“The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.” — Justice Antonin Scalia
Yesterday Bedford High School officials conducted a random drug sweep with K-9 units. Students were told to leave backpacks behind in classrooms and participate in a “shelter in place” drill in the gym.
Parents were first informed of the drug sweep and “shelter in place” drill in an email from Bill Hagen, principal of Bedford High School, shortly after 9:00am, well after the beginning of the school day. The Middle School principal, Edward Joyce, sent a similar email around 10:00am with the same message.
Do students lose their Constitutional rights against warrantless searches and seizures?
Apparently high school students no longer have their Fourth Amendment rights according to several school boards, including the Bedford School Board which approved the new policy in April. Several other districts including Hudson, Exeter Region Cooperative, Litchfield, Hampton, Sanborn Regional, Pittsfield, Windham, and Monadnock Regional — nearly every district examined — includes specific language permitting K-9 drug searches. Most have policies that say desks, lockers, and other school property may be searched at any time and that students should not expect privacy. Most of these policies are found in sections JIH, JIH-R, and JIHB of district handbooks.
The NH School Board Association (NHSBA) has a policy paper that says schools may search individual students’ possessions when there are reasonable grounds. They cite the NH Supreme Courts’ ruling in Re Juvenile 2006-406 issued on September 25, 2007. But the NHSBA also notes that the Court gives school authorities “greater flexibility” than law officials when looking for illegal substances. However, this case involved searching a specific individual, not an entire school population. The NHSBA has sample policies available to school boards, but they are not available online for the general public. These policies are intended as guidelines for school boards, but may be amended to suit individual district’s needs.
What is particularly noteworthy is that most school district policies distinguish between school property such as desks and lockers, and personal property. Backpacks not stored in lockers would certainly fall in the latter category. According to nearly every school district’s policy, personal property can only be searched when there is a reasonable concern directed at a particular individual. Therefore, it seems unreasonable to require Bedford students to abandon their personal property for a random search.
Bedford Superintendent, Chip McGee, sent an email to parents around 7:30pm informing them that no drugs were found during the sweep. He also cited the Youth Risk Behavior Survey as one of the justifications for the exercise.
The Youth Risk Behavior Survey (YRBS) is a non-academic survey funded by the Center for Disease Control and administered biannually to numerous schools by the state Department for Health and Human Services. Although participation is optional, it is highly encouraged by the HHS and school officials in order to obtain funding for various community programs.
Similar privacy concerns came up in summer 2015 when area schools questioned whether or not US Supreme Court rulings against warrantless cell phone searches applied to schools. Although NH passed HB 1533 (2014) that expressly forbids warrantless searches of electronic devices, area school superintendents said they did not think schools were held to that standard. Rep. Neal Kurk of Weare, who is considered one of the leading legislators on privacy issues, was quoted in a Union Leader article saying, “When it comes to children, different laws apply.”
It would seem universally understood by legislative leaders, SAU administrators, and local boards that students have fewer rights on school grounds than they have anywhere else.
Compulsory attendance mandates individuals under 18 years old attend some type of education program. For most that means enrollment at their zip-code assigned public school. Although educational options are growing in New Hampshire, not all families effectively have choice due to income constraints or enrollment limitations. This means that families who are not content with random drug searches must still comply. And this falls disproportionately to families of low to moderate incomes.
While some parents and students may support random drug and cell phone searches, students should not surrender their Fourth Amendment rights at the schoolhouse steps.
