What Works: Schools Without Drugs Part 12

In some circ.u.mstances, the most important tool for controlling drug use is an effective program of drug searches. School administrators should not condone the presence of drugs _anywhere_ on school property. The presence of any drugs or drug-related materials in school can mean only one thing--that drugs are being used or distributed in school. Schools committed to fighting drugs should do everything they can to determine whether school grounds are being used to facilitate the possession, use, or distribution of drugs and to prevent such crimes.

In order to inst.i.tute an effective drug search policy in schools with a substantial problem, school officials can take several steps. First, they can identify the specific areas in the school where drugs are likely to be found or used. Student lockers, bathrooms, and "smoking areas" are obvious candidates. Second, school administrators can clearly announce _in writing_ at the _beginning_ of the school year that these areas will be subject to unannounced searches and that students should consider such areas "public" rather than "private."

The more clearly a school specifies that these portions of the school's property are public, the less likely it is that a court will conclude that students retain any reasonable expectation of privacy in these places and the less justification will be needed to search such locations.

School officials should, therefore, formulate and disseminate to all students and staff a written policy that will permit an effective program of drug searches. Courts have usually upheld locker searches where schools have established written policies under which the school retains joint control over student lockers, maintains duplicate or master keys for all lockers, and reserves the right to inspect lockers at any time.[6] While this has not become established law in every part of the country, it will be easier to justify locker searches in schools that have such policies. Moreover, the mere existence of such policies can have a salutary effect. If students know that their lockers may be searched, drug users will find it much more difficult to maintain quant.i.ties of drugs in school.

The effectiveness of such searches may be improved with the use of specially trained dogs. Courts have generally held that the use of dogs to detect drugs on or in _objects_ such as lockers, ventilators, or desks as opposed to persons, is not a "search" within the meaning of the Fourth Amendment.[7] Accordingly, school administrators are generally justified in using dogs in this way.

It is important to remember that any illicit drugs and drug-related items discovered at school are evidence that may be used in a criminal trial. School officials should be careful, first, to protect the evidentiary integrity of such seizures by making sure that the items are obtained in permissible searches, since unlawfully acquired evidence will not be admissible in criminal proceedings. Second, school officials should work closely with local law enforcement officials to preserve, in writing, the nature and circ.u.mstances of any seizure of drug contraband. In a criminal prosecution, the State must prove that the items produced as evidence in court are the same items that were seized from the suspect. Thus, the State must establish a "chain of custody" over the seized items which accounts for the possession of the evidence from the moment of its seizure to the moment it is introduced in court. School policy regarding the disposition of drug-related items should include procedures for the custody and safekeeping of drugs and drug-related materials prior to their removal by the police and procedures for recording the circ.u.mstances regarding the seizure.

_Searching Students_

In some circ.u.mstances, teachers or other school personnel will wish to search a student whom they believe to be in possession of drugs. The Supreme Court has stated that searches may be carried out according to "the dictates of reason and common sense."[8] The Court has recognized that the need of school authorities to maintain order justifies searches that might otherwise be unreasonable if undertaken by police officers or in the larger community. Thus the Court held in 1985 that school officials, unlike the police, do _not_ need "probable cause" to conduct a search. Nor do they need a search warrant.[9]

Under the Supreme Court's ruling:

School officials may inst.i.tute a search if there are "reasonable grounds" to believe that the search will reveal evidence that the student has violated or is violating either the law or the rules of the school.

The extent of the permissible search will depend on whether the measures used are reasonably related to the purpose of the search and are not excessively intrusive in light of the age and s.e.x of the student.

School officials are not required to obtain search warrants when they carry out searches independent of the police and other law enforcement officials. A more stringent legal standard may apply if law enforcement officials are involved in the search.

_Interpretation of "Reasonable Grounds"_

Lower courts are beginning to interpret and apply the "reasonable grounds" standard in the school setting. From these cases it appears that courts will require more than general suspicion, curiosity, rumor, or a hunch to justify searching a student or his possessions.

Factors that will help sustain a search include the observation of specific and describable behavior or activities leading one reasonably to believe that a given student is engaging in or has engaged in prohibited conduct. The more specific the evidence in support of searching a particular student, the more likely the search will be upheld. For example, courts using a "reasonable grounds" (or similar) standard have upheld the right of school officials to search:

A student's purse, after a teacher saw her smoking in a restroom and the student denied having smoked or being a smoker.[10]

A student's purse, after several other students said that she had been distributing firecrackers.[11]

A student's pockets, based on a phone tip about drugs from an anonymous source believed to have previously provided accurate information.[12]

_Scope of the Permissible Search_

School officials are authorized to conduct searches within reasonable limits. The Supreme Court has described two aspects of these limits.

First, when officials conduct a search, they must use only measures that are reasonably related to the purpose of the search; second, the search may not be excessively intrusive in light of the age or s.e.x of the student. For example, if a teacher believes she has seen one student pa.s.sing a marijuana cigarette to another student, she might reasonably search the students and any nearby belongings in which the students might have tried to hide the drug. If it turns out that what the teacher saw was a stick of gum, she would have no justification for any further search for drugs.

The more intrusive the search, the greater the justification that will be required by the courts. A search of a student's jacket or bookbag can often be justified as reasonable. At the other end of the spectrum, strip searches are considered a highly intrusive invasion of an individual's privacy and are viewed with disfavor by the courts (although even these searches have been upheld in certain extraordinary circ.u.mstances).

School officials do not necessarily have to stop a search if they find what they are looking for. If the search of a student reveals items that create reasonable grounds for suspecting that he may also possess other evidence of crime or misconduct, the school officials may continue the search. For example, if a teacher justifiably searches a student's purse for cigarettes and finds rolling papers like those used for marijuana cigarettes, it will then be reasonable for the teacher to search the rest of the purse for other evidence of drugs.

_Consent_

If a student consents to a search, the search is permissible, regardless of whether there would otherwise be reasonable grounds for the search. To render such a search valid, however, the student must give consent knowingly and voluntarily.

Establishing whether the student's consent was voluntary can be difficult, and the burden is on the school officials to prove voluntary consent. If a student agrees to be searched out of fear or as a result of other coercion, that consent will probably be found invalid. Similarly, if school officials indicate that a student must agree to a search or if the student is very young or otherwise unaware that he has the right to object, his consent will also be held invalid. School officials may find it helpful to explain to students that they need not consent to a search. In some cases, standard consent forms may be useful.

If a student is asked to consent to a search and refuses, that refusal does not mean that the search may not be conducted. Rather, in the absence of consent, school officials retain the authority to conduct a search when there are reasonable grounds to justify it, as described previously.

_Special Types of Student Searches_

Schools with severe drug problems may occasionally wish to resort to more intrusive searches, such as the use of trained dogs or urinalysis to screen students for drug use. The Supreme Court has yet to address these issues. The following paragraphs explain the existing rulings on these subjects by other courts:

_Specially trained dogs._ The few courts that have considered this issue disagree as to whether the use of a specially trained dog to detect drugs on students const.i.tutes a search within the meaning of the Fourth Amendment. Some courts have held that a dog's sniffing of a student is a search, and that, in the school setting, individualized grounds for reasonable suspicion are required in order for such a "sniff-search" to be held const.i.tutional.[13] Under this standard, a blanket search of a school's entire student population by specially trained dogs would be prohibited.

At least one other court has held that the use of trained dogs does not const.i.tute a search, and has permitted the use of such dogs without individualized grounds for suspicion.[14] Another factor that courts may consider is the way that the dogs detect the presence of drugs. In some instances, the dogs are merely led down hallways or cla.s.sroom aisles. In contrast, having the dogs actually touch parts of the students' bodies is more intrusive and would likely require specific justification.

Courts have generally held that the use of specially trained dogs to detect drugs on objects, as opposed to persons, is not a search within the meaning of the Fourth Amendment. Therefore, school officials may often be able to use dogs to inspect student lockers and school property.[15]

_Drug testing._ The use of urinalysis or other tests to screen students for drugs is a relatively new phenomenon and the law in this area is still evolving. The few courts that have considered this issue so far have not upheld urinalysis to screen public school students for drugs.[16] The permissibility of drug testing of students has not yet been determined under all circ.u.mstances, although drug testing of adults has been upheld in the criminal law setting.

SUSPENSION AND EXPULSION

A school policy may lawfully provide for penalties of varying severity, including suspension and expulsion, to respond to drug-related offenses. The Supreme Court has recently held that because schools "need to be able to impose disciplinary sanctions for a wide range of unantic.i.p.ated conduct disruptive of the educational process," a school's disciplinary rules need not be as detailed as a criminal code.[17] Nonetheless, it is helpful for school policies to be explicit about the types of offenses that will be punished and about the penalties that may be imposed for each of these (e.g., use, possession, or sale of drugs). State and local law will usually determine the range of sanctions that is permissible. In general, courts will require only that the penalty imposed for drug-related misconduct be rationally related to the severity of the offense.

School officials should not forget that they have jurisdiction to impose punishment for some drug-related offenses that occur off campus. Depending upon State and local laws, schools are often able to punish conduct at off-campus, school-sponsored events as well as off-campus conduct that has a direct and immediate effect on school activities.

_Procedural Guidelines_

Students facing suspension or expulsion from school are ent.i.tled under the U.S. Const.i.tution and most State const.i.tutions to common sense due process protections of notice and an opportunity to be heard. Because the Supreme Court has recognized that a school's ability to maintain order would be impeded if formal procedures were required every time school authorities sought to discipline a student, the Court has held that the nature and formality of the "hearing" will depend on the severity of the sanction being imposed.

A formal hearing is not required when a school seeks to suspend a student for 10 days or less.[18] The Supreme Court has held that due process in that situation requires only that:

The school must inform the student, either orally or in writing, of the charges against him and of the evidence to support those charges.

The school must give the student an opportunity to deny the charges and present his side of the story.

As a general rule, this notice and rudimentary hearing should precede a suspension. However, a student whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such a situation, the notice and rudimentary hearing should follow as soon as possible.

The Supreme Court has also stated that more formal procedures may be required for suspensions longer than 10 days and for expulsions.

Although the Court has not established specific procedures to be followed in those situations, other Federal courts[19] have set the following guidelines for expulsions. These guidelines would apply to suspensions longer than 10 days as well:

The student must be notified in writing of the specific charges against him which, if proven, would justify expulsion.

The student should be given the names of the witnesses against him and an oral or written report on the facts to which each witness will testify.

The student should be given the opportunity to present his own defense against the charges and to produce witnesses or testimony on his behalf.

Many States have laws governing the procedures required for suspensions and expulsions. Because applicable statutes and judicial rulings vary across the country, local school districts may enjoy a greater or lesser degree of flexibility in establishing procedures for suspensions and expulsions.