Establishing whether the student's consent was voluntary can be difficult, and the burden is on the school officials to prove voluntary consent. If a student agrees to be searched out of fear or as a result of other coercion, that consent will probably be found invalid. Similarly, if school officials indicate that a student must agree to a search or if the student is very young or otherwise unaware that he has the right to object, his consent will also be held invalid. School officials may find it helpful to explain to students that they need not consent to a search. In some cases, standard consent forms may be useful.
If a student is asked to consent to a search and refuses, that refusal does not mean that the search may not be conducted. Rather, in the absence of consent, school officials retain the authority to conduct a search when there are reasonable grounds to justify it, as described previously.
Special Types of Student Searches
Schools with severe drug problems may occasionally wish to resort to more intrusive searches, such as the use of trained dogs or urinalysis to screen students for drug use. The Supreme Court has yet to address these issues. The following paragraphs explain the existing rulings on these subjects by other courts:
- Specially trained dogs. The few courts that have considered this issue disagree as to whether the use of a specially trained dog to detect drugs on students constitutes a search within the meaning of the Fourth Amendment. Some courts have held that a dog's sniffing of a student is a search, and that, in the school setting, individualized grounds for reasonable suspicion are required in order for such a "sniff-search" to be held constitutional.[ [13] Under this standard, a blanket search of a school's entire student population by specially trained dogs would be prohibited.
- At least one other court has held that the use of trained dogs does not constitute a search, and has permitted the use of such dogs without individualized grounds for suspicion.[ [14] Another factor that courts may consider is the way that the dogs detect the presence of drugs. In some instances, the dogs are merely led down hallways or classroom aisles. In contrast, having the dogs actually touch parts of the students' bodies is more intrusive and would likely require specific justification.
- Courts have generally held that the use of specially trained dogs to detect drugs on objects, as opposed to persons, is not a search within the meaning of the Fourth Amendment. Therefore, school officials may often be able to use dogs to inspect student lockers and school property.[ [15]
- Drug testing. The use of urinalysis or other tests to screen students for drugs is a relatively new phenomenon and the law in this area is still evolving. The few courts that have considered this issue so far have not upheld urinalysis to screen public school students for drugs.[ [16] The permissibility of drug testing of students has not yet been determined under all circumstances, although drug testing of adults has been upheld in the criminal law setting.
SUSPENSION AND EXPULSION
A school policy may lawfully provide for penalties of varying severity, including suspension and expulsion, to respond to drug-related offenses. The Supreme Court has recently held that because schools "need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process," a school's disciplinary rules need not be as detailed as a criminal code.[ [17] Nonetheless, it is helpful for school policies to be explicit about the types of offenses that will be punished and about the penalties that may be imposed for each of these (e.g., use, possession, or sale of drugs). State and local law will usually determine the range of sanctions that is permissible. In general, courts will require only that the penalty imposed for drug-related misconduct be rationally related to the severity of the offense.
School officials should not forget that they have jurisdiction to impose punishment for some drug-related offenses that occur off campus. Depending upon State and local laws, schools are often able to punish conduct at off-campus, school-sponsored events as well as off-campus conduct that has a direct and immediate effect on school activities.