Private Schools Not Bound by Prohibition Against Unreasonable Search and Seizure
March 16, 2007
As school officials consider various proactive measures to safeguard their students and employees from violence and drugs, it is critical to understand just how far those measures can go before they violate individual rights. Both the Fourth Amendment to the U.S. Constitution and Article 14 of the Massachusetts Declaration of Rights prohibit government officials from conducting unreasonable searches or seizures. The U.S. Supreme Court has held that public school officials may not search students or their possessions without “reasonable suspicion” that a rule has been violated. The Massachusetts Supreme Judicial Court recently addressed whether that same standard applies to officials in the Commonwealth’s private schools.
In Commonwealth v. Considine, decided on January 31, 2007, the Supreme Judicial Court confirmed that the scope of protections afforded by the law will often differ depending on whether a student attends a public or a private school. In Considine, the issue was whether the federal or state constitutional prohibitions against unreasonable search and seizure limited the ability of private school officials to search students’ hotel rooms on a school-sponsored trip. The high school students in Considine attended a private, Catholic high school, and went on a school-sponsored ski trip in March of 2003. During the trip, the students stayed as a group in a hotel with school-provided chaperones in rooms paid for by the students’ parents. The students were required to give their room keys to a chaperone each morning and were not allowed to be in their rooms during the day unsupervised.
After the chaperones learned that a group of boys had been in their room during the day without supervision, the chaperones decided to search the room. The chaperones discovered alcohol, lighters and clay pipes. When the boys returned from skiing, the chaperones asked them to empty their pockets, which contained marijuana. The chaperones notified hotel security. The head of security, who also happened to be a part-time local police officer, spoke to the boys. At that point, one of them admitted possession of cocaine. Hotel security called the state police. When the state police arrived, the officer advised the boy who had admitted possession of cocaine of his Fifth Amendment rights, and began to question him. Soon thereafter, the attorney-father of one of the other boys called and instructed the boys not to answer further questions.
The boys were charged with various criminal offenses related to possession of drugs and alcohol. In their criminal cases, they each filed a motion to suppress both the physical evidence and their statements to the chaperones and the police. The lower court granted the motions to suppress, ostensibly relying on the Supreme Court’s decision in New Jersey v. TLO (1985). In TLO, the Supreme Court set forth the constitutional standard of “reasonable suspicion” for public school officials to follow when searching the person or belongings of students. “Reasonable suspicion” requires less evidence than the “probable cause” standard required for a search by law enforcement. In deciding that the TLO standard should apply to private school officials, the lower court reasoned that the law mandates that all children attend school until age 16 and that there was no logical reason that students choosing to attend private school should be treated differently by the law than students attending public school.
The Importance of Who Conducts the Search
After taking the case on appeal, the Supreme Judicial Court reversed the lower court’s decision. The Court held that neither the Fourth Amendment nor Article 14 apply to a search by private school officials, and, therefore, the search of the students and their hotel room was legally permissible. The Court stressed the importance of who was conducting the search. For the constitutional protections to apply, the search had to be conducted by agents of the state or federal government. The Court found that the school officials involved in the initial search and questioning of the students were not agents of the government. Likewise, the Court found that the hotel’s head of security was a private actor when he questioned the students, even though he also worked part-time with the local police department. Finally, even though the state police officer was clearly a state actor, the Court found that he was in the hotel room pursuant to permission from the school officials, and was thereby present by consent and could search the room and seize items without violating the law. In addition, the Court rejected the boys’ argument that the subsequent questioning by the state police officer should be suppressed, reasoning that the earlier searches and questioning from which it followed were legally permissible.
The Considine decision is not surprising as Massachusetts courts have often applied different legal requirements on private and public schools in other contexts, such as student discipline. Considine supports the principle that private schools generally have more freedom and flexibility than public schools in addressing student issues. However, as Justice Ireland exhorted in an opinion concurring with the Considine decision, private schools may be well advised to adopt voluntarily a “reasonable suspicion” standard or similar safeguards to balance private interests and prevent potential abuses.
For more information, e-mail Maura J. Gerhart at maura.gerhart@hklaw.com or call toll free, 1-888-688-8500.
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