A Rock, a Hard Place, and a Reasonable Suspicion: How the United States Supreme Court Stripped School Officials of the Authority to Keep Students Safe

• Author: Thomas R. Hooks
• Pages: 269-312

A Rock, a Hard Place, and a Reasonable Suspicion:

How the United States Supreme Court Stripped School

Officials of the Authority to Keep Students Safe

The schoolroom is the first opportunity most citizens have

to experience the power of government. Through it passes

every citizen and public official, from schoolteachers to

policemen and prison guards. The values they learn there,

they take with them in life. One of our most cherished

ideals is the one contained in the Fourth Amendment: that

the government may not intrude on the personal privacy of

its citizens without a warrant or compelling circumstance.

1

I. INTRODUCTION

On any given weekday, nearly 50 million students file through

schoolhouse doors,

2

and each time nearly four million teachers are

there to greet them on the other side.

3

For seven hours a day, 180

days a year, teachers are entrusted with these children.

4

They

educate them and protect them from harm, eat with them and

watch them play during recess. They see them develop as years

pass. It is no wonder that a child‘s teacher has been described as

his ―third parent.‖

5

From time to time, however, we are reminded that teachers do

not enjoy the extensive powers of a parent. One such reminder

came this past year in Safford Unified School District No. 1 v.

Redding,

6

in which the United States Supreme Court held that the

strip search of a 13-year-old middle school student was

unconstitutional.

7

For many people, learning that schools could

strip search students came as a shock.

8

Such searches, however, are

not wholly foreign to the schoolyard. Over the past 30 years, quite

Copyright 2010, by THOMAS R. HOOKS.

1

. New Jersey v. T.L.O., 469 U. S. 325, 385–86 (1985) (Stevens, J.,

concurring in part and dissenting in part).

2

. Fast Fa cts, NAT‘L CENTER FOR EDUC. STAT., http://nces.ed.gov/

fastfacts/display.asp?id=372 (last visited Feb. 5, 2010).

3

. Id.

4

. See LA. REV. STAT. ANN. § 17:154.1 (Supp. 2010).

5

. CAROL VANDERHEYDEN, A TOUCH OF CLASS 2 (2003) (attributing

―Teacher: The child‘s third parent‖ to Hyman Maxwell Berston).

6

. 129 S. Ct. 2633 (2009).

7

. Id.

8

. See, e.g., David Andreatta, Strip Sear ch Shock—School’s Bizarre

Policy, N.Y. POST, Feb. 1, 2005, at 27; Joe Robertson, Lawsuit Filed over

Alleged Strip Search of Third-Grader s in Kansas City, KANSAS CITY STAR,

Mar. 25, 2002, at B1.

270 LOUISIANA LAW REVIEW [Vol. 71

a few courts have debated whether the strip search of a student was

reasonable, and the results have varied.

9

Why schools would resort to such a measure is not a mystery:

Teachers are receiving mixed signals. On the one hand, parents and

government officials put immense pressure on schools to play a

central role in the fight against student drug use and violence.

10

On

the other hand, they express shock at the mere mention of student

strip searches and condemn schools for even considering such

tactics.

11

These mixed signals will result in the paralysis of school

officials. Obligated to protect students from harm, but afraid of

impending liability, these officials are in desperate need of

guidance. Currently, however, Louisiana law does not address the

strip search of a student.

12

This Comment proposes an amendment to the Louisiana law

governing the search of a student‘s person.

13

Part II of this

Comment addresses the prevalence of drug use, violence, and theft

in schools and the pressures placed on school officials to combat

these problems. It then provides examples of student strip searches

and analyzes the harmful psychological effects associated with

such measures. An analysis of the Supreme Court‘s historic

decision regarding students‘ rights, New J ersey v. T.L.O.,

14

follows. Part III examines the Court‘s most recent decision—

Redding.

15

Part IV reveals the dangers of Louisiana‘s silence on

this issue before critiquing the legal framework that underlies the

student strip search. Part V proposes that a warrant requirement

will benefit both students and school officials, protecting the

former from frivolous strip searches while shielding the latter from

liability. Finally, Part VI urges the Louisiana Legislature to quickly

adopt appropriate measures.

II. TEACHERS, DON‘T LEAVE THEM KIDS ALONE

16

The strip search of a student is not an issue that can be dealt

with in a vacuum. Before delving into a constitutional analysis, it

is first necessary to examine the confluence of factors leading to

such a search—the value of an education, the obstacles in the way

9

. See discussion infra Part II.E and accompanying notes 117–19.

10

. See discussion infra Part II.A and acco mpanying note 28.

11

. See supra note 8.

12

. LA. REV. STAT. ANN. § 17:416.3 (2001).

13

. Id.

14

. 469 U.S. 325 (1985).

15

. Safford Unified Sch. Dist. No. 1 v. Redd ing, 129 S. Ct. 2633 (2009).

16

. See PINK FLOYD, Another Brick in the Wa ll, P art II, on THE WALL

(Capitol Records 2000).

2010] COMMENT 271

of its attainment, and the pressures placed upon school officials to

overcome these obstacles. With these factors in mind, examples of

student strip searches and research regarding their harmful

psychological effects provide an understanding of the context

within which these searches occur.

A. America’s Most Important Function

17

Educating America‘s youth is a national imperative.

18

To carry

out this pervasively important task, public school officials must be

empowered to maintain order and discipline in their schools.

19

Justice Powell of the United States Supreme Court recognized this

need, writing that ―[t]he primary duty of school officials and

teachers . . . is the education and training of young people.‖

20

He

continued: ―A State has a compelling interest in assuring that the

schools meet this responsibility. Without first establishing

discipline and maintaining order, teachers cannot begin to educate

their students.‖

21

In recent years, however, a school official‘s

ability to maintain discipline and order has been significantly

hampered by almost insurmountable obstacles—drug use,

violence, and theft.

The prevalence of these obstacles is well documented and

poses a significant threat to the educational experiences of students

throughout the nation.

22

Because drug use, violence, and theft

17

. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 493 (1954) (―Today,

education is perhaps the most important function of state and local

governments.‖).

18

. Educa tion, THE WHITE HOUSE, http://www.whitehouse.gov/issues/

education/ (last visited Feb. 5, 2010).

19

. ROBERT WHEELER LANE, BEYOND THE SCHOOLHOUSE GATE 7 (1995).

20

. New Jer sey v. T.L.O., 469 U. S. 325, 350 (1985) (Powell, J.,

concurring). Louisiana law also recognizes this ―compelling interest,‖ declaring

that ―[e]very teacher is authorized to hold every pupil to a strict accountability

for an y disor derly conduct in school o r on the playground of the scho ol.‖ LA.

REV. STAT. ANN. § 17:223(A) (2001).

21

. T.L.O., 469 U.S. at 350 (Powell, J., concurring).

22

. See, e.g., NAT‘L CTR. FOR ADDICTION & SUBSTANCE ABUSE AT

COLUMBIA UNIV., NATIONAL SURVEY OF AMERICAN ATTITUDES ON SUBSTANCE

ABUSE XII: TEENS AND PARENTS (2007), a va ilable at http://www.casacolumbia.

org/download.aspx?path=/UploadedFiles/vilf5lvw.pdf. In 2007, 80% of high

school students and 44% of middle school students personally witnessed drug

dealing, use, or possession. Id. at 1. Not surprisingly, students in these drug-

infested schools were more likely to use drugs themselves. Id. at 1–2; see also,

e.g., NAT‘L CTR. FOR EDUC. STATISTICS, INDICATORS OF SCHOOL CRIME AND

SAFETY: 2008 (2008), available at http://nces.ed.gov/pubs2009/2009022

REV.pdf. In the 2005–2006 school year, violent crimes occurred in 78% of

public schools. Id. at 20. In 2007, 6% of students in grades 9 through 12