Requiring Consent to Searches at the Schoolhouse Door as a Condition of Enrollment: An Upcoming Constitutional Issue

Most readers are aware that the Fourth Amendment prohibits “unreasonable” searches and seizures without a warrant. When a person consents to a search, that rule no longer applies, and a series of cases has discussed when consent can be required. It is generally agreed, for example, that security searches at airports, courthouses, or other government offices are allowed. A recent case in Nevada and an older case from Oregon disagree on whether public schools can require students to consent to searches as a condition of enrollment.

Both cases involved students with disciplinary problems. Both students were required, as a condition of being given a last chance at public school, to sign agreements that included consents to random searches. In the Nevada case, the school decided to search all of its last chance students, and the search turned up a large amount of cash and two bags of marijuana. In the Oregon case, the school conducted a random search of the student’s locker and found cocaine. Both students were charged as juveniles, and the courts disagreed whether the searches were lawful.

The Oregon Court of Appeals ruled that because the Oregon student previously had been expelled from school, he was not required to attend the last chance program, but could, instead, have dropped out. His consent was ruled freely given.

The Nevada Supreme Court disagreed. It concluded that education is fundamental to participation in society, and the student could not, as a practical matter, turn down the opportunity. As a result, a requirement to consent to searches could not be considered freely given. It also decided that the need for freely given consent was increased in “last chance” situations because the students in question were particularly likely to act in detrimental ways and needed reassurances of fairness from the government.

Despite very similar events, the courts in Oregon and Nevada came down squarely opposed to each other. The State of Nevada may decide to ask the Supreme Court to review this case in light of the disagreement. Whether the Court would decide to take the case, and which way it would rule, is hard to predict.

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