CHIEF DEP ERK 

131 Nev./ Advance Opinion 24 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

IN THE MATTER OF LAW., A MINOR. 

L.A.W., 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 63683 

FILED 

MAY 0 7 2015 

TRAC E K. LINDEMAN 

CLE O. SUPPE ■ ' T 

BY E S.)1)-L-' "iijB 

Appeal from a district court order adjudicating the minor 

appellant delinquent on one count of possession of a controlled substance 

with intent to sell. Eighth Judicial District Court, Family Court Division, 

Clark County; William 0 Voy, Judge. 

Reversed and remanded. 

Philip J. Kohn, Public Defender, and Jennifer A. Fraser, Deputy Public 

Defender, Clark County, 

for Appellant. 

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, 

District Attorney, Jonathan E. VanBoskerck, Chief Deputy District 

Attorney, and Daniel Westmeyer, Deputy District Attorney, Clark County, 

for Respondent. 

BEFORE PARRAGUIRRE, SAITTA and PICKERING, JJ. 

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OPINION 

By the Court, PICKERING, J.: 

This caseS presents the question of whether the State can 

condition a prospective minor student's access to public education on that 

student's waiver of his right to be free from unreasonable search and 

seizure under the Fourth Amendment of the Federal Constitution and 

Article 1, § 18 of Nevada's Constitution. The State claims that the student 

had educational options open to him that made his consent to random 

searches of his person and property in order to attend public high school in 

Las Vegas voluntary, but the record does not support this claim. We 

therefore reverse and remand to the district court with instructions that 

the court suppress any evidence resulting from the search of the minor, 

and to conduct any further proceedings accordingly. 

I. 

Due to previous behavioral problems, the appellant, L.W., 

then a minor, was told he was being given a "last chance" to enroll in 

Legacy High School (Legacy) but only on a trial basis and on the condition 

that he sign a "Behavior Contract." Among other conditions, the Behavior 

Contract stipulated that: 

The following information lists the terms and 

conditions upon which [L.W.'s] enrollment in 

Legacy High School is based[:] 

7. I realize that I am subject to random searches 

by school administration. 

Both L.W. and his father signed the document. 

The school's administration decided to conduct a search of all 

its trial enrollees. During the search of L.W., a Legacy teacher found $129 

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and a large plastic bag, containing two smaller bags with an eight-ball 

imprinted on them, each holding a "green, leafy substance." At the 

administration's direction, a campus police officer conducted a field test of 

the substance in one of the smaller bags, which came back positive for 

marijuana. The officer advised L.W. of his rights under Miranda v. 

Arizona, 384 U.S. 436 (1966), and, after questioning him, placed the boy 

under arrest. 

The State charged L.W. with possession of a controlled 

substance with intent to sell. At a contested hearing on the charges 

against him, L.W. objected to the admission of evidence resulting from the 

search in question—specifically, testimony by the searching teacher and 

the campus police officer describing the fruits of the search, including 

statements that L.W. allegedly made explaining how he came to be 

holding the cash and baggies—but the Hearing Master declined to 

suppress on the grounds that L.W. had consented to the search via the 

Behavior Contract. Ultimately, the Hearing Master found that the "green 

leafy substance" was marijuana, that L.W. carried it with the intent to 

sell, and judged him guilty of the State's charge. The district court 

affirmed the Hearing Master's findings of fact, conclusions of law, and 

recommendations, and formally adjudicated L.W. a delinquent. L.W. 

appeals. 

In many ways, public schools act "in loco parentis," and school 

administrations are therefore granted certain authority, which "permitls] 

a degree of supervision and control that could not be exercised over free 

adults." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995). But 

this authority is not carte blanche, and "lilt can hardly be argued 

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that. . . students. . . shed their constitutional rights . . . at the 

schoolhouse gate." Robinson v. Bd. of Regents of E. Ky. Univ., 475 F.2d 

707, 709 (6th Cit. 1973) (quoting Tinker v. Des Moines Sch. Dist., 393 U.S. 

503, 506 (1969)) (third alteration in original). Thus, a warrant- and 

suspicion-less search of a student, of the sort that the Legacy 

administration conducted upon L.W., is presumptively unreasonable, 

absent that student's consent (or other applicable exception, of which the 

State's briefing concedes there are none). See New Jersey v. T.L.O., 469 

U.S. 325, 341-42 (1985) (holding that a school's search of a student is 

reasonable if, at its inception, there are "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"); State v. Ruscetta, 123 

Nev. 299, 302, 163 P.3d 451, 453-54 (2007) (holding warrantless searches 

presumptively unreasonable absent valid consent). To qualify, 

constitutionally speaking, such consent must be both intelligently and 

voluntarily given. Ruscetta, 123 Nev. at 302, 163 P.3d at 454. 

Courts of other jurisdictions have held that the State cannot 

condition access to public education on a prospective student's 

renunciation of his right to be free from otherwise unconstitutional 

searches and seizures—even in the context of higher education—because, 

in light of the draconian result of a student's failure to give consent, such 

clauses amount to contracts of "adhesion" and therefore lack the requisite 

earmarks of intelligence and voluntariness. Smyth v. Lubbers, 398 F. 

Supp. 777, 788 (W.D. Mich. 1975); see Robinson, 475 F.2d at 709 ("[T]he 

state, in operating a public system of higher education, cannot condition 

attendance at one of its schools on the student's renunciation of his 

constitutional rights."); Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 156 

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(5th Cir. 1961) (holding that a tax-supported college "cannot condition the 

granting of even a privilege upon the renunciation of the constitutional 

right to procedural due process"); Morale v. Grigel, 422 F. Supp, 988, 999 

(D.N.H. 1976) (stating that a school could not condition a student's 

attendance upon a waiver of constitutional rights); Moore v. Student 

Affairs Comm. of Troy State Univ., 284 F. Supp. 725, 729 (M.D. Ala. 1968) 

(recognizing that a college may not condition admission on a waiver of 

constitutional rights); Devers ix S. Univ., 712 So. 2d 199, 206 (La. Ct. App. 

1998) (noting the unconstitutionality of conditioning college dormitory 

occupancy on waiver of constitutional rights); cf. Tinker, 393 U.S. at 506 

(noting that students retain First Amendment rights while attending 

school). But this reasoning does not pertain where a student seeks to 

pursue special activities beyond education because "Daly choosing to 'go out 

for the team,' or to engage in other voluntary, nonathletic activities, such 

students also "voluntarily subject themselves to a degree of 

regulation. . . higher than that imposed on students generally." Vernonia, 

515 U.S. at 657. And so there is a line of cases wherein the United States 

Supreme Court has upheld random and suspicion-less searches of certain 

minor students as a condition of their participation in said 

extracurriculars. Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie 

Cnty. v. Earls, 536 U.S. 822, 831 n.3, 834 (2002) (upholding drug testing of 

students who wished to participate in extracurricular activities); Vernonia, 

515 U.S. at 664-65 (upholding random urinalysis requirement for 

participation in interscholastic athletics in schools). 

The State argues that L.W.'s concession in his Behavior 

Contract—"I realize that I am subject to random searches by school 

administration"—amounted to his free and intelligent consent to 

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otherwise unconstitutional searches. According to the State, though 

"[L.W.] may have faced a difficult choice about whether to enroll in school, 

he had other options and was not forced into signing a behavior contract." 

And the existence of these "other options," the State argues, takes the 

circumstances of L.W.'s consent outside the rubric of Robinson and its 

progeny, and into the narrower class of cases exemplified by Vernonia and 

Earls. 

Both Vernonia and Earls ultimately rest on the "special needs" 

exception to the Fourth Amendment's warrant requirement, Earls, 536 

U.S. at 829, 836-37; Vernonia, 515 U.S. at 653, an exception that the 

State, in its briefing, confessed has no applicability here—

"[A] dministrators were not relying on a special need exception to search 

[L.W.] in the instant case; they were relying on [his] consent." But even 

setting aside the State's waiver of the special needs exception, and 

Vernonia and Earls' poor fit to its remaining argument, see Edwards v. 

Emperor's Garden Rest., 122 Nev. 317, 330, 130 P.3d 1280, 1288 (2006) 

(finding waiver of an argument where a party "neglected [its] 

responsibility to cogently argue" the issue), in terms of the availability of 

the "other options" the State claims were available to L.W., the record 

simply does not support their existence—the State did not proffer any 

such evidence before the juvenile Hearing Master or juvenile court, nor did 

the State make any argument on such grounds below; the juvenile 

Hearing Master likewise made no mention of the availability of 

alternative schooling to L.W. in its discussion of the supposed 

voluntariness of the consent to search. Indeed, the only mention in the 

appellate record of the availability of such "other options" to which the 

State can point is a statement by the juvenile court that, because of L.W.'s 

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age, "[hie could have [gone] over to Adult Ed alternative school as an 

alternative at St. Louis." 

This statement by the juvenile court appears to have been 

based upon its own understanding of Nevada's educational system and not 

upon any evidence presented by the State, as the full exchange 

demonstrates: 

THE COURT: He's seventeen. He could have 

[gone] over to Adult Ed alternative school as an 

alternative. . . . 

[L.W.'s counsel]: Yeah I'm not—I'm not sure about 

that. So— 

THE COURT: I am Now, if he was sixteen your 

argument would be. . . stronger. But seventeen 

there are other options than going back to regular 

school. 

And, the juvenile court judge's anecdotal assurance does not qualify as 

supporting evidence of the supposed educational options available to L.W. 

because it was neither "[g]enerally known within the territorial 

jurisdiction of the trial court," as L.W.'s counsel's uncertainty 

demonstrates, nor can we say it is "Eclapable of accurate and ready 

determination by resort to sources whose accuracy cannot reasonably be 

questioned," because the district court made no mention of the sources he 

relied upon for such information. See NRS 47.130; see also NRS 47.150. 

There being no meaningful evidence that L.W. had alternative 

public education available to him, the circumstances of his appeal differ 

from those of the students in either Vernonia and Earls—he asked for 

nothing more than mere access to a public education. Thus, and despite 

the State's arguments to the contrary, nothing sets L.W. apart from the 

public school student body as a whole; put differently, if the State may 

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condition L.W.'s access to public education upon his waiver of his 

constitutional right to be free from unreasonable search and seizure, it 

could seemingly do the same for any prospective public school student. 

This is an outcome that Vernonia and Earls, even assuming their 

pertinence in the context of consent searches, plainly do not sanction. See 

Earls, 536 U.S. at 830 (noting that the Court's opinions "did not simply 

authorize all school drug testing, but rather conducted a fact-specific 

balancing"); Vernonia, 515 U.S. at 665 (cautioning "against the 

assumption that suspicionless drug testing will readily pass constitutional 

muster in other contexts"). The facts of L.W.'s appeal thus fall squarely 

under the Robinson line of cases, wherein a state conditioned attendance 

at one of its schools on the student's renunciation of his or her 

constitutional rights. 

Even admitting so, the State urges this court to ignore 

Robinson, et al., and instead follow an Oregon appellate court case, State 

a rel. Juvenile Dep't v. Stephens, 27 P.3d 170 (Or. Ct. App. 2001), which 

holds inappositely. The circumstances of Stephens are undeniably similar 

to those at hand—a youth with behavioral problems signed a 

"Family/School Agreement," which included a clause whereby the youth 

agreed to "[s]ubmit to random searches of possessions, lockers, [and] 

person," as a condition of his enrollment in a "last chance" school. Id. at 

172 (emphasis omitted). The Oregon Court of Appeals determined that 

the youth's acquiescence to that clause amounted to his constitutionally 

valid consent because he could have opted not to complete his education 

and was therefore not "obligated to attend [the school]." See id. at 174 

(citing ORS 339.030, which provides exemptions from compulsory school 

attendance, as evidence of the lack of the youth's obligation). Thus, 

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according to the Oregon appellate court, the youth's circumstances in 

choosing to complete his public education were analogous to those "where, 

in exchange for a desired benefit, a citizen must agree to a search of his or 

her person or belongings." Id. (citing to State v. Brownlie, 941 P.2d 1069 

(Or. Ct. App. 1997), wherein the same court held that a defendant's 

consent to x-ray screening of her purse could be inferred from her conduct 

in placing it on a conveyor belt at a courthouse, and State v. Kelsey, 679 

P.2d 335 (Or. Ct. App. 1984), where it held that defendant impliedly 

consented to a pre-boarding search at terminal gate by attempting to 

board an airplane). 

But, even assuming that a minor's access to public education 

is simply an amenity that can be likened to adults' access to courthouses 

and airplanes, it is not clear that the State may always condition its grant 

of some "desired benefit" upon an individual's waiver of a constitutional 

right. See Cafeteria & Rest. Workers Union, Local 473, AFL-CIO v. 

McElroy, 367 U.S. 886, 894 (1961) ("One may not have a constitutional 

right to go to Bagdad, but the Government may not prohibit one from 

going there unless by means consonant with due process of law." (internal 

quotations omitted)); Dixon, 294 F.2d at 156 (acknowledging that the fact 

that a right is not constitutionally protected does not necessarily excuse a 

failure of due process in the State's infringement thereupon). And, in fact, 

a minor's access to publicly funded education is not as easily analogized to 

those privileges as the Oregon appellate court suggests—while the 

Supreme Court has stopped short of naming the right to attend public 

school as one fundamental to citizenship, it has indicated that it views 

public education to be the foundation of meaningful democratic 

participation. See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 493 

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(1954) supplemented sub nom. Brown v. Bd. of Educ. of Topeka, 349 U.S. 

294 (1955). And this is because, according to the Court, public education 

is "a principal instrument in awakening the child to cultural values, in 

preparing him for later professional training, and in helping him to adjust 

normally to his environment," so much so, in fact, that "it is doubtful that 

any child may reasonably be expected to succeed in life if he is denied the 

opportunity of an education." Id. Thus, "the gift of a final chance in the 

public school system," to borrow the State's phrase, is in fact less luxury 

than necessity, and the improbability of a minor's future positive prospects 

absent any access to state sponsored education, indeed, the reality that he 

or she may never become a "good citizen" without it, see id., draws into 

question whether a waiver of the constitutional right to be free from 

unreasonable search and seizure upon which such access is conditioned 

can ever be given "freely," as our precedent requires. See Ruscetta, 123 

Nev. at 302, 163 P.3d at 453-54. 

We are moreover mindful that a school administration's 

responsibility for "educating the young for citizenship is reason for 

scrupulous protection of Constitutional freedoms of the individual, if we 

are not to strangle the free mind at its source and teach youth to discount 

important principles of our government as mere platitudes." W. Va. State 

Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). This seems especially 

true in the "last chance" context, where the young minds being given a 

"last chance" at a public high school education may also be those on the 

brink of entering into lifestyles antithetical to ordered society, for whom 

school administrators and campus police may be the most salient point of 

contact with the State. It is critical that such youth learn, through their 

interaction with these authority figures, that the State is fair, just, and 

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trustworthy. See Ross L. Matsueda & Kevin Drakulich, Perceptions of 

Criminal Injustice, Symbolic Racism, and Racial Politics, 623 Annals Am. 

Acad. Pol. & Soc. Sci. 163, 164 (2009) ("If citizens view the system of 

justice [as untrustworthy], the social and political system is likely to be 

volatile and unstable ") A school administration's coercion of a child's 

"consent" to unconstitutional searches by holding the threat of closed 

educational doors over his or her head does not facilitate the desired 

perception of justice. 

In light of these hefty considerations, we conclude that the 

State has failed to demonstrate that L.W.'s consent to search was 

voluntary—there was no record evidence that public education options 

beyond Legacy were available to him, and the State could not 

constitutionally condition L.W.'s access to a public education on his waiver 

of his right to be free from unreasonable search and seizure. The district 

court therefore should have suppressed the fruits of the administration's 

search of L.W., including, specifically, the testimony of the searching 

teacher and campus police officer. See Torres v. State, 131 Nev., Adv. Op. 

2, 341 P.3d 652, 657 (2015) (noting that "[c]ourts must also exclude 

evidence obtained after the constitutional violation as 'indirect fruits of an 

illegal search or arrest' (quoting New York v. Harris, 495 U.S. 14, 19 

11 
J. 

(1990))). Accordingly, we reverse and remand to the district court for 

proceedings consistent with this opinion 

We concur: 

Parraguirre —94)teir 

J. 

J. 

Saitta 

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