School Violence and School Liability

1/25/2008

INTRODUCTION

Events of school violence and a school district's response to the risk of violence both raise liability issues. Not only does a school face the risk of a liability when a student is harmed, school districts and officials face the possibility of lawsuits stemming from the actions they have taken to prevent violence. These materials will address the duty of a school to protect its students, with some commentary on the possible legal pitfalls faced by schools as they attempt to prevent violence on campus.

HOW REAL IS THE RISK OF VIOLENCE?

Almost every law journal article or commentary on the issue of school violence begins with a recitation of statistics. Most assert that schools are actually very safe places and that public misperceptions that schools are dangerous is a result of the widespread media coverage of school shootings. While it is true that schools are actually quite safe, for the parent whose child has been injured at school, statistics are irrelevant. Similarly, a jury will be focusing only on the particular facts placed before it. Accordingly, what matters is the appropriateness of the actions taken by a particular institution under the circumstances.

I. LIABILITY UNDER FEDERAL LAW FOR VIOLENT HARM TO STUDENTS

A. 42 U.S.C. § 1983

Title 42 of the United States Code. § 1983, is designed to protect citizens from government conduct which deprives them of their constitutional rights. Section 1983 is a statutory mechanism created to enforce the substantive due process rights contained within the Fourteenth Amendment. That is, Section 1983 allows a citizen to recover damages against the government if he or she is deprived of life, liberty or property when such deprivation occurs "under color of state law."

In order to prevail in an action against a governmental entity for a substantive due process violation, the claimant must (1) demonstrate that the government has a duty to protect the plaintiff and (2) the claimant must demonstrate that the governmental official or officials involved demonstrated deliberate indifference to the constitutional rights of the plaintiff.

Nearly all courts who have addressed the issue have held that students do not possess a constitutional right to protection by a school district from the violence of non-government actors, including the violent acts of other students or of third parties. These rulings emanate from the United States Supreme Court decision in DeShaney v. Winnebago County Department of Social Services.

In DeShaney, the mother of a child - who was severely beaten and permanently injured by his father - brought an action under Section 1983 against a child protection agency. Social workers had received complaints about the abusive father and had reason to know the child was in jeopardy before he was injured.

The court, while sympathetic, held that the agency's decision to not remove the child from his father's custody was not a violation of the child's constitutional rights.

Nothing in the language of the Due Process Clause itself requires the state to protect the life, liberty, and property of citizens against invasions by private actors.  Its purpose is to protect the people from the state, not to ensure that the state protects them from each other.

The court explained that while the father acted egregiously and perhaps, in hindsight, the agency preferably should have taken definitive action to protect the child, "The state had no constitutional duty to protect Joshua against his father's violence."

Relying upon DeShaney, several federal jurisdictions have held that school districts owe no constitutional duty to protect school children from the violent acts of their fellow students. These lower courts have held that public school daytime attendance does not create a special custodial relationship giving rise to a constitutional duty on the part of a school to protect students from harm, notwithstanding compulsory attendance laws.

In D.R. v. Middle Bucks Area Vocational and Technical School, the Third Circuit was faced with facts demonstrating that school officials ignored reports of repeated molestation of a female high school student by other students. The harassment continued over a period of six months. She sued, claiming that Pennsylvania's mandatory attendance law invoked her due process rights, arguing that it placed her in the custody of the school. The court rejected this argument: "School authority over D.R. during the school day cannot be said to create the type of physical custody necessary to bring her within the special relationship noted within DeShaney."

The courts have also rejected arguments that state statutes designed to protect students create a special duty to protect. In B.M.H. v. School Board of Chesapeake, Virginia, plaintiff sued after being sexually assaulted by another student. Id. at 571. The B.M.H. court similarly rejected plaintiff's argument that Virginia's compulsory attendance statute created an affirmative duty on the school to protect her.

The Eighth Circuit considered the question in Dorothy J. v. Little Rock School District. In Dorothy J., a mentally disabled student sexually assaulted another student in the shower. The court held that students do not possess a constitutional right to protection from the violent actions of their fellow students. The Tenth and Seventh Circuits have also evaluated the issue. Both have held that there is no affirmative constitutional duty for a school district to protect students from the actions of third parties while they are attending school.

One exception to this line of cases is the Fifth Circuit's decision in Walton v. Alexander. In Walton, a student who attended the Mississippi School for the Deaf, a 24-hour residential school, alleged that the superintendent failed to protect him from sexual assault by another student. Under these circumstances, the court recognized that a special relationship existed between the government official and the student which created a constitutional right of protection and safety. The court premised this "special relationship" upon the school's 24-hour custody of the student and the fact that the student was dependent on the school for his basic needs. However, while holding that a special relationship existed, the court dismissed the case because the plaintiff failed to prove that the superintendent demonstrated deliberate indifference to the student's constitutional rights.

B. The State-Created Danger Theory

The "state-created danger" theory is another approach to attempting to recover under Section 1983. To recover under the state-created danger theory, a plaintiff must demonstrate (1) his school affirmatively created the danger and (2) the school showed deliberate indifference to the danger it created.

The circumstances where the theory has been recognized arise primarily out of the actions of a police officer. For example, the Ninth Circuit held that a police officer owes an affirmative constitutional duty to protect a woman passenger of a car whose driver was arrested and the car impounded. The officer left the woman passenger stranded in an area with known criminal activity at 2:30 a.m. The court held that under these circumstances the police officer had an affirmative constitutional duty to protect the woman and "afford her some measure of peace and safety."

When suing a school under the theory, a student cannot simply show that the school failed to act to address a known danger. "Liability under the state-created danger theory is predicated upon the state's affirmative acts which work to plaintiffs' detriment and in this context plaintiffs' detriment in terms of exposure to danger."

As part of its Section 1983 analysis, the Supreme Court discussed the state-created danger theory in DeShaney. The Court reasoned that the case before it did not support a cause of action under this theory: "While the state may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him more vulnerable to them. That the state once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had if not acted at all . . ." DeShaney at 1006.

The Fifth Circuit applied this analysis in a school setting in Johnson v. Dallas Independent School District. In Johnson, a student was shot and killed in a public school hallway by a trespasser. The court rejected the student's argument that the school was liable because it had created the danger. The Fifth Circuit explained that for the student to recover under this theory, the student need show: "The environment created by the state actors must be dangerous; they must know it is dangerous; and, to be liable, they must have used their authority to create an opportunity that would not otherwise have existed for the third-parties crime to occur."

To succeed under the state-created danger theory, a student need not prove that he was harmed while in the "custody" of the school. However, he or she must prove that acts of the school district played at least a part in creating a danger from private violence thereby placing the student in a worse position than the student would have otherwise been if the school had not acted at all. If the student can then also show deliberate indifference to the plight of the student who is placed in danger, the school may be liable for violation of the student's constitutional rights. Obviously, those situations involving a school where both these factors are met will be quite rare.

C. Title IX of the Education Amendments of 1972

In the early 1970's, Congress enacted Title IX to address inequities between men's and women's educational programs, particularly athletic opportunities. Title IX provides, in part:

No person in the United States shall, on the basis of sex, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance."

As a practical matter, every public school receives federal assistance of some sort, triggering the possibility of a Title IX claim.

Since Title IX's enactment, aggrieved students have alleged a violation of Title IX, contending that sexual harassment by other students and/or faculty was created by the district. Sexual harassment is considered discrimination under the Act. However, the courts have held that under Title IX, a school is liable only in the event of intentional gender-based discrimination. That is, "discriminatory intent" means that one actually intends to discriminate. A school district's mere failure to act in response to a complaint of sexual harassment by one student to another is insufficient.

The burden of proving intentional, gender-based discrimination by school district officials is very high and actions premised on Title IX are limited to egregious factual circumstances.

II. STATE TORT LIABILITY FOR SCHOOL VIOLENCE

A. Summary of Tort Law in the U.S.

Student-to-student misconduct and violence - ranging from teasing, sexual harassment, misbehavior, and intentional assault is likely the largest source - of tort claims against schools. Students subjected to violence occurring in school often will have the most success in suing a school pursuant to state common law. The courts recognize the schools have a responsibility to protect students from danger, at least to some degree. While not absolute guarantors of safety, schools are expected to protect those students from those dangers which are reasonably foreseeable. Accordingly, districts need to make every effort to provide a reasonably-safe environment and adequate supervision of both students and staff.

School districts have been subject to liability for injuries arising from the criminal acts of students or non-students in a number of circumstances, including where the school failed to: (1) supervise a specific area at school, particularly areas where prior instances of violence have occurred; (2) warn students or faculty about a pre-existing danger, including the violent propensities of a student; and (3) adhere to the school district's own safety policy or state mandated safety practices.

The scope of this duty depends on the circumstances of each case. In addition, each state's case law sets forth what it considers to be the reasonable measures a school must take to protect students from the intentional and even criminal acts of other students and non-students. For example, in Mississippi, a student was sexually abused by another student and alleged that the district was negligent in failing to maintain a safe environment, failed to properly monitor its grounds and buildings, failed to provide negligent supervision and alleged other negligence. The student claimed that two teachers were aware of the other student's threats, yet did nothing. The Mississippi Supreme Court held that trial could go forward and that the district might be liable for failing to "ensure a safe school environment."

The injured student has the burden to establish the school district had a duty to supervise at the time and place of the incident, and that the breach of this duty proximately caused the student's injury. School districts may assert the traditional negligence defenses, such as contributory negligence, assumption of risk, intervening or supervening causation, and often can take advantage of governmental immunity and official immunity.

The state courts offer divergent views of the scope of the duty owed to a student. One California court remarked: "[D]uty is . . . an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection." The courts consider many factors, including the foreseeability of the injury and the funds available to provide security.

While a school does not have a duty to supervise every area on campus at all times and under all circumstances, the existence of prior criminal activity can establish a duty to supervise a particular area at particular times. The frequency, location, and nature and time of prior crimes may determine whether there is a duty to supervise. However, courts have held that evidence of a general increase of violence at a school or at other schools is not admissible for the purpose of establishing a duty to supervise a particular area of school campus. According to this line of cases, only similar crimes in the same location create a duty to supervise a particular area. Other jurisdictions admit more general evidence, even evidence that a school simply happens to be located in an area of high crime.

Some courts have adopted a bright-line rule protecting a school from liability for criminal acts which occur after hours or off-campus. Other jurisdictions include the time and location of the incident as one of many possible elements in determining whether there is a duty owed to students.

Many jurisdictions hold that a student's known dangerous propensities can create a duty to protect other students. As a specific example, in Ferraro v. Board of Education of City of New York, the court concluded that a principal had a duty to warn a substitute teacher of the known dangerousness of a student. Similarly, in Fazzolari v. Portland School District, a student who was raped before school as she approached the school building sued the district for negligence. The court held that the school had a duty to warn its students that a woman delivering newspapers before school hours had been raped on the school's property fifteen days earlier. In contrast, the court in Hall v. Board of Supervisors Southern University, determined that there is no duty to warn of criminal activities on campus where there is "no proof that living on campus increased the hazard above the ordinary."

A number of courts have held that a school district assumes the duty to supervise by adopting safety plans. While some jurisdictions hold that general security measures alone do not create a specific duty to protect a particular student, other courts interpret efforts to inhibit violence on campus as an assumption of a increased duty to supervise. A number of courts consider a schools' failure to follow its own policy as a violation on an assumed duty and, thus, grounds for recovery. However, it appears that the courts will decline to find that liability exists because a school failed to instill a particular safety practice, such as hire police protection, perform routine searches or adopt a "detailed supervisory safety program."

Many courts have held that school districts are not liable for sudden, unexpected violence at school. Some explain that spontaneous violence is simply not foreseeable. Others conclude that a district is not liable because additional security measures would not have prevented the violence. Some jurisdictions shield schools from liability, ruling that the criminal acts of a student or other person constitute an intervening or supervening cause.

B. Tort Liability for School Violence in Minnesota

In Minnesota, the general rule is that educators have a duty to use ordinary care to prevent the misconduct of students under circumstances where such conduct is reasonably foreseeable and could be prevented by the use of ordinary care. However, there is no requirement of supervision of all of the movements of all of the pupils at all times. A teacher is not required to anticipate the hundreds of unexpected student acts which occur daily, or to guard against dangers inherent in rash student acts.

The first case in Minnesota to address the issue, Sheehan v. St. Peter's Catholic School, involved a non-public school. A group of students were left without supervision at a softball field. A group of girls sat on the benches on one side; a group of boys, on the other. The boys began pelting the girls with pebbles. While the girls complained, the boys did not stop. The unfortunate plaintiff lost her sight in one eye. The court held that reasonable supervision likely would have prevented the accident.

A student plaintiff need not prove that a specific accident is foreseeable. For example, in Sheehan, the plaintiff was not required to prove that it was foreseeable that she would receive an eye injury from a thrown pebble. She need only prove that a general danger was foreseeable. It is certainly no stretch of logic that a group of unsupervised students are going to engage in some level of mischief.

In Minnesota, a school district is not responsible for the sudden "rash act" of a student. In one case, a well behaved, academically successful student kicked the knee of a fellow student as a prank. Unfortunately, she turned just as he began his kick and his foot landed on the side of her knee, causing significant injury. While the court recognized that there was a duty to supervise, the court granted the district's motion for summary judgment, noting that there was supervision of the common area where the students were gathered, there was absolutely no history of problems with this student, there was nothing to observe immediately prior to the event that would lead educators to know that they needed to intervene, and that the sudden and unanticipated nature of the event precluded liability.

In Anderson v. Shaughnessy and Independent School District No. 273, et.al, a student bought a splat ball gun at school from another student and brought it with him onto the school bus. He fires a few shots out of the school bus window of which the driver was aware. He instructs the student to put the splat ball gun away. The student complies, putting it in his backpack. The driver gets off of the bus at the same stop as the plaintiff student. He accidentally shoots her in the eye, seconds after the bus pulls away. The court dismissed her claim against the school, holding that a school district's duty to safely transport its students does not extend beyond the point of safe disembarkment.

While the Minnesota Supreme Court has not specifically addressed the liability of a school under similar facts when the object is a gun or a knife, the court likely would employ the same analysis. In Anderson, it was against school policy and illegal for the student to possess the splat ball gun in school. The same would be true of a firearm. The locus of the injury was the deciding factor. There is little question that the court would have allowed the case to go forward if the accident had occurred on the school bus or in the building itself, particularly given that an employee of the school knew that the other student had the gun.

It is interesting to consider Anderson in light of Clark v. Jesuit High School of New Orleans. In Clark, a student alleged that the school was liable for injuries to his eye after another student shot him with an automatic BB pistol. The Louisiana Court of Appeals concluded the school could be liable for injuries resulting in hazardous conditions on its property, but only when the school had actual constructive knowledge. As the school did not know that the student had the gun, there was no constructive knowledge that could be imputed to the school, and there was no liability.

In Minnesota, a school can be liable for misconduct between students during extracurricular activities. In Hamilton Independent School District No. 114, the plaintiff fell on the sidewalk while leaving a school basketball game after a second student, who had been pushed by a third student, collided with her. The court noted that "reasonable supervision might prevent such injuries by interrupting misconduct or deterring it altogether." The court noted that no teachers or school officials were present outside the building when the plaintiff was injured and the other two students involved in the incident had been involved in another incident approximately two weeks earlier at another school basketball game.

In Hamilton, the first student had clearly engaged in an intentional act. While the specific injury might not have been contemplated by the student, once again if the first student had engaged in a more deliberate, violent attack the court would likely analyze the situation as it did when the student's action was likely mere horseplay.

Raleigh v. Independent School District No. 625, involved an action brought by a white student against a school district for injuries sustained when her wrist was slashed and her purse stolen at a school-sponsored showing of a documentary film. The students were required to attend the showing off of school premises. The film was a documentary relating to Martin Luther King Jr. At the time, significant racial tension existed between the high school plaintiff attended and other schools, and the film itself contained scenes of racial violence. At the end of the movie, plaintiff began to exit the theater, felt herself being pushed from one side, and saw blood on her hand. She observed the hand of a black person grab her purse. It is not reported whether the attacker was a student or not, and the identity of the attacker was never learned.

In affirming a judgment in favor of the plaintiff, the Supreme Court indicated that it was not expanding the rule set forth in Sheehan, reiterating that although the school district might not be liable for the sudden, unanticipated acts of fellow students, it is liable for sudden, foreseeable misconduct of fellow students which probably could have been prevented by the exercise of ordinary care.

The Minnesota appellate courts will allow a student who has been attacked by a non-student trespasser to sue a school for negligence. In S.W. v. Spring Lake Park School Dist. No. 16, a student brought a personal injury action against her school after she was sexually assaulted by an intruder in the school's pool locker room. She alleged that the school district failed to provide adequate supervision, protection and security, and failed to enact or enforce appropriate security policies. The court held that absent implementation of a specific policy or guideline, a school employee's reaction to a foreseeable threat of a non-student on school premises deserves official immunity from suit. But the school itself is not entitled to vicarious official immunity. The case subsequently settled.

III. POTENTIAL SCHOOL DISTRICT LIABILITY STEMMING FROM EFFORTS TO PREVENT VIOLENCE

School districts have tried a variety of methods in attempts to reduce violence occurring in their schools. These include creating and implementing security policies, searches of students and student property, training of staff, topic specific education of students and student discipline. The specific content of security plans and procedures, and specific actions taken by school officials when confronted with a security problem are beyond the scope of these materials. Similarly, the discipline of problematic students is controlled by local law and will also not be addressed here.

A. Search and Seizure Limitations

"If we wonder why our schools are going to hell in a handbasket, it's probably because of decisions like this one."

Of the methods used by schools to control violence, student searches perhaps raise the thorniest legal issues. The Fourth Amendment controls how far public school district officials can go in conducting school searches.

The leading case on this issue is New Jersey v. T.L.O. In T.L.O., the United States Supreme Court held that the warrant and probable cause requirements applicable to police searches, do not apply to searches conducted by school personnel. However, a school search must be:

1) "justified at its inception" and based on reasonable grounds for believing that the search will reveal evidence of a violation of law or school rules, and

2) "reasonably related in scope to the circumstances that justified interference in the first place."

Id. at 342.

In T.L.O., a student was found smoking in the high school bathroom in violation of school rules. When taken to the assistant vice-principal's office she denied the allegation, asserting that she did not smoke. The assistant vice-principal opened her purse and found a pack of cigarettes, together with rolling papers, marijuana, a pipe, plastic bags, a large sum of money, a list of students who owed T.L.O. money and two letters clearly demonstrating that she dealt in marijuana. She was arrested on drug charges. She claimed that the contents of her purse should be excluded as evidence, arguing that it was found only after an unreasonable search and seizure.

The Court concluded that public school searches are subject to the Fourth Amendment. However, the T.L.O. Court created an exception to the general requirement of a warrant and probable cause, holding that the Fourth Amendment requirement of reasonableness is met by a school authority as long as there is ". . . 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 objective of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

The Court decided that the evidence of the drug possession was admissible against T.L.O. The Court reasoned that the search was both reasonable in inception and reasonable in scope. It offered guidelines for school searches, directing school officials to consider "the child's age, history, and school record, the prevalence and seriousness of the problem in the school to which the search was directed, the exigency to make the search without delay, and the probative value and reliability of the information used as a justification for this search."

Following T.L.O., courts have upheld most searches conducted by school personnel. However, in each case in which the search was upheld, the school officials were able to satisfy the first prong of T.L.O. by clearly articulating the law or the school rule that was believed to have been violated and were also able to provide specific information and circumstances that would lead a reasonable person to conclude that the search would result in the discovery of behavior or items which were either illegal or in violation of school policy. The case law makes clear that school searches may not be based upon guess or a hunch. The information must be recent, credible and there must be a nexus between the alleged violation and the student.

The second prong, that the search be reasonable in its scope, requires that the search be designed to disclose the evidence sought and is appropriate in light of the claimed violation. For example, if there is reasonable information that a student brought a rifle to school, it would be appropriate to search his locker, but not his wallet. A student believed to have taken a lunch ticket worth perhaps a couple of dollars may not be subjected to the indignities of a strip search.

Examples of searches held to be reasonable include a request by a school dance monitor who asks students to accompany her to a private office and blow on her face after she saw that they were inebriated, in violation of school policy. In matter of Gregory M., a security guard rubbed his hand along a student's bag to feel for a gun after he heard an unusual "thud" when the student threw his bag onto a metal cabinet. Upon receiving a report from a student that another student possessed illegal drugs, the school searched the student's book bag. The school administrator also had knowledge that the student had been previously disciplined for possession of a controlled substance. The court found the search reasonable.

As the intrusiveness of the search intensifies, what passes for "justified in its inception" will approach probable cause. For example, in Cales v. Howell Public Schools, a student exhibited only suspicious behavior by ducking behind a car in the school parking lot and giving a false name to the school security guard. The school conducted a strip search for drugs. The court held the search invalid as there was no evidence of drugs or any specific rule or law had been violated by the student so as to justify the search.

A particularly egregious case involved the strip search of an entire class in an attempt to locate $3.00 believed to have been stolen. Even though there was no question that the thief had to be someone in the room, the search was held invalid as there was no individualized suspicion regarding a particular student. Most interestingly, the $3.00 were never found.

Evidence found in an unlawful school search can be suppressed in a subsequent criminal proceeding under the exclusionary rule. However, at least one court has held that the rule is inapplicable to school disciplinary proceedings.

B. Specific Search and Seizure Methods

When analyzing the appropriateness of a specific search the courts, in essence, balance the student's legitimate privacy interest against the legitimate need for school officials to maintain order, discipline and safety. As a school administrator, the question boils down to whether the need for the search is great enough to outweigh the possible violation of a student's privacy and other rights. As a school official, if you do not believe you could convince an independent third party that the search was necessary under the circumstances, do not do the search. A school search found by a court to violate of the Fourth Amendment could expose the school to liability under 42 U.S.C. § 1983.

C. Strip Searches

While the courts have been willing to reject a student's claim of Fourth Amendment violations for strip searches to detect illicit drugs or highly dangerous items, the most prudent advice to school officials is to not conduct a strip search under any circumstances. Law enforcement authorities are always available and should be called whenever a school has reasonable suspicion that a serious crime has been committed. However, once law enforcement officers are involved, the more likely the probable cause standard applicable to the police will have to be met for a search.

D. Searches of Student Lockers

A school locker is the property of the school. Thus, many courts have held that schools have a right to search them as part of their right to control their property. Under this reasoning, the courts do not even necessarily consider an inspection of a student's locker to be a "search" as contemplated by the Fourth Amendment. In these cases, school officials do not even need reasonable suspicion to institute the search.

Even if a school search of a student's locker is appropriate, this does not extend to suspicionless searches of purses, book bags, jackets, or other private belongings of a student contained within the locker. The student retains an expectation of privacy with respect to these items. Accordingly, they may be searched only if there is reasonable suspicion to justify a search of the particular piece of property belonging to the student.

In New Jersey v. T.L.O., the Supreme Court explicitly stated its holding was limited to the search of a student's personal belongings, and it was not expressing an opinion as to a student's legitimate expectation of privacy in school-owned property such as student desks and lockers. However, some states have recognized that students do have a reasonable expectation of privacy as to their school lockers and searches of lockers cannot be unreasonable.

Some have specifically articulated when searches are appropriate. For example, in State v. Engerud the New Jersey Supreme Court held that a student has an expectation of privacy in his locker in the absence of a school policy of regularly-inspecting lockers. The California Supreme Court held that indiscriminate searches of lockers are impermissible, explaining that students have "the highest privacy interest" in their person, belongings and "physical enclaves."

Under Minnesota law, school lockers are the property of the school district. School officials in Minnesota may search a school locker for any reason, at any time, without notice, without student consent and without a search warrant. Personal possessions within the school locker may be searched only when school authorities have a reasonable suspicion that the search will uncover evidence of a violation of school rules or the law. As soon as practicable after the search of a student's personal possessions, the school must provide notice of the search unless the notice itself would impede an ongoing investigation by school officers or by the police.

The statute includes specific policy language which must be distributed to students and parents in whatever manner the school otherwise uses to distribute information regarding school policies and expectations. In addition, this policy language must be provided to the student the first time the student is given use of the locker. Note that while desks are school property and an argument can be made that they are similar to lockers, the statute does not include desks. Thus, it is prudent to treat desks like a purse or other student property.

Even if your state permits locker searches without a showing of reasonableness, it is wise for the school to have a policy setting forth the school's right to control and search lockers. The policy needs to be distributed to both students and parents. This will assist the school in legitimizing a search if the search is challenged; it is difficult for a student to argue that he had a reasonable expectation of privacy if he knows that his locker is subject to search at any time. However, this rationale can be applied only to school property such as lockers and desks. Merely announcing that students would be subject to suspicionless searches is not going to legitimize the search of a student's body, wallet, purse or backpack in the eyes of the court.

E. Use of Metal Detectors

There are relatively few cases which address the use of metal detectors in school. The first was People v. Pruitt. In Pruitt, The court analyzed the Chicago Public Schools' use of random metal detector searches. A student entering the school tripped the detector. A police officer's pat-down revealed the gun. The court ruled the school did not need individualized suspicion to justify the use of metal detectors, recognizing that schools need only have "reasonable suspicion" to conduct student searches. The limited nature of the search and the reality of school violence satisfied the court that the reasonable suspicion standard had been met.

In People v. Dukes, the courts considered the use of metal detectors by the Washington Irving High School in Manhattan. According to school records, over 2,000 weapons had been confiscated in the school system during the 1990/91 school year. The school arranged for a police unit to set up "scanning posts" at the school entrance and to search students using hand-held metal detectors. Either all students entering the school were searched or a limited number were searched based on a random formula (such as every 5th student). The school had previously notified students that searches would occur but did not indicate when. However, on the day of the search, signs were posted notifying students. The court held that this search procedure was constitutional and evidence of a switchblade found in the bag of a female student by a female police officer was admissible against that student.

In a Michigan decision, Bradley v. Milliken upheld the school's policy stating that metal detectors would be used only when the school had reasonable suspicion to believe that unidentified students possessed weapons, that there had been a pattern of finding weapons at school, or violence involving weapons had occurred at the school. The court also noted with approval that students were notified in advance of a search and that the metal detector need be activated three times before a personal search was conducted.

F. Dog "Sniff" Searches

Many school districts have used dogs to sniff out drugs and/or explosives. Dogs are mobile detectors and can be brought to any person or area where drugs are suspected. However, there are constitutional limitations as to the degree to which students can be subjected to a sniffing canine.

The courts have upheld as constitutional "general searches" of the area outside of student lockers and adjacent to student cars. The rationale is that a person does not have a reasonable expectation of privacy in the air surrounding an inanimate object located in a public place. That is, under these circumstances the court does not consider a dog's sniff a search. However, although the dog may readily sniff round lockers without cause, a specific locker cannot be opened and searched unless the dog is shown to be "reasonably reliable" in indicating the presence of drugs.

However, a sniff of a particular student is a search. Such a search is constitutionally unreasonable unless based upon individualized suspicion of the person to be searched. This suspicion must meet the standard of "reasonable cause." The distinction is that while there is not a reasonable expectation of privacy "in the air" around one's car or locker, an individual does have an expectation of privacy in his "personal space." This space can be unconstitutionally invaded by a sniffing canine.

Interestingly, however, at least one court has allowed such a search if the sniffer in question is human. In Burnham v. West the court held that school children do not have a reasonable expectation of privacy in the air about them and that school officials may "sample" this air by sniffing the student's hands to determine if they smelled of marijuana.

CONCLUSION

Schools are subject to the possibility of post-violence lawsuits and claims based on the school's failure to adopt security and discipline policies. They also face the possibility of being sued for their acts in enforcing their violence policies. Accordingly, each school must careful review its existing policies and procedures - in light of both state and federal law - and make every effort to prevent violence while simultaneously respecting the rights of its students and staff.

 
This article was authored by Ehrich Koch. For more information about this subject or for help in other education related issues, contact Ehrich Koch at 612-336-9306 or ehrich@lommen.com. You should consult legal counsel before making any attempt to apply the law or any information offered above to your own specific situation. Factual differences may result in substantial differences in the application of education laws and each state has its own laws.