The issue: When do searches or drug tests of students in the public schools violate the 4th Amendment guarantee against unreasonable searches?
The Fourth Amendment presents a host of interpretive issues: What is a search? What is a seizure? When is a search or seizure reasonable? What is probable cause? Does the Amendment apply to administrative searches as well as criminal searches? When are warrants required? An entire law school course could be devoted to these questions.

We will focus only on the application of the Fourth Amendment in the specific context of student searches.  In this context, several issues will be raised in the  cases below. 

Savana Redding

New Jersey v T. L. O. (1985) addresses the issue of whether a search by a school official is a "search" at all for Fourth Amendment purposes.  It also considers whether the standard of probable cause that applies in the cases of criminal standards should be modified to reflect the special circumstances of public education and the relationship between school officials and students.  The Court concludes that searches by school officials are governed by the Fourth Amendment, but adopts a lower standard for searches than it applies in the criminal context.  Specifically, the Court only requires officials to have something like a moderate chance of finding evidence of wrongdoing.  In T. L. O., the Court found that standard met.  In Safford v Redding (2009), however, the Court found that Arizona school officials went too far in strip-searching a 13-year-old student who they believed might have provided ibuprofen to another student.  Given the intrusiveness of the search and the relatively low threat posed, the search was unreasonable and a violation of the Fourth Amendment, according to eight members of the Court.  Justice Thomas dissented.

Unlike the T. L. O. and Safford cases, the Vernonia case considers the constitutionality of across-the-board searches not based on individualized suspicion.  The policy in question in Veronia is required urine-testing of junior high football players.  How important to the Court's decision are the specific facts of that case? (It is worth noting that the Court in the 1997 case of Chandler v. Miller, by an 8-1 vote, ruled that Georgia's policy of drug-testing candidates for state offices violated the Fourth Amendment.)

Lindsey Earls

In 2002, the Supreme Court considered a case challenging a Tecumseh, Oklahoma policy of drug-testing all high high school students who participate in extracurricular activities.  Parents of Lindsey Earls sued when school officials forced Lindsey to provide a urine sample before she sang in the high school choir and participated on an academic quiz team.  Lindsey (who is now a student at Dartmouth) described the experience as "horrible--someone would stand outside the bathroom stall and listen."  The 10th Circuit Court of Appeals ruled that the Tecumseh policy was unreasonable, failing to meet the "special needs" requirement of Vernonia.  The Court, by a 5 to 4 vote reversed the 10th Circuit and upheld the school's drug testing policy.  A concurring opinion suggested that a different result might be reached if a school were to extend its mandatory drug testing to include all students.  

New Jersey vs T. L. O. (1985)
Safford Unifed School District v Redding (2009)
Vernonia vs. Acton (1995)
Board of Education v Earls (2002)

For an interesting appeals court decision, see B. C. v Plumas Unified School District (9th Cir. 9/20/99),
 holding that suspicionless dog sniffing of high school students violates the Fourth Amendment.

The Fourth  Amendment 
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.

James Acton, the Vernonia student whose challenge to a school drug testing
 policy went to the U. S. Supreme Court.


1. If Vernonia had insisted that all students submit to drug tests, would the Court have upheld the policy? 
2. How relevant to the Court's analysis in Vernonia is the age of the students tested?  Could a university insist upon drug testing athletes? An elementary school?
3. How much evidence of drug use among students is necessary to establish a policy like Vernonia's?
4.  Is the "reasonable suspicion" test of T.L.O. easier for school officials to administer than a "probable cuase" standard?
5.  Under the facts of T. L. O., could a probable cause standard have been met?
6.  What do you think of Justice Brennan's suggestion that the presence of rolling papers provides scant evidence of drug use?
7.  Did the facts that seemed so important to the Court in Vernonia (lack of privacy among athletes, safety concerns relating to athletes and drug use, and the degree of the drug problem among athletes) seem significant to the majority in its decision in the Earls case?  Is this surprising?
8.  The Court in Safford concluded it was unreasonable to strip search a 13-year-old girl based on an uncorrobated tip that she had provided a non-prescription painkiller (ibuprofen) to other students. Would it  have been reasonable to conduct a strip search if it was believed that the student had provided cocaine to another student?

Sharpie Sniffing and the Fourth Amendment: Excerpt from Oral Argument
 in Safford v Redding (4/21/2009
MR. WRIGHT: Once you had reason to suspect a student is possessing any contraband that poses a health and safety risk, then searching any place where that contraband may reasonably be found is constitutional, and --
JUSTICE SCALIA: Any contraband, like the black marker pencil that -- that astounded me. That was contraband in that school, wasn't it, a black marker pencil?
MR. WRIGHT: Well, for sniffing.
JUSTICE SCALIA: Oh, is that what they do?
MR. WRIGHT: It's a permanent marker.
JUSTICE SCALIA: They sniff them?
MR. WRIGHT: Well, that's the -- I mean, I'm a school lawyer. That's what kids do, Your Honor, unfortunately, Your Honor.

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