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

The Stratford raid also displays the increased coordination between police and schools. Beyond the full-presence of two police officers at the school,80 South Carolina law, like New York City regulations, conflates the jobs of police officers and school officials. State law defines the duty of school police as "act[ing] as a law enforcement officer, advisor, and teacher."81 Regardless of their job description, these police officers must be involved whenever a school crime is suspected; state law requires school officials who suspect criminal activity to report this suspicion to the police.82 The South Carolina Legislature enacted this statute in 1990, five years after T.L.O.83 The following year, the Berkeley School District, which includes Stratford High School, implemented the policy by requiring school administrators to contact law enforcement on "notice" of a broad list of crimes, including assault (without specifying how severe an assault must be), threat of assault to school officials, possession of dangerous weapons, and possession of controlled substances.84 Thus, as a matter of policy, Stratford High School and the local police department are linked.85

C. Criminalization of Particular Cconduct at School

Requiring school officials to report suspicion of any criminal activity to police leads to even more intrusive invasions of privacy when coupled with the criminalization of additional conduct at school and increased penalties for crimes committed at school. In 2000, the New York legislature added a new charge to second degree assault: "Acting ... on school grounds and with intent to cause physical injury, he or she: (a) causes such injury to an employee of a school or public school district."86 By drawing attention to any assaults on school grounds, however minor, and by requiring school officials to report suspicion of any crime,87 these laws increase the probability that any schoolyard fight could turn into a delinquency or criminal action and increase the severity of any dispositions or sentences that result, both of which relate to the level of intrusiveness of an administrative search.88 News reports indicate neither fear is a mere hypothetical.89

This law may be less important for the issue of school searches-since evidence of assault is less likely to come from such searches than evidence of drug or gun crimes. Those crimes lead to serious charges in themselves. Nonetheless, these laws are relevant for two reasons. First, they amplify the close connections between schools and law enforcement developed in Parts III.A. and III.B. second, they increase the policy concern about sparking severe juvenile or criminal court consequences because ratcheting up the severity of a charge possible after a schoolyard fight can lead to longer sentences in both juvenile and adult court.90

Similar laws exist in South Carolina. For instance, South Carolina penalizes distribution of narcotics in the proximity of a school in a much harsher manner than other drug dealers.91 In T.L.O., the school principal found marijuana and indications of selling marijuana on school grounds. Had T.L.O. been of age under state law (and some states classify fourteen year olds as adults for certain crimes92), South Carolina's statute would condemn her to double the sentence she could have faced if she were caught outside of school.