Separation of School and State Essential to Maintenance of a Safe and Secure Learning Environment on Campus
April 8, 2003
Harold W. "Harry" Potter- Boston
One of the primary duties of any school administration is
to provide and maintain a safe and secure learning environment that is free of
drugs, crime and other illegal or disruptive behaviors. The question is often
asked, “To what extent should a school involve local police in its efforts to
investigate and control inappropriate and often illegal student behavior on
campus?” The short answer, given once again by a state court in a case that had
its roots in the venerable Ivy League, was – VERY LITTLE, and that remains good
advice particularly for controlling drugs, drinking, petty theft and other forms
of unacceptable behavior on campus.
On October 25, 2002, the Supreme Court of New Hampshire, in
the case of the State of New Hampshire v. Adam Nemser, 807 A.2d 1289 (October
2002), held that the campus police at Dartmouth College, who searched dormitory
rooms and seized illegal drugs, did not need a search warrant to do so because
they were a private police force that had acted wholly independently of local
police. As such, the actions were not state action and, accordingly, did not
violate constitutional protections against unreasonable searches and seizures.
Had the campus police acted in concert with the local police, rather than
independently, the likelihood is that a search warrant would have been required,
which would have resulted in the suppression of the seized evidence.
The Supreme Court decision reversed a ruling by a lower
court in favor of the student whose drugs had been seized in his dormitory
room. A lawyer for the student had argued that the search violated the
student’s protections against improper search and seizure under the Fourth
Amendment to the U.S. Constitution. The student claimed that the evidence had
been gathered improperly and that the charges should be dropped. The lower
court agreed finding that the Dartmouth campus police were nothing more than an
arm of the local police and, accordingly, suppressed the evidence.
So the issue appealed to New Hampshire’s highest court was
whether the Dartmouth College campus police were acting for the local police
when they searched the rooms and seized the illegal drugs or whether they were
acting independently for Dartmouth College to further the interests of Dartmouth
College in ensuring a safe and secure learning environment. As the court
stated: “Evidence obtained by a private party may be admissible even if secured
through ‘the most outrageous behavior by [the] private party.’ (quotations
omitted) … Constitutional restrictions do apply, however, to a seizure of
evidence by a party acting as an agent of law enforcement.”
Were the Dartmouth campus police acting as agents of the
local police when they searched the student’s room and seized the drugs? The
Court noted that there are two kinds of governmental action that would establish
a sufficient agency between the local police and the campus police to establish
an agency relationship.
The first would have been a prior agreement between the
local police and the campus police that the campus police “should act to obtain
evidence from a defendant ... whether the agreement is formal or informal,
‘there will be some responsive communication between the parties, and the
exchange will evince an understanding that the third party will be acting on the
government’s behalf or for the government’s benefit.’”
The second would have been a prior request by the local
police for help from the campus police, even though the campus police who acted
“upon it [made] no reply back to the [local police] but responded simply by
taking the action that the [local police had] requested.” In both cases, an
agency would be established and all of the rules that apply to the local police
in conducting an investigation would have applied to the campus police.
In the Dartmouth College case, although there were
communications between the local police and the campus police concerning the
Dartmouth Drug Policy before the search and seizure, the court found that
Dartmouth’s policy on drug use was adopted by Dartmouth, not directed by the
local police, and that the Dartmouth campus police decided when and where to
search for the drugs and when it was appropriate to report any drug seizures to
the local police. As the court stated “we do not discern in them an inducement
by the state to search on its behalf, but rather a grudging acceptance by the
Hanover Police Department of the unilateral decisions of a private party over
which it believed it had no control.” With regard to the second point, the
court found that “the college acted for its own purposes in enforcing its own
policy against drug possession by students.” This case was distinguished from
another case in which local police officers informed school officials of
suspicious behavior and then asked the school officials to investigate. In that
case, the court found that the school officials were functioning as an arm of
the local police and constitutional protections applied.
Here, the Dartmouth campus police acted unilaterally and
unaided by local police in furtherance of the college’s own interests. There
was no agency. As the state attorney stated: “Our basic argument was that [the
campus police] were acting to enforce the college’s policy against possession of
drugs and they were not acting with the knowledge of the Hanover Police
Department.”
The lesson to be learned is that school administrators and
campus police should keep their policies and actions separate from governmental
control and action or they risk losing effective control and enforcement of
their own policies for safety and security on campus, otherwise their actions
will be deemed state action with attendant constitutional implications.
For more information, call Harold Potter, toll free, at
1-888-688-8500.
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