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Jason P. Nance

Jason P. Nance, Random, Suspicionless Searches of Students' Belongings: a Legal, Empirical, and Normative Analysis, 84 University of Colorado Law Review 367 (Spring 2013) (333 Footnotes)

ABSTRACT

Everyone agrees that our public schools should be free from violence, crime, and drugs. While school crime has declined in recent years, recent statistics demonstrate that violence and substance abuse continue to trouble public schools. During the 2009-2010 school year, thirty-three students, staff, and others died in a school-associated violent event. In 2009, 8 percent of students in grades nine through twelve reported being threatened or injured with a weapon on school property at least one time. Also in 2009, 23 percent of students in grades nine through twelve said that drugs were offered, sold, or given to them.

Naturally, school officials are concerned about violence and substance abuse in their schools and have implemented various measures to address these problems. For example, some schools support worthwhile efforts such as implementing curricula and instruction programs aimed at preventing violence, providing mentors to students, and creating other programs that promote a sense of community and social integration among students. Other schools, however, perform random, suspicionless searches on students to prevent students from bringing drugs and weapons on campus. These searches include random drug testing, dog sniffs, metal detector checks, and searches through students' belongings. Recent data from the U.S. Department of Education show that the use of these strict security measures in public schools is not uncommon.

The use of these search tactics raises important questions regarding students' civil rights under the Fourth Amendment. While several articles discuss students' Fourth Amendment rights in school settings, this Article provides a legal, empirical, and normative analysis of a particularly intrusive type of search practice: random, suspicionless searches of students' belongings. This Article first argues that, consistent with Supreme Court precedent and a recent Eighth Circuit decision, random, suspicionless searches of students' belongings are not permitted under the Fourth Amendment unless certain conditions are present. Specifically, in order to justify performing suspicionless, intrusive searches on the general student population, the Fourth Amendment requires that a school official have particularized evidence demonstrating that the school has a substance abuse or weapons problem, unless the school official reasonably believes that students are in immediate danger. Conversely, if the school official offers nothing more than “generalized concerns about the existence of weapons and drugs in [her] school[] ,” she is not entitled to conduct such searches.

Second, this Article argues that the above standard is not only legally sound, but it is also more consistent with good educational policy and practice because it limits the authority of school officials to conduct random, suspicionless, intrusive searches absent extenuating circumstances. Research demonstrates that strict security measures deteriorate the learning climate by engendering alienation, mistrust, and resistance among students, instead of building a positive climate based on mutual respect, support, community, and collective responsibility. In fact, empirical studies cast doubt on whether strict security measures effectively reduce school crime, and many researchers argue that implementing such measures increases misbehavior and crime. Rather than relying on coercive measures, research demonstrates that there are alternative, more effective methods for reducing school crime that maintain students' dignity, do not degrade the learning environment, and teach students to value their constitutional rights.

Third, this Article presents an empirical analysis that seeks to identify how many schools use this intrusive search practice and the conditions under which they do so. The data for this analysis came from two restricted-use datasets from the School Survey on Crime and Safety (SSOCS), primary sources of public school data that the U.S. Department of Education made available in 2010 and 2011 to qualifying researchers. Each of the SSOCS databases is a collection of survey responses on crime and safety from over 2,500 public school principals throughout the United States.

The results of this empirical analysis raise concerns that many public schools may be conducting searches that are either (1) unconstitutional under current precedent or (2) inconsistent with good educational policy. Specifically, the SSOCS data suggest that during the 2009-2010 school year, approximately seventy secondary schools in the sample and an estimated 1,932 secondary schools throughout the United States conducted suspicionless searches of students' belongings without reporting any incidents relating to using, possessing, or distributing weapons, alcohol, or drugs. Furthermore, the estimated number of schools that conducted suspicionless searches of students' belongings sharply climbs for schools that report only a minor problem with drugs, alcohol, or weapons.

Although these preliminary findings signal that some schools may be violating students' Fourth Amendment rights, more research is needed to draw clearer conclusions. As explained more fully below, the primary survey question on which this analysis is based--whether “it was a practice in the principal's school to . . . [p] erform one or more random sweeps for contraband (e.g., drugs or weapons), but not including dog sniffs”--is somewhat ambiguous. That question does not allow researchers to precisely ascertain (a) the nature of the “random sweeps”; (b) the conditions under which school officials performed the searches; (c) whether the “contraband” searched for was something other than weapons or drugs, such as stolen money; or (d) whether school officials conducted the search on the general student body or on a subset of students that had a lower expectation of privacy. Nevertheless, these preliminary findings demonstrate the need to conduct more research in order to probe more deeply into the types of searches school officials perform and why they perform them.

Additionally, and more disturbingly, the analysis suggests that during the 2007-2008 and 2009-2010 school years, schools with higher minority student populations were more likely than schools with lower minority populations to perform these searches without reporting any incidents relating to weapons, alcohol, or drugs. These findings hold true even when taking into account school officials' perceptions of the levels of crime where students live and where the school is located. The fact that minority students are more often subject to intrusive searches without apparent justification raises serious concerns that schools are perpetuating racial inequalities. Such practices also incorrectly teach students that white students are privileged, leading to increased racial tensions and an undesirable society that harms people of all races. Furthermore, even absent Fourth Amendment violations, the fact that many schools perform suspicionless searches without reporting a single incident relating to weapons, drugs, or alcohol during the school year raises pedagogical concerns, especially because there are more effective ways to prevent school crime that do not harm the learning environment.

Finally, this Article recommends that the Supreme Court and other federal circuit courts follow the Eighth Circuit's lead by requiring school officials to provide concrete evidence of a serious substance abuse or weapons problem before permitting schools to engage in intrusive search practices. In addition, it urges school officials and policymakers to consider alternative, more effective means for reducing school violence and drug abuse rather than resorting to coercive methods that rely on punishment and fear.

This Article proceeds in four sections. Section I evaluates the constitutionality of suspicionless searches in public schools and concludes that such searches violate the Fourth Amendment unless school officials have particularized evidence of a substance abuse or weapons problem in their schools. Section II provides a normative evaluation of strict security measures and concludes that such measures are inconsistent with good educational policy and practice, particularly when applied disproportionally to minority students. Section III presents an empirical analysis of two restrictive-use datasets from the Department of Education. After evaluating the empirical results against the legal framework presented in Section I, it concludes that the empirical findings raise concerns that some public schools may be conducting unconstitutional searches. Section III also presents empirical results suggesting that these potentially unconstitutional searches are more likely to take place in schools with higher minority populations than in schools with lower minority populations, raising additional concerns. Section IV discusses the implications of the empirical findings against the legal and normative analyses. It also argues that the Supreme Court should resolve any ambiguity in its jurisprudence by requiring school officials to have particularized evidence of a serious substance abuse or weapons problem before permitting schools to engage in intrusive search practices. This Article concludes by providing a roadmap to conduct further research on these important issues.

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This Article provides a legal, empirical, and normative analysis of random, suspicionless searches of students' belongings. It argues that random, suspicionless searches of students' belongings are not permitted under the Fourth Amendment unless certain conditions are present in the school. It also argues that strict security measures are harmful to the educational climate and to students, especially when applied disproportionately to minorities. In addition, it provides empirical data which raises concerns that: (1) some public schools may be violating students' civil rights by conducting suspicionless searches on students' belongings without valid justifications; and (2) schools with higher minority populations are more likely to conduct those potentially unconstitutional searches than schools with lower minority populations.

These analyses should cause courts to strongly consider following the lead of the Eighth Circuit and require school officials to provide evidence of a substance abuse or weapons problem before permitting schools to engage in an intrusive search. Nevertheless, the most effective reform will occur if school officials themselves voluntarily agree to refrain from using measures that coerce and punish students and, instead, adopt measures that promote collective responsibility and trust. Such actions are more consistent with students' best interests, will preserve a healthy learning environment in which all children can learn more effectively, and will help create a better society to live in for people of all races.\

Assistant Professor of Law, University of Florida Levin College of Law. J.D., University of Pennsylvania Law School; Ph.D., M.A., Educational Administration, The Ohio State University.