Publisher's Note: This article originally appeared in the Beaufort Observer.
The N. C. Court of Appeals today (7-18-11) expanded the protection of students from non-particularized intrusive body searches. The case, In re. T.A.S., originated in Brunswick County. T.A.S. was a legal minor at the time she attended "the Academy" which is an alternative school to which a number of students are assigned because of behavior problems at their home school.
Students are searched routinely by a metal detector as they enter the Academy. On this day the principal received a tip that "pills which would be unsafe for students" were being smuggled into the school. So the principal ordered all students to be searched. Students were held in the cafeteria after arriving at school and taken to a room one by one and searched by school staff. In addition to school staff, law enforcement officials (school resource officer) were present.
Students were made to expose the contents of their bags and empty their pockets. Girls were required to pull out their bras away from their chest and shake to dislodge anything stuffed in the bra. T.A.S. was found to have Percocet in her clothes. She was charged and convicted in District Court with a controlled substance violation. She appealed to Superior Court to have the evidence suppressed and the charges dismissed. The Superior Court upheld the District Court verdict and she appealed to the Court of Appeals.
The COA applied the traditional "balancing test" weighing the interest of the school in protecting students from dangerous substances against the degree of intrusiveness involved. The COA drew the line at the under clothing search.
The court expressed the position that the search in question was too intrusive given that it was not particularized as to a specific student or even a particular substance. The Court held, inter alia that:
Although schoolchildren have legitimate expectations of privacy and public school officials are state actors subject to the Fourth Amendment, the Court in T.L.O. explained that "the special needs of the school environment require assessment of the legality of such searches against a standard less exacting than that of probable cause." Id. at 333 n.2, 83 L. Ed. 2d at 728-29 n.2. Instead, the legality of a student search is governed by the reasonableness under the circumstances, which is a two-part inquiry: (1) was the action "justified at its inception"; and (2), was "the search, as actually conducted reasonably related in scope to the circumstances which justified the interference in the first place." Id. At 341, 83 L. Ed. 2d at 734 (emphasis added)
The Court went on to declare that a search warrant and probable cause is not usually required for school searches but rather than probable cause applied the reasonable standard. It said:
The same standard applies here despite the presence of a law enforcement officer because, as found by the trial court, the search was conducted by school administrators and staff, and the school resource officer ‖n this role was limited to observation, as he did not participate in the actual search. See In re Murray, 136 N.C. App. 648, 650, 525 S.E.2d 496, 498 (2000) (holding search was conducted by school official where school resource officer "did not search the bag himself" or "conduct any investigation on his own," and therefore applying the T.L.O. reasonableness standard); see also In re J.F.M. in which a search is reasonable at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
The COA went on to discuss the need for reasonable searches to be particularized particularly where the degree of intrusiveness is great, such as a strip search or search of underwear. The court called it a "quantum leap" for school officials to go from a non-particularized search of outer clothing and backpacks to underwear for a groups of students.
The T.A.S. case is legally complex in that the COA addresses a number of issues, including drug testing for extra-curricular activities. Space here does not permit an adequate treatment of all of these issues but T.A.S. will no doubt be an important case for school administrators to study.
One issue not addressed but one that is intriguing is the extra degree of privacy the COA affords to underwear. However, modern cultural standards have obviously changed as a trip to Wal-Mart would reveal (no pun intended). Many people, especially young people now exhibit the underwear quite freely these days. So is a bra that is substantially visible without removing any other clothing actually "underwear" as used in T.A.S. or not? How is a school official to judge a search to be "excessively intrusive" of a student's reasonable expectation of privacy when so many students free exhibit those articles of clothing that may be used as hiding places for contraband? It would appear it will take more cases before we have a definitive law on the issue, if in fact we ever will.
You can read T.A.S.by clicking here
In other media reports it appears that school officials in Brunswick County do not intend to appeal to the Supreme Court.