Individualized Suspicion - Where art thou?
Justin Bathon on Thursday, February 28, 2008 at 12:27PM Well, our little hot streak of educational law news continues today. A whole class of students in Kentucky was patted down and asked to remove their shoes and socks after an envelop containing five dollars went missing from a teacher's desk.
Okay ... quick quiz. What is wrong with this search?
The first thing that probably comes to mind is that the intrusiveness of the search was not justified given the amount of money in question (see a similar issue from the 9th Circuit that the Edjurist is following here). Well, that is probably right, although it is a judgment call based on the expectation of privacy (see arrows below). In the actual event, the school in Hopkinsville, KY did have a policy that stated that physical touching of students for searches was only permitted if students were threatened and the four teachers that conducted the searches were given written reprimands.
But, what else was wrong with that search? Something more fundamental ... yeah, individualized suspicion. Teachers too frequently forget this vital component of 4th Amendment law, as articulated by New Jersey v. T.L.O. When a teacher wants to search a student, she typically must have an individualized, reasonable suspicion that the individual student (or student's possession) you want to search contains the item you are looking for. Blanket searches like this one in Kentucky are almost always unconstitutional unless there is a pressing and imperative reason to do so. Such reasons where blanket searching can be constitutional is where students are in immediate danger. So, if the $5 were a gun, sure, that would be reason enough to engage in a non-individualized blanket search. But, given it was only $5 and no students were in immediate danger, the appropriate thing to do would have been to conduct an investigation, get an individualized, reasonable suspicion, and then search individual student(s) as necessary. I see way too much blanket searching in schools and I know we are violating the 4th Amendment way too often in that regard.
I just gave a presentation at Franklin College last week on Teachers and the Law, and here is the slide I used to teach this issue. It may be a helpful reference for teachers and professors on this subject.
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