When does a public school have the right to search its students?
A high school in Quebec recently came under fire after 28 students who were taking a math test were strip-searched by teachers. The teacher had asked the students to place their cellphones on her desk during the exam, and when one cell phone went missing, all of the students were called into a room, told to strip, and then searched to see who had taken the phone.
In the United States, that would have been a good test in constitutionality—and one that the teachers would have failed. What rights does a public school have to search its students? It had some rights, but not unlimited rights.
The question of when a public school can search a student or a student’s locker, backpack, purse, or other possessions first came before the Supreme Court in 1985.
A few girls at a high school girl in Piscataway, New Jersey, were caught smoking in the bathroom. After they were brought to the principal’s office, the principal searched through the purse of one of the girls, known in court documents as T.L.O. (the initials were used to protect her privacy as a minor), and found cigarettes and evidence of drug dealing.
The student was suspended and received a year of probation. She sued the school district, claiming that it didn’t have a warrant to search for contraband and therefore had conducted an unreasonable search.
The Supreme Court, in considering New Jersey v. T. L. O., looked to the Fourth Amendment, which states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Justice Byron White, who wrote the decision of the Supreme Court, said that the Fourth Amendment not only prevents the police from conducting unreasonable searches and seizures, but that “equally indisputable is the proposition that the 14th Amendment protects the rights of students against encroachment by public school officials.”
Justice White stated that “the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” The court stated that in order to be reasonable, the search could not be excessively intrusive.
Given that the search of the purse was not, according to the court, unreasonable or excessively intrusive, T.L.O. lost her case. That said, the case provides the requirement for schools and the protection for students that schools must show that a search of a student is reasonable given the circumstances.
T.L.O.’s case was at the heart of the case brought by then-13- year-old Savana Redding, who was strip-searched down to her underwear by officials at her middle school who suspected that she was hiding over-the-counter ibuprofen tablets.
Savana sued her school district, claiming unreasonable search and seizure, and her case went all the way to the Supreme Court.
In the case of Safford Unified School District v. Redding—25 years after the T.L.O. case—the Supreme Court found that Savana’s rights had, in fact, been violated and stated that a search by a school must not be “excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
Given that 13-year-old Savana was accused of having an over-the-counter medication, forcing her to strip was excessively intrusive and therefore unreasonable.
In an age in which school shootings are an unfortunate occurrence and drugs on high school grounds are common, no court has said that schools are prohibited from searching students—even strip-searching students–particularly in cases that involve the suspicion of weapons or contraband on the school grounds.
If you look at your district’s policy, it will likely contain an explanation of when and how it will conduct searches.
As for the Canadian high school that conducted a strip-search after a math exam to find a cell phone, the facts simply don’t add up under American constitutional law to find that such a search would be considered reasonable.
Further Reading
New Jersey v. T. L. O., 469 U.S. 325 (1985). Read online at oyez.org.
Safford Unified School District v. Redding, 557 U.S. 364 (2009). Read online at oyez.org.
Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.
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