Restatement of the Law, Children and the Law, Tentative Draft No. 3 (TD3) will be presented to ALI membership at the 2021 ALI Annual Meeting. The below black letter and Comment is excerpted from this draft, which contains § 10.10. Student Search by School Officials Based on Individualized Suspicion. The full Section, including full Comments with illustrations and Reporters’ Notes, may be downloaded following the link at the end of this post. TD3 also includes § 10.20. Search without Individualized Suspicion. To request this, or any other Section of this draft or others, please contact communications@ali.org.

This Tentative Draft has not yet been considered or approved by ALI membership. Therefore, it does not represent the position of The American Law Institute and should not be represented as such.

Comment a. The reasonable-suspicion standard: background and rationale. The Fourth Amendment of the U.S. Constitution protects citizens against unreasonable searches and seizures by government agents. The purpose of the Fourth Amendment is to restrict the government from intruding unduly into the private lives of citizens when it pursues its law-enforcement function. The protection of the Fourth Amendment is triggered only if the search intrudes into an individual’s legitimate expectation of privacy. A search or seizure is unreasonable if, under the circumstances, it intrudes excessively upon the citizen’s legitimate privacy interest in relation to the citizen’s person, belongings, home, or vehicle, when weighed against the government’s interest in conducting the search.

Ordinarily, a law-enforcement officer must obtain a warrant to conduct a lawful search. But under exigent circumstances, a search can be conducted without a warrant if the officer has probable cause to believe that a crime has been or is being committed. The probable cause standard is met if it is more probable than not that the search will produce evidence of the person’s suspected criminal activity.

The U.S. Supreme Court has clarified that a legal search can be conducted in some contexts even if probable cause is not satisfied. A “special needs” search can be conducted legally on the basis of “reasonable suspicion” because of unique characteristics of the setting.

Until the Supreme Court decided New Jersey v. T.L.O. in 1985, it was not clear that the Fourth Amendment applied to searches of students by public school officials. 469 U.S. 325 (1985). Some earlier courts had held that the relationship of school officials to students was in loco parentis, and that therefore the protections of the Fourth Amendment did not apply in that setting. T.L.O. clarified that a public school student has a protectable expectation of privacy, and, therefore, the search of a student by a school official is subject to Fourth Amendment protections and is illegal if it is unreasonable. However, a student’s legitimate expectation of privacy is less substantial than that of an adult or of a minor outside of the school setting. A search by a school official constitutes a “special needs” search which need not meet the standard of probable cause. In the public school setting, the relaxed “reasonable suspicion” standard is justified on the ground that school officials have a compelling interest in maintaining discipline and order so that the school can fulfill its educational function. School attendance is mandatory for students, and school officials have a responsibility to provide a safe and secure learning environment. Moreover, unlike law-enforcement agents, school officials are not trained to evaluate probable cause; thus the official’s decision to search is afforded greater latitude than is the decision of a law-enforcement officer. The court assumes that requiring probable cause would unduly burden school officials in performing their educational mission.

Under the standard announced in T.L.O. and generally adopted by state and federal courts, an individualized search of a student is justified if the school official, in conducting the search, has a reasonable suspicion that the student has violated the criminal law or a school regulation, and that the search will provide evidence of the violation. The Court announced a two-prong test: First, the search must be justified in its inception, and second, the scope of the search must be reasonably related to the circumstances that justified it in the first place. See Comment c. To evaluate whether the scope of the search is reasonable, the court will determine whether measures used were reasonably related to the purposes of the search when initiated and not “excessively intrusive in light of the age and sex of the student and the nature of the infraction.” T.L.O., 469 U.S. at 342. See Comment b. The assumption is that the reasonable-suspicion standard provides a balance that recognizes the student’s justified expectations of privacy without unduly burdening the school official’s effort to maintain order and protect student safety.

In evaluating the lawfulness of the search, the court weighs the extent to which the search intrudes on the student’s privacy interest against the importance of the government’s interest in conducting the search. The student’s legitimate expectation of privacy varies depending on the location of the search; the search of a student’s person intrudes on a substantial privacy interest, while his or her privacy interest in items in a locker or vehicle carries less weight. See Comment d. The government’s interest in conducting the search also varies; a search for weapons, for example, represents a compelling interest that can justify a more intrusive search than a search for stolen property. See Comment c.

Under this Section, school officials whose searches are subject to the reasonable-suspicion standard include administrators, teachers, or other adults employed by the school to perform an educational function. A school resource officer employed full-time by the school district to provide security in the school is a school official. Other law-enforcement officers in the school are not school officials and must satisfy probable cause to legally search a student.

PDF of Section 10.10. Student Search by School Officials Based on Individualized Suspicion (includes select TD3 front matter with Projected Overall Table of Contents)