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

These recent cases focus on suspicionless searches, which differ technically from the search at issue in T.L.O. and many school searches and disciplinary actions, which generally have some level of individualized suspicion that falls short of probable cause. They are relevant to T.L.O. for two primary reasons. First, the cases all relate to administrative searches, where the threshold question relates to the search's primary purpose. second, Edmond implies that suspicionless search cases apply to T.L.O. The Edmond Court, addressing a suspicionless roadblock program, relied on T.L.O. for the proposition that a "search must be reasonably related in scope to the circumstances which justified the interference in the first place."55 The flip side of this conclusion is that the Supreme Court would apply its rule barring probable cause exceptions for suspicionless searches for the general purpose of law enforcement to prevent similar probable cause exceptions where some individualized suspicion exists if the primary purpose is general law enforcement rather than school discipline. Earls and Vernonia similarly speak to T.L.O.'s continuing applicability. Both rely on T.L.O.'s concern with not interfering with the "swift and informal disciplinary procedures."56 These citations-and the separation of the drug test policies at issue from court sanctions discussed above-lead to the inference that the Supreme Court continues to view the special needs doctrine as dependent on school disciplinary interests distinct from police and court involvement, whether the school searches spring from individualized suspicion as in T.L.O. or suspicionless searches as in Earls and Vernonia.

III. SCHOOL secURITY AND DISCIPLINE POLICIES HAVE EVOLVED TO FEATURE CLOSER CONNECTIONS TO juVENILE juSTICE THAN ENVISIONED BY T.L.O.

America's public schools look far different today that they did when the Supreme Court decided T.L.O. In particular, schools address discipline and security issues far differently now than in 1985. This Part discusses posl-T.L.O. developments that indicate significant roles of law enforcement officials in day-to-day school security and routine cooperation between school officials and law enforcement that is often informed by state laws and official school district policy. Those developments, which this Part addresses in turn, include the increased presence of police officers in schools, official state and school policies requiring schools to share information related to potential crimes with police departments, state laws criminalizing particular behavior at schools, the role school infractions can have in sparking a contempt finding of a child on probation with the juvenile court, and the sharing of confidential information regarding juvenile court proceedings with schools officials. Finally, this Part responds to the argument that severe problems with crime and security in schools demand constitutional flexibility; this concern only underlines the need to treat school security like any other state program designed to further general law enforcement goals.