Vol. XIII No. 29 December, 2005

Some Basic Legal Issues in School Searches

by Evelyn A. Peyton

In conducting searches of students and their property school officials must balance the need to keep school premises free of weapons and other contraband with the risk of legal liability for an illegal search.

Because public school officials are state officials, any searches of students or their belongings are subject to the restrictions of the Fourth Amendment, which forbids unreasonable searches and seizures by government. In determining whether a search is reasonable, courts balance the governmental interest in conducting the search – such as the interest in maintaining order, discipline, and safety on school grounds – against the intrusiveness of the search upon the students’ reasonable expectation of privacy.

In New Jersey v. T.L.O., 469 U.S. 325 (1985), the United States Supreme Court set forth a reasonableness test for school searches, based upon the totality of the circumstances. Under this test, the search must be (1) justified at the inception, and (2) reasonable in scope. In order for the search to be justified at its inception, school officials must have reasonable grounds for suspecting that the search will reveal evidence that the student is committing a criminal act or is violating school rules. A search is reasonable in scope if the measures used to carry out the search are reasonable and related to the objectives of the search. In particular, the search must not be excessively intrusive considering the seriousness of the alleged misconduct and the age and sex of the student.

School officials do not need to have probable cause in order to justify a school search, but they do need to meet the lesser standard of reasonable individualized suspicion. If school officials have a reasonable suspicion that a particular student is committing a criminal act or violating school rules, the officials may require the student to empty his or pockets, purse, or backpack, and conduct a pat-down of the student. Hearsay information may be part of the justification for a search, so long as the hearsay is from a reliable source. Anonymous tips alone, without sufficient “indicia of reliability” to allow for subsequent corroboration by school officials, probably are insufficient. Reasonable suspicion must be particularized, meaning that reliable information must point to prohibited possession by a particular student of the items sought in the search.

The use of drug-detection dogs on campus illustrates the concept of reasonable suspicion. Courts have agreed that using trained dogs to detect contraband is not a search within the meaning of the Fourth Amendment and consequently requires no level of suspicion. School officials may use such dogs to alert on lockers, desks, student vehicles parked in school parking lots, and, in carefully controlled circumstances, even students. If the dog alerts, school officials will have reasonable suspicion to justify a more thorough search to determine whether drugs are present.

In assessing the validity of any Fourth Amendment search, courts examine whether the person searched had a reasonable expectation of privacy that was violated by the search. Un-emancipated minors do not have the same privacy rights as adults, because they are subject to a degree of supervision and control by school officials. The courts deem that such students have a reduced expectation of privacy with respect to searches. Providing written notice to students through school policies, posted signs, and the like stating that lockers, backpacks, student desks, or vehicles brought to campus are subject to search will reduce the reasonable expectation of privacy students may have in those areas.

Even with such written notice, however, the search must be justified by reasonable suspicion, as discussed above, and must not be overbroad or unduly intrusive. The scope of the search must be reasonable given the alleged misconduct and the age and sex of the student. The measures used in the search must be reasonably related to the purpose behind the search, and the places searched must be places where the object of the search reasonably could be found.

Generally, any student searches should take place in the presence of another adult witness, and both adults should be the same sex as the student. When a search will include student’s jacket, ask the student to remove the jacket before searching it. The more intrusive the search, the greater the justification courts will require. A search of a student’s jacket or bag, for example, is less intrusive and requires less suspicion than a physical pat-down.

Relying on student consent to justify a search can be tricky. For a search based upon a student’s consent to be valid, the consent must be given knowingly and voluntarily. The knowing and voluntary aspects of a particular student’s consent will depend greatly upon the student’s age and the circumstances under which the consent was obtained.

Balancing school safety with student privacy can be legally complex, and every district should have a comprehensive policy and implementation guidelines for searches. When questions arise regarding search issues, you should contact legal counsel for advice.

When Are Student Activities and Trips “School Sponsored”?

by Frank J. Albetta

It is often mistakenly thought that so long as a district does not affirmatively “sponsor” an activity, it will not be responsible for injuries or damages sustained during or as a result of the activity. But, consider the following scenarios:

• One of your high school teachers has signed up several of her students for a trip to Washington, DC over the summer. The teacher is working as a contractor for a commercial travel agency, has sent brochures home with students, and has signed up participants in her classroom. During the trip, a charter bus the travel agency has supplied skids off the road during a thunderstorm and rolls over, seriously injuring most of the 24 students aboard. In the subsequent lawsuit, the parents of the injured students claim the trip was “school sponsored”: that the teacher was acting as the agent of the school, although neither the Superintendent nor the Board were aware of the trip.

• During the summer, one of your high school coaches runs a basketball camp at a local community center gym. The coach is not paid by the District to do this, but passes the word about the camp among likely players. Although attendance at the camp is not “mandatory,” it is well known that those who do not attend the camp should not expect to play during the season. During the camp, a student makes a hanging slam dunk, and is seriously injured when the backboard and hoop break loose and crash to the floor with the student. The student and his parents sue the coach and the school, as well as the community center, claiming that the camp was an off-campus student activity for which the school may be held responsible.

In each of the foregoing scenarios, the respective school district will be sued and could well be found liable, although none of the activities were affirmatively “sponsored” by the school, although the school’s administration did not direct or control the activities, and even though none of the activities took place on school premises.

In each case, liability may arise on the basis of the appearance of school sponsorship. Parents and students will readily assume that activities organized or promoted at the school, are sponsored by the school. Particularly if building administrators knew or should have known that the appearance of school sponsorship was being created by virtue of activities being promoted or organized at the school, a very strong case for liability on the part of the school can be made. If a school allows an apparent connection to be made with the school – that the trip or the camp were organized and promoted at school, advertised as related to the school, or conducted in connection with actual school activities – the school may thereby create reliance on the part of students, parents, and third parties that the school had organized, was controlling, and would stand behind the activity. In such cases, courts will often hold schools to the representation they have allowed to be made.

That means that schools must actively require student trips and activities to either get the official approval of the school or to make clear that they are not “school sponsored.” This can be done through an official board policy or superintendent’s directive that (1) notifies parents and students that activities are not “school sponsored” unless they have been affirmatively approved by the superintendent or the board, and (2) prohibits employees or students from organizing or promoting activities at school or otherwise creating an apparent connection between the activity and the school, unless they either obtain such official approval, or they clearly disclaim school sponsorship in their organizing, advertising, and promotional activities.

We have been offering a Model Policy on School-Sponsored Activities or Trips since the “Shuttlejack” tragedy several years ago in Santa Fe. In fact, the policy was distributed in the hand-out materials at a June NMSBA School Law Conference since then. The number of these types of activities usually increases during the spring and summer months. Make sure you are ready for them.

What’s New at the Cuddy Law Firm?

Ramon Vigil makes partner!: Ramon Vigil is a full partner of the Cuddy Firm effective January 1, 2006. Although we have always had former educators among our lawyers, Ramon is the first former New Mexico Superintendent to become a partner with the firm, and the only one in any firm in the state. Those whom Ramon has advised know that his experience as a superintendent brings something extra to his work as a school lawyer. Congratulations, Ramon!

We grow: Eleanor K. Bratton, formerly a partner with the Modrall Firm, has joined the Cuddy Firm as a partner. “Kay” was the Modrall Firm’s star school lawyer, with particular expertise in special education and employment. We are very pleased to welcome Kay to our practice!

And we grow: Evelyn A. Peyton has joined the firm as an associate in the Santa Fe Office. Evelyn is an experienced lawyer, coming to us after very successful service both as a prosecutor and a lawyer in a private firm in California. Evelyn is a highly skilled lawyer and litigator, and we were very fortunate to sign her up. Welcome, Evelyn!

And we grow: The Cuddy Firm is pleased to announce the return of Shana Siegel Baker as an associate to the Santa Fe Office. Shana worked with us briefly a couple of years ago, before moving to Denver for her husband’s new job. Happily, both have escaped Denver, and Shana has been back with us since the fall. As she just had her first baby, she is taking some time off, but she will be back before too long. Shana made a great impression with the school clients with whom she worked, and we are glad to have her back.

And we grow: Margaret Coffey-Pilcher has joined the firm as an associate in the Albuquerque office. As with Kay Bratton, we lured Maggie away from the Modrall Firm, where she practiced in the areas of employment and Indian law, among others. Maggie has largely been working with partner Cheryl Fairbanks in her Indian law practice, but we hope to turn her impressive skills to school law as well. Welcome, Maggie!

And we grow: We are also pleased to announce that Melissa W. O’Shea has joined the firm as an associate in the Santa Fe office. Melissa brings a good deal of experience in employment law and litigation from her prior work with a large Philadelphia law firm, and is quickly mastering other areas of school law. Welcome Melissa!

And we grow: Our Albuquerque office now features seven lawyers – four partners and three associates – and occupies connected suites, one above the other, on two floors of the Marshall Building (aka the “Talbott” building) next to the Pyramid Hotel on Jefferson. Partners Ramon Vigil and Kay Bratton join partners Keith Burn and Cheryl Fairbanks in anchoring the office, with associates Andy Sanchez, Carol Helms, and Maggie Coffey-Pilcher. All lend their expertise to our school clients to varying degrees, and Ramon, Kay, Cheryl, and Carol are former educators. We are happy to be established in Albuquerque, and able to offer greater geographic proximity to our school clients in the central and southern parts of the state.

And, by the way: Michelle Demmert has joined the firm “of counsel” in the area of Indian law. Michelle is an experienced practitioner in Seattle, where she will continue to be located, working with cousin Cheryl Demert Fairbanks in the representation of Indian tribes throughout the west and the south. We hope to see Michelle from time to time when she visits to New Mexico to dry out.

The Education Law Quarterly provides general information of interest to our clients and should not be used or taken as legal advice for specific situations, which depend on evaluation of precise factual circumstances.