grab store: searches

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

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

Thursday, June 2, 2016

School Searches of Cell Phones and Electronic Devices Now Prohibited?

By Michelle Ball, California Education Attorney for Students since 1995

Cell phones are often searched by school officials to gather information in discipline proceedings or to search for crimes alleged. Parents and students are usually at a loss on whether to allow a search of a cell phone when asked by school officials and the proper scope of any search. Can a school force a student to allow a search of their cell phone? What is the scope of the search allowed? And, what if information on another "crime" is found during the search? A new law, effective this year (2016), may (or may not) bring some closure to these issues.

In October of 2015, the Governor signed into law SB (Senate Bill) 178, also known as the "Electronic Communications Privacy Act" which is reflected in California Penal Code §§1546-1546.4. Penal Code Section 1546.1(c) states:

"A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:

(1) Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).

(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.

(3) With the specific consent of the authorized possessor of the device.

(4) With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.

(5) If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information."

Why is this relevant for students and parents? This code restricts government entities from searching electronic devices without the authorized possessor's consent unless they have a search warrant, a wiretap order, it is an emergency involving potential death or serious physical injury, or the device has been reported lost or stolen. Public school and school district employees are agents of the government who work for the government run state school system. Many parents often overlook this fact when interacting with school employees. As factually vice principals, principals and other school staff are government employees, this law should apply to them.

This sounds fantastic at first glance, right? A student can refuse to let that demanding vice principal search his/her phone? It seems so for now, but new codes are always "new" and untested, so we will have to see how this code plays out in the school system. On the one hand, it seems pretty clear that no government entity can search without consent or warrant, etc. On the other hand, schools often get away with things which are not allowed in other contexts (searches based on reasonable suspicion, discipline for wearing shirt with American flag, expulsion for off campus drug sign, etc.). There are many examples of this, so I would apply this code with caution. We will see how it works out in the school context. For now, let's tentatively hope that it means what it says and will stop nosy school officials from snooping in cell phones looking for student "bad acts."

Regardless, I have found that many students consent to a search of their phone when asked due to thinking they have nothing to hide, or they must do it. If the school officials have consent, they may search away.

Although students are "innocent" in many situations, this does not mean they don't have other damning evidence on their phones which may be encountered during a school official's search. This data, such as pictures, texts, email, etc. may provide proof of a different crime than the one school officials are investigating, and could be used against the student. As such, it may be a good option just to decline a request for a search prior to it getting started if possible.

I expect students to be hassled about search refusals due to the newness of this law, but hopefully school officials will respect students' right to privacy as reflected in this law. I find this respect unlikely, unfortunately. I also believe schools will try to balk this law and overturn it as it applies to them. With the way the courts have gone, I foresee them wiggling out of this law in the school setting. I hope I am wrong.

The scope of any government search is not defined if voluntary consent is given. If a warrant is served, the search may be limited to fit the scope of the warrant.

This law should make for some fireworks. Hopefully it will lessen the almost continuous intrusions into students' phones and personal data, which is rather common these days.