Don't Rush to Abandon a Suspicion-Based Standard for Searches of Public School Students

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.l I. INTRODUCTION Historically, the Supreme Court has adhered to two basic principles in its Fourth Amendment jurisprudence. "First, warrantless searches are per se unreasonable, subject only to a few specifically delineated and well-recognized exceptions."2 Second, highly intrusive searches, conducted under the warrant requirement or one of its exceptions, are reasonable "only on a showing of probable cause to believe that a crime has been committed and that evidence of the crime will be found in the place to be searched."3 However, prior to 1985, public school teachers and administrators were not subject to these Fourth Amendment requirements. According to the doctrine of in loco parentis, teachers and administrators acted under the authority of the parent, not of the state.4 As Blackstone explained in his Commentaries on the Laws of England, a parent may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.s In 1985, the Supreme Court, in New Jersey v. T.L.O.,6 held that the actions of public school teachers and administrators are governed by the Fourth Amendment. At issue in TL.O. was a high school administrator's search of a student's purse to obtain evidence confirming a teacher's direct observation that a girl was smoking in a lavatory in violation of school rules.' The T.L.O. Court found the traditional interpretation of in loco parentis to be "in tension with contemporary reality and the teachings of this Court."g Specifically, the Court held that the concept of in loco parentis is not entirely "`consonant with compulsory education laws"'9 and is inconsistent with other Supreme Court decisions treating school officials as state actors for purposes of the Due Process and Free Speech Clauses of the Constitution.' Further, the Court had previously held that students do not "shed their constitutional rights . . . at the school house gate."jl Based upon these considerations, the Court held that public school teachers and administrators are subject to the limits of the Fourth Amendment and "cannot claim the parents' immunity from the strictures of the Fourth Amendment."12 Even so, the Supreme Court upheld the search at issue because, although school teachers and administrators are subject to the requirements of the Fourth Amendment, the unique circumstances and setting of a school require a diminution of Fourth Amendment requirements. The Court explained that "the preservation of order and a proper educational environment . . . in the schools requires a certain degree of flexibility in school disciplinary procedures," which entails "some easing of the restrictions to which searches by public authorities are ordinarily subject."13 Therefore, the Court held that neither the warrant requirement 14 nor the probable cause requirement"5 apply to a search of a public school student by a school teacher or administrator. "Rather," the Supreme Court wrote, "the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search."16 The Supreme Court concluded that a search of a public school student by a teacher or administrator would be constitutionally permissible "when 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."17 The Supreme Court recently expanded upon TL. …