By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbagcasciacorg. _________________________________________________________________________________________

Dear Legal Mailbag:

Life as a school administrator is getting so complicated these days. Sometimes I think that we should all just all go to law school or perhaps marry lawyers. But maybe there is hope. As I was lolling about on the winter break, I had a brainstorm. We should just decide what we want to do and put it in the student handbook. That way, all the students will have fair notice of our rules and will have no basis for complaint. For example, what if I include in the student handbook that all book bags and purses will be subject to search? That way, we won’t have to struggle with the complicated rules governing student searches. Moreover, such a rule will be fair because students will not have any expectation of privacy, and they will know not to keep their weed in their book bag or purse. Is that a great idea or what? Shall I patent it?

Signed,
A Flash of Brilliance

Dear Flash:

While we all admire your “working” over the break, your plan has a fatal flaw — constitutional principles apply in the school setting without regard to what you put in the student handbook. Under the in loco parentis doctrine, school officials have substantial discretion in supervising students and regulating their behavior. However, the United States Supreme Court ruled in Tinker v. Des Moines Independent Community School District in 1969 that students do not shed their constitutional rights at the school house gate. Accordingly, the actions of school administrators are seen not only as actions by “parents,” but also as actions of governmental actors who are constrained by the constitutional protections afforded students and others by the Bill of Rights.

Here, you would be attempting essentially to write the Fourth Amendment protections against unreasonable searches and seizures out of existence (at least in your school). To be sure, given the in loco parentis role of school teacher and administrators, the scope of Fourth Amendment protections is limited in the school setting. School administrators do not need probable cause or a warrant to search a student or his possessions. However, searches of students are allowed only if (1) there is reasonable cause for the search at its inception; 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.

You cannot override those constitutional protections by administrative fiat. Whether you warn students that their book bags or purses will be subject to search or not, such a search will be permissible only if it meets the standards set forth above. While you deserve credit for creativity, your gambit will not work. Maybe you should look to marry that lawyer after all.