“We have recognized that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures.”
— U.S. Supreme Court, New Jersey v. T.L.O., 1985
“Whetstone’s protocol requiring searches of unattended book bags furthers the compelling governmental interest in protecting public-school students from physical harm.”
— Ohio Supreme Court, State v. Polk
Earlier this year, I wrote about a case going before the Ohio Supreme Court that had the potential to have a major impact on school discipline. In that case, a Whetstone High School student left his book bag on the school bus on February 5, 2013. The forgotten bag was found by the bus driver after the daily walk-through.
The bus driver gave the book bag to the school district’s ‘safety and security resource coordinator’. Whetstone has a policy that any bag left on a school bus will be searched, first to help determine its owner, and second to ensure that it does not contain anything that would pose a safety risk to the students. In addition to coordinating fire drills and school building security, it was the safety and security coordinator’s job to search the forgotten bags.
This person is a school employee and not a law enforcement officer. He testified that he searches 15-20 bags every day. He opened this particular bag and first saw that it contained normal school supplies. One of the papers at the top of the bag contained the name of a student who he knew was suspected of gang activity.
Although he hadn’t yet seen any contraband, he took the bag to the school’s principal. Together, the two men searched the entire contents of the bag, although the principal said they would have done so regardless of the gang rumor. Inside the bag they found bullets.
Based upon this discovery, they contacted a police officer and, with the officer, located the student in the hallway. The student was carrying another bag. The officer placed the student in a ‘hold’ and the safety coordinator searched the second bag, discovering a handgun. The student was charged with a felony offense of carrying a weapon into a school zone.
The student asked the court in Franklin County to suppress the evidence of the gun on the basis of the fact that the second search — the one carried out by the principal — was unconstitutional since the first search had already answered the question of who the bag belonged to.
The leading case on school searches is New Jersey v. T.L.O., which was decided by the United States Supreme Court in 1985. By a vote of 6-3, in a written opinion by Justice Byron White, the High Court ruled that school officials were held to a different standard when conducting searches within their schools.
Rather than the ‘probable cause’ standard that applies to law enforcement, a lower ‘reasonable suspicion’ standard applied to the school officials. The Supreme Court upheld the underlying search and the juvenile adjudication that arose from it.
In ruling on the Whetstone case, the Franklin County Court of Appeals concluded that the trial court was correct. They opined that since the second search was conducted not for school safety, but because of the reputation of the bag’s owner, it was akin to a law enforcement search and should be held to the same standard as searches conducted by police officers.
Earlier this month, the Ohio Supreme Court, in a 7-0 decision, reversed the Court of Appeals and sent the case back to the trial court to resume the prosecution. The Supreme Court noted that the underlying justification for school searches under T.L.O. was maintaining safety and order in the school, and that the Franklin County Court of Appeals had even held that the first search was permissible under that logic.
But if the first, cursory, search was permissible to protect school safety, why wasn’t the second, complete, search? The distinction made no sense to the state’s highest court, and they reversed on that basis.
The ruling means that school administrators can continue to conduct these kinds of searches and that trial courts should continue to apply the standard the U.S. Supreme Court set down in 1985. The case is State v. Polk, and the full opinion can be found online at www.supremecourt.ohio.gov.
David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.