Student Discipline and Related Issues in the Evolving 21 st Century Doug Webb General Counsel The School District of Greenville County
Fourth Amendment Issues in Education Overview of 4 th Amendment in Schools School Property Personal Property Technology First Amendment in Schools/Social Media Weapons, Firearms, & Concealed Weapons on School Property Interaction with Law Enforcement Bonus: Web Accessibility
Guiding Principles Don’t be overzealous. Bad consequences – Section 1983, etc. Use law enforcement when necessary and appropriate. Respect an individual’s rights and reasonable expectation of privacy. When in doubt, school administrators should call supervisor for help.
The Fourth Amendment o The general rule is that a search of persons or property needs probable cause of illegal/criminal activity. o Probable cause is a fluid concept generally meaning an officer has a reasonable basis for believing a crime has been committed or that evidence of a crime is in a place to be searched. o However, there are exceptions, and one is for searches conducted by school officials.
Reasonable Suspicion for Schools The requirements for a warrant and probable cause were eased in New Jersey v. T.L.O. for school officials. “special need” of the state to assure a safe and healthy learning environment. School officials need have only reasonable suspicion, a standard of proof less rigorous than the requirement of probable cause, in order to conduct a legal search. Reasonable possibility instead of reasonable probability – United States v.Mendenhall (1980). Must be able to articulate that suspicion . In determining reasonable suspicion, a student’s freedom is balanced against: The need to maintain order/collect contraband The need to discipline The need to ensure a level of safety for all students
Special Rule for School Aged Children: Two Prong T g Test t Examining th g the Reaso sonable leness ss of S School A l Action Is the search justified at its inception? Are there 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? Is the scope of the search reasonable? Are the search measures 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?
South Carolina Law & Greenville County Schools Policy South Carolina Law and Greenville County Schools ’ Policy (JCAB) both mandate that search and seizure guidelines should follow the New Jersey v. T.L.O . ruling . S.C. Code of Laws § 59-63-1150: “ Notwithstanding any other provision of this article, all searches conducted pursuant to this article must comply fully with the ‘ reasonableness standard ’ set forth in New Jersey v. T.L.O., 469 U.S. 328 (1985). ” GCS Policy JCAB: “District and school administrators and officials may conduct reasonable searches on District property of lockers, desks, vehicles, and personal belongings such as purses, book bags, wallets, and satchels, with or without probable cause … All searches must comply fully with the ‘ reasonableness standard ’ set forth in New Jersey v. T.L.O. ”
School Property: Lockers A well-stated policy that outlines search and seizure procedures, and is also properly and adequately distributed to students and parents, tends to strengthen the school ’ s mobility in conducting searches and seizures in school lockers. - Isiah B. v. State of Wisconsin (Supreme Court of Wisconsin, 1993) Even though students have an expectation of privacy in their lockers, it is because minimal the school officials possess a master key and their locker combinations must be kept on file within the school. – Commonwealth v. Cass (Supreme Court of Pennsylvania, 1998)
Alternative Schools The nature of an alternative school presents school officials with the necessary context to perform general searches of students. - C.N.H. v. State of FL This includes reasonable “ pat-down ” searches that are not overly intrusive as there is a diminished expectation of privacy.
Strip Searches The Supreme Court found that a strip search of a 13 year old for possessing & distributing pain pills/ibuprofen was unreasonable. The Court determined that the degree of intrusion outweighed the content of suspicion , which failed to make the strip search reasonable. - Safford Unified School District #1 v. Redding (2009) S.C. Code of Laws § 59-63-1140 and GCS Policy (JCAB) state that “ no school administrator or official may conduct a strip search.”
Metal Detectors Greenville County Schools ’ Administrative Rule (JCAC) states that schools are authorized to use stationary, mobile, or handheld metal detectors to search students if the school has any reason to believe that there is a threat of weapon possession or use. Use of metal detectors must be (i.e., nondiscriminatory in nature objectively random or uniform). Individual suspicion is not required.
Vehicles on School Property A school administrator need only satisfy the lesser reasonable grounds standard rather than the probable cause standard. S.C. Code of Laws §59-63-1120: “ Notwithstanding any other provision of law, school administrators and officials may conduct reasonable searches on school property of lockers, desks, vehicles, and personal belongings such as purses, bookbags, wallets, and satchels with or without probable cause.” GCS Rule JCAB: “Because parking on school premises is a privilege, the school retains authority to conduct routine inspections of the exterior of vehicles parked on school property at any time. In conducting an inspection of the exterior of a vehicle, school officials may observe those things inside vehicles which are in plain view. The interiors of student vehicles … may be searched whenever a school official has reason to believe a student is violating Board policies, school rules or federal or State law, as described in the ‘reasonableness standard.’”
Technology: SCHOOL Laptops/Tablets/Email GCS Administrative Rule EFE – “Individuals should not have an expectation of privacy in the use of the District’s email, systems, or equipment. The District may, for a legitimate reason, perform the following: Obtain emails sent or received on District email. 1. Monitor an individual’s use on the District’s systems. 2. Confiscate and/or search District-owned software or equipment.” 3. Parents/Guardians sign form upon receipt of tablet outlining the o ability for District to look at content and also that, while the District has filters, it cannot ensure that Student will not be able to access inappropriate material and that they should be supervised.
Technology: PERSONAL Cell Phones/Tablets More protection for student device – different than District owned device. School District may adopt policies prohibiting/limiting students from possessing cell phones on school property. School administrators may confiscate if in violation of school’s use policy. (S.C. Code Section 59-63-280) Should balance a student’s privacy interests against the State’s substantial interests for safety and welfare of students.
Technology: PERSONAL Cell Phones/Tablets School can confiscate the cell phone/laptop/tablet if the device is knowingly in direct violation of school policy. If the issue is a potential criminal violation, law enforcement may become involved and the school administrator can retain possession of the device on the reasonable suspicion basis until law enforcement arrives. Schools must return personal electronic devices to students, but may establish policies for the circumstances under which devices are returned. While seizure of cell phone in violation of school policy may ay be justified, a “wholesale fishing expedition” is not allowed. ( Klump v. Nazereth Area School District ). Merely using a phone would not justify a search of the phone. Whereas evidence of cheating, for example, might allow for a search (limited to that purpose) of a phone or device. – G.C. v. Owensboro Public Schools (6 th Circuit Ct. of Appeals, 2013)(711 F.3d 623). Always attempt to get 1) student to show you screen or 2) consent to view.
Consent for Searches Should ask for consent if possible. Consider age of student and ability for student to consent. Allow student to type in password and then give administrator device. Have witnesses to the consent or have it in writing. Schools may consider lack of consent in an investigation and in cons idering possible disciplinary measures.
Technology: Cell Phone Searches Ril iley v. Calif ifornia ia (2014) o US Supreme Court case which centers around warrantless search (of cell phone) incident to an arrest. o Court stressed that cell phone receive greater protection (possibly similar to someone’s home) based upon volume and sensitivity of content. o Cell phones contain the “privacies of life.”
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