Reasonable Suspicion and School Resource Officers

By: Justin M. Bathon

Can't Have It Both Ways School Resource Officers

Thursday, May 14, 2009 At 10:42PM | Justin Bathon

I am growing more and more frustrated in how the courts are handling school resource officers. The courts seem to have no trouble concluding that school resource officers are more like school officials for purposes of getting under the reasonable suspicion standard of the 4th Amendment (searches and seizures). On the other hand, courts, such as this one in Florida, seem to have no problem still giving school resource officers all the protections traditionally afforded the police force. The Florida case even conceded the point that the resource officer was under the direction of school administrators, but still found a student guilty of the crime of battery of a law enforcement officer when he fought with the resource officer that stopped him in the hallway. How are students supposed to know how to treat these people? They discipline like principals, have the authority of school administrators, get the protections of school administrators, yet if you interact incorrectly with them, all the built-in protections we afford police in this country can come down on top of (and ruin) the student's life.

We absolutely need clarity from the courts on whether school resource officers are more like school employees or more like police. This having it both ways stuff (to the detriment of the students in all cases) has got to stop.

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Who Or Where? 

Sunday, May 31, 2009 At 01:08PM | Justin Bathon

I have been wrestling with this question of school resource officers (typically uniformed police officers) and search and seizure and how to legally deal with this issue for a while now. I thought I would give my conclusions in a scholarly series post, which I haven't done for a while. 

It occurs to me that there are two legal analysis options. A "who" option or a "where" option and courts currently seem to be employing both sort of at random. Asking the who question asks whether the person initiating the search is a school official (reasonable suspicion applies) or a law enforcement official (the higher probable cause applies). Asking the where question avoids that issue. Essentially, if it is a school setting = reasonable suspicion in all cases. 

To answer whether the question should be who or where, we need to look at the Supreme Court precedence in New Jersey v. T.L.O (and probably also consider theRedding case coming out next month). A reading of this case could probably provide support to either option, but I think it provides more support to the "who" question than the "where" question. 

For instance, look at how Justice White for the majority frames what they are deciding (emphasis added):

Although we originally granted certiorari to decide the issue of the appropriate remedy in juvenile court proceedings for unlawful school searches, our doubts regarding the wisdom of deciding that question in isolation from the broader question of what limits, if any, the Fourth Amendment places on the activities of school authorities prompted us to order reargument on that question.

Also, the court framed the whole initial analysis of whether the Fourth Amendment applies, not to "schools" as governmental entities, but rather to "school officials" as governmental actors ... i.e. it was the who that mattered, not the where, to determine whether we were under a constitutional amendment (see section II in the opinion). 

Continuing, the Court does articulate some "where" type statements, such as this one:

Accordingly, we have recognized that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship.

But, even in that statement, you can see it is the "who" relationship, the "student-teacher" relationship, that mattered - it just happens to always occur at schools. 

Further, in the central part of the case where the Court articulates the new standard that has governed search and seizure ever since, they are again more focused on the who than the where. Consider the bold (added) in the following paragraph:  

Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception," Terry v. Ohio, 392 U.S. at 20; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place," ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified 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.

In my opinion, the proper question here is not where the search occurs, but who is conducting the search. If the person conducting the search can be classified as a "teacher or school official," then reasonable suspicion should apply. If that person conducting the search, even on school property, cannot be classified as a "school official" then the default probable cause standard for governmental actors should apply. If, then, this is our analysis, it is very difficult for me to conclude that uniformed police officers, being paid by and reporting to the police department, are school officials entitled to the reasonable suspicion exception. 

After thinking on this issue for a while now, I think I am settled on this position. Police officers in schools are not school officials and are not entitled to reasonable suspicion directly, but only through a proper transfer of suspicion when a legitimate school official, such as a teacher or principal, initiates a search and then involves the officer. Very much depends on the nature of the employment of the school resource officer, but those officers that are more "police" than they are "school officials" clearly seem to fall outside of what the Court in New Jersey v. T.L.O. intended in its opinion. 

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