Mere Platitudes: The "Domino Effect" of School-Search Cases on the Fourth Amendment Rights of Every American

Author:Matthew Lynch
Position:J.D. Candidate, The University of Iowa College of Law

Many scholars bemoan recent court decisions that all but abolish the Fourth Amendment in public schools. Both scholars and dissenting judges largely confine these protests to the impact upon students and rights within the schoolhouse gate, perhaps because courts themselves purport to limit their decisions to the school context. This Note looks critically at recent school-search jurisprudence with ... (see full summary)


Matthew Lynch: J.D. Candidate, The University of Iowa College of Law, 2006; B.A., University of Wisconsin, 2003. The author wishes to thank David Wallner, Donald Downs, and everyone else who put up with his rants on this subject over the years for their inspiration, as well as Todd Pettys for his encouragement and William Buss for his helpful suggestions on an earlier draft. All mistakes are his own. Page 783

I Introduction

In 1943, America was a nation in crisis. Only two years removed from a devastating surprise attack, the country's soldiers were involved in heavy combat on multiple fronts. Domestic fears led to the detention of thousands of Americans with ethnic ties to the aggressors. In the midst of this atmosphere of crisis and patriotism, the Supreme Court showed the courage to strike down a state regulation requiring students to salute the American flag: "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."1

Writing for the majority in that case, Justice Robert Jackson refused to permit the dilution of students' First Amendment rights and warned of the dangers of weakening any constitutional rights in schools.2 Jackson would undoubtedly show dismay at the state of students' rights today, and students' Fourth Amendment3 rights may be the weakest of all. In a growing number of schools, students wishing to participate in extracurricular activities must submit to random drug testing.4 Drug-sniffing dogs roam the classrooms.5 Page 784 Police officers wander the hallways.6 Government authorities wishing to conduct physical searches of students and their belongings can do so with little suspicion,7 and sometimes none at all.8

Several commentators bemoan this overreaction to the perceived crisis in American schools, labeling the schools "police state[s]"9 that are "far adrift from the constitutional harbor"10 and the searches "a perversion of students' Fourth Amendment rights."11 These commentators generally focus their analyses on the threats that recent cases and developments pose to students' Fourth Amendment rights.12

This Note takes a different course. It looks critically at recent school- search jurisprudence through the lens of Justice Jackson's primary concern: that diluting the constitutional rights of students may dilute the constitutional rights of all Americans. It explores the impact of such dilutions of students' Fourth Amendment rights and argues that they produce a "Domino Effect"; as courts revise legal standards for school searches in an effort to uphold them, the effects of these revisions reverberate throughout Fourth Amendment law. When one domino of Fourth Amendment rights falls for students, it sets off a chain reaction of falling dominoes that travels far beyond the schoolhouse gate.

Part II provides a brief introduction to the differences between Fourth Amendment rights in schools and society generally. It lays out traditional Page 785 Fourth Amendment requirements and outlines the lengths to which courts are willing to bend traditional Fourth Amendment doctrines to accommodate school searches.

Part III shows the Domino Effect in operation, exploring the entanglement of Fourth Amendment rights in schools and Fourth Amendment rights in other contexts. It examines the judicial promise to separate the two contextual groups into different doctrines that demand different protections, then details the ways in which courts break this promise. Specifically, it shows that courts borrow the framework, tests, facts, rationales, and legal conclusions of school-search cases to justify searches elsewhere.

Part IV explains the broader structure and dangers of the Domino Effect. It separates the Domino Effect's invasion on the Fourth Amendment into three fronts, all of which function simultaneously to lower Fourth Amendment rights of all citizens. First, giving schools great leeway to implement invasive search programs leads courts to uphold similar programs in other contexts as "constitutional by analogy."13 Second, the balancing test required in school-search cases demands that courts characterize privacy interests as minimal in order to uphold the searches. Once courts minimize students' privacy interests in a particular search, they tend to minimize the privacy interests of others subjected to a similar kind of search. Third, the search programs act to condition young Americans' subjective expectations of privacy in certain types of searches, thus making them less likely to find future intrusions unreasonable.

This Note concludes with a message of fear-and hope. It argues that world events and technological advances raise the Fourth Amendment stakes, simultaneously creating the greatest dangers from the Domino Effect and the greatest temptations to give in to it. Yet the courts can make a stand on school searches and halt the Domino Effect in its tracks if they show the same foresight that Justice Jackson possessed in 1943. The courts must recognize that infringements on students' Fourth Amendment rights present unique dangers to the Fourth Amendment rights of all Americans- and they must take action before more dominoes fall.

II One Fourth Amendment Beyond The Schoolhouse Gate, Another Within It

Sixty-two years ago, the Supreme Court boldly declared that school boards have "important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights."14 Page 786 Thirty-six years ago, it assured students that they do not "shed their constitutional rights . . . at the schoolhouse gate."15 But only ten years ago, the Court added a bold asterisk to these statements.16 In Vernonia School District 47J v. Acton, Justice Scalia wrote that "Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere."17

Over the past ten years, courts hearing Fourth Amendment cases involving students have taken this statement to heart.18 To understand how far these courts have gone in limiting the Fourth Amendment privacy of public school students, it is important to first understand the nature of Fourth Amendment privacy in general.

A Searches Under The Fourth Amendment
1. Pre-T L.O. Principles

The Fourth Amendment bars "governmental officials,"19 defined as "civil as well as criminal authorities,"20 from performing "unreasonable" Page 787 searches and seizures.21 If a court deems a search unreasonable (and therefore, unlawful), the Fourth Amendment requires the exclusion of evidence obtained in the unlawful search from a subsequent criminal proceeding.22 The Supreme Court has held that the passage of the Fourteenth Amendment made Fourth Amendment limits applicable to state and local officials,23 thus creating a constitutional floor of protection from unreasonable searches by officials at all levels of government.

Not all actions that meet the dictionary definition of "search"24 match the Supreme Court's definition for purposes of the Fourth Amendment. In Katz v. United States,25 Justice Harlan wrote a concurring opinion stating that a search only takes place when the government invades some "reasonable expectation of privacy."26 The Supreme Court later adopted and refined this test, holding that the government must have infringed some "legitimate Page 788 expectation of privacy" to have conducted a search under the Fourth Amendment.27

Once a court determines that a search occurred, it then decides whether that search conformed to the requirements of the Fourth Amendment. The Framers' conception of those requirements is subject to strong debate. Some modern commentators argue that the Framers believed that warrantless searches were almost always unreasonable,28 while others contend that warrants were ultimately inconsequential to reasonableness at the time of the framing.29 Regardless of the disagreement over the importance of warrants, however, commentators are all but universal in their agreement that general searches-searches not grounded in some kind of individualized suspicion-were the primary evil the Framers sought to address through the Fourth Amendment.30

The courts have adopted a middle ground in determining the reasonableness of a search by law enforcement officers. By default, a reasonable search requires a warrant.31 This represents the zenith of Fourth Amendment protection, because officers must show probable cause32 to a Page 789 "neutral and detached magistrate" before they can obtain a warrant to search.33

The warrant requirement is far from absolute, however, and the Supreme Court has allowed many exceptions in a variety of contexts.34 These exceptions fall into two broad categories: those that require probable cause and those that do not. The first category removes the protection of judicial approval before a search, but it still requires an officer to have...

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