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  • Wisconsin Lawyer
    September 01, 2014

    Children in School:
    Examining Students’ Rights

    Public school students enjoy limited rights under the First, Fourth, and Fourteenth Amendments. These limitations arise from the need to balance the custodial interests of schools with those of individual students. For example, students are protected by the Fourth Amendment against unreasonable searches and seizures, but school officials are exempt from the Fourth Amendment requirements for warrants, probable cause, and individual suspicion.

    kid with glassesDo school children enjoy civil liberties protected under the U.S. Constitution’s Bill of Rights? Or are they, as the law has historically viewed them, merely incompetents whose personal expression and boundaries in the school environment are best determined by school officials entrusted by the democratic process with their education? In the middle of the last century, the U.S. Supreme Court began to recognize that primary and secondary school students enjoy the protections of various rights guaranteed in the Bill of Rights. Included are the freedoms of speech and religion found in the First Amendment, the right to privacy in their persons and effects guaranteed by the Fourth Amendment, and the right to procedural due process afforded by the Fourteenth Amendment. This article looks at the evolution of the constitutional rights of school children as the U.S. Supreme Court has found them to be guaranteed by the First Amendment’s free speech clause and the Fourth Amendment’s protections against unreasonable searches.    


    The U.S. Constitution and the Bill of Rights together articulate a system of ordered liberty that balances the powers of the democratic governmental institutions created under the Constitution with the protections of individual rights guaranteed in the Bill of Rights.1 The system is one in which neither the rights of individuals nor the powers of government are absolute. In interpreting and implementing the powers created under the Constitution and the rights guaranteed by the Bill of Rights, the actors in the system must seek to strike the appropriate balance between their rights as free people and the government’s interest in the efficient and orderly operation of its legitimate democratic functions.2 Jurisprudence concerning constitutional rights therefore focuses on the allocation of institutional choice in particular cases: who gets to decide in a given instance3 rather than whether the particular choices made by the litigants are objectively right or wrong.

    The law as it pertains to the rights of minors, and school children in particular, presents a special case in the broader context of constitutional jurisprudence. Traditionally, neither the Constitution nor the common law accorded to minors the civil liberties or rights to self-determination enjoyed by adults.4 In cases involving students in public schools, courts presumed that schools acted in loco parentis,5 possessing the same powers and control over students as parents, unfettered by constitutional restraints.6 However, in the middle of the 20th century, the U.S. Supreme Court began to recognize that public school students are not wholly excepted from certain of the rights guaranteed to adults in the Bill of Rights. Most notably, these are the freedom of speech and religious liberty found in the First Amendment, the right to privacy of the person and personal effects accorded by the Fourth Amendment, and the rights to due process and equal protection provided under the Fourteenth Amendment.7

    The rights of public school children recognized by the Supreme Court are qualitatively no different than those of adults, but the special status of children vis-à-vis the institutions charged with educating them is a significant factor to be weighed in the balancing of interests between a child’s rights and the government’s legitimate interests in individual cases. Thus, in Vernonia School District 47J v. Acton, the Supreme Court cautioned that while its decisions rejected the idea “that the State’s power over schoolchildren is formally no more than the delegated power of their parents, [we] did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.”8

    The Court emphasized that the education of children has historically been entrusted to teachers and school administrators acting under the guidance of local school boards and state governments. Courts interpreting the U.S. Constitution and the Bill of Rights are, therefore, cautioned to accord a high degree of deference to educators’ professional judgments, especially in regard to activities related to the educational curriculum and school-sponsored activities.9

    First Amendment

    In 1943, the Supreme Court first extended the protection of a right guaranteed in the Bill of Rights to public-school students. In West Virginia v. Barnette, the Supreme Court overruled recent precedent to recognize that the Free Speech Clause of the First Amendment protects school children from being compelled by the state to salute the American flag and recite the Pledge of Allegiance in school.10 The Court reasoned that compelling speech is as antithetical to the freedom of speech as suppressing it is.11 To justify extending the protection of the First Amendment to schoolchildren, the Court found, as it would in later cases, that schools have an important responsibility not only to teach civic values to the students in their charge but also to set an example by practicing the civic ideals taught:

    “That [boards of education] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”12

    A. Steven PorterA. Steven Porter, U.W. 1983, maintains a solo practice in Madison, and focuses on plaintiff-side employment discrimination and civil rights litigation.

    In Tinker v. Des Moines Independent Community School District, the Supreme Court extended its holding in Barnette by recognizing for the first time that the Free Speech Clause also protects public-school students’ affirmative right to freedom of speech.13 In doing so, the Court declared that public-school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”14 The Court found that high-school students who wore black arm bands in their classes as silent protest against the Vietnam War were engaging in “a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on [their] part.” The Court concluded that the students’ speech did not interfere with any legitimate countervailing governmental interest because it did not “intrude[ ] upon the work of the schools or the rights of other students.”15

    But in 1986, in Bethel School District No. 403 v. Fraser, the Supreme Court looked to the same legitimate governmental interests in educating pupils for citizenship and in maintaining order and civility in schools as it had in Barnette and Tinker as bases for upholding a public high school’s power to suspend a student for giving a speech, in support of a candidate for class officer at a school assembly, that the school officials considered to be lewd and disruptive.16 In reversing the Ninth Circuit’s more expansive interpretation of Tinker, the Supreme Court observed that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.”17

    The Court breathed new life into the old doctrine of in loco parentis by characterizing its decisions in Barnette and Tinker as supporting the legitimate interest of “school authorities acting in loco parentis, to protect children – especially in a captive audience – from exposure to sexually explicit, indecent, or lewd speech.”18

    Although some of the courts and justices opined that the student’s speech was merely inappropriately suggestive and not lewd or obscene as characterized by the school board, the Court endorsed, against the power of courts to interfere in school administration, the prerogative of school officials to determine whether “permitt[ing] a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission.”19

    Against the notion that students are free to substitute their own determinations of the limits of propriety for those of school officials, the Court approvingly repeated the statement in the dissent in Tinker “disclaim[ing] any purpose … to hold that the Federal Constitution compels the teachers, parents, and elected officials to surrender control of the American public school system to public school students.”20

    The Court further distinguished Tinker by noting that “[u]nlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint.”21 The Court concluded that, unlike in the case of nondisruptive political speech or displays of political symbols worn on the student’s person, school officials have a significant interest in controlling potentially disruptive student speech that occurs in the course of an officially sanctioned school activity that is directly related to the school’s educational curriculum, as it found was the situation in Fraser. Significantly, the Court deferred to the school officials’ determination of what constituted “disruption” and rejected the 9th Circuit’s attempt to supplant the school officials’ assessment with its own “objective” assessment.

    Since its decision in Fraser, the Supreme Court has built on the exceptions to Tinker that it fashioned in Fraser. In 1988, in Hazelwood School District v. Kuhlmeier,22 and more recently in 2007, in Morse v. Frederick,23 the Court added school newspapers and comparable school-sponsored or sanctioned activities, such as “approved social events and class trips,” to school assemblies to be included under the umbrella of “the school curriculum” and held that “[e]ducators are entitled to exercise greater control over” student expression in those contexts.24 The Court created a new standard for school-sponsored or sanctioned activities that permits school officials to regulate student speech in ways that are “reasonably related to legitimate pedagogical concerns,” including, in Morse, “safeguard[ing] those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use,” even if the speech cannot be said to give rise to a risk of substantial disruption.25

    Given the direction of its decisions over the last 30 years, it appears that the Supreme Court is only willing to accord public-school students protections under the Free Speech Clause of the First Amendment for nondisruptive, symbolic speech that is purely political or unrelated to any pedagogical school activity or purpose.26

    Fourth Amendment

    In 1985, in New Jersey v. T.L.O., the Supreme Court held that the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to searches of public-school students by public-school officials.27 Schoolchildren have a legitimate need to bring a variety of personal items to school with them – from money, keys, and items needed for after-school activities to items needed for personal hygiene and grooming as well as diaries, letters, photographs, and other personal effects.28 The Supreme Court concluded that public-school students have a legitimate expectation of privacy in such noncontraband items and that they do not waive this expectation simply by bringing the items on school grounds.29

    Because of laws mandating school enrollment, attendance, and discipline, school officials cannot claim that the authority they exercise over students has been voluntarily conferred on them by individual parents by virtue of having enrolled their children in schools.30 School officials act as state agents, “not merely as surrogates for the parents,” and, therefore, they will not be heard to claim that they possess authority in loco parentis that negates a student’s privacy interest and gives them immunity from the strictures of the Fourth Amendment.31

    Schools have an important responsibility not only to teach civic values to the students in their charge but also to set an example by practicing the civic ideals taught.

    Balanced against the student’s interest in privacy, however, is “the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds.”32 The Court in T.L.O. noted that “[e]ven in schools that have been spared the most severe disciplinary problems, the preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.”33 The custodial and tutelary character of the school setting and the preservation of the informality of the student-teacher relationship require the ability for school officials to be flexible, as well as swift and effective, in implementing safety and disciplinary procedures.34

    For these reasons, the Supreme Court in T.L.O. concluded that “the warrant requirement is unsuited to the school environment” and held that “school officials need not obtain a warrant before searching a student who is under their authority.”35 The Court also concluded that the school setting required “modification of the level of suspicion of illicit activity needed to justify a [warrantless] search” from “probable cause” to “reasonableness under all the circumstances of the search.”36 The Court established a twofold inquiry for determining the reasonableness of any school search performed by school officials:37 1) whether the search was justified at its inception, and 2) whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.38 Elaborating on this standard, the Court explained:

    “Under ordinary circumstances, a search of a student by a teacher or other school official will be ‘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.”39

    In T.L.O., a high school principal searched a 14-year-old freshman’s purse after a teacher discovered her smoking in a lavatory in violation of a school rule. The student had denied that she had been smoking and claimed that she did not smoke at all. The principal found a pack of cigarettes and a pack of cigarette rolling papers in the purse. Considering the rolling papers to be marijuana related, the assistant vice principal proceeded to search the purse thoroughly and found a small amount of marijuana, marijuana-related paraphernalia, and items that appeared to implicate the student in marijuana dealing.40

    The Supreme Court concluded that both the search of T.L.O.’s purse for cigarettes and the further search of the purse for evidence of marijuana use and dealing comported with the two-step inquiry it had enunciated. The search of the purse for cigarettes was reasonable at its inception because a teacher had reported the student for smoking in a lavatory and reasonable in its scope because the student’s purse would be a likely place to find cigarettes if she had been smoking in the lavatory.41

    According to the Supreme Court, the principal’s suspicion that there were cigarettes in the purse was not an “inchoate and unparticularized suspicion or ‘hunch,’ … but the sort of common-sense conclusion about human behavior upon which practical people – including government officials – are entitled to rely.”42 The second, more extensive search of the purse was reasonable at its inception once the search for cigarettes also turned up the rolling papers.43 Thus, both searches were reasonable intrusions into the student’s privacy in the meaning of the Fourth Amendment.

    In 2009, in Safford Unified School District #1 v. Redding, however, the Supreme Court concluded that school officials had intruded further than was reasonable into a 13-year-old student’s privacy when they searched not only the student’s backpack and her outer clothing but also her bra and underpants, based on a report that the student had brought forbidden prescription and over-the-counter drugs to school and given them to other students.44 The Supreme Court concluded that the report gave school officials reasonable suspicion to search the student’s backpack, jacket, and outer clothing but, absent some greater justification in the facts, that suspicion “did not match the degree of intrusion” into the student’s privacy that the removal of her outer clothing and search of her bra and underpants constituted.45

    The Court explained that “nondangerous school contraband does not raise the specter of stashes in intimate places”; there was no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; the reports that prompted the search did not suggest that the student had secreted the pills in her underwear; and, because the report was several days old, there was no basis to conclude that the student presently had the pills on her person, much less in her underwear.46

    Searches Without Individualized Suspicion

    Random Drug Tests. In T.L.O., the Supreme Court expressly did not decide “whether individualized suspicion is an essential element of the reasonableness standard” adopted for searches by school authorities.47 In 1995, the Court decided that Vernonia School District 47J’s random drug testing of school athletes in Oregon was reasonable under the Court’s Fourth Amendment analysis applicable to schools. The drug-testing program was implemented in response to a sharp increase in drug use among students that was causing significant behavioral problems and allegedly resulting in a breakdown in order and increased disciplinary referrals in the schools.48 School officials perceived student athletes to be a conspicuous part as well as instigators of the problem.49

    The Court determined that student athletes have a limited expectation of privacy compared to the student body as a whole because they voluntarily submitted themselves to privacy intrusions of similar magnitude with regard to physical exams and vaccinations required for participation in sports programs and because those participating in team sports were accustomed to “communal undressing” in locker rooms and showering in the presence of teammates and coaches.50 The Court concluded that the method used for collection of urine samples from students was no more intrusive into the privacy of student athletes than that.51

    In 2002, in Board of Education v. Earls, the Court upheld a random drug-testing program for an even broader range of students, those in all extracurricular activities involving competition.52 The Court noted, as it had in Acton, that “[f]or their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases.”53 The Court concluded that random drug tests in which urine samples were collected from students participating in extracurricular activities were no more intrusive into a student’s privacy, nor was the school district’s use of the test results less health related, than such other health measures.54

    The Court has stated that “whether a particular search meets the reasonableness standard is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”55 When considering the Fourth Amendment rights of school children, the Court emphasizes that the schools’ custodial and tutelary responsibility for children must weigh heavily in the balance of interests under the “reasonableness” inquiry.56 Although the Court has disavowed embracing anew the doctrine of in loco parentis to exempt searches of school children from constitutional protections, it did accept, turning to Bethel School District No. 403 v. Fraser, that “for many purposes ‘school authorities act in loco parentis,’ … with the power and indeed the duty to ‘inculcate the habits and manners of civility.’”57

    The Court explained in Acton, “Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.”58 The difference between in loco parentis and the Court’s approach is that, as announced in Tinker, “Children assuredly do not ‘shed their constitutional rights … at the schoolhouse gate,’ [but] the nature of those rights is what is appropriate for children in school.”59

    The Court seems prepared to uphold random drug-testing programs in high schools as long as the search is “undertaken for prophylactic and distinctly nonpunitive purposes” and test results are kept confidential and are not used for disciplinary or law enforcement purposes.60 When school officials adopt a random drug-testing program to address what they perceive to be a pervasive health and safety problem affecting the entire school system, and intrusions on the privacy of the student and the consequences of the search are minimal, the Court appears willing to eschew the need for individualized reasonable suspicion of a rule infraction and to afford a high degree of deference to school officials under the reasonableness standard of the Fourth Amendment.

    Random Locker Search. Before the U.S. Supreme Court decided in Vernonia School District 47J v. Acton that random drug testing of student athletes was reasonable under the Fourth Amendment, the Wisconsin Supreme Court upheld a random search of student lockers ordered by a high school principal in Milwaukee in response to information received indicating that students had brought firearms to the school in anticipation of a shootout expected to take place at the school that day.61 After searching 75 to 100 lockers, school officials searched the locker of Isiah B. and discovered a hand gun and a bag of cocaine in his coat.62 The supreme court found that the school officials had no particularized or individualized suspicion that Isiah B.’s locker would contain evidence of law or school rule violations.63

    Whether a search meets the reasonableness standard is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.

    The supreme court first observed that the Fourth Amendment to the U.S. Constitution and article I, section 11 of the Wisconsin Constitution proscribe unreasonable searches and seizures and that the Wisconsin Supreme Court “has consistently and routinely conformed the law of search and seizure under the state constitution to that developed by the United States Supreme Court under the fourth amendment.”64 Because the search it was considering was conducted by school officials and not law enforcement personnel, the supreme court concluded that the U.S. Supreme Court’s decision in T.L.O. controlled, and, therefore, that, Wisconsin courts “are bound by the Supreme Court’s conclusion that public school officials are state agents for purposes of Fourth Amendment search and seizure analysis and as such must conform their conduct to the strictures of that amendment.”65

    The Wisconsin Supreme Court noted that under the U.S. Supreme Court’s approach in T.L.O., before proceeding to balance the privacy interests of a student against the legitimate governmental interests in conducting the search, a court must first determine whether the student had a reasonable expectation of privacy in the area searched – in this case, the student’s locker.66 The Wisconsin Supreme Court also noted that in T.L.O., the U.S. Supreme Court had expressly declined to decide whether students enjoyed a reasonable expectation of privacy in their school lockers.67

    The supreme court then held that because the Milwaukee Public School System had a written policy retaining ownership and possessory control of school lockers, and notice of the locker policy was given to the students, Isiah B. had no reasonable expectation of privacy in his locker.68 Because Isiah B. had no reasonable expectation of privacy in his locker, the supreme court concluded there was no Fourth Amendment violation.69

    The U.S. Supreme Court denied the defendant’s petition for certiorari in In the Interest of Isiah B.70 But, if it had taken the case, would it have agreed with the Wisconsin Supreme Court? Given its later decisions in T.L.O., Acton, and Earls, it is likely that the U.S. Supreme Court would have concluded, unlike the Wisconsin Supreme Court in In the Interest of Isiah B., that Isiah B. did enjoy a privacy interest in his locker and in the pockets of his coat.

    But, the Court probably would have concluded that that interest was outweighed by the school officials’ significant interest in maintaining the safety of students and staff. The Court would probably have held that the school officials’ perceptions that there was a pervasive threat of imminent gun violence at the school and that some students may have had weapons in their lockers were not unreasonable given the recent violent episodes that had occurred at the school and the information school officials had received that firearms had been spotted in the possession of students on the bus that day and that a shootout was imminent.


    As with its First Amendment jurisprudence, the U.S. Supreme Court has eschewed the notion that school officials govern schools with in loco parentis authority and schoolchildren therefore have no rights cognizable under the Fourth Amendment, in favor of an approach that recognizes that students are protected by the Fourth Amendment against unreasonable searches and seizures.

    However, the Court has severely curtailed the reach of that protection – almost to the point of reinstituting in loco parentis immunity – by requiring that courts give substantial weight to the determinations of school officials when performing the balancing test of schoolchildren’s legitimate interests in privacy against the interests of school officials in the orderly administration of the schools. The Court seems willing to give substantial deference to school officials’ determinations as long as the courts determine that school officials’ actions are reasonably within their legitimate custodial and tutelary responsibility for children.

    In further deference to school officials’ special custodial and tutelary responsibility for students, the Supreme Court also exempts school officials from the Fourth Amendment requirements for warrants, probable cause and individual suspicion that apply to adults.71


    1 See, e.g., West Virginia v. Barnette, 319 U.S. 624, 638 (1943): “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

    2 See New Jersey v. T.L.O., 469 U.S. 325, 337 (1985).

    3 See, e.g., id. at 342; Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685-86 (1986).

    4 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995).

    5 For a thorough historical discussion of in loco parentis and its abandonment by the U.S. Supreme Court, see Morse v. Frederick, 551 U.S. 393, 410-22 (2007) (Thomas, J., concurring).

    6 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 655.

    7 See id.; T.L.O., 469 U.S. at 336-37; Brown v. Board of Educ., 347 U.S. 483 (1954); West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

    8 515 U.S. 646, 655 (1995)

    9 Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 377 (2009)

    10 319 U.S. 624 (1943).

    11 Id. at 634.

    12 Id. at 637.

    13 393 U.S. 503, 506 (1969).

    14 Id.

    15 508.

    16 478 U.S. 675, 681 (1986).

    17 Id. at 682-83.

    18 Id. at 684.

    19 Id. at 685.

    20 Id. at 685-86 (quoting the dissent in Tinker, 393 U.S. at 526).

    21 Id. at 685.

    22 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).

    23 Morse v. Frederick, 551 U.S. 393 (2007).

    24 Hazelwood Sch. Dist., 484 U.S. at 271; Morse, 551 U.S. at 397-98.

    25 Hazelwood Sch. Dist., 484 U.S. at 273; Morse, 551 U.S. at 397, 405; see also Morse, 551 U.S. at 418 (Thomas, J., dissenting).

    26 In K.J. v. Sauk Prairie School District, 2012 U.S. Dist. LEXIS 187689 (W.D. WI 2012), a case involving nonverbal speech reminiscent of the armbands in Tinker, but not involving political expression, Judge Barbara Crabb denied the plaintiff’s motion for a preliminary injunction preventing defendants from prohibiting middle school students from wearing bracelets and other clothing containing the statement “I ♥ Boobies! (Keep A Breast)” in support of breast cancer awareness. Judge Crabb concluded that it was unlikely the plaintiff could show at trial that it was unreasonable for the defendants to determine that the phrase was vulgar to a degree unsuitable for the educational environment in a middle school. The court was careful to point out that there was no evidence that the school district had engaged in viewpoint discrimination to stifle the message, but, to the contrary, had proposed nonvulgar alternative means for plaintiff to express her message of breast cancer awareness. Id. at 23.

    27 469 U.S. 325, 333, 335 (1985).

    28 Id. at 339.

    29 Id.

    30 Id. at 336.

    31 Id. at 336-37

    32 Id. at 339.

    33 Id.

    34 Id. at 339-40; Acton, 515 U.S. at 655.

    35 T.L.O., 469 U.S. at 340.

    36 Id. at 340-41.

    37 The Court in T.L.O. cautioned: “This case does not present the question of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question.” 469 U.S. at 342.

    38 Id. at 341.

    39 Id. at 341-42.

    40 Id. at 328, 330. A New Jersey juvenile court admitted evidence so discovered in delinquency proceedings against the student, holding that a school official may properly conduct a search of a student’s person if the official has a reasonable suspicion that a crime has been or is in the process of being committed, or reasonable cause to believe that the search is necessary to maintain school discipline or enforce school policy, and that the search in this case was a reasonable one under this standard. The court found the student to be a delinquent and sentenced her to a year’s probation.

    41 T.L.O., 469 U.S. at 345.

    42 Id. at 346 (internal brackets and quotation marks omitted).

    43 Id. at 347. The Court found that extending the search of the purse even further to include a zippered compartment in which were found letters implicating the student in drug selling and a list of “people who owe me money” was not unreasonable after marijuana, a pipe, plastic bags commonly used to store marijuana, and a “fairly substantial amount of money” were found during the first extended search of the purse.

    44 Safford United Sch. Dist. #1 v. Redding, 557 U.S. 364 (2009). The school principal showed the student four prescription-strength ibuprofen 400-mg pills and an over-the-counter naproxen 200-mg pill, all used for pain and inflammation but banned under school rules without advance permission, and told the student that he had received a report that the student had been giving the pills to other students. The student denied the report and any knowledge of the pills. Id. at 368.

    45 Id. at 373-74.

    46 Id. at 376.

    47 T.L.O., 469 U.S. at 342.

    48 Acton, 515 U.S. at 648-49.

    49 Id. at 649.

    50 Id. at 657.

    51 Id. at 658.

    52 Board of Educ. v. Earls, 536 U.S. 822 (2002).

    53 Id. at 830-31; Acton, 515 U.S. at 656.

    54 Earls, 536 U.S. at 832-34.

    55 Acton, 515 U.S. at 652-53.

    56 Id. at 656.

    57 Id. at 655 (quoting with approval Bethel School Dist. No. 403 v. Fraser, 478 U.S. at 684).

    58 Id. at 654.

    59 Id. at 655-56.

    60 Id. at 658 n.2; Earls, 536 U.S. at 833-34, 837.

    61 In the Interest of Isiah B., 176 Wis. 2d 639, 642-43, 500 N.W.2d 637 (1993).

    62 Id. at 644.

    63 Id.

    64 Id. at 639-40.

    65 Id. at 646-48.

    66 Id. at 648.

    67 Id. at 648-49.

    68 Id. at 649. The court did not address the question of whether Isiah had a reasonable expectation of privacy in regard to items in the pocket of his coat which was in the locker.

    69 Id. at 650. The court noted that students might have a reasonable expectation of privacy in their lockers – albeit a lowered one – if school authorities did not have a locker policy like the one in this case. Id. at 649.

    70 Isiah B. v. Wisconsin, 510 U.S. 884 (1993).

    71 In Acton, 515 U.S. at 655, the Court, referencing DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), stopped short of characterizing school officials’ custodial and tutelary responsibility for school children as a “constitutional ‘duty to protect’” that might subject schools to liability for breach of that duty. The Court also distinguished the custodial responsibility of school officials for school children as distinctly less comprehensive than that of prison officials for prisoners (thereby foreclosing another potential basis for liability on the part of school officials). Id. at 664 n.3; T.L.O., 469 U.S. at 338-39.

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