search a student. In a seminal case on juvenile searches in schools, the Supreme Court reasoned that schools need “swift and informal disciplinary procedures” in order to ensure a safe environment that is conducive to learning. The Court held that the school’s need for quick discipline would be frustrated if a teacher had to get a warrant every time a student needed to be searched.

Second, you may waive your rights by consenting to a search. If you consent to a search, then anything found as a result of that search may be used against you. So, if a teacher walks up to you and asks to search your bag for no reason, and you say OK, then the teacher may search your bag. If you want to preserve your right to challenge the search, then consenting is not a good idea.

If you do not consent, then courts will look to various factors in determining whether the search on the student is reasonable. Remember that the court is looking at the student’s expectation of privacy, and weighing it against the school’s need to maintain safety and order. The school’s need to maintain safety has been dramatically increased recently because students today have greater access to guns and drugs than they have had in the past.

Normally, a court will start by looking at the circumstances that gave rise to searching the student. If a teacher sees, smells, or hears indications of rule breaking or criminal behavior, then the teacher may conduct a search that is reasonable for those circumstances. For example, the Supreme Court held that when a student was caught smoking a cigarette in a bathroom, then it was reasonable for the teacher to believe that the student had cigarettes in her pocket or purse. So, forcing the student to empty out her purse was a reasonable search.

A court will also consider how reasonable it is for the student to expect the place to be private. For example, a student reported that his radio was missing, and so a teacher patted down the outside of all the students’ coats that were hanging in an unlocked closet. When the teacher felt something hard and square in a pocket, he reached into the coat and found a gun. The search of the student’s coat was held to be reasonable in part because the student could not expect an unlocked closet to be private. Also, the teacher had a reason to search the coats: to find the missing radio.

Similarly, a New York court held that feeling the outside of a student’s cloth bag was reasonable in a case where a school security guard heard an unusually loud and metallic thud when the student tossed the bag onto a metal filing cabinet. The guard ran his hands over the outside of the bag and felt a gun inside.

Courts are split over students’ lockers. Some courts have held that a student can reasonably expect that his or her locker is secure, and that a teacher cannot search a locker without at least some concrete justification. In a Massachusetts case, the court noted that the school’s rights and responsibility code expressly provided that teachers could not search lockers. So, the student reasonably expected his locker to be safe. Some courts also consider whether locks are issued by the school or whether students bring their own locks.

By contrast, a Wisconsin school district stated in its written locker policy that all lockers were subject to search by school officials at any time. The school conducted a random search of lockers as a preventative measure and found drugs and a gun in a locker. The court held that the student could not reasonably expect that his locker would be private because the school policy clearly indicated that the locker could be searched at any time.

[[AdMiddle]As a result of cases like this, many public school districts are now writing policies that effectively tell students that their lockers are only meant to protect against searches and theft from other students, but that a teacher can search the locker at any time and for any reason—or no reason at all.

So Brady, as you can see, students have limited rights against a teacher search. Please note that these rules do not generally apply to a private or parochial school because the teachers there do not work for the government. Also, these rules change when considering adult students in a university setting.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. You can send questions and comments to legal@quickanddirtytips.com. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.


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