CAS Legal Mailbag ' 1/26/23

• Jurisdiction: United States,Federal
• Law Firm: Shipman & Goodwin LLP
• Subject Matter: Consumer Protection, Food, Drugs, Healthcare, Life Sciences, Education, Food and Drugs Law
• Author: Mr Thomas B. Mooney
• Published date: 30 January 2023

Originally appeared in the CAS Weekly Newsletter

Dear Legal Mailbag:

With THC and nicotine vaping on the rise in schools, as a high school administrator, I have a couple of questions for Legal Mailbag.

First, when a student is found in the same bathroom stall as another student, without any other reasons for suspicion (such as a scent, smoke, etc.), does one student being in the same stall as another provide reasonable suspicion for the Administration that would justify a search of the students?

Second, are there any legal issues with our using a metal detector wand to assist in a search?

On second thought, I have a third question. Are we legally able to make a student's return to school, after a suspension or expulsion for drug use/possession on campus, contingent upon producing a clean drug test?

Signed,
Questioning

Dear Questioning:

You are indeed a curious fellow. Legal Mailbag would rather not think about finding two students in the same bathroom stall, but in the public interest, Legal Mailbag will answer the question.

As a threshold matter, it may be helpful to restate the rule as to when school administrators may search students. In New Jersey v. T.L.O., 469 U.S. 325 (1985), the United States held that school administrators do not violate the Fourth Amendment prohibition against unreasonable searches and seizures when searching students as long as (1) there is reasonable suspicion at the inception of the search that the search will turn up evidence of a violation of school rules or the law, and (2) the scope of the search is reasonably related to the object of the search and is not excessively intrusive in light of the age and sex of the students involved..

Finding those students in that compromising situation certainly gives rise to reasonable suspicion that the students are up to no good. The question, however, is whether that suspicion would justify a search. For example, one student was found hiding from a security guard in the student parking lot, and when she refused to identify herself, she was taken to the office and searched. The court held that her behavior, though suspicious, did not establish a reasonable basis for a search; indeed, school officials could not explain what they were searching for. Cales v. Howell Public Schools, 635 F. Supp. 454 (E.D. Mich. 1985). See also In re Anthony F., 163 N.H. 163 (N.H. 2012) (search of student after he was found in unauthorized area was unreasonable because school officials had no reasonable...