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

Perhaps the strongest and clearest language in support of searches on a contractual basis can be found in the State v. Hunter (1992) decision. The policy in place at that time, which was used to justify the search, read as follows:

University officials reserve the right to enter and inspect residence hall rooms at any time. Inspections will occur when necessary to protect and maintain the property of the University, the health and safety of its students, or whenever necessary to aid in the basic responsibility of the University regarding discipline and maintenance of an educational atmosphere. In such cases effort will be made to notify the resident(s) in advance and to have the resident(s) present at the time of entry. (p. 1034)

Relying on this clause in the housing contract when ruling in favor of the university, the court's opinion was that

as part of Hunter's agreement to live in university-provided housing, he was required to sign a residence hall contract, the provisions of which included a prohibition against the possession or consumption of alcoholic beverages or the possession of alcoholic beverage containers in residence halls and a prohibition against the possession of explosives in all residents' rooms at all times. In order to enforce these regulations, university officials reserved the right to enter and inspect residence hall rooms at any time "to protect and maintain the property of the University, the health and safety of its students, or whenever necessary to aid in the basic responsibility of the University regarding discipline and maintenance of an educational atmosphere." By signing the aforementioned housing contract, Hunter agreed to the university's right of reasonable inspection and waived any Fourth Amendment objections to the university's exercise of that right. (p. 1037)

This trend in legal reasoning to justify searches based on a theory of contractual waiver is a relatively new one within the area of case law pertaining to university housing. In earlier cases, courts did not rule so favorably toward universities when considering this issue. In 1970, the McCloskey court stated that

[McCloskey] rented the dormitory room for a certain period of time, agreeing to abide by the rules established by his lessor, the University. As in most rental situations, the lessor [in this case, the university] reserved the right to check the room for damages, wear and unauthorized appliances. Such right of the lessor, however, does not mean McCloskey was not entitled to have a "reasonable expectation of freedom from governmental intrusion," or that he gave consent to the police search, or gave the University authority to consent to such search." (p. 273)

In the Smyth case in 1975, the court held that contractual provisions granting college and university officials the authority to conduct searches are insufficient for insulating them from Fourth Amendment challenge, stating that a blanket authorization in an adhesion contract that the College may search the room for violation of whatever substantive regulations the College chooses to adopt and pursuant to whatever search regulation the College chooses to adopt is not the type of focused, deliberate, and immediate consent contemplated by the Constitution. (p. 788)