In United States public K-12 schools, the probable cause standard ought to apply to searches of stud

json Shade was a student at the Apple Valley Alternative Learning Center,1" 1. Shade v. City of Farmington, No. CIV. 99-2067, 2001 WL 501197, at *1 (D. Minn. May 9, 2001), aff"d, 309 F.3d 1054 (8th Cir. 2002). Show More an alternative high school in Minnesota.2" 2. About Us, District 196 Area Learning Center, http://www.district196.org... (last visited Mar. 1, 2015) [http://perma.cc...]. Show More On the way to an off-campus shop class, Shade"s teacher stopped at Burger King so the students could buy breakfast.3" 3. Shade, 2001 WL 501197, at *1. Back on the bus, Shade had trouble opening the orange juice that he bought to have with his breakfast, so he asked the other students if anyone had something he could use to open it.4" 4. Id. A nearby student handed Shade his folding knife, which Shade used to open his orange juice before passing it back.5" 5. Id. Shade"s teacher, who was also driving the bus, saw Shade with the knife in his hand, but did not see the surrounding events.6" 6. Id. Three police officers, two of whom served as school resource officers (SROs),7" 7. This Chapter uses SRO, school police, school officer, or school liaison officer to refer to any police officer employed in a school, regardless of the particulars of the program. Show More were contacted and came to search the bus and the students.8" 8. Shade, 2001 WL 501197, at *1"2. The knife"s owner admitted to the police that he had a knife and turned it over.9" 9. Id. at *2. The officers proceeded to search all of the students despite the admission. Id. For his brief use of the knife on the bus, Shade was charged with and pled guilty to felony possession of a dangerous weapon on school property.10" 10. Id. RELATED Policing and Profit Considering Police Body Cameras Shade"s story is not particularly unusual. In recent years, the connection between schools and police departments has become ever closer. As a result, not only are children "being treated like criminals in school, but many are being shunted into the criminal justice system as schools have begun to rely heavily upon law enforcement officials to punish students."11" 11. Advancement Project & The Civil Rights Project at Harv. Univ., Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline 2 (2000) [hereinafter Opportunities Suspended]; see also Catherine Y. Kim, Policing School Discipline, 77 Brook. L. Rev. 861, 862 (2012) ("Today, police officers routinely patrol public school hallways on a full-time basis . . . and school officials refer a growing number of youth to the juvenile and criminal justice systems for school-based misconduct."). Two extreme examples include five high school students getting arrested for felony assault when they accidentally hit their school bus driver while playfully throwing peanuts at each other and a student being incarcerated in a local juvenile detention center for wearing the wrong color socks. Advancement Project et al., Handcuffs on Success: The Extreme School Discipline Crisis in Mississippi Public Schools 3"4 (2013). Show More While the Supreme Court has extended limited Fourth Amendment rights to students in public schools, it has yet to acknowledge the rise of heavy-handed policing in schools, the costs of such a system, and how either factor might impact the determination of the scope of students" rights. In trying to follow the Supreme Court"s limited precedent in this context, most courts hold that reasonable suspicion that a student is violating a law or school rule is constitutionally sufficient to search. This is true even if the search involves a police officer, so long as the officer doesn"t initiate the search independently from school officials or a concern for school safety. This Chapter argues that such a standard ignores the current criminalization of student behavior in public schools and allows for discretion that may exacerbate the unequal distribution of the costs of such criminalization. A better standard would require all police officers to have probable cause to believe that a law has been violated before searching students, and would require the same of school officials where the officials are required to report evidence found to law enforcement. Section A of this Chapter describes the Court"s handling of Fourth Amendment rights in schools and how lower courts have filled the gaps left in the doctrine. Section B reports on the rising criminalization of student behavior in schools, and how that rise has led to increasingly severe outcomes for misbehaving students. Section C explains why the current reasonable suspicion standard for school searches, which is used even when police are closely involved, is doctrinally problematic. Section D evaluates proposed alternate standards for school searches and suggests that all school searches involving the police or school officials obligated to report to police should be subject to a probable cause standard.1. The Supreme Court"s School Search Doctrine. " Until 1985, it was not clear that students had any Fourth Amendment rights in school. Although it was evident that the Fourth Amendment applied to civil authorities,12" 12. See New Jersey v. T.L.O., 469 U.S. 325, 335"36 (1985); Burdeau v. McDowell, 256 U.S. 465, 475 (1921) ("The Fourth Amendment["s] . . . protection applies to governmental action."). Show More some courts had relied on the common law doctrine of in loco parentis to hold "that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over schoolchildren."13" 13. T.L.O., 469 U.S. at 336. The Supreme Court in New Jersey v. T.L.O.14" 14. 469 U.S. 325. rejected this rationale as "in tension with contemporary reality."15" 15. Id. at 336. Courts applying the doctrine of in loco parentis had understood school officials to be exercising the parents" power, rather than the state"s,16" 16. See id. meaning they could "claim the parents" immunity" from the Fourth Amendment.17" 17. Id. at 337. The Court found that this reasoning conflicted with the reality of laws compelling minors to go to school.18" 18. Id. at 336 ("Today"s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies."). Show More That school officials were subject to Fourth Amendment constraints also better aligned with precedent extending some First Amendment and due process protections to studentsThe T.L.O. Court, however, also found that the special concerns of educators justified limiting students" Fourth Amendment protections. In order to "strike the balance between the schoolchild"s legitimate expectations of privacy and the school"s equally legitimate need to maintain an environment in which learning can take place,"20" 20. Id. at 340. the Court found that school officials could search students without a warrant or probable cause,21" 21. Id. at 340"41. Probable cause "requires a particularized, articulable basis for" suspicion "before a search can be undertaken." Sarah Jane Forman, Countering Criminalization: Toward a Youth Development Approach to School Searches, 14 The Scholar 301, 369 (2011). Show More needing instead only reasonable suspicion "that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school."22" 22. T.L.O., 469 U.S. at 342. The Court noted that the scope of the search must also be reasonable, which will be true where "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Id. Show More The Court believed that violence and drugs in schools had led to disorder23" 23. See id. at 339. and that schools had a corresponding interest in having "freedom to maintain order."24" 24. Id. at 341. This interest has since become an example of what the court has termed "special needs."25" 25. See id. at 351 (Blackmun, J., concurring in the judgment) ("Only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers."); id. at 353 ("The special need for an immediate response to behavior that threatens either the safety of schoolchildren and teachers or the educational process itself justifies the Court in excepting school searches from the warrant and probable-cause requirement . . . ."); see also Ferguson v. City of Charleston, 532 U.S. 67, 74 n.7 (2001) (noting the Court"s adoption of Justice Blackmun"s terminology). Show More Where there are needs other than ordinary law enforcement,26" 26. For some examples of special needs, see Maryland v. King, 133 S. Ct. 1958, 1981 (2013) (Scalia, J., dissenting). Show More the Constitution may require less than a warrant supported by probable cause for a search.27" 27. Id. at 1969 (majority opinion). The Court has also allowed exceptions to the warrant requirement where privacy expectations are "diminished" or the intrusion is "minimal." See id. (quoting Illinois v. McArthur, 531 U.S. 326, 330 (2001)). Show More If a court finds that there is a special need, its inquiry becomes simply whether the search was reasonable, as determined by weighing the government interest in executing the search against the individual"s legitimate expectation of privacy.28" 28. See id. at 1970. In Vernonia School District 47J v. Acton,29" 29. 515 U.S. 646 (1995). the Court explicitly incorporated the special needs test into the public school setting.30" 30. Id. at 653 ("We have found such "special needs" to exist in the public school context."). Show More The Court reaffirmed this standard in Board of Education v. Earls.