Reevaluating School Searches Following School-to-Prision Pipeline Reforms

By Josh Gupta-Kagan

The U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue in the 1990s and 2000s found that T.L.O. applied to SRO-involved searches, likening SROs to school officials and drawing a line between SROs and other police officers.

Reforms largely enacted in the 2010s, in contrast, draw a line between school officials and SROs, emphasizing that SROs are law enforcement officers, not school disciplinarians. Reflecting the consensus that law enforcement responses to school misbehavior harm children, these reforms limit SRO involvement to more serious crimes or immediate safety risks.

This Article is the first to explore how these recent reforms undermine earlier cases applying T.L.O. to SROs. These recent reforms place SROs on the law enforcement side of the “special needs” line. This analysis also shows how searches conducted under policies requiring schools to turn over evidence of criminal activity to law enforcement transform the character of searches conducted by school officials into law enforcement searches. Finally, this Article offers a doctrinal path to limiting warrantless school searches to narrower circumstances, thus letting authorities respond to the risk of deadly weapons at schools while limiting the risk that reduced Fourth Amendment protections will contribute to the school-to-prison pipeline.