Search and Seizure Considerations in University-Owned Housing: Implications for Practice

Journal of College Student Development, May/Jun 1998 by Parrish, Bradley W, Dickman, Marcia M, Fern, Michael Scott

The current case law that impacts search and seizure decision-making is presented as it is interpreted in matters of policy and procedure in university-owned housing. The implications for the practice of student affairs are discussed as they affect a university's ability both to provide an academic environment and to protect the rights of residents as citizens and as students.

One of the functions of a college or university, in addition to imparting knowledge, is offering opportunities for personal growth and maturation (Chickering, 1969; Chickering & Havighurst, 1981). Providing an environment conducive to this process involves the balancing of students' freedom with institutional responsibility; it also requires responding to the needs of the students and respecting their freedom to choose their own course of action while maintaining the institution's responsibility to fulfill its role in the student development process. Recognizing the impact of the physical environment on student development (Banning & Kaiser, 1974; Hurst, 1987; Schroeder & Jackson, 1987), some colleges and universities have chosen to move away from traditionally styled residence hall rooms toward more contemporary apartmentstyle housing units. Schroeder and Jackson pointed out that small residence hall rooms, "unlike houses or apartments that provide definite spaces or entire rooms for specific functions, must accommodate such opposite, and occasionally antagonistic, functions as sleeping, studying, socializing, and relaxing" (p. 49). The physical structure of apartment-style housing units and the sense of privacy which they foster allow students to feel more comfortable and relaxed in their surroundings, which may facilitate the developmental process.

The balancing of student freedom against institutional responsibility can place student affairs practitioners in a precarious position when dealing with the issue of privacy. Students feel that they have a right to expect privacy in their living quarters, yet institutions feel that they should be able to retain a reasonable amount of control over these living areas in order to fulfill their mission and provide an "educational environment." In this article we examined the dilemma created through the clash of contrasting expectations, as well as the legal concepts impacting the right of privacy, by analyzing court decisions that have dealt with Fourth Amendment issues of search and seizure within universityowned housing. The purpose of this article was (a) to describe the current case law affecting search and seizure decision-making, and (b) to analyze that information as it applies to the practice of student affairs. Some of the issues discussed include the extent to which the expectation of privacy in university-owned housing is "reasonable," the rights of inspection retained by institutions over their housing units, and contractual factors that may affect the expectation of privacy. Also, implications for student affairs professionals pertaining to this issue are addressed, and suggestions for incorporating these concepts into institutional policy and practice are presented.

SEARCH AND SEIZURE BROADLY DEFINED

The Fourth Amendment to the U.S. Constitution states:

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.

Although the language of this amendment protects a "reasonable" expectation of privacy, it has sometimes been difficult to determine the factors which create this reasonable expectation. According to several court decisions (Katz v. United States, 1967; Smith v. Maryland, 1978; United States v. Abreu, 1991), two criteria must be satisfied to establish a privacy right: (a) A person must exhibit an actual (subjective) expectation of privacy, and (b) that expectation must be one that society is prepared to recognize as reasonable. When applying these criteria in cases involving searches of apartments, the U.S. Fifth Circuit Court of Appeals (United States v. Osunegbu, 1987) determined that

renters of such places. . . have a reasonable expectation of privacy protected under the Fourth Amendment and that this expectation of privacy is not destroyed by the fact that the lessor or landlord possesses a key and has maintained a limited right to enter the rental premises for repair, inspection, and similar purposes. (p. 478)

SEARCH AND SEIZURE WITHIN A UNIVERSITY SETTING

When confronted with searches conducted within the context of the environment on a college or university campus, some courts have acknowledged the necessity of balancing the interests of the student against the interests of the institution. As one court (Moore v. Student Affairs Committee of Troy State University, 1968) has expressed,

College students who reside in dormitories have a special relationship with the college involved . . . [which] grows out of the peculiar and sometimes the seemingly competing interests of college and student. A student naturally has the right to be free from unreasonable search and seizures, . . the college, on the other hand, has an "affirmative obligation" to promulgate and to enforce reasonable regulations designed to protect campus order and discipline and to promote an environment consistent with the educational process. (p. 729)