Monday, September 5, 2016

PF Sep/Oct 2016 - Probable Cause Search of Students - Pro Position

Resolved: In United States public K-12 schools, the probable cause standard ought to apply to searches of students.

Pro Position

This resolution is very specific. The scope is U.S. public K-12 schools and the issue is the application of the probable cause standard to searches of students. The probable cause standard is a justification written into the 4th Amendment of the U.S. Constitution.

U.S. Constitution IV:
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.
Probable cause, is not always easy to define, but it is much more than a mere hunch or suspicion.  It is loosely defined as circumstances, known to an officer which would lead any reasonable person to believe a crime has taken place (or in some cases, is about to take place).  Because, the standard is not always easy to determine (except perhaps when an officer visually witnesses evidence), the law requires a warrant issued by a court, and it is the court which decides whether probable cause exists.

The landmark case which is now the legal precedent used by courts to decide the legality of searches of students arose from an incident which occurred in New Jersey in the early 1980's.  School officials looking for cigarettes (smoking was banned at the school) searched a student's purse and not only found cigarettes but also marijuana and other evidence which implicated her as a suspected marijuana dealer. The state then charged her with delinquency. The student, known in court documents as T.L.O., through her lawyers, requested the court to disallow the evidence on the basis that the search was unreasonable. In effect, it violated her fourth amendment rights. Eventually, the case of New Jersey v. T.L.O. was brought before the U.S. Supreme Court which ruled in 1985, in which the court affirmed limited fourth amendment protections to students.

LII (undated):
The Fourth Amendment's prohibition on unreasonable searches and seizures applies to searches conducted by public school officials, and is not limited to searches carried out by law enforcement officers. Nor are school officials exempt from the Amendment's dictates by virtue of the special nature of their authority over schoolchildren. In carrying out searches and other functions pursuant to disciplinary policies mandated by state statutes, school officials act as representatives of the State, not merely as surrogates for the parents of students, and they cannot claim the parents immunity from the Fourth Amendment's strictures.

The T.L.O. decision also affirmed that students do have "legitimate expectations of privacy" (LII). However, the court made a concession in order to balance student's privacy rights and Fourth Amendment rights with a legitimate need for schools to have flexibility in maintaining an atmosphere in which education can take place. Thus, the Court softened the Fourth Amendment protection.

LII (undated)
We join the majority of courts that have examined this issue in concluding that the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception," Terry v. Ohio, 392 U.S. at 20; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place," ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be [p342] "justified at its inception" 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. Such a search will be permissible in its scope when the measures adopted are 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. [emphasis mine; ellipses in original text]

Since T.L.O., the limited Fourth Amendment protections granted by the court have eroded, as schools and courts have struggled with need to balance the state requirement to provide an atmosphere conducive to education. One only needs to look to a number of school shootings and other violent incidents to understand how difficult it may be to manage this balance.

Nance (2015):
For example, over the last few decades, courts have weakened students’ Fourth Amendment rights in schools in order to support school officials in their efforts to promote safety and discipline within schools. This movement in the law has emboldened school officials to rely on intense surveillance methods to maintain control. Before conducting a search, school officials need not obtain a warrant, show probable cause, or have an individualized suspicion that a student violated a school rule. Consequently, school officials may rely on a host of suspicionless search practices in schools to uncover violations of school rules. For instance, school officials may use metal detectors, search through students’ lockers, conduct random sweeps for contraband, and install surveillance cameras in the hallways and public rooms throughout the school. In fact, many schools throughout the country routinely rely on these strict measures to monitor students. In addition, school officials may interrogate students without providing Miranda warnings, regardless of how serious the suspected offense might be or the possibility that the student might be referred to law enforcement for wrongdoing. Some courts have even held that it is unnecessary to provide these constitutionally-based protections when a police officer participates in the investigation.[15-16]

The real danger in relaxing Fourth Amendment rights arises when one considers the ever-increasing ties between schools and the law-enforcement community.  The T.L.O. case clearly illustrates how a search which originated from a reasonable suspicion of a school rules-violation, potentially, developed into a criminal investigation, only without the usual constitutional protections afforded such investigations. For T.L.O. the punishment was a seven day suspension from school and not a jail term. Today, more and more, the punishment develops into criminal charges of various degrees. It is for this reason, Pro advocates the application of full Fourth Amendment rights and in particular, the standard of probable cause in order to protect not only the privacy rights of students, but more importantly, their legal rights.

Security Officers

There is a growing trend for schools to employ law-enforcement officers to provide school security. In the school environment, the officers operate under the more relaxed standards of protection of rights applied in schools rather than the more rigorous legal requirements employed on the streets. Quite often, violators are removed from schools and handed directly over to the criminal justice system under circumstances which would be rejected by courts if the evidence resulting in charges were discovered on the streets. This is especially true since many courts take the view that officers working in the school are acting as agents of the school system and so the "reasonable suspicion" standard applies rather than "probable cause". University of Maryland's Professor Michael Pinard, described one such result in the Illinois case, People v Dilworth.

Pinard (2005):
The Illinois Supreme Court, after setting out the facts leading up to and including the search, characterized the encounter “as involving a liaison police officer conducting a search on his own initiative and authority, in furtherance of the school’s attempt to maintain a proper educational environment.” The Court then held that reasonable suspicion, rather than probable cause, was the legal standard the officer needed to conduct the search. In so holding, the Court relied on, inter alia, Vernonia School District 47J v. Acton for the proposition that “students within the school environment have a lesser expectation of privacy than members of the population generally.” The Court then weighed those lesser privacy expectations against the school’s “compelling interest in maintaining a proper educational environment for all its students.[1085]

The Dilworth decision was strongly dissented by Illinois Justice, Nickels, for permitting lower standards for a police officer. The decision was also particularly troubling to some scholars of constitutional law.

Beger (2004):
The Dilworth decision is representative of a series of recent cases in which trial and appellate courts have lowered the bar for student searches by police officers. Instead of protecting schoolchildren from arbitrary police intrusion, courts have given law enforcement officials the widest latitude to search students. For example, state appellate courts have redefined police search conduct as "minor" or "incidental" to justify application of the reasonable suspicion standard. Appellate courts have also suggested that the lesser reasonable suspicion test should be applied when police search at the request of school officials or are present when school authorities engage in a search. Courts have even upheld dragnet suspicionless searches of school lockers and police-directed canine searches of students' property with no warnings. Due to these decisions, public school children may now be searched on less than probable cause and prosecuted in adult court with the evidence from the search.

Pinard goes into great detail, describing in case after case the complexities of the interaction between school systems and law-enforcement officers, acting as agents of the school. Pinard, strongly suggests a reassessment of the standards for search and seizure.

Pinard (2005):
These interdependent relationships render it necessary to revisit the Fourth Amendment protections afforded to school children and to reconsider the level of suspicion school officials should possess before searching students, as well as the rights that students should possess when subjected to searches. It is also important to consider what effect, if any, law enforcement involvement has on the constitutionality of student searches, as well as, on a more rudimentary level, how law enforcement involvement should even be defined in this context. It is only within this broader context that these complete narratives can be properly defined and interpreted. The end result of these relationships is that these school officials now act pursuant to policies—explicit or implicit—both “[i]n conjunction with” and, perhaps more importantly, “at the behest of law enforcement agencies.” As noted above, while the Supreme Court in T.L.O. did not address this issue, several lower courts have attempted to do so. In fact, courts recognize that when school officials truly act as agents of law enforcement authorities, probable cause is the level of suspicion required to uphold the legality of the searches. [1097-1098]

When the lines are blurred between, a school system dealing with rules infractions, and law-enforcement operations occurring under the guise of normal school security functions, it is time for the courts to act to protect the rights of individuals.

Kagan (2004):
The argument on behalf of allowing school searches without probable cause would be stronger if such searches were not so closely tied to law enforcement. If, for instance, a school set a policy of searching students with reasonable suspicion only but refused to turn evidence gathered in such searches over to law enforcement, then such a policy would fit more closely in line with Supreme Court precedent. Schools have a wide variety of disciplinary options available that do not involve using the juvenile justice system. [315]
When students are remanded to the criminal justice systems, the impacts can be life-altering and irreparable. Because an individual may be incarcerated or stigmatized, the law is necessary to prevent government abuse of citizens.  And, as we shall see, usually these citizens are effected  disproportionately.

Harms to the Disadvantaged

The issues discussed by Pinard and others, suggest fundamental constitutional rights of the poor and disadvantaged are disproportionately at risk since police intervention and security methods tend to be applied in poorer, urban school districts rather than more affluent or rural districts.

Pinard (2005)
Commentators also warn that law enforcement presence in public schools, particularly when combined with zero tolerance policies, creates an acute risk of utilizing the criminal justice system to handle incidents and behaviors that had been previously dealt with through school disciplinary processes. Such policies disproportionately affect lower-income students and students of color, because the majority of schools that have adopted these security measures are located in urban and poorer communities, and because both the juvenile and criminal justice systems disproportionately punish those who are economically disadvantaged and of color. [1106]
Pro debaters will have little trouble finding evidence supporting the view, that harms to minorities and the economically disadvantaged are occurring as a result of loose interpretation of student rights by law-enforcement officers and local courts.

Kagan (2004):
Other factors-which will necessarily vary from school to school raise policy concerns regarding developing school-law enforcement cooperation. Chief among these factors is a concern for racially disparate effect of particular policies; the closer school-law enforcement ties discussed in this essay are more prevalent in low-income and predominantly minority schools. The Department of Education has reported that schools with higher populations of minority students are more likely to have a significant police presence. Thus, a higher proportion of minority students are likely to be faced with such searches that carry with them the added risk of leading to a juvenile court appearance. Commentators have also noted how police school interactions disproportionately burden African-American and Latino students. [322-323]
There is no way to predict when a simple disciplinary action required to enforce school rules could become a criminal investigation and so it is critical to apply the highest standards of discretion, even in a K-12 public schools setting.

Applying Probable Cause

It seems we have come a long way from the days of  T.L.O. both in terms of the seriousness of the potential violations and degradation of student rights.  The legal scholars agree with the Pro team. The time has come to apply the highest standard of protection for the rights of students.  Perhaps, schools have few options for dealing with rules-violations. Perhaps, more effective protections can be put into place which discourage students from potentially interfering with the responsibility of the system to provide an effective education.  Regardless, in the status quo, schools are relying more and more upon, law-enforcement to deal with issues and the courts have not adequately addressed the issue.

DIL (2015):
The current doctrine does not acknowledge that even where school officials search students independently of any police officers, students’ privacy interests might be implicated by requirements that school officials report evidence to police. Thus, probable cause should apply where school officials search students without a law enforcement presence, but are required to report the evidence found to police, potentially “lead[ing] to the student’s arrest.” This suggestion acknowledges the practical reality that student discipline is not just criminalized because police officers are in schools, but also because schools often report student misbehavior to law enforcement authorities. [Sec. D-4]
Kagan, summarizes the problem quite well, suggesting the link between schools and law enforcement requires a reexamination of the issue.  The relatively broad-ruling in T.L.O. is not applicable in systems which rely on "school-law enforcement interdependence".

Kagan (2004):
A better approach would ask whether a given school or school district's policies and programs are so entangled with law enforcement as to make T.L.O. inapplicable, thus applying one standard-reasonable suspicion or probable cause-to all searches within each school. Applying tests from administrative search cases discussed in Part II to developments in school-law enforcement interdependence discussed in Part III, this section provides a fuller analysis of post-T.L.0. school searches. It lays out two arguments, either of which could be adopted by state or federal courts. First, a strong case exists that courts should no longer consider many school searches under the special needs framework because their purpose is now too closely aligned with general law enforcement goals. Second, even if school searches may still be considered administrative searches, increased school-law enforcement cooperation increases the level of intrusiveness that they cause and thus add to the set of factors weighing on the side of defendants' case that such searches are unreasonable. [320-321]

The answer is the crux of the Pro case.  School officials should always be required to apply the probable case standard. It is the only way to ensure students are not unjustifiably harmed.

DIL (2015):
School officials should additionally be held to a probable cause standard even for searches based on a suspected violation of school rules, where the policy of the school is to turn over any evidence of criminal activity found to the police. Such a requirement would, of course, mean that more evidence would be excluded from criminal cases. Though the exclusionary rule is often criticized for preventing valuable evidence from being introduced at trial, this criticism has less force when applied to children, who are considered less culpable for their crimes by both courts and legislatures. The criminal justice system has proved incapable of rehabilitating juveniles, and may indeed fate children who would otherwise have grown out of an unruly period to be forever connected with the system.[Sec. D-4]

We close with the declaration of former Professor of Criminal Justice, Randall R. Beger who laments the decline of student rights.

Beger (2004):
Because the school setting demands "constant submission to authority" [in the words of Mai Linh Spencer] and is imposing harsher criminal penalties on students who misbehave, the legal rights of schoolchildren ought to be given the highest legal protection afforded by the nation's courts. Regrettably, the opposite is true. Bowing to public fears and legislative pressures, trial and appellate courts have reduced the Fourth Amendment rights of students to an abstraction. The nation's courts no longer seem interested in scrutinizing the specific facts surrounding the search of a student to determine if police had probable cause or even reasonable suspicion. Instead, courts search for a policy justification—e.g, minimizing disruptions to school order or protecting the safety of students and teachers—to uphold the search, even when police use evidence seized under lower and increasingly porous search standards to convict minors in adult criminal court. Given the current atmosphere of widespread fear and distress precipitated by the September 11, 2001, tragedy there is little reason to expect courts will impose any restrictions on searches in schools. Ironically, children are unsafe in public schools today not because of exposure to drugs and violence, but because they have lost their constitutional protections under the Fourth Amendment.
Professor Beger sums up the Pro position succinctly, "children are unsafe in public schools today not because of exposure to drugs and violence, but because they have lost their constitutional protections...". 

For all these reasons more, we urge a Pro ballot.

To access other posts on this topic or to learn more about PF debate, click the Public Forum Debate tab at the top of this page.


Beger, RR (2004), "Increased School Security Measures Violate Students' Rights." How Can School Violence Be Prevented? Ed. Scott Barbour. San Diego: Greenhaven Press, 2004. At Issue. Rpt. from "Expansion of Police Power in Public Schools and the Vanishing Rights of Students." Social Justice (2002): 119. Opposing Viewpoints in Context, accessed 9/5/2016 at:

Developments in the Law (DIL), Policing Students, Harvard Law Review, vol 128, Issue 3, Apr 2015). Accessed 9/5/2016 at:

Kagan, J. (2004), Reappraising TL.O.'s "Special Needs" Doctrine in an Era of School-Law Enforcement Entanglement, Journal of Law & Education, Vol. 33, No. 3, 2004, accessed 9/5/2016 at:

Legal Information Institute (LII), "New Jersey v T.L.O", (undated), Cornell University Law School. Accessed 9/5/2016 at:

Nance, JP, (2015), Student, Police and the School-to-Prison Pipeline, Washington University Law Review, Vol.93, accessed 9/5/2016 at:

Pinard, M, (2003), From the Classroom to the Courtroom: Reassessing the Fourth Amendment Stadards in Public Schools Searches Involving Law Enforcement Authorities, Arizona Law Review, Vol 45: 1067], accessed 9/5/2016 at:

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