Reappraising T.L.O.'s Special Needs Doctrine in an Era of School-Law Enforcement Entanglement

Abstract

This essay presents one doctrinal method for lawyers to defend children accused of criminal charges in juvenile or adult court: attacking the applicability of the twenty-year old case, New Jersey v. T.L.O., to most school searches. T.L.O. based its application of a lower standard for searches of students by school officials on the presumption that firm gates separate public school from law enforcement and criminal justice institutions. Later administrative search cases inside and outside of the school context show that tee lower standard of T.L.O. depends entirely on programmatic purposes that distinguish school systems and ordinary law enforcement. Porous schoolhouse gates have allowed schools and law enforcement to become increasingly entangled: police are stationed full time in schools, state and local governments have set policies that require schools to turn children over to law enforcement, states have criminalized school-specific conduct, school actions can lead to juvenile court consequences, and juvenile courts routinely share information with schools. This entanglement makes T.L.O. inapplicable in schools that are so entangled. The government should choose - either it can search students using a lower standard and prevent such searches from leading to law enforcement action or it can guarantee students the same civil rights in school that they have on the street.