Can My Child Be Searched At School?

Jennifer Witt

In Washington State, students have a right to be free from unreasonable searches and seizures and invasions of privacy.

Despite the many rights bestowed upon us through the U.S. and Washington State Constitution, most children walk the hallways of their school and have no understanding of what is acceptable as far as a search of their person or belongings. As a back to school lesson, parents should alert their students that they do in fact have constitutionally protected rights while at school. The most frequently trampled right of the Washington student is the right preventing unreasonable searches and seizures.

A student has the right to object to an unreasonable search and seizure

The Fourth Amendment of the U.S. Constitution and the Washington Constitution protect people from unreasonable searches and seizures and invasions of privacy. The U.S. Supreme Court has held that school authorities may conduct a warrantless search of a student without probable cause if the search is reasonable under all the circumstances. A search is reasonable if it is (1) justified at its inception and (2) reasonably related in scope to the circumstances that justified the interference in the first place.

* A search is justified at its inception only when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rule of a school.

* To determine if the search was reasonably related in scope, Washington Courts have determined the following factors: (1) the child’s age, (2) history, (3) school record, (4) prevalence or seriousness of the problem in the school to which the search was directed, (5) the need to make the search quickly or without delay, and (6) the probative value and reliability of the information used as a justification for the search.

For an example, Hypothetical Jr. High has a problem with cigarettes at their school. Hypothetical Jr. High also has a policy that students can not go to the neighboring 7-11 during lunch. Joe Cool goes to the 7-11 for his lunch and, when he returns, he is searched by school administrators. Clearly, Cool has violated a school policy. However, his act of going to 7-11 does not provide a reasonable basis for suspecting that a search would reveal that Cool has committed some offense, like bringing cigarettes to school. There must be a nexus between the item sought and the infraction under investigation. The administrators would need to be able to show evidence of a correlation between the violation of the “No 7-11” policy and a likelihood that Cool is bringing contraband (cigarettes) onto the school property. By violating a school rule (going to 7-11), a student does not necessarily draw individualized suspicion upon himself. Without a nexus, the search is bad. In this example, the search of Cool is unlawful under the U.S. Constitution and the Washington State Constitution.

There is a remedy if your child is subject to an unreasonable search

The take away is that, in the right situation, students can refuse a search. If the administrators search a student anyway, the student can challenge the search if the search produced evidence of a crime.

When confronted with this situation, students should demand to speak with their parents and speak with an attorney. The times have changed and the results of a search at school can change the options of your child’s future. We are in an age where behaviors that once needed a school principal’s attention or parent discipline are now worthy of a criminal charge. Be sure to have a discussion with your child about the risks of violating school rules and what to do if they or their belongings are being searched at school.

At the Witt Law Group, we have been handling Fourth Amendment type cases for over a decade. We handle cases all over western Washington and would be happy to answer any questions you have on this topic. We have offices in Gig Harbor and Bremerton Washington for your convenience.  We wish you and your children the best in the coming school year!