Who or Where?
Justin Bathon on Sunday, May 31, 2009 at 1:08PM 
I have been wrestling with this question of school resource officers (typically uniformed police officers) and search and seizure and how to legally deal with this issue for a while now. I thought I would give my conclusions in a scholarly series post, which I haven't done for a while.
It occurs to me that there are two legal analysis options. A "who" option or a "where" option and courts currently seem to be employing both sort of at random. Asking the who question asks whether the person initiating the search is a school official (reasonable suspicion applies) or a law enforcement official (the higher probable cause applies). Asking the where question avoids that issue. Essentially, if it is a school setting = reasonable suspicion in all cases.
To answer whether the question should be who or where, we need to look at the Supreme Court precedence in New Jersey v. T.L.O (and probably also consider the Redding case coming out next month). A reading of this case could probably provide support to either option, but I think it provides more support to the "who" question than the "where" question.
For instance, look at how Justice White for the majority frames what they are deciding (emphasis added):
Although we originally granted certiorari to decide the issue of the appropriate remedy in juvenile court proceedings for unlawful school searches, our doubts regarding the wisdom of deciding that question in isolation from the broader question of what limits, if any, the Fourth Amendment places on the activities of school authorities prompted us to order reargument on that question.
Also, the court framed the whole initial analysis of whether the Fourth Amendment applies, not to "schools" as governmental entities, but rather to "school officials" as governmental actors ... i.e. it was the who that mattered, not the where, to determine whether we were under a constitutional amendment (see section II in the opinion).
Continuing, the Court does articulate some "where" type statements, such as this one:
Accordingly, we have recognized that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship.
But, even in that statement, you can see it is the "who" relationship, the "student-teacher" relationship, that mattered - it just happens to always occur at schools.
Further, in the central part of the case where the Court articulates the new standard that has governed search and seizure ever since, they are again more focused on the who than the where. Consider the bold (added) in the following paragraph:
Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception," Terry v. Ohio, 392 U.S. at 20; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place," ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" 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 rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
In my opinion, the proper question here is not where the search occurs, but who is conducting the search. If the person conducting the search can be classified as a "teacher or school official," then reasonable suspicion should apply. If that person conducting the search, even on school property, cannot be classified as a "school official" then the default probable cause standard for governmental actors should apply. If, then, this is our analysis, it is very difficult for me to conclude that uniformed police officers, being paid by and reporting to the police department, are school officials entitled to the reasonable suspicion exception.
After thinking on this issue for a while now, I think I am settled on this position. Police officers in schools are not school officials and are not entitled to reasonable suspicion directly, but only through a proper transfer of suspicion when a legitimate school official, such as a teacher or principal, initiates a search and then involves the officer. Very much depends on the nature of the employment of the school resource officer, but those officers that are more "police" than they are "school officials" clearly seem to fall outside of what the Court in New Jersey v. T.L.O. intended in its opinion.
Reader Comments (8)
Great post, Justin. I have a few further thoughts, based on a paper that a student turned in for my education law seminar this semester.
As my student argues in the paper, place and person are only two of three considerations that arguably matter in school searches. The third is purpose, or what my student terms "overall purpose." She concludes that, if the overall purpose of the search at its inception (regardless of who initiates it) is prevention of harm at the school site or punishment for a school infraction, then the reasonable suspicion standard should apply throughout. If the overall purpose (again, at the inception of the search) is prosecution, then the probable cause standard should apply.
I can see where the formulation of an "overall purpose" standard might have to be tweaked--for instance to define the word "overall" and to create procedural mechanisms to prevent school officials and resource officers from "gaming" it--but I think it is an intriguing idea that I have not seen anyone voice yet.
My own perspecitve is similar to yours. I think that we should apply agency theory to the initiation of the search and make our determination of the agent's authority based on the authority of the principal. However, a person can be an agent of different principals for different purposes, so I can see where this approach can be harmonized with my student's overall purpose approach.
Thanks Scott.
I really have questions on your student's formulation (student, if you are reading, don't take it personally - it is unique and caused me to think, which is always good). It would be extremely hard for me to visualize a circumstance when the purpose of a search is not "prevention of harm at the school site or punishment for a school infraction." For me, that might as well just be a where standard, because if it is happening at the school, it is for the health of the school. Drugs are always prohibited in school policy, so even in the classic marijuana situation where the police are eventually looking to prosecute, a legitimate "punishment for a school infraction" case could be made. Send this over to your student, Scott, and let him/her tell us a school scenario in which the probable cause standard would apply under that purpose formulation - and we'll debate it an see. Your are right that it is intriguing - it really gets at the core of the issue, but I just don't see it as operational.
Im in high school , and This T.L.O. Case has alwaysed Caused me confusion. Wouldn't it be illegal for a search or seziure in school by a Police officer instead or the Principal ?
Thanks for commenting Nicholas. Always good to see students using this resource.
Its not illegal for search and seizure in school by either a police officer or a principal. They both can do it, but the cop needs probable cause (high standard) to believe you are hiding something and the principal needs reasonable suspicion (moderate standard) to believe you are hiding something. If they have that, the law allows them to search you. As a student of course, your best bet is just not to carry anything that would get you intro trouble into school, but if you do and they find out they can not only use that against you in school discipline (suspension/expulsion) but also use it against you in the justice system (juvenile delinquency finding). So, it is sort of a double whammy - which is why, again, students really need to think before trying anything.
On the strip search issue, those are still legal too, just in more limited circumstances than they were before. Again, if a cop had probable cause, they could strip search.
Hope that helps! Stay out of trouble Nicholas - but I am going to take it as a good sign that you are out researching this issue. Thanks for the comment!
Justin,
I need a little clarification. So if the vice principle has enough reasonable suspicion to search a student in school during school hours can the School resource officer be present during that search to act as an expert on identifying drugs and drug paraphhrnalia?
Absolutely Josh. That is a scenario that seems to be pretty much supported by all courts because it is still the Vice Principal clearly initiating the search with the resource office truly being just a "resource" and not the primary actor. The big questions arise when the resource officer becomes the primary actor.
ok my main question is what can school resource officers do i have seen people get in alot of trouble for no reason i would like to know what can an cant they do
That's definitely a very broad inquiry there Danny. Let me refer you to this, which lists some of the different responsibilities:
As of now they have very broad duties. My hope is that when more of these cases enter the court system, the range of duties will become more specific over time.