Search and Seizure at Schools and Colleges

SEARCH & SEIZURE

In the recent U.S. Supreme Court case, Sanford v. Redding, the Court ruled that school officials at a K-12 school violated the 4th Amendment rights of an 8th Grade girl who was stripped search while looking for prescription grade ibuprofen (my colleagues and I will undoubtedly comment more on this case in our annual report at ASCA and at next year’s NCHERM NLU events). School officials in many media outlets were vocal about their concerns that this decision would have a chilling effect on administrator’s attempting to “keep schools safe through the use of searches.”

As with many K-12 decisions, this one will have a ripple effect in the world of higher education – especially since it comes from the high Court – and because it addresses a topic that has produced at times seemingly conflicting opinions in the lower courts – Search and Seizure. Even in the K-12 world, but especially in housing departments everywhere in higher education, I would hope that this decision is not “over-interpreted”,” as – even in a preliminary reading – some significant differences exist between the “normal” College “Search” and this case.

Body vs. Residence Hall Room

There exists in reality and in the law a significant difference between the search of a person and the search of property, not the least of which is that, in order to search a person, they may have to be detained (which can constitute a deprivation of liberty as well). In this case, setting a relatively high standard for the strip search of a minor is a poor analogy for an administrator looking around the average residence hall room. That being said, residence life staffs should not view this as relaxing what are good practices in terms of setting clear separation between administrative searches and law enforcement involvement in those searches.

13 year-old vs. Average College Student

While I know at times the amount of parent contact our students have makes us think they are still minors (sorry Millennials), they are not in the eyes of the law. An adult student who consents to the search of their person or property will likely find themselves subject to a) the search, and b) the consequence of whatever may be found, barring the demonstration of some duress or general inappropriate law enforcement involvement.

Prescription Strength Ibuprofen vs. Marijuana? Narcotics? Weapons?

Here, the analogy is probably a little more appropriate, primarily because the “average” residence hall search does not involve even prescription strength ibuprofen. Generally speaking, the things that College administrators are looking for have already met the legal standard for being “dangerous.” That being said, I think there is something to be said for this analogy if the college was looking for minor misuse (not including sale of) Ritalin or Adderal. If nothing else, this search would warrant (pun intended) some more discussion.

In short, college and university administrators should not overreact to this decision. If you have reviewed your policies in light of the Houston and Washington and D.C. cases over the last few years (and you review their implementation and the training of your staff annually), you should keep doing the good work you continue to do.

Have a great weekend.

Saundra K. Schuster, Esq.
Partner, NCHERM