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Education
Newsletter - April 2003
 
In this Issue...
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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