Reevaluating School Searches Following School-to-Prison Pipeline Reforms

64 Pages Posted: 27 Sep 2018

See all articles by Josh Gupta-Kagan

Josh Gupta-Kagan

University of South Carolina School of Law

Date Written: September 8, 2018

Abstract

The Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue ruled in the 1990s and 2000s that T.L.O. applied to SRO-involved searches, likening SROs to school officials and drawing a line between SROs and other police officers.

Reforms largely enacted in the 2010s, in contrast, draw a line between school officials and SROs, emphasizing that SROs are law enforcement officers, not school disciplinarians. Reflecting the consensus that law enforcement responses to school misbehavior harm children, these reforms limit SRO involvement to more serious crimes or immediate safety risks.

This Article explores how these recent reforms undermine earlier cases applying T.L.O. to SROs. These recent reforms place SROs on the law enforcement side of the “special needs” line. That conclusion also shows how searches conducted under policies requiring schools to turn over evidence of criminal activity to law enforcement transform the character of searches conducted by school officials into law enforcement searches. Finally, this Article will offer a doctrinal path to permitting warrantless school searches in narrower circumstances, thus letting authorities respond to risk of deadly weapons at schools while limiting the risk that reduced Fourth Amendment standards will contribute to the school-to-prison pipeline.

Keywords: Fourth Amendment, School Searches, Special Needs Searches, School Resource Officers

Suggested Citation

Gupta-Kagan, Josh, Reevaluating School Searches Following School-to-Prison Pipeline Reforms (September 8, 2018). Fordham Law Review, Vol. 87, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3246168

Josh Gupta-Kagan (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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