Restatement of the Law, Children and the Law, Tentative Draft No. 3 (TD3) will be presented to ALI membership at the 2021 ALI Annual Meeting. The below black letter and Comment is excerpted from this draft, which contains § 10.10. Student Search by School Officials Based on Individualized Suspicion. The full Section, including full Comments with illustrations and Reporters’ Notes, may be downloaded following the link at the end of this post. TD3 also includes § 10.20. Search without Individualized Suspicion. To request this, or any other Section of this draft or others, please contact communications@ali.org.

This Tentative Draft has not yet been considered or approved by ALI membership. Therefore, it does not represent the position of The American Law Institute and should not be represented as such.

Comment a. The reasonable-suspicion standard: background and rationale. The Fourth Amendment of the U.S. Constitution protects citizens against unreasonable searches and seizures by government agents. The purpose of the Fourth Amendment is to restrict the government from intruding unduly into the private lives of citizens when it pursues its law-enforcement function. The protection of the Fourth Amendment is triggered only if the search intrudes into an individual’s legitimate expectation of privacy. A search or seizure is unreasonable if, under the circumstances, it intrudes excessively upon the citizen’s legitimate privacy interest in relation to the citizen’s person, belongings, home, or vehicle, when weighed against the government’s interest in conducting the search.

Ordinarily, a law-enforcement officer must obtain a warrant to conduct a lawful search. But under exigent circumstances, a search can be conducted without a warrant if the officer has probable cause to believe that a crime has been or is being committed. The probable cause standard is met if it is more probable than not that the search will produce evidence of the person’s suspected criminal activity.

The U.S. Supreme Court has clarified that a legal search can be conducted in some contexts even if probable cause is not satisfied. A “special needs” search can be conducted legally on the basis of “reasonable suspicion” because of unique characteristics of the setting.

Until the Supreme Court decided New Jersey v. T.L.O. in 1985, it was not clear that the Fourth Amendment applied to searches of students by public school officials. 469 U.S. 325 (1985). Some earlier courts had held that the relationship of school officials to students was in loco parentis, and that therefore the protections of the Fourth Amendment did not apply in that setting. T.L.O. clarified that a public school student has a protectable expectation of privacy, and, therefore, the search of a student by a school official is subject to Fourth Amendment protections and is illegal if it is unreasonable. However, a student’s legitimate expectation of privacy is less substantial than that of an adult or of a minor outside of the school setting. A search by a school official constitutes a “special needs” search which need not meet the standard of probable cause. In the public school setting, the relaxed “reasonable suspicion” standard is justified on the ground that school officials have a compelling interest in maintaining discipline and order so that the school can fulfill its educational function. School attendance is mandatory for students, and school officials have a responsibility to provide a safe and secure learning environment. Moreover, unlike law-enforcement agents, school officials are not trained to evaluate probable cause; thus the official’s decision to search is afforded greater latitude than is the decision of a law-enforcement officer. The court assumes that requiring probable cause would unduly burden school officials in performing their educational mission.

Under the standard announced in T.L.O. and generally adopted by state and federal courts, an individualized search of a student is justified if the school official, in conducting the search, has a reasonable suspicion that the student has violated the criminal law or a school regulation, and that the search will provide evidence of the violation. The Court announced a two-prong test: First, the search must be justified in its inception, and second, the scope of the search must be reasonably related to the circumstances that justified it in the first place. See Comment c. To evaluate whether the scope of the search is reasonable, the court will determine whether measures used were reasonably related to the purposes of the search when initiated and not “excessively intrusive in light of the age and sex of the student and the nature of the infraction.” T.L.O., 469 U.S. at 342. See Comment b. The assumption is that the reasonable-suspicion standard provides a balance that recognizes the student’s justified expectations of privacy without unduly burdening the school official’s effort to maintain order and protect student safety.

In evaluating the lawfulness of the search, the court weighs the extent to which the search intrudes on the student’s privacy interest against the importance of the government’s interest in conducting the search. The student’s legitimate expectation of privacy varies depending on the location of the search; the search of a student’s person intrudes on a substantial privacy interest, while his or her privacy interest in items in a locker or vehicle carries less weight. See Comment d. The government’s interest in conducting the search also varies; a search for weapons, for example, represents a compelling interest that can justify a more intrusive search than a search for stolen property. See Comment c.

Under this Section, school officials whose searches are subject to the reasonable-suspicion standard include administrators, teachers, or other adults employed by the school to perform an educational function. A school resource officer employed full-time by the school district to provide security in the school is a school official. Other law-enforcement officers in the school are not school officials and must satisfy probable cause to legally search a student.

§ 10.10. Student Search by School Officials Based on Individualized Suspicion
(a) A school official or authorized agent can lawfully search a student’s person, belongings, locker, or vehicle on school grounds without a warrant and without the consent of the student based on a reasonable suspicion that the search will reveal evidence that the student has violated the criminal law or a school regulation, if the search is otherwise lawful.
(b) A search is lawful under this Section if:

  • (1) it is justified at its inception; and
  • (2) its scope is reasonably related to the circumstances justifying the search, a condition that is satisfied if the search does not intrude excessively on the student’s legitimate expectation of privacy when balanced against the state interest that justified the search at its inception.
(c) Evidence from an unlawful search will be inadmissible in a subsequent delinquency or criminal proceeding against the student.
(d) A seizure of a student’s personal property is lawful if the property is:

  • (1) obtained in a lawful search; or
  • (2) found in plain view or was abandoned by the student.
(e) For purposes of this Section, a school resource officer employed by the school district or assigned to a school exclusive of other assignment is a school official. Other law-enforcement agents are not school officials and must comply with probable cause and other requirements that generally apply to searches by law-enforcement agents.
Cross-References:
10.20. Search without Reasonable Suspicion; § 12.10. Minor’s Consent to Search; § 12.11. Parental Consent to Search of a Minor’s Possessions and Person

PDF of Section 10.10. Student Search by School Officials Based on Individualized Suspicion (includes select TD3 front matter with Projected Overall Table of Contents)

Elizabeth S. Scott

Reporter, Children and the Law

Elizabeth S. Scott is the Harold R. Medina Professor of Law at Columbia Law School. Scott teaches family law, property, criminal law, and children and the law. She has written extensively on marriage, divorce, cohabitation, child custody, adolescent decision-making, and juvenile delinquency. Her research is interdisciplinary, applying behavioral economics, social science research, and developmental theory to family/juvenile law and policy issues.

Richard Bonnie

Associate Reporter, Children and the Law

Richard J. Bonnie is Harrison Foundation Professor of Law and Medicine, Professor of Public Policy, Professor of Psychiatry and Neurobehavioral Sciences, and Director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. ­­He teaches and writes about health law and policy, bioethics, criminal law, and public policies relating to mental health, substance abuse, and public health. He has co-authored leading textbooks on criminal law and public health law.

Emily Buss

Associate Reporter, Children and the Law

Emily Buss's research interests include children's and parents' rights and the legal system's allocation of responsibility for children’s development among parent, child, and state. In recent years, she has focused particular attention on the developmental impact of court proceedings on court-involved children, including foster youth and youth accused of crimes. In addition to courses focused on the subjects of her research, Buss teaches civil procedure, evidence, and family law. 

Clare Huntington

Associate Reporter, Children and the Law

Clare Huntington is an expert in the fields of family law and poverty law. Her book, Failure to Flourish: How Law Undermines Family Relationships (Oxford 2014), won an Honorable Mention for the Professional and Scholarly Excellence (PROSE) Award in Law and Legal Studies from the Association of American Publishers. She has published widely in leading law journals, exploring the intersection of poverty and families and with a recent focus on non-marital families.

Solangel Maldonado

Associate Reporter, Children and the Law

Solangel Maldonado is the Joseph M. Lynch Professor of Law at Seton Hall Law.  Her research and teaching interests include family law, feminist legal theory, race and the law, and international and comparative family law. Over the past decade, her scholarship has focused on the intersection of race and family law and the law’s influence on social norms of post-separation parenthood. She is currently working on a book for NYU Press that examines how the law shapes romantic preferences and how these preferences perpetuate racial hierarchy and economic and social inequality.

Jennifer Morinigo

The American Law Institute

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