School Children and Parolees: Not So Special Anymore

40 Pages Posted: 17 Jan 2011 Last revised: 25 Jan 2013

Date Written: September 30, 2010


The Fourth Amendment special needs exception may be one of the Court’s most puzzling doctrines. Since its origin, the Court has struggled to define its limits and its place in the Court’s suspicionless search and seizure jurisprudence. At times the Court has suggested that the exception is the only route to upholding a search or seizure in the absence of individualized suspicion, while at other times it has stated that it is just one of a limited number of exceptions to the requirement of individualized suspicion. Historically, while the application of the special needs exception has been unpredictable, one thing was clear: once the Court found a “special need,” the search in question was upheld.

More recently, the Court has struck down several suspicionless search schemes because, in the Court’s view, they were implemented with the primary purpose of ordinary crime control. However, just as some limits have appeared to rein in suspicionless and/or special needs searches, the Court seems ready to jettison the exception in favor of what it refers to as “a general Fourth Amendment analysis.”

This Article, written as part of the National Center for Justice and the Rule of Law annual Fourth Amendment symposium on Children and the Fourth Amendment, analyzes the current state of the special needs exception created in New Jersey v. T.L.O. The Article begins with a detailed discussion of the Court’s suspicionless search jurisprudence and explains how T.L.O., and specifically Justice Blackmun’s concurrence, shaped the Court’s jurisprudence. The Article then reviews two recent parolee/probationer cases as well as the Court’s most recent school search case, Safford Unified School District No. 1 v. Redding, and argues that these cases suggest that after decades of ambiguity, confusion, and even explicit contradiction, the Court appears to have given up in its attempts to define the special needs exception and instead has turned to the even less well defined “general Fourth Amendment analysis” to analyze suspicionless searches and seizures. Most troubling, the Court may have done so as a means to avoid the few limits, particularly the “primary purpose” test, recently imposed on special needs searches. The Article warns that while civil libertarians used to, and still do, lament the “standardlessness” and permissiveness of the special needs exception, they may be wishing for the good old days once they see where the “general Fourth Amendment analysis” path leads.

Suggested Citation

Butterfoss, Edwin, School Children and Parolees: Not So Special Anymore (September 30, 2010). Mississippi Law Journal, Vol. 80, no. 3, p. 805, 2011, Available at SSRN:

Edwin Butterfoss (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave.
Saint Paul, MN MN 55105
United States
65152906393 (Phone)

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