grab store: Fourth Amendment

Friday, April 6, 2018

Searches Of Underclothing At School Are Illegal

By Michelle Ball, California Education Attorney for Students since 1995

Most parents will never have much involvement with the drama of school expulsions, heavy allegations against their kids, nor the shock of hearing their child had something improper at school hidden in their pocket. Occasionally, however, there are horror stories involving searches by school officials looking for alleged contraband which go way too far.

In the infamous case Safford v. Redding, the United States Supreme Court found a school strip search of an Arizona eighth grader in violation of the student's Fourth Amendment right to be free from unreasonable search and seizure. The Court in Safford, however, left some questions open for Arizona, such as whether a strip search could proceed with a specific allegation of a dangerous object being in e.g. underwear. However, California had already answered this question prior to Safford, strictly prohibiting searches of private places and underwear.

California Education Code section 49050 states:

No school employee shall conduct a search that involves:

(a) Conducting a body cavity search of a pupil manually or with an instrument.

(b) Removing or arranging any or all of the clothing of a pupil to permit a visual inspection of the underclothing, breast, buttocks, or genitalia of the pupil.

This means that school employees can't lift a girls shirt to see if she has a joint in her bra. They can't pull down a boys pants to see if he has a pipe, nor lift a girl's skirt to see if she has a weapon hidden. Such searches are illegal and flat prohibited in California.

Only a handful of times since 1994 have I personally met parents with stories of searches gone wild, where a student was made to take off articles of clothing or things were moved to reveal underwear. Often these situations are hard to prove, hard on the kids testifying, and school predators may get away with their wrongful conduct. This is because there is a bias in our society against youths and their believability. Schools and adults, when faced with an adult versus child situation, usually believe the adult. Predators know this which is why kids are the easiest targets. Who will believe Tim, who said I pulled his pants down to check his underwear? Not many will, and maybe not even his parents. And how do you prove it? It is a tough situation in every regard.

Regardless, I wanted to put out there and remind students and parents that schools MAY NOT search them internally, nor extend any search for contraband to underwear, bras, or private places.

Stories that I hear once in a while of the overstepping which can occur would shock most parents. They are occasional at best, but still something to know about and discuss with your kids. If something untoward occurs, it should be jumped on immediately with appropriate reports and complaints filed.

Best,

Michelle Ball

Education Law Attorney

LAW OFFICE OF MICHELLE BALL

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For more information, see also: https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1753&context=lawfaculty

Thursday, October 6, 2016

Student On Student Vaginal Ultrasounds Found To Be Search Under Fourth Amendment

By Michelle Ball, California Education Attorney for Students since 1995

Earlier this week, the Eleventh Circuit Court of Appeals found that a transvaginal ultrasound requested of college students at Valencia College in Florida was a search for Fourth Amendment purposes.

California is within the Ninth Circuit Court of Appeals, but often sister jurisdiction decisions impact and influence decisions here. The decision is noteworthy for its facts, which college students may want to be aware of, and for the definitive ruling that this conduct did involve a search for purposes of Fourth Amendment analysis.

The basics are that students who entered the state run Valencia College Sonography program were allegedly asked to "volunteer" for transvaginal ultrasounds to be performed on them by other students in the program (male and female). Three students refused. Two were allegedly thereafter badgered into allowing this invasive procedure to be done on them. The third student did not agree and was as a result excluded from the ultrasound procedures, given "two failing grades and yelled at... for an hour until she had a panic attack," according to the decision in Doe v. Valencia College Board of Trustees (11th Circuit, October 4, 2016). Per Judge William Pryor, these transvaginal ultrasounds involve insertion of a sonogram device into the student's vagina and can be painful and embarrassing.

The students filed suit in federal court alleging breach of their Fourth Amendment right to be free from unreasonable searches, breach of their First Amendment speech rights and other bases. They requested damages, injunctive relief, and attorney fees and costs.

The lower court (District Court) dismissed the students' complaint alleging that their communications on the procedure to the college were "school-sponsored" speech and that there was no search. An appeal of this dismissal was made to the Eleventh Circuit, where the court, taking the students' assertions as fact for the proceeding, found that the speech was not "school-sponsored" and that the insertion of the objects into a student's vaginal area was indeed a search under the Fourth Amendment.

The matter now returns to the District Court for proceedings and presumably a trial.

This case shows the extent to which some colleges may breach students' rights: by forcefully leveraging the power of a potential degree to get students to submit to invasive procedures. More shocking for most may be the fact of how the college treated the student who refused this intrusive search of her body- with reported degradation and failing grades.

Just another day in the life of a college student at the mercy of government run educational institutions.