School is a microcosm of society. In principle, the Constitution applies with equal force to minors.1? In practice however, children have less means to bring constitutional challenges and this might lead to a free-er trampling of their rights. Looking at what is happening in public schools provides valuable insights about the direction society is heading towards, especially if nothing is done to divert that path.

Current state of 4th amendment rights

The 4th amendment applies public school officials as “[i]n carry out searches and other disciplinary functions pursuant to [school disciplinary policies], school officials act as representatives of the State…”2? Courts have gradually narrowed students’ 4th amendments rights within such spaces,3? and this poses even greater risk once technology comes into play.

Schools are permitted to conduct warrantless searches4? as long as, at its inception there are reasonable grounds for suspecting that the search would show evidence of a violation of the law or a school rule and the scope of the search was reasonably related to the circumstances justifying intervention in the first place.5? 6?

Concerns and interplay with technology

Is having a different standard justifiable?

In brief, no. The default standard of warrantless searches and merely requiring reasonable suspicion is not consonant with the text and the arguments raised by the judges in support of the dual standard does not stand up to scrutiny.

The 4th amendment is unambiguous that “…no Warrants shall issue, but upon probable cause…”. Barring probable cause, a warrant shall not be issued, and barring a warrant no unreasonable searches and seizure may be performed. Thus, the court must justify a departure from requiring a warrant (which they attempt to do by pointing to the special character of schools).7? 8?

The arguments in TLO do not justify wholesale warrantless searches in public schools. Neither the majority nor the concurrences enumerate why schools are treated monolithically wherein the entire entity is exempt from requirements of probable cause and warrants. This is odd as even for police officers, exemptions for warrantless searches are very tailored – e.g., police stop and search incidents9? – and for a specified reason that makes that particular act riskier.10? There is no cogent explanation as to why the entire school environment is deserving of exemption.

The majority opinion does not set out why schools are a special environment at all, though the concurrence by Powell J. and O’Connor J. attempts to do so. It provides platitudes to differentiate between the police and teachers, stating that “The attitude of the typical teacher is one of personal responsibility for the student's welfare as well as for his education.” This is a red herring. It is arguably equally true that the attitude of a typical police officer is to impartially carry out his duties in the name of law.11? Constitutional safeguards have little practical relevance when everyone in a position of power is good and law-abiding. They are meant to safeguard against abuses of power. It is trite to say that teachers are generally benign because were that not the case, the discussion would centre on changing the system at its root, not about whether safeguards need to be in place. To say the typical teacher provides no recourse against the recalcitrant or the racist or the sexist teacher (or really any number of social ills one might exhibit). It is the very purpose of constitutional rights to guard against such abuses and it makes no sense to say that the typical teacher is benign and as such constitutional safeguards as a whole can be ignored.

Similarly, the concurrence by Blackmun J. attempts to justify warrantless searches for the entirety of the school environment by speaking of teachers’ lack of expertise.12? This is baffling. It cannot be acceptable that teachers are accorded certain constitutional leeway despite the lack of specific expertise (as police officers have13? ) and thereafter the safeguards associated with such leeway are repudiated on the very basis of this lack of expertise.

Interplay with technology

All of this comes to a head with social media – where technology, the 1st and 4th amendments collide. The Supreme Court has permitted some regulation of speech by students. With social media, students frequently make statements outside of school that are potentially widely accessible by their peers. The 4th amendment can come into play in a myriad of ways, including when private accounts are used by students and school administrators require access to it. The TLO standard only becomes more worrisome with the blurred line between in and out of school. TLO builds some implicit temporal limit into “under their authority” – kids go back at end of school day. However, now, technology removes the temporal aspect. Does this mean teachers have authority over their students’ out of school activities? (e.g. tweet posted at home, but accessible during school hours). The writing on the wall might say yes, seeing how the Supreme Court already conceives of instances where schools can regulate off-campus speech.14?

Why is this an essay about the 4th amendment rather than the 1st then? Social media goes beyond just speech. Location tracking, check-ins and the like can provide invaluable information of students’ movements which could shed light on complaints made to the school – e.g., of out of classroom threats, alibis.

The trend observed even in just this narrow area calls out for our attention and action in preserving our fundamental liberties. To the extent we are worried about what this means for the future, an argument raised by New Jersey does not portend well. The State argued that “because of the pervasive supervision to which children in the schools are necessarily subject, a child has virtually no legitimate expectation of privacy in articles of personal property "unnecessarily" carried into a school.”. Thus, as we sit today in heavily surveilled classrooms without protest, we are actively eroding what reasonable expectations are. Drawing a parallel to a conscientious objector in customary international law, merely objecting may not change things, but the very act might prevent the active worsening of our rights.