Reappraising T.L.O.'s "Special Needs" Doctrine in an Era of School-Law Enforcement Entanglement

Journal of Law and Education, Jul 2004 by Kagan, Josh

ABSTRACT

This essay presents one doctrinal method for lawyers to defend children accused of criminal charges in juvenile or adult court: attacking the applicability of the nearly twentyyear old case, New Jersey v. T.L.O. to most school searches. T.L.O. established a lower standard for searches of students by school officials, but it explicitly did not decide what standard the government must meet to justify school searches performed by police officers, creating a doctrinal starting point for advocates to raise challenges to searches involving police. More fundamentally, the T.L.O. Court based its decision on the presumption that firm gates separate public school from law enforcement and criminal justice institutions. Later administrative search cases inside and outside of the school context show that the lower standard of T.L.O. depends entirely on programmatic purposes that distinguish school systems and "ordinary law enforcement."

Porous schoolhouse gates have allowed schools and law enforcement to become increasingly entangled. Police officers are stationed full-time in our schools; states, localities and school districts have set policies that require schools to turn children over to law enforcement; states have criminalized school-specific conduct; actions taken by schools can lead to violations of a student's probation order from juvenile court; and juvenile courts routinely share confidential information with schools.

This excessive entanglement between schools and law enforcement makes T.L.O. inapplicable in a school where such entanglement exists. This conclusion would require the government to choose: either it can search students using a lower standard and prevent such searches from leading to law enforcement action or it can guarantee students the same civil rights in school that they have on the street. Either choice would be a significant improvement of our current situation where school searches deny children basic civil rights and widen the net of the juvenile and adult criminal justice systems. This essay presents this argument, using specific facts and cases from New York and South Carolina as examples. This argument contrasts with the simplistic approach that several state courts have applied when presented with this issue. Lawyers for children should use the argument presented in this essay to challenge the applicability of T.L.O. If they do, they will win victories for their clients in some state and federal courts.

I. INTRODUCTION

On November 5, 2003, school and law enforcement concern regarding suspected drug activity led to a massive police search of Stratford High School in the Berkeley School District, north of Charleston, South Carolina.1 According to police and school officials' statements to news reporters, fourteen police officers assumed "strategic positions" inside and outside the school. The officers, some with guns drawn, and a drugsniffing dog "secured" a hallway and the more than one hundred students present there. The police ordered those students to get on their knees and face the wall; the police handcuffed at least twelve students who failed to do so immediately. Police officers physically searched students and turned up no drugs. The dog alerted police to twelve bags carried by various students. Searches of these bags also turned up no drugs.

This essay is concerned with the origins and legal implications of the Stratford High search, which illustrate the issues raised by countless other school searches. News agencies reported that the search arose after close interaction between school and police agencies: A student informed a school official about drug sales at school and a police investigation soon began. While precise details remain unclear, it seems likely that formal communication and cooperation between the school and police department lead to this investigation.2 The investigation included analysis of school surveillance video,3 which made police suspect that videotaped students were serving as drug lookouts. The school principal saw these, and other surveillance tapes and was similarly suspicious. The principal then asked the police to intervene, and the police quickly arranged the drug raid.4

This essay asks the hypothetical question: If the raid had turned up evidence of drug dealing on a student, such as a bag of marijuana, would that evidence be admissible in a criminal or delinquency proceeding? What standard should apply-the standard probable cause requirement for police raids or the lower "reasonable suspicion" standard typically applied to school searches?5 Does it matter that police planned and executed the search? Does it matter if the police investigation stemmed from an independent police investigation or, as seems more likely, through collaboration with the school?" Does it matter that they did so at the request of the school principal? Does it matter whether that request represented a one-time use of law enforcement at the school or part of a wider policy tying school, police, and prosecutor in a close and ongoing relationship? Does it matter if the police intended to arrest those they found with drugs,7 or if they merely intended to confiscate any drugs and drug paraphernalia and turn the offending student over to school officials for school disciplinary action? While these questions have specific doctrinal implications, they also speak to broader issues regarding the role of police in schools, how we balance school security with legal protections for children, and whether and how to limit juvenile courts' involvement with children.