Guidelines: School Districts' Right to Conduct Searches in Public Schools
The following information does not constitute legal advice concerning
any specific situation. If you have questions about a specific situation,
please contact your UniServ Director.
The Fourth Amendment to the United States Constitution prohibits the
government from conducting unreasonable searches of its citizens and
unreasonable seizures of their property. In order to be covered by
the Fourth Amendment, a search must be conducted by a government official
or employee, i.e., a “state actor.” Because public school
districts are political subdivisions of the state, school officials
and employees are “state actors” and are subject to Fourth
Amendment limitations on performing searches and seizures.
Although private, nongovernmental entities and employers are not subject
to the same constitutional limitations on searches in the workplace that
govern public employers, in Wisconsin, they are subject to state law
that recognizes the right of privacy. According to Wisconsin Statute § 895.50,
the right of privacy is defined as 1) intrusion upon the privacy of another
in a place that a reasonable person would consider private; 2) appropriation
of the name or likeness of another person without written consent of
the person or, if a minor, the minor’s guardian; and 3) unreasonable
publicity given to a person’s private life.
It is important to note that Wisconsin Statute § 948.50 makes it
a crime (Class B Misdemeanor) for public, parochial and private school
employees to conduct a strip search of any student. “Strip search” is
defined in the statute to mean a search in which a person’s genitals,
pubic area, buttock or anus, or a female’s breast is uncovered
and either exposed to view or touched by the person conducting the search.
This statute does not prohibit a search of any person who a) is serving
a sentence in a jail, prison or house of correction; b) is placed in
or transferred to a secured correctional facility or secured child caring
institution; c) is committed, transferred or admitted under the Mental
Health Act, during criminal pre-trial and trial proceedings, or under
the Sex Crimes Law.
With regard to the other common types of searches that occur in public
schools, a determination as to whether a search by school officials or
employees violates the Fourth Amendment or state law ultimately depends
on whether it is reasonable under all the circumstances.
Searches of public school employee desks, cabinets, lockers, computers
Under the U. S. Constitution and Wisconsin law, school districts have
the right to search areas used by employees unless the employees have
a “reasonable expectation of privacy” in those areas. Whether
an employee’s expectation of privacy in a particular area is reasonable,
and whether the search was reasonable at its inception and in the manner
in which it was conducted, are the key issues that determine the legality
of a search.
The following questions and answers are designed to illustrate the current
law governing school district employees’ right of privacy in the
workplace.
Are there any areas in which school district employees
could virtually never claim a reasonable expectation of privacy?
A:
Yes. Following are examples of areas in which employees have been held
not to have a reasonable
expectation of privacy:
- Classrooms
- Faculty lounge
- District-owned computers, including email messages sent and received
on district-owned computers using district email program
Are there areas in which school employees might have a reasonable
expectation of privacy?
The following areas are more likely to be considered private. However,
under some circumstances, an employer’s search could still be justified
if the governmental interest in conducting the search outweighs the reasonable
expectation of privacy. Therefore, it is advisable to presume that areas
such as the following might not be private:
- Employee’s desk which is not shared with any other employees
and to which the employer has no access without the employee’s
permission (for most teachers, the desk would be shared with substitute
teachers, paraprofessionals, or others which would eliminate the
expectation of privacy)
- File cabinets to which only the employee has a key and which is used to
store confidential files or personal information;
- Storage areas, such as lockers, to which the employee has the only key
and in which personal items are kept
In what area would an employee almost always have a reasonable expectation
of privacy?
A: Employees most likely have a reasonable expectation of privacy in
their cars, briefcases, backpacks, purses, pockets, and other items which
hold personal belongings as well as work-related materials.
What should I do if I believe the employer has violated my privacy
in the workplace?
A: Contact your local bargaining unit officer and your UniServ Director
who will provide guidance concerning your specific situation.
Can the employer require me to search other employees’ work
or storage areas as part of my job?
A: While the employer may direct you to do so, you should object on
the grounds that this is not within your job description, and as a member
of the bargaining unit you do not believe it appropriate for you to investigate
a colleague for the administration. If the employer continues to direct
you to do the search, comply to the best of your ability, but as soon
as possible contact your UniServ Director who will evaluate the situation
and determine a course of action.
Can I be held personally liable if I end up violating
the other employee’s
right of privacy because I complied with the administration’s directive
to do the search?
A: Most likely not. Under state law, public employees cannot be held
liable for conducting a search that violates another’s privacy
as long as they were acting within the scope of their employment and/or
in compliance with the employer’s directive.
When could a search be outside the scope of employment?
A: One example would be where a teacher, “Jim,” is patrolling
the grounds at an extra-curricular event and sees a colleague whom he
dislikes and is angry with. Jim decides to call the other employee, Carl,
to the concession booth. Citing his assignment to patrol the grounds,
Jim demands that Carl empty his pockets in front of several students
and parents, thereby embarrassing Carl. Because Jim had no basis on which
to search other than his wish to embarrass Carl, such a search would
most likely be ruled outside the scope of Jim’s employment and
Jim could be held individually liable for violating Carl’s Fourth
Amendment rights to be free of unreasonable searches, as well as his
right of privacy under Wisconsin law.
Is there a rule of thumb to follow concerning employees’ right
of privacy in the workplace?
A: Employees should assume that no storage areas are private. Furthermore,
email sent from and received in the workplace is also subject to the
employer’s access and review. In most cases, the district retains
ownership of staff desks, cabinets, lockers, etc., unless there is a
specific agreement or practice establishing staff’s reasonable
expectation of privacy in those areas.
Searches of public school students’ possessions and lockers
by school district employees
As a general rule, a search that invades an area in which a person has
a legitimate expectation of privacy is reasonable as long as it is based
on probable cause to believe that an offense has been or is being committed.
Annotation, Search Conducted by School Official or Teacher as Violation
of Fourth Amendment or Equivalent State Constitutional Provision, Alexander
C. Black, J.D., 31 A.L.R.5th 229 (1995).
In Wisconsin, searches by school officials may be reasonable for constitutional
purposes even in the absence of probable cause, if the student's expectation
of privacy is minimal and is outweighed by the governmental interest
involved.
Specifically with regard to locker searches, the Wisconsin Supreme Court
held that students have no legitimate expectation of privacy in a school
locker when the school district has a written policy stating that it
retains ownership and control of the lockers, and the students receive
notice of that policy. Interest of Isiah B., 176 Wis. 2d 639 (1993).
The following questions and answers will provide additional information
on this issue:
You’ve been asked to conduct a bomb search of
student lockers by your principal or superintendent. Must you comply?
A: Setting aside the privacy issues for the moment, refusing a direct
order by an administrator can lead to discipline for insubordination,
especially if your contract specifically requires you to search for bombs
as part of your job duties. If you must search for bombs as part of your
job, then the district must provide training for you to conduct bomb
searches safely.
However, most school employees’ job duties do not include conducting
bomb searches. While the general rule in labor law requires employees
to do the work and then grieve, if you reasonably believe that you risk
bodily harm or death if you open lockers as part of a bomb search, then
you may refuse the order for reasons of safety, and seek help through
your local union or UniServ Director to challenge any ensuing discipline
for insubordination.
If you believe you need clarification of the directive, you could ask
the administrator for a written copy.
With regard to the issue of students’ privacy rights in this scenario,
students do not have a legitimate expectation of privacy in their school
lockers as long as the district has notified them of its written policy
retaining ownership and control of the lockers. You can check to see
whether your district has issued such a policy notice to students. If
so, you would not violate their privacy by opening their lockers to search
for bombs.
Even if there were no such district policy, however, it is likely that
a court would find that the governmental interest in removing a bomb
outweighs the students’ expectation of privacy in a school locker.
You are asked to do a locker search for missing library books and
other contraband. Must you comply?
A: Probably yes, or risk charges of insubordination. In regard to privacy
rights, because students in Wisconsin do not have a legitimate expectation
of privacy in their lockers as long as they are notified of the district’s
written policy retaining ownership and control of the lockers, your search
of the lockers is not a violation of students’ right to privacy.
If the contraband that is the subject of the search is illegal, such
as illegal drugs or weapons, then best practice would be to have the
search conducted by the local police. This is an issue that could be
addressed through bargaining, clarifying exactly what staff’s responsibilities
are concerning searches for illegal items.
If the contraband is not illegal or dangerous but consists of something
that violates school policy, e.g., missing classroom supplies, overdue
library books, or other items students have in their lockers in violation
of school policy, then refusing to search may result in discipline for
insubordination. Best practice would be always to have another district
employee participate with you in the search.
Can school staff search backpacks or containers inside
the students’ lockers?
A: Not without a reasonable suspicion that would justify the search.
Students have a reasonable expectation of privacy in their purses, backpacks
or other containers inside their lockers. This means that there must
be a reasonable suspicion to justify the need to touch the outside of
the container. Courts have held that governmental interest in keeping
order and preventing danger can outweigh students’ expectation
of privacy in some situations.
For example, the fact that a school security officer heard an unusual
metallic thud when a student’s book bag was flung down, suggesting
that it might contain a weapon, was sufficient justification for an investigative
touching of the outside of the bag. The government’s interest in
keeping weapons out of schools outweighed the student’s expectation
of privacy.
What factors should be considered in determining
whether a search of a student’s private belongings is justified?
A: Courts consider the totality of the situation, including the following
factors: The threat posed to the student body by the suspected illegal
activity; the prevalence and seriousness of the problem to which the
search was directed; the need to make the search without delay; the age
of the child to be searched; the student’s history and record in
the school.
What if you come across contraband while getting
homework from a student’s locker or searching for identification
in a found item?
A: You must follow your district’s policy; if there is no policy,
then you should leave the contraband in the place you found it, secure
the locker or take the item with you to notify the administration. If
there are two employees, one employee should stay with the found item,
while the other notifies the administration.
If a search you perform as part of your job duties
violates a student’s
right of privacy, can you be held personally liable as an individual
by the student or student’s parents?
A: You will not be held individually liable as long as you were acting
within the scope of your employment.
Under Wisconsin statutes, school employees have “qualified immunity,” which
means that they are “immune from personal liability for injuries
resulting from acts performed within the scope of the [employee’s]
office.” Qualified immunity can be lost if the employee engaged
in conduct that is “ . . . malicious, willful and intentional .
. .” C.L. v. Olson, 143 Wis. 2d 701, 710 (1988), or if the act
in question is mandatory and absolute such that there is no judgment
or discretion required in the performance of it. Kierstyn v. Racine Unified
Sch. Dist., 228 Wis. 2d 81 (1999).
However, if you are sued for an act that was within the scope of your
employment and damages are awarded to the plaintiff, Wis. Stat. § 895.46
protects you from the financial penalty. According to this statute, damages
and costs entered against the employee in excess of any insurance applicable
must be paid by the public employer. Therefore, as long as the act was
within the scope of your employment as a public employee, even if it
violated the law, you will not be held financially responsible.
What could be outside the scope of employment involving student
searches?
A: One example would be where a district employee hires a student to
babysit at the employee’s home, and upon return at the end of the
evening, without any basis for suspicion of theft, demands that the student
empty his pockets to make sure he didn’t steal anything.