The cooperative relationship between local law enforcement and the public schools has undoubtedly been of great benefit to building administrators who want to maintain school safety and security. However, the relationship sometimes creates double standards that can cause confusion and increase the potential for legal challenges. The prospect for legal difficulties is most apparent in the area of student discipline, where students occasionally must be questioned, searched, restrained or arrested.

Searching Students
Constitutional protections against unlawful search and seizure apply to police officers and public school officials. However, different standards apply in determining whether a school administrator or police officer may legally search a student. Generally, a decision by a school administrator to search a student must be based on “reasonable suspicion” that the student has violated some school rule and the search must be reasonable in its scope. This standard generally requires some level of individualized suspicion (and more than a hunch or feeling). On the other hand, a police officer is generally required to have a higher standard of “probable cause” to search a person.

The different standards afford school officials a little more leeway in deciding what evidence would be sufficient to conduct a search reasonable in its scope. For example, under the totality of the circumstances a school official may have reasonable suspicion to conduct a search of a student with prior drug offenses who appears at school with a flushed face, glassy-red eyes and an unusual or unruly affect. On the other hand, a police encountering such an individual in the community would, under most circumstances, not be at liberty to conduct a search.

So which standard applies to searches where the police liaison officer and school administrators are working cooperatively? In answer to this question several courts have indicated that, “a search of a student on school grounds by a school resource officer at the request of school officials should be deemed a search by a school employee . . . and thus is subject to the reasonableness standard, not the probable cause standard.”

Seizure or Holding a Student for Questioning
Constitutional concerns can also be invoked when a student is held for questioning. Most courts have applied the “reasonableness test” when examining whether a school official’s questioning of a student constitutes an unlawful seizure. The decisions have tended to permit more extended “involuntary” questioning of a student about school misconduct than would be permitted by a police officer acting outside of the school because “[s]tudents at school . . . have a significantly lesser expectation of privacy in regard to the temporary “seizure” of their persons than does the general population.” Courts are more likely to uphold a challenge based on the method of the detention (e.g. decision to place a student in a storage closet or have a liaison officer handcuff a student), rather than questioning the sufficiency of a district’s rationale for detaining the student.

Case law also suggests that joint questioning of a student by both school officials and a police liaison officer is entitled to a more relaxed “reasonableness standard.” Nonetheless, it is best to separate routine school investigations from police investigations. Serious criminal investigations require the work of trained law enforcement officers. Too much involvement or interference in the criminal investigation by school officials can compromise prosecution of a case. School officials should instead rely on initial police investigations to provide the factual support for any related school disciplinary action.

Similarly, school officials are advised to keep peace officers removed from routine disciplinary matters. Use of a police liaison officer for routine discipline interventions can sometimes result in claims that the school district should be held responsible for the decisions and actions of the police.

  • Only involve police liaison officers for health, safety or criminal concerns
  • Ensure that district policies and contracts with law enforcement clearly define the role of police liaison officers
  • Conduct staff training on the appropriate use of police liaison officers
  • Designate administration that will serve as primary contact with law enforcement (exceptions may exist for emergency situations)
  • Consider training for law enforcement officer who may be required to interact with students with unique needs
  • Avoid drafting IEPs/behavior plans that limit the authority of school officials to involve law enforcement
  • Don’t play the role of police or prosecutor by advocating a result in the juvenile justice system

This article is intended to provide general information with commentary. It should not be relied upon as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.

Tim R. Palmatier is an education law attorney with the law firm of Kennedy & Graven, Chartered. For more information, please contact him at (612) 337-9300 or www.kennedy-graven.com.

© Tim R. Palmatier (2015). Used by permission.

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