Monday, September 5, 2016

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

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

Con Position

The guiding principles governing the legality of student searches was handed down in the Supreme Court case of New Jersey v T.L.O, 1985.  At that time, a a school principal in New Jersey had reasonable cause to believe a student, referred to as T.L.O. had been smoking in the school restroom in violation of school rules. A subsequent search of her purse revealed not only cigarettes, but marijuana and drug paraphernalia consistent with the items a marijuana dealer may possess.  The girl's lawyers, argued the evidence found in the search was obtained in violation of the Fourth Amendment protections requiring probable cause (see the Pro Position for more details). Eventually the case was heard by the U.S. Supreme Court which agreed that students do have a reasonable expectation of privacy and ultimately allowed schools to apply what is known as a reasonable suspicion standard to justify searches, rather than the probable cause standard required by the Fourth Amendment.  However, to clarify the tenet of reasonable suspicion, the court further elucidated a two-pronged test to protect student rights.

Tiller (2013):
Although recognizing that students have protected privacy interests, the Court said that the potential danger in schools and the substantial need to maintain order does not require strict adherence to the rule that searches be based on probable cause. Rather, school officials may search students if it is reasonable under all the circumstances, which is determined by considering (1) whether “the action was justified at its inception,” and (2) whether it was “reasonably related in scope to the circumstances which justified the interference in the first place.” A search is justified at its inception when “there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated . . . either the law or the rules of the school.” It is permissible in scope when the measures 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. [592]

For the most part, the T.L.O. case has served very well as the applicable standard for the last 31 years. The Con position claims the standard is still sufficient and continues to protect student rights while allowing the necessary amount of freedom for school administrators to do their job of ensuring a safe atmosphere, conducive to education. The basis of this position is found first in a recognition there exists limited rights in general for minors under parental care coupled with the necessity to equip school officials who are responsible for children and the teaching staff to maintain a safe and effective environment conducive to the duties which they are bound under law to fulfill. Sometimes, that duty necessitates the hiring of individuals who are better trained and equipped to deal with investigations and suppression of disruptive behaviors.

The Con position is as follows. Within the context of present case law, especially T.L.O., schools need and deserve flexibility due to the special nature of their position as care-givers and educators and the application of the probable cause standard would jeopardize the execution of those unique duties.

The Limits of Student Rights

While the court has famously said students do not leave their constitutional rights at the gate, it is fair to say student rights are greatly restricted in a public school settings.  Freedom of speech, the right to assembly, the second amendment right to bear arms, and many others are curtailed by the over-arching need to maintain the conducive educational atmosphere. Such curtailment of rights is even common in public settings with adults. For example, students have a right to free speech, but the school is allowed to place limits on the content, types and times the right may be exercised. Students rights to assemble are guaranteed by the school system limits the time and place out of administrative necessity. This limitation of rights for minor students is generally accepted in U.S. law escpecially when there is a more important consideration for the public welfare.

Hudson (2002):
But public school students do not possess unlimited First Amendment rights. Two legal principles limit their rights. First, as the Supreme Court has said, minors do not possess the same level of constitutional rights as adults. Second, the government generally has greater power to dictate policy when it acts in certain capacities, such as educator, employer or jailer. For instance, a school principal can restrict a student from cursing a teacher in class or in the hallway. However, the principal would have limited, if any, authority to punish a student for criticizing a school official off-campus. This principle of greater government control applies broadly in the public schools. The paramount duty of public school officials is to educate children in a safe environment. As one federal court put it: “Learning is more important in the classroom than free speech.”

Moreover, school districts establish the codes of conduct for students in accordance with community standards and with parental input. These codes establish what is or not permissible and defines the conduct of school employees as well as students with the aim of promoting the educational experience with oversight by the school system legal counselors to ensure compliance with government requirements.  This public-private cooperation is necessary since school officials in effect take on a sort of surrogate parent role known as loco parentis (in place of parents).

Byxbe & Urbina (2013):
Even though it is important to note that school officials are state agents, their position In Loco Parentis, “in the eyes of the minor student,” places them in a position of authority similar to parents. In school, the security of students depends on a certain level of restraints placed on student activities. Whether for security or disciplinary purposes, restraints are assumed and expected of all students. Faced with such authority in settings requiring control of their behavior, children cannot reasonably expect to have the level of privacy as they would outside the school (Interest of L.L. v. Washington County, 1979). [2] 

School attendance is not voluntary. The government requires parents to basically hand control of their children over to school officials for the purpose of education. Therefore, school systems operate under rigorous legal scrutiny to ensure students receive proper care during these times of mandatory education. As a result of this responsibility school officials are permitted a certain degree freedom, similar to what a parent possesses, to deal with behavioral issues.

Soltzenberg (1976)
Compulsory education laws require juveniles to attend school. While they are present in school, they are subject to the authority of school officials, including teachers, principals, and deans. The doctrine of in loco parentis gives the school official the power and responsibility of the child's parents while acting in their place. Under this doctrine, the school official possesses a fairly substantial amount of power over the student. Inextricably tied to the school's duty to educate, is a duty to protect the welfare of its students. It is often statutorily mandated for schools to exercise  diligent care for the health and physical development of their students. There also exists a concomitant duty to maintain order and discipline in the school. As a consequence, under the doctrine of in loco parentis, school officials need not warn students of their constitutional rights for every disciplinary problem, even where "the problem of discipline occasions the knowledge of the commission of a crime." [204]

The private-public cooperation extends to the actions of students.  As explained by Byxbe and Urbina, a student is expected to cooperate in investigations and comply to requests to permit searches.

Byxbe & Urbina (2013):
Under the limits of In Loco Parentis, there is also the issue of student compliance. Again, school officials acting with reasonable suspicion can, for example, demand that students empty their pockets, to include billfold or purse, for inspection (Tarter v. Raybuck, 1983). If students refuse to comply with school officials, the school has the authority to take necessary steps to ensure compliance. Consider, for instance, the following situation where a vice-principle and a student had a “tug-of-war” over the student’s coat and the student lost, the court declared that the used force by school officials was within their In Loco Parentis authority (State v. Baccino, 1971). The use of force in searching students has been upheld even when the search was conducted off school grounds. [6]
We must look to the fact that despite the role of schools as loco parentis, school administrators are not given unlimited powers over the lives of students.  Courts still maintain a responsibility to protect students' privacy and the constitutional rights allowed by their status as minors.  School administrators have a public duty to comply with the court.  For this reason, the reasonable suspicion standard provides a good balance between freedom to take disciplinary actions and protection of rights.

School Resource Officers (SRO)

So-called school resource officers are often hired by school systems to maintain security and ensure a safe atmosphere for staff and students.  In many cases, these officers are regular police officers who serve their capacity as resource officers while wearing the uniform of the police department but operating in a reduced capacity as an agent of the school system. As Pro will no doubt argue, the use of police as school resource officers changes the dynamics of the balance between necessity and rights and calls into question the relevance of the T.L.O. decision since the role of the officer as an agent of the school system may be questioned.  One famous case in Washington in the 1990s challenged that role. A police officer named Fry, serving as as school resource officer found a student named Meneese, with marijuana in a school restroom.  When the student would not unlock his padlocked backpack, the officer searched the student, found the key and opened the backpack finding a BB gun.  Meneese was then charged with possession of marijuana and a dangerous weapon.

Tiller (2013):
Although the court acknowledged T.L.O. as binding, it concluded that “in light of the overwhelming indicia of police action, Fry was a law enforcement officer,” and therefore, the school exception did not apply. [594]

Since Officer Fry, was found by the court to be a police officer as opposed to a school official, the court ruled the probable cause standard applies.  However, the ruling was not unanimous and Justice Stephens dissent questioned the majority decision. Officer Fry's actions were in accord with that of a school official “so long as it is related to school policy and not merely a subterfuge for unrelated law enforcement activities.” (Tiller : 595) Critics contend, however, an officer is a school official when hired for the purpose and when the officer performs the duties of a school officer. Thus one should consider the function as opposed to the form. Indeed, other court cases have taken the position that SROs function as agents of the school and not the criminal justice system.  Tiller argues the probable cause standard would be detrimental to schools.

Tiller (2013):
A probable cause standard would frustrate the fulfillment of the resource officer’s duty, make it harder for schools to keep contraband off school property, and make it easier for students to conceal drugs or weapons at school. This high standard will not mitigate drug and gun problems, but will make them worse. It will force educators and resource officers to take the time to apply for a warrant instead of immediately addressing a perceived threat—time that in some circumstances, could literally be the difference between life and death. Reasonable suspicion, though, allows educators and resource officers the flexibility to search without wasting time obtaining a warrant, and discourages students from bringing contraband to school. [612]
Much of the dispute over what role if any, police officers can play depends upon the authority under which they are acting.  Thus the mere fact the officer has a uniform that may identify him in form, the more important consideration is one of function.  Under whose authority are actions taken?

Soltzenberg (1976)
In re Fred C. concerned a student who was summoned to the vice principal's office. The vice principal intended to search and interrogate him as part of an investigation based upon information that he was selling dangerous drugs at school. When the student resisted, a police officer was called in to assist. The officer later testified that he conducted the search not as a law enforcement officer, but as an agent for the vice principal. The court apparently agreed with this argument. It held that since the search was the "sole product of the initiating action taken by the school authorities [and] was executed in their presence," and since both student and vice principal "benefited" by the police officer's assistance, it was reasonable for the policeman to conduct the search.[213]

In fact, since that early case cited by Soltzenberg, there have been many challenges to the role of SROs and most now support the Con case.

Thurau & Wald (2009):
A line of cases now differentiates between SROs and “outside” officers. For SROs stationed in schools, Indiana and Tennessee courts have ruled that it is permissible to use a reasonable suspicion standard, while “outside” officers must abide by the probable cause standard. Another line of cases holds that if a police officer is doing what a school administrator would have done, the special powers and authority of the officer should not require special due process protections for students because the powers of the administrator and officer are equivalent. Similarly, if police support a search initiated by a school official outside of school, the reasonableness standard prevails because the state’s interest in keeping youth safe trumps youths’ due process protections.[985]


Within the confines of current law, there is sufficient freedom and protection of rights to reject the call for a more stringent standard, one afforded adult criminals in formal court proceedings. This flexibility, for the most part is in accord with community standards an in compliance with the special status of schools as loco parentis.  The Con has provided evidence that application of the probable cause standard will endanger students and staff.  In those situations, where rights are inadventently abused, problems can often be mitigated by better training and clearly elucidating expectations to both staff and students.

For all the reasons and more, we urge a Con ballot.

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Byxbe, FY; Urbina, MG; (2013), The Globalization of Crime in American Schools: An Assessment of Emerging Trends in the Twenty-First Century, American International Journal of Social Science, Vol. 2 No. 4; June 2013. Accessed 9/5/2016 at:

Hudson, DL, (2002), K-12 public school student expression overview, First Amendment Center, Vanderbilt University and Newseum, 2002, accessed 9//2016 at:

Stolzenberg, DS, (1976) Public School Searches and Seizures, 45 Fordham L. Rev. 202 (1976). Accessed 9/5/2016. Available at:

Thurau, LH; Wald, JA (2009), Controlling Partners: When Law Enforcement Meets Discipline in Public Schools, New Your Law School Law Review, Vol 54, 2009/10. accessed 9/5/2015 at:

Tiller, B. C. (2013). Problems of Probable Cause: Meneese and the Myth of Eroding Fourth Amendment Rights for Students, The. . Louis ULJ, 58, 589. accessed 9/5/2016 at:

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