An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

her possession, or in his or her automobile, the employer should not search an employee or an employee’s personal possessions. Employers have several other options:  Ask the employee to submit voluntarily to being searched or having his or her possessions searched.  Call local law enforcement and allow them to search if they determine that it is appropriate.  Prevent the employee from continuing to work and send the employee home. Unless an item or a substance in violation of the established policy is in plain view of management personnel so it can be seized without a search, school administrators should remember that they are generally not trained in how to pat search or fully search an individual. Improperly conducted searches can lead to altercations, ill will and lawsuits. B. S EARCHES O F S TUDENT P ROPERTY , A REAS , A ND P ERSON 1. S EARCHES I N G ENERAL Searches of student property, desks, lockers, and classroom areas implicate students’ privacy rights. The United States Supreme Court in New Jersey v. T.L.O . specifically acknowledged that "a search of a child's person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy." 1739 There must be a reasonable, individualized suspicion before a school official can search a student’s property. Although the Supreme Court’s decision relied on the federal constitution, a state court would probably reach the same conclusion under California law. The legality of a search of a student will turn on the reasonableness of the search under the circumstances. As with employees, a court determining whether a search violates a student’s privacy rights would conduct a balancing test of the student’s legitimate privacy interest weighed against the interest of a school in maintaining discipline and safety on school grounds. For example, a school’s search of a student may be justified where the school had reasonable grounds for suspecting that the student was violating the school’s rules or policies, and the student had notice of those rules and policies, as well as notice that the school may conduct a search under certain circumstances. Additionally, there are certain student groups that may have a reduced expectation of privacy. In Vernonia School District v. Acton , the United States Supreme Court upheld a public school’s policy of conducting random drug testing via urinalysis for all student athletes. The Supreme Court found that student athletes have a reduced expectation of privacy with regard to drug testing. "[S]tudents who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy." 1740 The decision reasons that due to the nature of interscholastic sports, student athletes are accustomed to being regulated, and to having less privacy, for example, in having to dress and shower with other students in locker rooms. 1741 Furthermore, by choosing to be on a sports team, athletes are “subject to preseason

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