Reasonable Suspicion, Unreasonable Search: Defining Fourth Amendment Protections against Searches of Students' Personal Electronic Devices by Public School Officials

• Author: Sean Cooke
• Position: J.D. candidate at Capital University Law School
• Pages: 293-324

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REASONABLE SUSPICION, UNREASONABLE SEARCH: DEFINING FOURTH AMENDMENT PROTECTIONS AGAINST SEARCHES OF STUDENTS’ PERSONAL ELECTRONIC DEVICES BY PUBLIC SCHOOL OFFICIALS SEAN COOKE^* I. INTRODUCTION

Recent technological developments in the field of personal electronic devices have outpaced Fourth Amendment jurisprudence as applied in the public school setting. The United States Supreme Court’s recent decision in Safford Unified School District No. 1 v. Redding ¹ provides an analytical framework for identifying and protecting student privacy interests excluded from the scope of the “reasonable suspicion” searches standard established in New Jersey v. T.L.O . ² Ironically, Redding ’s protection of public school officials under the doctrine of qualified immunity imperils student protection for unreasonable searches of their personal electronic devices. Nevertheless, by categorizing students’ privacy interest in their personal electronic devices as worthy of the specialized protection given to their own bodies, courts can empower schools to respond nimbly and with nuance to disruption or danger without unconstitutionally invading students’ privacy. II. BACKGROUND

Jurisprudence dealing with the application of the Fourth Amendment of the U.S. Constitution to searches of students and their belongings by public school officials has undergone a steady, if ragged, evolution. Early jurisprudence split between two approaches. ³ Some courts viewed schools as operating in loco parentis and held that the Fourth Amendment did not

Copyright © 2012, Sean Cooke.

* Sean Cooke is a J.D. candidate at Capital University Law School. I would like to thank my advisor, Jim Beattie, for his feedback and encouragement. I would also like to thank my wife, Alicia, and daughter, Paige, for their love and patience.

¹129 S. Ct. 2633 (2009).

²469 U.S. 325, 343–48 (1985).

³See Mary-Rose Papandrea, Student Speech Rights in the Digital Age, 60 FLA. L. REV. 1027, 1084–89 (2008).

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limit public school officials.⁴

Other courts recognized that the Fourth Amendment’s umbrella of protection covered public school students, but struggled to define the contours of protection in the public school context. ⁵

Eventually, the Supreme Court of the United States resolved the tension between these views, recognizing the applicability of the Fourth Amendment to public school officials’ searches of students, but limiting the scope of protection by instituting a reasonableness standard.⁶

Subsequently, courts struggled to apply and refine this standard when addressing the myriad of circumstances surrounding searches in the public school context.⁷

Recently, the Supreme Court offered an especially significant refinement by recognizing that public school students’ privacy interest in their own bodies merits protection in all but exceptional circumstances. ⁸ The Court, however, simultaneously limited students’ recourse for violations of their privacy by recognizing protections for school officials under the doctrine of qualified immunity. ⁹ With their recourse thus limited, students now face a veritable Scylla and Charybdis: their First Amendment speech rights, including off-campus speech rights, continue to erode while school officials are now armed with the ability to conduct unconstitutional searches with what amounts to impunity. The following sections detail this evolution in Fourth Amendment jurisprudence as applied to public school officials’ searches of students.

A. The Fourth Amendment as Applied in the Public Schools: Early Jurisprudence

As mentioned, early jurisprudence on the applicability of the Fourth Amendment to public school officials’ searches of students split into two different strands. ¹⁰ Some courts viewed public schools as acting in loco

⁴See, e.g., R.C.M. v. State, 660 S.W.2d 552, 553–54 (Tex. App. 1983); Mercer v. State, 450 S.W.2d 715, 716–17 (Tex. App. 1970).

⁵See, e.g., Goss v. Lopez, 419 U.S. 565, 574 (1975); State v. Mora, 307 So. 2d 317 (La. 1975).

⁶Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2639 (2009); New Jersey v. T.L.O., 469 U.S. 325, 340–44 (1985).

⁷Redding, 129 S. Ct. at 2643. See also Diana R. Donahoe, Strip Searches of Students: Addressing the Undressing of Children in Schools and Redressing the Fourth Amendment Violations, 75 MO. L. REV. 1123, 1142–46 (2010).

⁸Redding, 129 S. Ct. at 2642–43.

⁹Id. at 2643.

¹⁰Papandrea, supra note 3, at 1084–89.

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parentis . ¹¹ These courts concluded that Fourth Amendment protections against unreasonable searches and seizures did not extend to public school students. ¹² Other courts recognized that the Fourth Amendment offered public school students some level of protection against unreasonable searches and seizures by school officials. ¹³ However, these courts struggled to define the parameters of “reasonable” searches in the public school context. ¹⁴

1. Public School Officials Acting In Loco Parentis : The Fourth Amendment Does Not Apply

The reasoning of some early courts reflected neither a concern for the scope of the Fourth Amendment’s protections in the public school context nor a recognition that minors’ Fourth Amendment protections extended beyond the schoolhouse door. ¹⁵ Rather, these courts, reluctant to subject public school officials to a standard for searches that would be more stringent than that faced by the students’ own parents, held that school officials’ participation in the searches of students “cannot be construed as governmental action . . . .” ¹⁶ Instead, these courts held that school officials acted in loco parentis , meaning that school officials “stand in the place or stead of the parent and [were] charged with the parent’s duties, rights, and responsibilities.” ¹⁷ If school officials acted as parents rather than officials of the government, the courts reasoned, Fourth Amendment analysis need not proceed beyond the threshold established by the Supreme Court of the United States in Burdeau v. McDowell . ¹⁸ There, the Court stated that “the search must be the result of state action by and through state agents acting under governmental authority, or under the color of authority.” ¹⁹

Accordingly, the Court in

R.C.M v. State ²⁰ —despite reservations that the doctrine allowed public school officials “considerable discretion” to search

¹¹See, e.g., R.C.M. v. State, 660 S.W.2d 552, 553–54 (Tex. App. 1983); Mercer v. State, 450 S.W.2d 715, 716–17 (Tex. App. 1970).

¹²R.C.M., 660 S.W.2d at 554; Mercer, 450 S.W.2d at 717.

¹³See, e.g., Goss v. Lopez, 419 U.S. 565, 574 (1975); State v. Mora, 307 So. 2d 317 (La. 1975).

¹⁴Redding, 129 S. Ct. at 2643. See also Donahoe, supra note 7, at 1142–46.

¹⁵See R.C.M., 660 S.W.2d at 553.

¹⁶Id. at 553 (citing Mercer, 450 S.W.2d at 717).

¹⁷Id. at 554 (citing Ranniger v. State, 460 S.W.2d 181, 183 (Tex. App. 1970)).

¹⁸256 U.S. 465 (1921).

¹⁹R.C.M., 660 S.W.2d at 553 (Tex. App. 1983) (citing Burdeau, 256 U.S. at 475).

²⁰Id. at 553–54.

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students “without regard to . . . reasonableness”—refused to recognize Fourth Amendment protections for students.²¹

Other courts across the nation have followed similar reasoning. ²²

The courts that applied the

in loco parentis doctrine were not without their detractors. The Supreme Court of the United States, in fact, applied reasoning inconsistent with the in loco parentis doctrine in Goss v. Lopez, ²³

when it held that students, who do not “‘shed their constitutional rights’ at the schoolhouse door,” can enforce their property rights against public schools via the Fourteenth Amendment.²⁴

The Goss Court relied in part on the Court’s reasoning in Tinker v. Des Moines Independent Community School District , ²⁵ a case that extended some First Amendment protections to public school students. ²⁶ Additionally, the Goss Court relied on West Virginia Board of Education v. Barnette , ²⁷ a case where the Court established that “[t]he Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures— Boards of Education not excepted.” ²⁸ In fact, in Ingraham v. Wright , ²⁹ the Court noted the clash between the in loco parentis doctrine and compulsory education laws. ³⁰ This tension between the reasoning applied in Goss and Barnette and that applied in R.C.M. and cases like it helps explain the willingness of other contemporaneous courts to extend Fourth Amendment protections to public school students via application of the Fourteenth Amendment. ³¹

²¹Id. at 554.

²²See D.R.C. v. State, 646 P.2d 252, 257–58 (Alaska Ct. App. 1982); In re G., 90 Cal. Rptr. 361, 364 (Cal. Ct. App. 1970); In re Donaldson, 75 Cal. Rptr. 220, 221–22 (Cal. Ct. App. 1969).

²³419 U.S. 565 (1975).

²⁴Id. at 574 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)).

²⁵393 U.S. 503 (1969).

²⁶Id. at 506.

²⁷319 U.S. 624 (1943).

²⁸Id. at 637.

²⁹430 U.S. 651 (1977).

³⁰Id. at 662.

³¹Gerald S. Reamy, New Jersey v. T.L.O.: The Supreme Court’s Lesson on School Searches, 16 ST. MARY’S L.J. 933, 937–38 (1985).

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2. Public School Officials as Government Actors: The Fourth Amendment Applies

In the seminal case of New Jersey v. T.L.O. , ³² the Supreme Court of the United States formally abandoned the in loco parentis doctrine, holding that public school officials “act in furtherance of publicly mandated educational and disciplinary policies,” not just on...