Student searches can be an effective tool for maintaining safe schools, but school administrators must balance students' individual rights with the school community's need for a safe learning environment.
Here Are Five Tips For School Administrators Who Are Considering Searching A Student At School
Tip #1 - What laws govern search and seizure in South Dakota’s public schools?
Both the Fourth Amendment of the United States Constitution and Article VI, Section 11 of the South Dakota Constitution protect public school students from unreasonable searches and seizures.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article VI, Section 11 of the South Dakota Constitution provides:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.
Tip #2 - What is a student “search” and “seizure”?
A “search” is an examination of a student’s person or property with the intent of discovering concealed contraband that is prohibited by law or school policy. A “seizure” is the act of taking possession of the discovered contraband.
Tip #3 - Does the Fourth Amendment apply to public schools officials in South Dakota?
Yes. The Fourteenth Amendment extends the Fourth Amendment’s constitutional guarantees to searches and seizures by state officials, including public school officials.
In New Jersey v. T.L.O., the United States Supreme Court found that public school officials “act in furtherance of publicly mandated educational and disciplinary policies.” The Supreme Court further stated that “school officials act as representatives of the State, not merely as surrogates for the parents” and are subject to “the strictures of the Fourth Amendment.”
Tip #4 - Does a school official need to secure a warrant before conducting a search?
No. In T.L.O. the Supreme Court rejected that idea and held:
"How, then, should we strike the balance between the schoolchild’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place? It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment: requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools. Just as we have in other cases dispensed with the warrant requirement . . . we hold today that school officials need not obtain a warrant before searching a student who is under their authority."
Tip #5 - Does a school official need to have "probable cause" before conducting a search and seizure?
No. A school official is not required to have evidence of "probable cause" before searching a student's possessions or person. Instead, a school official needs to have only reasonable suspicion, which is a less rigorous standard than probable cause.
For more information about searches and seizures in our state's public schools, read Chapter 18 of the South Dakota School Law Deskbook™.