Criminal Justice Section  


Criminal Justice Magazine
Winter 2005
Volume 19 Number 4

William W. Greenhalgh

Complexity of School-Police Relationships Challenge “Special Needs” Doctrine

By Josh Kagan

Josh Kagan, a 2004 graduate of New York University Law School, is the winner of the 2004 William W. Greenhalgh Student Writing Competition, sponsored by the ABA’s Criminal Justice Section. He is clerking for the Hon. Marsha S. Berzon on the U.S. Court of Appeals for the Ninth Circuit. Kagan was awarded a $2,000 cash prize plus a free year’s membership in the Section. The winning entry was selected by a subcommittee of the magazine’s editorial board. For information on the 2005 contest, visit the Section Web site at and click on the “Law Student” tab.

On November 5, 2003, concern regarding suspected drug activity led to a massive police search of Stratford High School in the Berkeley School District, north of Charleston, South Carolina. (See Police, School District Defend Drug Raid, available at Fourteen police officers assumed strategic positions inside and outside the school. Accompanied by a drug-sniffing dog, officers, some with guns drawn, secured a school hallway and ordered more than 100 students to get on their knees and face the wall, handcuffing at least 12 who failed to immediately obey the police orders. Alerted by the dog, police physically searched students, but turned up no drugs. This incident illustrates issues raised by countless other school searches that are the result of formal communication and cooperation between schools and police departments.
It is evident that the ever more complex relationship between schools and law enforcement requires revision to the doctrine announced in the 1985 Supreme Court decision in New Jersey v. T.L.O., 469 U.S. 325 (1985), allowing searches of students at school based on a reasonable suspicion of a violation of a law or a school rule. Developments since then undermine the basic assumption of that holding—that schools and law enforcement are fully separate institutions. Increased police presence in schools, formalized school and state policies requiring schools to routinely share information with the courts, and other developments should motivate lawyers to demand a reexamination of T.L.O. This essay argues that recent changes in security and discipline practices in public schools require modifications to the “special needs” doctrine regarding searches and seizures in schools, and it presents an argument that lawyers for children in juvenile or adult criminal court proceedings should challenge that doctrine.

“Special needs” depends on programmatic purpose
Two points from T.L.O. bear emphasis here. First, the Court left unanswered key questions regarding modern school security practice, leaving open possibilities for children’s lawyers. The Court explicitly avoided consideration of the proper standard for school searches involving police officers and did not consider the impact of school policies requiring notification of law enforcement officials of evidence of criminal activities. This issue becomes more pressing when one reads Justice Lewis F. Powell’s concurrence, joined by Justice Sandra Day O’Connor, which represents the views of two of the six Justices who announced the reasonable suspicion standard. Powell based his opinion, in part, on the notion that school officials have no “obligation to be familiar with the criminal laws” and instead should focus on teaching.
Second, T.L.O. views schools as fundamentally separate from wider society, especially law enforcement systems. The Court spoke at length about the “flexibility” required by the necessity of “maintaining security and order in the schools.” Justice Powell cited the schoolhouse gates metaphor in Tinker v. Des Moines Independent School District (393 U.S. 503, 506 (1969)), to draw a sharp distinction between the school setting and law enforcement purposes: “Law enforcement officers function as adversaries of criminal suspects. . . . Rarely does this type of adversarial relationship exist between school authorities and pupils.” Regardless of the accuracy of Powell’s statement in 1985, subsequent changes blur the line between school officials and law enforcement and undermine the holding in T.L.O.
Two recent cases—Indianapolis v. Edmond, 531 U.S. 32 (2000) and Ferguson v. Charleston, 532 U.S. 67 (2001)—made clear that the viability of any administrative search standard depends on a programmatic purpose that separates that search from “the general interest in crime control.” Edmond, voiding a traffic checkpoint program designed to catch drug couriers, called for inquiries to determine the primary programmatic purpose of the state’s policy, explaining “that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers.” In Ferguson, the Court struck down Charleston’s drug-testing program of pregnant women because its purpose and implication involved “excessive entanglement” with law enforcement. Particularly troublesome was that the city designed the program to preserve evidence for use in a criminal trial and that positive drug test led automatically to arrest.
Recent school drug test cases bolster the conclusion that lower scrutiny applied to school searches depends on their separation from criminal or juvenile court sanctions. Even though these cases increased state power at the expense of children’s privacy, the Court’s reasoning depends on schools’ refusal to allow information discovered in drug tests to lead to law enforcement consequences. In Board of Education v. Earls, 536 U.S. 822 (2002), the Court repeatedly noted that the school’s policy of testing students involved in extracurricular activities did not lead to any law enforcement consequences. This conclusion built on similar reasoning in Vernonia School District v. Acton, 515 U.S. 646 (1995), which upheld a school policy requiring suspicionless drug testing of all student athletes in which the school limited consequences of positive test results to suspension from interscholastic sports. The school convinced the Court that the policy’s “distinctly nonpunitive” purpose distinguished it from searches designed to produce evidence for court proceedings.

Closer ties between schools and police
America’s public schools look far different today than when the Supreme Court decided T.L.O. in 1985. The most important developments include the increased presence of police officers, and state and school policies requiring schools to share information related to potential crimes with police departments. Other developments amplify the impact of these changes: state laws criminalizing particular behavior at schools, the role school infractions can have in sparking a contempt finding of a child on probation with the juvenile court, and the sharing of confidential information regarding juvenile court proceedings with schools officials.

Increasing use of police officers in schools
Unlike T.L.O., courts can no longer ignore the issue of what standard to apply to school searches involving police officers because police officers have become regular fixtures in many schools. The federal government has funded school district police hiring at least since the Safe Schools Act of 1994. (See Jacqueline A. Stefkovich & Judith A. Miller, Law Enforcement Officers in Public Schools: Student Citizens in Safe Havens?, 1999 B.Y.U. EDUC. & L.J. 25 (1999).) By 1994, more than 2,000 police officers nationwide were on the school beat in hallways, cafeterias, and classrooms. (Jessica Portner, Cops on Campus, 13 EDUC. WK., June 22, 1994 at 26, 30.) More recently, the federal Department of Justice Community Oriented Policing Services (COPS) Program ( has spent $700 million to help local municipalities hire, train, and equip school police officers through its “Secure Our Schools” program. These grants have funded school police officers in communities large and small.
The Stratford raid displays the increased role of police in South Carolina public schools. The local police department stations two police officers at the school full-time. As the Stratford High School principal himself noted, the mere presence of police at school matters significantly: “[O]nce police are on campus, they are in charge.” (Tamar Lewin, Raid at High School Leads to Racial Divide, Not Drugs, N.Y. TIMES, December 9, 2003, at A20.)

Official policy wed schools and law enforcement
Both Edmond and Ferguson instruct lower courts to analyze the intent on a programmatic level. State and school district statutes and regulations show routine connections between schools and law enforcement agencies, indicating both a general law enforcement purpose and greater degree of intrusiveness of resulting searches. Turning school disciplinary incidents into criminal investigations and delinquency or criminal charges is now a matter of formal policy and routine.
The Stratford raid displays the increased coordination between police and schools. South Carolina law conflates the jobs of police officers and school officials. State law defines the duty of school police as “act[ing] as a law enforcement officer, advisor, and teacher.” (S.C. CODE ANN. § 5-7-12(B).) Regardless of their job description, these officers are involved whenever a school crime is suspected; state law requires school officials who suspect criminal activity to report this suspicion to police. (S.C. CODE ANN. § 59-24-60.) The South Carolina legislature enacted this statute in 1990, five years after T.L.O. The following year, the Berkeley School District (, which includes Stratford High School, implemented it by requiring school administrators to contact law enforcement on “notice” of a broad list of crimes, including assault (without specifying how severe an assault must be), possession of dangerous weapons, and possession of controlled substances.

Other developments connect schools and police
At least 31 states have criminalized school-specific conduct. (State of the States, EDUC. WK., January 8, 2004, at 114.) Such laws, coupled with school crime reporting requirements outlined above, nearly ensure that any child caught with a weapon or drugs at school will soon be involved with law enforcement. Similar laws exist in South Carolina, which penalizes distribution of narcotics in the proximity of a school in a much harsher manner than other drugs. In T.L.O., the school principal found marijuana and indications of selling marijuana. Had the student in T.L.O. been of age under state law, South Carolina’s statute would condemn her to double the sentence she could have faced if she were caught outside of school.
And, to the extent conditions of behavior at school are elements of a probation order, increasing the amount of data released by schools to juvenile courts heightens the possibilities that judges will identify factors that can lead to contempt proceedings, a common result for children in the juvenile court system.
Finally, states now require juvenile courts to share confidential records with public school officials, often leading to school disciplinary penalties. (Kristin Henning, Eroding Confidentiality in Delinquency Proceedings: Should Schools and Public Housing Authorities Be Notified?, 79 N.Y.U. L. REV. 520 (2004).) South Carolina law requires juvenile courts to notify school principals regarding dispositions of all delinquency cases regarding crimes involving violence, weapons, drug distribution, or certain crimes committed on school grounds, and the school must maintain this information in the student’s disciplinary record. (S.C. CODE ANN. § 20-7-8510(E).)

Do school violence and drugs warrant flexibility?
These trends exist in context, of course: Schools face significant amounts of crime, often severe, violent crime. Effectively addressing these trends to provide a safe and secure learning environment is undoubtedly a crucial objective of public school systems.
Prosecutors might argue that the more schools are beset by crime, the easier it is for schools to search students without probable cause. This argument fails for several reasons. First and foremost, it entirely ignores the Supreme Court’s special needs doctrine case law. Second, we ought to be wary of turning schools into police states because of the message it sends to children regarding their places in society. If society is so greatly concerned with school security as to require the security apparatus that post-T.L.O. developments represent, then legal doctrines should protect children from abuses of this apparatus.
The argument on behalf of school searches without probable cause would be stronger if such searches were not so closely tied to law enforcement. If, for instance, a school sets a policy of searching students for reasonable suspicion only, but refused to turn evidence gathered in such searches over to law enforcement, then such a policy would fit more closely in line with Supreme Court precedent. Schools have a wide variety of disciplinary options available that do not involve using the juvenile justice system. (See Michael Pinard, From the Classroom to the Courtroom: Reassessing Fourth Amendment Standards in Public School Searches Involving Law Enforcement Authorities, 45 ARIZ. L. REV. 1067, (2003).)
Additionally, schools could still protect students from actual emergencies. A school or law enforcement official could still use Terry stops and frisks if there is reasonable suspicion that a student might have a weapon that poses a danger to the official.

Post-T.L.O. developments and school searches
Recent case law failures. Juvenile court cases that have addressed this issue fail to grasp the importance of increased coordination between schools and law enforcement. Instead, to determine the applicability of T.L.O., courts have sought overly formalistic distinctions based on the level of law enforcement involvement in a particular search, ignoring policywide or programmatic intent, and creating a difficult, fact-specific inquiry for trial courts to apply. A New York Family Court judge in In re Ana E., No. D-10378/01, 2002 WL 264325, 2002 N.Y. slip op. 40018 (U) (N.Y. Fam. Ct. (Jan. 14, 2002) crafted distinctions between searches initiated by police and by school officials. The court’s focus on individual searches failed to consider the purpose of the overall policy of searches performed in schools involving police officers. Illinois courts have gone a step beyond Ana E. and, in People v. Dilworth, 661 N.E.2d 310, 317 (Ill. 1996), applied a reasonable suspicion standard to searches initiated by the police officer. This analysis ignores systemic factors indicative of programmatic intent. A lower Illinois court extended this rule in People v. Pruitt, 662 N.E.2d 540 (Ill. App. 1996), holding that even though a police officer’s primary purpose for being stationed at school was to prevent criminal activity, searches he performed triggered a reasonable suspicion rather than probable cause analysis. The court’s conclusion is even more flawed: The court acknowledged a law enforcement concern as the officer’s “primary purpose” yet failed to recognize the implications of such a purpose for the application of the special needs doctrine.

Applying the administrative search test
A better approach would ask whether a given school or school district’s policies and programs are so entangled with law enforcement as to make T.L.O. inapplicable, thus applying one standard—reasonable suspicion or probable cause—to all searches within each school. Applying tests from administrative search cases to developments in school-law enforcement interdependence, this section provides a fuller analysis of post-T.L.O. school searches. It lays out two arguments, either of which could be adopted by state or federal courts. First, courts should no longer consider many school searches under the special needs framework because their purpose is too closely aligned with general law enforcement goals. Second, even if school searches may be considered administrative searches, increased school-law enforcement cooperation increases the level of intrusiveness that they cause and thus make the search more likely to be unreasonable.

Prong One
Are school searches special needs administrative searches or general law enforcement searches? School-law enforcement cooperation has blended the purposes of general law enforcement and maintaining a safe school environment. This conclusion is particularly strong when one considers the Stratford High School raid: The raid was performed by police officers, raising an issue that T.L.O. did not address. Police officers are permanently stationed in Stratford High School and, along with security cameras, keep close watch for any illegal activity by students. Whenever “notice” of such activity exists, those police officers are directly involved or, as with the raid in question, school officials are obligated by state law and school district policy under threat of civil liability to report suspicions to the police. Expanding criminalization of activity at school and broad lists of crimes under school policy ensure that school officials will have no shortage of crimes to support. These contacts are reciprocated by juvenile court ties to schools, and contacts in both directions have significant effects on children in both institutions. The sum of all these contacts is that efforts to maintain a safe learning environment are indistinguishable from general law enforcement efforts. Those law enforcement aims—measured as a matter of policywide intent and routine practice—should prevent any court from applying T.L.O. to the Stratford High School raid. More broadly, it should also prevent any court from applying T.L.O. to any school search performed in the shadow of such close routine programmatic ties between schools and law enforcement.
School officials could still take advantage of the reasonable suspicion standard of T.L.O. if they search students outside of any policy mandating that the official turn over any incriminating evidence to law enforcement. Distinguishing such a case from situations where T.L.O. is not applicable primarily relates to the intent of a school district’s program or policy and should not require a difficult investigation of the intent of a particular school official in a specific incident.

Prong Two
If T.L.O. applies, do policies balance the special needs with the intrusion involved? Even if a court finds T.L.O. to be applicable, it must consider the details of any particular search. It is no stretch to call the Stratford High School raid—involving drawn guns and forcing students to lie down on the hallway floor as police search their bags—unreasonable. However, the broad connections between schools and law enforcement increase the intrusion of any particular search: Searches are more likely to be performed by police officers or with cooperation of police agencies and are more likely to result in a deprivation of freedom. Courts should analyze these factors to determine the reasonableness of any school search.
Other factors—which will necessarily vary from school to school—raise policy concerns regarding developing school-law enforcement cooperation. Chief among these factors is a concern for the racially disparate impact of particular policies; the closer school-law enforcement ties discussed in this essay are more prevalent in low-income and predominantly minority schools.
Discriminatory enforcement by schools and police could exacerbate this unequal impact. In the Stratford case, police initiated the raid immediately after two buses filled largely with African-American children arrived at school. This resulted in a hugely disproportionate burden of the searches falling on African-American students: Although less than a quarter of Stratford High school students are African-American, two-thirds of students in the hallway during the raid were African-American. (Lewin, supra, at A20.)

A crucial pillar of T.L.O. has not fared well in the nearly 20 years since that decision. It is no longer tenable to describe firm gates separating schools from the outside world. This insight should force schools to consider the implications of entangling themselves with law enforcement and it should force courts to reevaluate the applicability of T.L.O. in an era of close cooperation between schools and law enforcement. This reevaluation requires analysis of all forms of programmatic and routine ties between schools and law enforcement. More fundamentally, such analysis is predicated on the recognition that subjecting schoolchildren to regular law enforcement supervision and searches requires attaching the same protections from police abuses that adults enjoy. Refusing to reevaluate T.L.O. would leave us with doctrinally flawed decisions. More disturbingly, it would allow school systems and law enforcement agencies to continue sending children a poor message: We will subject you to a police state at school because you are children without rights; then we will subject you to severely punitive, adult-like consequences for any infraction. Courts have the power to send children a better message, and lawyers for children ought to raise issues presented in this essay until they do so.


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