In his article “The development of search and seizure law in public schools” Bill Heder (1999) focused his attention on how the Fourth Amendment impacted the current thinking in the education sector that is in favor of searching school children’s locker, bags and other equipment for illegal drugs and other substances that may or may not be used in a school environment. Heder (1999) defends his choice of focus when he writes “This narrow focus stems from the idea that in the context of public education’s goals and limitations the issue of search and seizure among students may indicate a crippling of public education’s posture, and doubts about its future contribution to society” (Heder, 1999, p. 72).
Heder (1999) believes that recent court cases where the legitimacy of the search and seizure issues has been questioned reflect a growing change in societal thinking about the rights of children as individuals.One of the key issues identified by Heder (1999) in this problem is the interpretation of the Fourth Amendment with regard to the meaning of the terms “government” and “unreasonable”. He points out that if a father searches the room of his child, in their own house then the search is not considered in breach of the individual rights to privacy owed to the child under the Fourth Amendment.
But if this same search was conducted by police or teachers for example, then because these people would be acting as government agents then the search would have to be considered illegal and a breach of Fourth Amendment rights unless a search warrant had been provided.Heder (1999) uses court case history to illustrate some of the anomalies of the law under the Fourth Amendment interpretation. For example he analyzes the case of Katz v. The United States (1967) as to what could be considered a “government search”. In the Katz case information was gleaned about the defendant’s gambling activities through a bugged public telephone booth. The electronic listening device allowed the Federal Agents to listen to Katz’s side of the telephone conversation without entering the telephone booth. The issue for the courts was whether or not a public telephone box could potentially offer a reasonable level of privacy to the user, meaning the bugging device would be illegal, and whether or not the fact that the FBI agents were outside the booth made a difference in the Fourth Amendment’s policy of search and seizure.
In this case the courts ruled that the phone box itself was not an issue because it was a place not a person, and that the information received through the electronic bugging of the phone conversations was not obtained legally because despite the FBI’s assurance that they would have been issued a warrant for their activities, one was not sought or issued and therefore the defendant had a right to privacy. Because the FBI were government agents they needed a warrant to collect the phone information as stated under the Fourth Amendment.Heder (1999) then goes on to explain that under the Fourth Amendment schools personal including school administrators were classified as government agents under the law. Therefore, as Heder shows, if we go back to the earlier example where a father searches his child’s room and is not in violation of the Fourth Amendment, this same protection would be offered to a father that searched his child’s school locker, unless the father was an employee of the school board or school administration. While the law allows for children to have an expectation of privacy at school, the courts have determined that this same expectation between a parent and child is unreasonable.
The next part of Heder’s (1999) argument centered around the definition of what is considered a government actor in schools, what is considered the legal definition of a public school and what expectations a student might have of privacy under the Fourth Amendment. He cites the Barnette case where Jehovah Witnesses were expelled from a school for failing to show respect to the American Flag and raised the issue of religious protection for students in school under the Fourth Amendment. Heder (1999) also noted instances where a variety of amendment rights were discussed in court cases in relation to a child’s right at school including not only a discussion on the Fourth Amendment, but also the Fifth, Sixth and Eighth Amendments. The author quoted information from a variety of court cases including Tinkey v.
Des Moines Independent Community School District (1969), Goss v. Lopez (Supreme Court, 1975) and New Jersey v. T.L.O.
(1980). The conclusion of this analysis was that there were a set of different elements that would have to be applied to each case individually including the students expectation of privacy, the special needs of the school environment, the existing warrant and probable cause requirements and the position of the school as “in loco parentis”.There is denying that drugs are prolific in many urban school areas, and that schools do have some responsibility in identifying the students using, selling or manufacturing drugs. There should also be a reasonable expectation from non-drug using students that they be provided with a drug free environment. The main basis for confusion in the search and seizure procedures in school revolve more around the methodology that is employed rather than whether the actions are morally or ethically correct. Heder makes the point that schools have already had to make changes to policies concerning the bringing of weapons to school and the use of metal detectors on all students to ensure the safety of those who attend the educational institution.From Heder’s (1999) viewpoint is this established policy any different from conducting random searches of the children, their bags and lockers in an effort to provide a drug free environment? In his conclusion he writes, “The factors that a parent must weigh in deciding whether or not to enroll or leave their child in a public school vary for each parent and each child…in that context, search and seizure law…merely supplies a measure of public priorities.
It marks the personal intrusions we will tolerate in the interests of security,” (Heder, 1999, p.93) and in this statement he makes a valid point. One would assume that most parents would far rather have their own child in a school environment that is working to keep them safe, but as Heder (1999) comments, the education budget is a limited resource and for many schools having a preoccupation with security can mean a decline in intellectual pursuits, which does not bode well for the future of public school education in America.