Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
With THC and nicotine vaping on the rise in schools, as a high school administrator, I have a couple of questions for Legal Mailbag.
First, when a student is found in the same bathroom stall as another student, without any other reasons for suspicion (such as a scent, smoke, etc.), does one student being in the same stall as another provide reasonable suspicion for the Administration that would justify a search of the students?
Second, are there any legal issues with our using a metal detector wand to assist in a search?
On second thought, I have a third question. Are we legally able to make a student's return to school, after a suspension or expulsion for drug use/possession on campus, contingent upon producing a clean drug test?
You are indeed a curious fellow. Legal Mailbag would rather not think about finding two students in the same bathroom stall, but in the public interest, Legal Mailbag will answer the question.
As a threshold matter, it may be helpful to restate the rule as to when school administrators may search students. In New Jersey v. T.L.O., 469 U.S. 325 (1985), the United States held that school administrators do not violate the Fourth Amendment prohibition against unreasonable searches and seizures when searching students as long as (1) there is reasonable suspicion at the inception of the search that the search will turn up evidence of a violation of school rules or the law, and (2) the scope of the search is reasonably related to the object of the search and is not excessively intrusive in light of the age and sex of the students involved..
Finding those students in that compromising situation certainly gives rise to reasonable suspicion that the students are up to no good. The question, however, is whether that suspicion would justify a search. For example, one student was found hiding from a security guard in the student parking lot, and when she refused to identify herself, she was taken to the office and searched. The court held that her behavior, though suspicious, did not establish a reasonable basis for a search; indeed, school officials could not explain what they were searching for. Cales v. Howell Public Schools, 635 F. Supp. 454 (E.D. Mich. 1985). See also In re Anthony F., 163 N.H. 163 (N.H. 2012) (search of student after he was found in unauthorized area was unreasonable because school officials had no reasonable cause to believe that the search would yield evidence of a violation of school rules or the law).
Though the case for searching the students is not free from doubt, Legal Mailbag believes that the circumstances you describe - significant issues with vaping, combined with the suspicious (and unsettling) fact that two students have closeted themselves in a bathroom stall - give rise to a reasonable suspicion that would justify a search for vaping materials. If you find yourself in that situation again, Legal Mailbag suggests that you give the students an opportunity to provide a reasonable explanation for their actions, as unlikely as that would be. If the students cannot provide a reasonable explanation, you may reasonably infer that the students were planning to vape together, a suspicion that would justify the search.
Second, using a wand detector to assist in a search is fine as long as you can connect its use to the suspicion justifying the search. Using a wand is a search subject to the T.L.O. requirement that the scope of the search is reasonably related to the object of the search. If the object of the search is a metal object (e.g., a vaping cartridge), using a wand to conduct the search is reasonable. Indeed, using a wand to search the student would be less intrusive than conducting a pat-down search. By contrast, if the object of the search were paper (e.g., a forged hall pass), using a wand to search the student would not be justified.
Finally, as to the bonus question, the general answer is that school officials may not condition a student's return to school on providing a clean drug test because students have a right to attend school. But wait, there is more! The situation is different when school officials exercise their authority to exclude a student from school for a specified period of time. During that specified period of exclusion, the student does not have the right to attend school. In that circumstance, school officials can offer a student an opportunity to return to school early provided that the student meets specified conditions, such as a clean drug test.
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