Washington--Although public-school students retain their rights under the Fourth Amendment when they enter the schoolhouse door, they are not exempt from searches by school officials if they are “reasonably” suspected of having violated school rules, a lawyer for New Jersey told the U.S. Supreme Court last week.
Education systems “cannot properly operate” if school officials are required toby the same standard that courts have set for police officers for deciding when a search is permissible, Allan J. Nodes, deputy state attorney general, told the Justices during arguments in New Jersey v. T.L.O. (Case No. 83-712), a lawsuit that could produce one of the most important decisions in years regarding the rights of students.
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“This Court should be looking for a common-sense approach to what teachers face day in and day out trying to maintain discipline in their classrooms,” he said.
Last week’s arguments marked the sec-ond time this year that the Court has exam-ined the case, which began in 1980 when a Piscataway, N.J., high-school teacher caught a student smoking in a restroom in violation of school rules.
When the student, identified in court papers as T.L.O., was brought before an assistant principal, she denied that she had been smoking and further claimed that she did not smoke at all. The assistant principal asked for her purse, examined it, and found not only a pack of cigarettes but also a small quantity of marijuana and materials indicating that she had sold the drug in school.
A state trial court subsequently declared T.L.O. delinquent and sentenced her to probation for one year. A state appeals court upheld her conviction, but the state supreme court overturned it, holding that the evidence of her drug trafficking was obtained in violation of the Fourth Amendment’s exclusionary rule and should not have been admitted in the trial-court proceedings. (See Education Week, Aug. 17, 1983.)
Last spring, the Court heard arguments on the question of whether the evidence of the student’s drug dealing should have been suppressed. In July, it took the unusual step of ordering a second round of arguments to determine whether the search by the assistant principal itself violated the Fourth Amendment. (See Education Week, Aug. 22, 1984.)
State Agent or Private Party?
The main issue argued before the Justices was whether school officials are to be considered government agents or private individuals for Fourth Amendment purposes. The Court has applied the Amendment to illegal searches by state agents, but never to such searches by private parties.
During last week’s hearing, Mr. Nodes, representing the state of New Jersey, argued that because school officials take on parents’ supervisory role during the school day, they should be granted broad disciplinary powers--including the right to search students who are suspected of breaking school rules.
Under this theory, he continued, the Court should adopt a standard of “reasonable suspicion” for searches by school officials, as opposed to the tougher standard of “probable cause” that government agents such as police officials must meet when searching suspects of criminal activity.
“What we have in this case is a person who witnessed a violation of a school rule,” Mr. Nodes said. “He saw a cigarette in a student’s hand. It was reasonable for him to assume that if the student had a cigarette in her hand she had cigarettes on her person. That’s all the suspicion that was needed in this case to justify the search.”
Caught in the Act
“But if she was caught smoking in a prohibited area, didn’t that end the case right there?” asked Associate Justice Thurgood Marshall. “Is it3necessary to violate a person’s rights just to obtain additional evidence?”
“I don’t believe we violated her rights,” Mr. Nodes responded. “What the vice principal did was listen to the student present her defense, which was a total denial of smoking. He could have said, ‘I’m willing to believe the teacher, and assume that you’re lying,’ but I think he was trying to be more fair than that. He conducted the search to ensure that a possibly innocent person was not punished unfairly.”
Strip Searches Justified?
“If a reasonable-suspicion standard is applied, would it justify a strip search?” asked Associate Justice Sandra Day O’Connor. “How far can you go?”
Justice O’Connor also questioned whether the lower standard would allow male teachers to conduct pat-down searches of female students and whether it would allow school officials to place two-way mirrors in student restrooms if they suspected drug use in those areas.
“We aren’t advocating strip searches for students caught smoking,” Mr. Nodes said. He added that pat-down searches would be permissible, as would the placement of two-way mirrors in lavatories.
“You mean that students have no expectation of rights in the restroom?” asked Associate Justice John Paul Stevens.
“I assume that the mirrors would be placed in areas where you comb your hair, not in more private areas,” Mr. Nodes said.
Lois De Julio of the New Jersey public-defender’s office argued on6behalf of T.L.O. that the state high court correctly ruled that students have a legitimate and substantial expectation of privacy in school.
Viewed as Government Action
“We do not believe that the vice principal had reasonable suspicion to open the purse,” Ms. De Julio said. “The fact that students are required to submit to a teacher’s authority is one of the most important reasons that a teacher’s activities must be viewed as government action. This is precisely the type of government harassment that the Fourth Amendment was intended to end.”
Ms. De Julio conceded that under certain circumstances teachers could be allowed to search students. “But smoking is not the type of infraction that would warrant such an intrusion,” she added.
“What if she had been smoking marijuana?” asked Associate Justice William H. Rehnquist.
“Certainly, obviously dangerous activities that violate the law” would be covered, Ms. De Julio replied.
“What would have happened if the teacher just said, ‘Hand over the cigarettes,’ and the student did? Is that a violation of Fourth Amendment?” asked Justice O’Connor. “Or what if it was a third grader chewing bubble gum or a student with a crib sheet?”
Ms. De Julio answered that if the student were not permitted to possess the material in question, then a search would be justified.
The Court is not expected to hand down its decision in the case until next year.
A version of this article appeared in the October 10, 1984 edition of Education Week as Supreme Court Hears Arguments in N.J. Student-Search Case