65 Pages Posted: 9 Jul 2011 Last revised: 21 Sep 2015
Date Written: July 7, 2011
This Article provides a legal, empirical, and normative analysis of an intrusive search practice used by schools officials to prevent school crime: random, suspicionless searches of students’ belongings. First, it argues that these searches are not permitted under the Fourth Amendment unless schools have particularized evidence of a substance abuse or weapons problem. Second, it provides a normative evaluation of strict security measures in schools, especially when they are applied disproportionately to minority students. Third, drawing on recent restricted data from the U.S. Department of Education’s School Survey on Crime and Safety, this Article provides empirical findings that raise concerns that some public schools may be conducting unconstitutional searches of students’ belongings. In addition, it shows that these potentially unconstitutional searches are more likely to take place in schools with higher minority populations than in schools with lower minority populations, even after taking into account school officials' perceptions of the levels of crime where students live and where the school is located. Finally, this Article argues that the Supreme Court should resolve any ambiguity in its jurisprudence by expressly requiring school officials to have particularized, objective evidence of a substance abuse or weapons problem before permitting schools to perform these intrusive searches.
Keywords: Education Law, Civil Rights, Fourth Amendment, Constitutional Law, School Law, Public Schools, Search and Seizure, Suspicionless Searches
JEL Classification: I28, K30
Suggested Citation: Suggested Citation
Nance, Jason P., Random, Suspicionless Searches of Students’ Belongings: A Legal, Empirical, and Normative Analysis (July 7, 2011). 84 University of Colorado Law Review 367 (2013). Available at SSRN: https://ssrn.com/abstract=1881345 or http://dx.doi.org/10.2139/ssrn.1881345