# Bag searches at public schools. Constitutional? **URL:** \ **Category:** Factual Questions\ **Created:** [December 4, 2007, 8:41pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828 "2007-12-04T20:41:40Z")\ **Posts on this page:** 17\ **Page:** 1
**Author:** ![Garfield226](https://avatars.discourse-cdn.com/v4/letter/g/9e8a1a/32.png) [@Garfield226](https://boards.straightdope.com/u/Garfield226)\ **Post date:** [December 4, 2007, 8:41pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/1 "2007-12-04T20:41:40Z")
Some ammunition (that’s all the detail they’re releasing right now – not what kind, not how much, not where) was found in a school semi-near where I grew up yesterday. They put the school on lockdown, called buses, then evacuated the place. Today, they trucked in metal detectors and a police search dog, and they searched all the students’ bags as they entered and left school. I know schools use metal detectors and search dogs, but is searching EVERY student’s bag with no probable cause really protected? [story link](http://news-gazette.com/news/local/2007/12/04/students_bags_searched_in_wake_of) (I don’t live near there anymore, but I follow the news online, all I know is what’s in that story) ---
**Author:** ![Contrapuntal](https://avatars.discourse-cdn.com/v4/letter/c/e274bd/32.png) [@Contrapuntal](https://boards.straightdope.com/u/Contrapuntal)\ **Post date:** [December 4, 2007, 8:45pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/2 "2007-12-04T20:45:35Z")
I am not sure what the constitutional issue would be. Unlawful search and seizure? Many sporting events check every bag. Maybe if consent to search is a condition of entry? You don’t \*have \*to be searched. You are free to leave without entering. ---
**Author:** ![Garfield226](https://avatars.discourse-cdn.com/v4/letter/g/9e8a1a/32.png) [@Garfield226](https://boards.straightdope.com/u/Garfield226)\ **Post date:** [December 4, 2007, 8:49pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/3 "2007-12-04T20:49:58Z")
[QUOTE=Contrapuntal] I am not sure what the constitutional issue would be. Unlawful search and seizure? Many sporting events check every bag. Maybe if consent to search is a condition of entry? You don’t \*have \*to be searched. You are free to leave without entering. [/QUOTE] Unlawful search, yes. And sporting events, concerts, et. al. are voluntary, as you said. School is not. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [December 4, 2007, 9:03pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/4 "2007-12-04T21:03:42Z")
Schools are _in loco parentis_. That is they have essentially the power of parents over students while they are in school. As such, they can search person or property of students at will. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 4, 2007, 9:04pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/5 "2007-12-04T21:04:25Z")
See: [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/searches.htm](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/searches.htm) In _New Jersey v. T.L.O_., the Court sad: > [@](#): > > 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;” 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.” 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. [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/tlo.html](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/tlo.html) Later, the Court approved random drug testing of school athletes in \*Veronia \* [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/veronia.html](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/veronia.html) and drug testing of all students participating in competitive extracurricular activities in \*Board of Education v Earls \* [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/searches.htm](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/searches.htm) ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [December 4, 2007, 9:48pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/6 "2007-12-04T21:48:58Z")
[QUOTE=treis] Schools are _in loco parentis_. That is they have essentially the power of parents over students while they are in school. As such, they can search person or property of students at will. [/QUOTE] This would appear to be contradicted by the cite posted directly after, which states that the search must adhere to the standard of reasonableness. Do you have a cite that supports the notion that _in loco parentis_ status supercedes the ruling of the Supreme Court? ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [December 4, 2007, 10:10pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/7 "2007-12-04T22:10:51Z")
[QUOTE=Otto] This would appear to be contradicted by the cite posted directly after, which states that the search must adhere to the standard of reasonableness. Do you have a cite that supports the notion that _in loco parentis_ status supercedes the ruling of the Supreme Court? [/QUOTE] Reasonableness is the current standard. However, the two quotes are not directly contradictory – although it is true that a school search must be reasonable, the Court will nearly always find reasonableness unless there is something egregiously invasive about the method of testing. Check out the facts of _Earls_. The complaining students were exemplary students and members of the chess team and band, and the school did not prove any problem of drug abuse within the school. The Court found that there was no requirement for the school to show a special safety need or individualized suspicion in order for the search to be reasonable. (Different from _Veronia_ where the Court leaned heavily on the school’s responsibility to protect student athlete’s health) Ginsberg’s dissent is pretty classic, BTW. ---
**Author:** ![Garfield226](https://avatars.discourse-cdn.com/v4/letter/g/9e8a1a/32.png) [@Garfield226](https://boards.straightdope.com/u/Garfield226)\ **Post date:** [December 4, 2007, 10:12pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/8 "2007-12-04T22:12:56Z")
[QUOTE=Gfactor] Later, the Court approved random drug testing of school athletes in \*Veronia \* [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/veronia.html](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/veronia.html) and drug testing of all students participating in competitive extracurricular activities in \*Board of Education v Earls \* [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/searches.htm](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/searches.htm) [/QUOTE] These don’t bug me as much because participation is voluntary. Don’t go out for the team, and you aren’t subject to drug testing. Regarding the New Jersey case, I think I would argue there are not “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,” when looked at in each individual case. You could argue that searching the student body as a whole may have reasonable grounds for suspecting you will find evidence, but then wouldn’t that be true most days? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 4, 2007, 10:43pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/9 "2007-12-04T22:43:15Z")
[QUOTE=Otto] This would appear to be contradicted by the cite posted directly after, which states that the search must adhere to the standard of reasonableness. Do you have a cite that supports the notion that _in loco parentis_ status supercedes the ruling of the Supreme Court? [/QUOTE] Which makes me wonder: Do parents have unlimited authority to search their minor children’s belongings? ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [December 4, 2007, 10:55pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/10 "2007-12-04T22:55:28Z")
[QUOTE=John Mace] Which makes me wonder: Do parents have unlimited authority to search their minor children’s belongings? [/QUOTE] When a private party searches another private party, the 4th Amendment doesn’t enter the equation. I order for the 4th A to protect you, the search must be done by the government or its agents. So, yes, parents have an unlimited right to search their children, limited only by relevant local laws. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 4, 2007, 11:08pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/11 "2007-12-04T23:08:26Z")
[QUOTE=Garfield226] These don’t bug me as much because participation is voluntary. Don’t go out for the team, and you aren’t subject to drug testing. Regarding the New Jersey case, I think I would argue there are not “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,” when looked at in each individual case. You could argue that searching the student body as a whole may have reasonable grounds for suspecting you will find evidence, but then wouldn’t that be true most days? [/QUOTE] Unfortunately, we don’t get to pick the standards. While \*T.L.O. \* established a reasonbleness standard, the later cases make clear that individualized suspicion is not required: > [@](#): > > It is true that we generally determine the reasonableness of a search by balancing the nature of the intrusion on the individual’s privacy against the promotion of legitimate governmental interests. See Delaware v. Prouse, 440 U. S. 648, 654 (1979).\*\* But we have long held that “the Fourth Amendment imposes no irreducible requirement of [individualized] suspicion.” \*\* United States v. Martinez-Fuerte, 428 U. S. 543, 561 (1976). “\*n certain limited circumstances, the Government’s need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion.” Von Raab, supra, at 668; see also Skinner, supra, at 624. Therefore, in the context of safety and administrative regulations, a search unsupported by probable cause may be reasonable "when `special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ " Griffin v. Wisconsin, 483 U. S. 868, 873 (1987) (quoting T. L. O., supra, at 351 (Blackmun, J., concurring in judgment)); see also Vernonia, supra, at 653; Skinner, supra, at 619. > > ``` > Significantly, this Court has previously held that "special needs" inhere in the public school context. See Vernonia, supra, at 653; T. L. O., supra, at 339-340. While schoolchildren do not shed their constitutional rights when they enter the schoolhouse, see Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969), "Fourth Amendment rights ... are different in public schools than elsewhere; the `reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children." Vernonia, supra, at 656. In particular, a finding of individualized suspicion may not be necessary when a school conducts drug testing. > > In Vernonia, this Court held that the suspicionless drug testing of athletes was constitutional. The Court, however, did not simply authorize all school drug testing, but rather conducted a fact-specific balancing of the intrusion on the children's Fourth Amendment rights against the promotion of legitimate governmental interests. See 515 U. S., at 652-653. Applying the principles of Vernonia to the somewhat different facts of this case, we conclude that Tecumseh's Policy is also constitutional. > > ``` > > * * * > > Finally, this Court must consider the nature and immediacy of the government’s concerns and the efficacy of the Policy in meeting them. See Vernonia, 515 U. S., at 660. This Court has already articulated in detail the importance of the governmental concern in preventing drug use by schoolchildren. See id., at 661-662. The drug abuse problem among our Nation’s youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse.5 As in Vernonia, “the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction.” Id., at 662. The health and safety risks identified in Vernonia apply with equal force to Tecumseh’s children. Indeed, the nationwide drug epidemic makes the war against drugs a pressing concern in every school. > > * * * > > **We also reject respondents’ argument that drug testing must presumptively be based upon an individualized reasonable suspicion of wrongdoing because such a testing regime would be less intrusive. See id., at 12-16. In this context, the Fourth Amendment does not require a finding of individualized suspicion, see supra, at 5, and we decline to impose such a requirement on schools attempting to prevent and detect drug use by students.** Moreover, we question whether testing based on individualized suspicion in fact would be less intrusive. Such a regime would place an additional burden on public school teachers who are already tasked with the difficult job of maintaining order and discipline. **A program of individualized suspicion might unfairly target members of unpopular groups. The fear of lawsuits resulting from such targeted searches may chill enforcement of the program, rendering it ineffective in combating drug use**. See Vernonia, 515 U. S., at 663-664 (offering similar reasons for why “testing based on `suspicion’ of drug use would not be better, but worse”). **In any case, this Court has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means, because “[t]he logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers.” Martinez-Fuerte, 428 U. S., at 556-557, n. 12; see also Skinner, supra, at 624 (“[A] showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable”).** [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=01-332](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=01-332) (Emphasis added.) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 4, 2007, 11:08pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/12 "2007-12-04T23:08:58Z")
[QUOTE=Hello Again] When a private party searches another private party, the 4th Amendment doesn’t enter the equation. I order for the 4th A to protect you, the search must be done by the government or its agents. So, yes, parents have an unlimited right to search their children, limited only by relevant local laws. [/QUOTE] I wasn’t thinking of 4th amendment rights. A “private party” has no right to search another private party’s belongings. Parents obviously have some rights to search their minor children’s belongings, but I was wondering if those rights had any limits. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 4, 2007, 11:18pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/13 "2007-12-04T23:18:31Z")
[QUOTE=John Mace] I wasn’t thinking of 4th amendment rights. A “private party” has no right to search another private party’s belongings. Parents obviously have some rights to search their minor children’s belongings, but I was wondering if those rights had any limits. [/QUOTE] Essentially no. As I pointed out in the Flyers staff report [http://www.straightdope.com/mailbag/msolicitation.html](http://www.straightdope.com/mailbag/msolicitation.html) in order to win a trespass to chattels case, you’ve generally got to show damage to the property. State law might intervene to stop searches that endanger the child or amount to abuse, but they’re not going to prevent the parent from hunting for drugs or other contraband. ---
**Author:** ![rbroome](https://avatars.discourse-cdn.com/v4/letter/r/838e76/32.png) [@rbroome](https://boards.straightdope.com/u/rbroome)\ **Post date:** [December 4, 2007, 11:27pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/14 "2007-12-04T23:27:02Z")
[QUOTE=Otto] This would appear to be contradicted by the cite posted directly after, which states that the search must adhere to the standard of reasonableness. Do you have a cite that supports the notion that _in loco parentis_ status supercedes the ruling of the Supreme Court? [/QUOTE] Uh, I believe the courts have determined that searching every bag is reasonable for someone acting as a parent. So there is no notion of superceding a supreme court ruling. The argument/concern is whether searching the private property of individual students (either one, some, or all) is reasonable in a school situation. As I understand the law, and as numerous court cases have shown, the answer is yes. You and I may not agree, but we don’t make or interpret the laws. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 4, 2007, 11:35pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/15 "2007-12-04T23:35:18Z")
[QUOTE=rbroome] Uh, I believe the courts have determined that searching every bag is reasonable for someone acting as a parent. So there is no notion of superceding a supreme court ruling. [/QUOTE] The part that was not-quite-right was not that schools are \*in loco parentis \*, but that they “can search person or property of students at will.” The Court considered and rejected this claim in _T.L.O._ > [@](#): > > Notwithstanding the general applicability of the Fourth Amendment to the activities of civil authorities, a few courts have concluded that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over schoolchildren. See, e. g., R. C. M. v. State, 660 S. W. 2d 552 (Tex. App. 1983). Teachers and school administrators, it is said, act in loco parentis in their dealings with students: their authority is that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment. Ibid. > > Such reasoning is in tension with contemporary reality and the teachings of this Court. We have held school officials subject to the commands of the First Amendment, see Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and the Due Process Clause of the Fourteenth Amendment, see Goss v. Lopez, 419 U.S. 565 (1975). If school authorities are state actors for purposes of the constitutional guarantees of freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising parental rather than public authority when conducting searches of their students. More generally, the Court has recognized that “the concept of parental delegation” as a source of school authority is not entirely “consonant with compulsory education laws.” Ingraham v. Wright, 430 U.S. 651, 662 (1977). Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies. See, e. g., the opinion in State ex rel. T. L. O., 94 N. J., at 343, 463 A. 2d, at 934, 940, describing the New Jersey statutes regulating school disciplinary policies and establishing the authority of school officials over their students. In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they [469 U.S. 325, 337] cannot claim the parents’ immunity from the strictures of the Fourth Amendment. [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=469&page=340](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=469&page=340) ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [December 4, 2007, 11:47pm UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/16 "2007-12-04T23:47:41Z")
“Teachers and school administrators, it is said, act in loco parentis in their dealings with students: their authority is that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment.” Serious question: presumably they wouldn’t have such authority over a parent. So if a parent, acting as a parent, were to escort the child into the premises, would that have any effect? Can’t imagine there’s real case law on that, though. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 5, 2007, 12:08am UTC](https://boards.straightdope.com/t/bag-searches-at-public-schools-constitutional/428828/17 "2007-12-05T00:08:56Z")
[QUOTE=Balthisar] Serious question: presumably they wouldn’t have such authority over a parent. So if a parent, acting as a parent, were to escort the child into the premises, would that have any effect? Can’t imagine there’s real case law on that, though. [/QUOTE] I assume you are talking about a parent trying to enter the school with a student. In a case like that, I’m going to fall back on **Hello Again** ’s right to exclude. The parent: 1. Doesn’t have the right to unilaterally exempt his child from school regulations. While you might legitimately claim some sort of exemption from the rule, your mere presence doesn’t give you the power to overrule school administrators. 2. Is an invitee on the property. He’s going to have to comply with requirements imposed by the school, including not interfering with security measures. If you don’t follow the rules, the school can exclude you from the property. If you refuse to leave police will come and search you, at a minimum. The \*loco parentis \* thing is a bit of a red herring. You’ll note that the Court rejected that argument, and did so when it was offered as support for the school’s claim that it wasn’t bound by the fourth amendment. Here’s the quote in context: > [@](#): > > Notwithstanding the general applicability of the Fourth Amendment to the activities of civil authorities, a few courts have concluded that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over schoolchildren. See, e. g., R. C. M. v. State, 660 S. W. 2d 552 (Tex. App. 1983). Teachers and school administrators, it is said, act in loco parentis in their dealings with students: their authority is that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment. Ibid. > > _Such reasoning is in tension with contemporary reality and the teachings of this Court._ (Emphasis added.)