Nebraska Law Review
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J.P. ex rel. A.P. v. Millard Public Schools: A Limit on
School Authority and What It Means for Students’
Fourth Amendment Rights in Nebraska
Brian J. Fahey
University of Nebraska College of Law
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-&*%"3 J.P. ex rel. A.P. v. Millard Public Schools: A Limit on School Authority and What It Means for Students’ Fourth Amendment
Rights in Nebraska""1
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Note*
J.P. ex rel. A.P. v. Millard Public
Schools
1
: A Limit on School
Authority and What It Means for
Students’ Fourth Amendment
Rights in Nebraska
TABLE OF CONTENTS
I. Introduction .......................................... 1013
II. Background ........................................... 1014
A. Fourth Amendment Jurisprudence ................. 1014
B.
New Jersey v. T.L.O.
and the Fourth Amendment in
Public Schools ..................................... 1014
C.
J.P. ex rel. A.P. v. Millard Public Schools
.......... 1017
III. Analysis .............................................. 1020
A. Students’ Fourth Amendment Rights After
T.L.O.
. . 1020
B.
J. P. ex rel. A.P.
v. Millard Public Schools .......... 1024
1. Section 79-267 of the Nebraska Revised Statutes
and the Rejection of the “Nexus to the School”
Analysis ....................................... 1024
2. Undesirable Outcomes ......................... 1026
C. Impact of the Court’s Decision ..................... 1027
1. School-Sponsored Activities .................... 1027
2. The Court’s Interpretation of Reasonable
Suspicion ...................................... 1028
3. Halting the “Parade of Horribles” .............. 1029
D. Policy Considerations .............................. 1031
IV. Conclusion ............................................ 1033
©
Copyright held by the N
EBRASKA
L
AW
R
EVIEW
.
* Brian J. Fahey: J.D. Candidate, University of Nebraska College of Law, 2015
(N
EBRASKA
L
AW
R
EVIEW
, Executive Editor, Volume 93); B.A. Music and Political
Science, Gustavus Adolphus College, 2008. The author wishes to thank Emily
Blomstedt for her advice and guidance in writing this Note.
1. 285 Neb. 890, 830 N.W.2d 453 (2013).
1012
2015]
J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS
1013
I. INTRODUCTION
Each school day, millions of American children attend public
schools where they are placed under the care and authority of teachers
and administrators. These school officials are charged with educating,
caring for, and disciplining this substantial segment of the American
population. At the same time, these students are entitled to the pro-
tections afforded them under the U.S. Constitution. Despite the ubiq-
uity of this paradigm, the U.S. Supreme Court has only addressed the
relationship between school officials’ authority and the applicability of
the U.S. Constitution to students in the last fifty years.
2
Prior to that
time, courts generally assumed that students, while in school, were
entitled to virtually no Constitutional protection, although courts
failed to agree as to why.
3
Although the Supreme Court held in
New Jersey v. T.L.O.
that stu-
dents were entitled to some constitutional protections in school, the
Court’s analysis regarding students’ Fourth Amendment rights was
problematic.
4
Subsequent courts applying
T.L.O.
have essentially
stripped students of any effective Fourth Amendment rights in
school.
5
The Nebraska Supreme Court confronted the limits of a
school’s constitutional and statutory authority to search students in
J.P. ex. rel. A.P. v. Millard Public Schools
.
6
In holding that a school
official’s search of a student’s car off school grounds exceeded school
authority, the court confronted several of the most pressing issues re-
garding students’ Fourth Amendment rights in school today.
This Note will analyze the court’s ruling in the context of the over-
all development of Fourth Amendment jurisprudence as applied to
searches of public school students while at school. This Note con-
cludes that the Nebraska Supreme Court’s opinion in
J.P.
, in addition
to limiting school official’s authority to school property and events, sig-
nals that the Nebraska Supreme Court will subject searches by school
officials to some higher level of scrutiny than the virtual
carte blanche
afforded school officials in other jurisdictions. Part II will provide the
relevant background regarding the Fourth Amendment, the U.S. Su-
preme Court’s application of the Fourth Amendment to students in
school in
T.L.O.
, and, finally, the facts and opinions of the Nebraska
Supreme Court’s decision in
J.P.
Part III will provide an analysis in
2. Dale Edward F.T. Zane, Note,
School Searches Under the Fourth Amendment:
New Jersey v. T.L.O., 72 C
ORNELL
L. R
EV
. 368, 376–77 (1987).
3.
Id.
at 376–80.
See infra
notes 20–21.
4. 469 U.S. 325 (1985);
see
Martin R. Gardner,
Student Privacy in the Wake of
T.L.O.
: An Appeal for an Individualized Suspicion Requirement for Valid
Searches and Seizures in the Schools
, 22 G
A
. L. R
EV
. 897, 919–25 (1988) (summa-
rizing the academic criticism of the Court’s reasoning in
T.L.O.
).
5.
See infra
notes 85–99 and accompanying text.
6. 285 Neb. 890, 830 N.W.2d 453.
1014 NEBRASKA LAW REVIEW [Vol. 93:1012
four sections: (1) the state of students’ Fourth Amendment rights in
the wake of
T.L.O.
, (2) the court’s opinion in
J.P.
, (3) the likely impact
of the court’s decision, and (4) the policy considerations that support
the court’s additional scrutiny of school searches.
II. BACKGROUND
A. Fourth Amendment Jurisprudence
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and ef-
fects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or affir-
mation, and particularly describing the place to be searched, and the persons
or things to be seized.
7
There are two discrete clauses within the amendment: the Reasona-
bleness Clause, which applies to all searches and seizures, and the
Warrant Clause, which applies only when prior approval by a judge is
required for the search.
8
Though not all searches and seizures require
the prior obtainment of a warrant, those conducted without a warrant
are regarded as
per se
unreasonable subject to only a few judicially
articulated exceptions.
9
The U.S. Supreme Court articulated the standard for general
Fourth Amendment application in
Katz v. United States.
10
In his
seminal concurrence, Justice Harlan described the majority’s stan-
dard as a twofold requirement that a person have an expectation of
privacy in the object being searched and that the expectation be one
“that society is prepared to recognize as ‘reasonable.’”
11
Under this
standard, known as the Reasonable Expectation Test, Fourth Amend-
ment protections are available only if the subject has demonstrated a
reasonable expectation of privacy in the subject of the search.
12
B. New Jersey v. T.L.O.
13
and the Fourth Amendment in
Public Schools
The U.S. Supreme Court established a substantially lower stan-
dard than the one described in
Katz
for searches of students by public
7. U.S. C
ONST
. amend. IV.
8. Myron Schreck,
The Fourth Amendment in the Public Schools: Issues for the
1990s and Beyond
, 25 U
RB
. L
AW
. 117, 118 (1993). The State of Nebraska’s Con-
stitution contains a provision identical to the Fourth Amendment.
See
N
EB
.
C
ONST
. art. I, § 7.
9. Katz v. United States, 389 U.S. 347, 357 (1967).
10.
See id.
at 356–59.
11.
Id.
at 361 (Harlan, J., concurring).
12.
See id.
13. 469 U.S. 325 (1985).
2015]
J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS
1015
school officials in
New Jersey v. T.L.O.
14
In
T.L.O.
, two high school
students were taken to the principal’s office for smoking in a school
restroom.
15
After the students denied smoking, the principal opened
one student’s purse where he found a packet of cigarettes.
16
Beneath
the cigarettes was a small amount of marijuana and various items
that linked the student to drug dealing.
17
The school reported the evi-
dence to the State, which subsequently brought a delinquency ac-
tion.
18
The defendant student sought to suppress the evidence from
her purse on the grounds that the principal’s search violated the
Fourth Amendment.
19
Prior to
T.L.O.
, it was unclear whether public school students were
entitled to any Fourth Amendment protections while in school.
20
His-
torically, students had enjoyed almost no constitutional protections
while at school, but the underlying reasoning for why was unsettled.
21
In analyzing the validity of the search in
T.L.O.
, the Court first
held that public school teachers and administrators are state actors
for purposes of the Fourth Amendment.
22
The Court rejected the
State of New Jersey’s argument that students do not possess a reason-
able expectation of privacy in personal belongings voluntarily brought
into school.
23
The Court noted that the item the student “voluntarily”
brought into school was her purse, an object which generally contains
“highly personal items [such] as photographs, letters, and diaries.”
24
In addressing the appropriate standard for school searches, the
Court considered separately whether school officials needed to obtain
a warrant before searching the student and whether the search re-
quired probable cause.
25
In attempting to strike a balance between
the “equally legitimate” interests of students and school officials, the
Court held that the warrant requirement did not apply to school
14.
Id.
15.
Id.
at 328.
16.
Id.
17.
Id.
18.
Id.
at 328–29.
19.
Id.
at 329.
20. Gardner,
supra
note 4, at 897 n.3 (noting that several lower courts prior to
T.L.O.
ruled that students were not entitled to Fourth Amendment protection while at
school).
21. Barry C. Feld, T.L.O.
and
Redding
’s Unanswered (Misanswered) Fourth Amend-
ment Questions: Few Rights and Fewer Remedies
, 80 M
ISS
. L.J. 847, 847–48
(2011) (noting that courts had rejected Fourth Amendment protection for stu-
dents on a variety of theories such as that school officials acted
in loco parentis
or,
alternatively, as private citizens).
22.
T.L.O.
, 469 U.S. at 336–37.
23.
Id.
at 338–39 (noting that students “at a minimum must bring to school not only
the supplies needed for their studies, but also keys, money, and the necessaries of
personal hygiene and grooming”).
24.
Id.
at 339.
25.
See id.
at 340–41.
1016 NEBRASKA LAW REVIEW [Vol. 93:1012
searches because it was ill-suited to the “swift and informal” discipli-
nary environment of the school and was likely to “frustrate the gov-
ernmental purpose behind the search.”
26
The Court held that such an
exception was well-established in its case law.
27
Because the Fourth Amendment fundamentally requires that
searches be reasonable under the particular circumstances, the Court
held that the substantial needs of the school weighed in favor of re-
quiring a standard lower than probable cause.
28
The Court cited to a
number of cases where, in the majority’s opinion, the Court held that a
standard short of probable cause was contextually appropriate.
29
This
reasonableness approach consisted of a two-part inquiry: the search
needed to be justified at its inception and be “reasonably related” in
scope to the circumstances warranting the search.
30
The Court held
that under normal circumstances a search of a student would be justi-
fied when there are “reasonable grounds” for suspecting the search
would uncover evidence of a violation of school conduct.
31
Further,
“[s]uch 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.”
32
As a matter of policy, the Court noted that
a reasonableness standard would spare school officials the “necessity
of schooling themselves in the niceties of probable cause” and could
instead “regulate their conduct according to the dictates of reason and
common sense.”
33
In the dissenting portion of his opinion, Justice Brennan noted
that the majority did not cite any case “in which a full-scale intrusion
upon privacy interests has been justified on less than probable
cause.”
34
Justice Brennan additionally disputed the majority’s ratio-
26.
Id.
at 340 (quoting Camara v. Mun. Court, 387 U.S. 523, 532–33 (1967)) (internal
quotation marks omitted).
27.
Id.
28.
See id.
at 340–41.
29.
Id
. at 341 (citing Delaware v. Prouse, 440 U.S. 648, 654–55 (1979); United States
v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Brignoni-Ponce, 422
U.S. 873, 881 (1975); Terry v. Ohio, 392 U.S. 1 (1968)).
30.
Id.
at 341.
31.
Id.
at 341–42.
32.
Id
. at 342.
33.
Id.
at 343.
34.
Id.
at 360 (Brennan, J., concurring in part and dissenting in part). Justice Bren-
nan noted that the majority’s primary support in
Terry v. Ohio
was misplaced as
that case did not authorize a full-scale search.
Id. Terry
authorized police of-
ficers possessing reasonable suspicion of a crime to momentarily stop a citizen to
confirm or dispel the officers’ suspicion. Additionally, police may conduct a pat
down search of the person for weapons if they suspect the person is armed in
order to ensure officer safety, but not to uncover evidence of criminal conduct.
Terry
, 392 U.S. at 22–26.
2015]
J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS
1017
nale for sparing school officials the burden of probable cause.
35
He
instead noted that the Court had already grounded probable cause in
a “nontechnical” and “easily applied” approach, which school officials
should be capable of applying.
36
C. J.P. ex rel. A.P. v. Millard Public Schools
J.P. was a student at Millard West High School in Omaha, Ne-
braska.
37
On August 18, 2010, J.P. drove to school and parked on a
public street opposite school grounds.
38
After his first class, J.P. at-
tempted to exit the building but was stopped by the hall monitor, Lori
Bishop, who denied him permission to leave.
39
Shortly after, Dennis
Huey, a parking lot security guard, encountered J.P. walking through
the lot with another student.
40
J.P. told Huey he needed to retrieve
something from his truck.
41
Huey accompanied the students and ob-
served J.P. retrieve his wallet and sweatshirt.
42
Upon reentering the building, J.P. encountered Bishop, who in-
quired why he had left the building despite her directive not to do so.
43
J.P. claimed that he had left with Huey’s permission, which Huey de-
nied.
44
Bishop sent J.P. to Vice Principal Harry Grimminger’s of-
fice.
45
During the meeting, Grimminger decided to search J.P. and his
vehicle. He instructed J.P. to empty his pockets and searched J.P.’s
bag.
46
Finding no violation of school policy, Grimminger proceeded to
J.P.’s truck with J.P. and a school resource officer. J.P. refused to con-
sent to the search, claiming his father did not want the truck
searched.
47
Nevertheless, Grimminger searched the truck and found
multiple items of drug paraphernalia.
48
35.
T.L.O.
, 469 U.S. at 356 (Brennan, J., concurring in part and dissenting in part).
36.
See id.
at 364–65 (quoting Gates v. Illinois, 462 U.S. 213 (1983)) (“[A]fter
Gates
, I
would have thought that there could be no doubt that this ‘nontechnical,’ ‘practi-
cal,’ and ‘easily applied’ concept was eminently serviceable in a context like a
school, where teachers require the flexibility to respond quickly and decisively to
emergencies.”).
37. J.P.
ex rel.
A.P. v. Millard Pub. Sch., 285 Neb. 890, 893, 830 N.W.2d 453, 457
(2013).
38.
Id.
The court noted that the school campus’s east side borders the street in ques-
tion, 176th Avenue, and that around 15% of the students who drive to the high
school park along this street.
Id.
39.
Id.
at 893, 830 N.W.2d at 457–58.
40.
Id.
at 893, 830 N.W.2d at 458.
41.
Id
. at 893–94, 830 N.W.2d at 458.
42.
Id.
at 894, 830 N.W.2d at 458.
43.
Id.
44.
Id.
45.
Id.
46.
Id.
47.
Id.
J.P. manifested a clear unwillingness to consent, going so far as to place him-
self between Grimminger and the truck before eventually yielding.
Id.
48.
Id.
at 894–95, 830 N.W.2d at 458.
1018 NEBRASKA LAW REVIEW [Vol. 93:1012
The school suspended J.P. for nineteen days for violating two sec-
tions of the Millard West High School 2010–2011 Student Handbook:
possession of drug paraphernalia on school grounds and disruptive be-
havior.
49
The school claimed its authority to discipline J.P. for the
paraphernalia stemmed from section IX.V of the student handbook,
which defined the school’s jurisdiction as existing on district property,
in a vehicle owned by the district, at a school-sponsored activity, “or
any other place where the governing law permits the District to disci-
pline students for prohibited conduct.”
50
After the Millard School Board denied his appeal, J.P. brought an
action through his father in the Douglas County District Court seek-
ing the expunction of the suspension from his record on the grounds
that the school’s search violated the Fourth Amendment.
51
The dis-
trict court found that an off-campus search of a student’s vehicle by a
school official required probable cause.
52
Because the search of J.P.’s
person uncovered no violations, the school lacked probable cause to
expand the search to his vehicle.
53
Millard Public Schools appealed
the district court’s decision and the Nebraska Supreme Court as-
sumed the case from the Court of Appeals’ docket.
54
The majority began its analysis by noting that a school district is a
“creature of statute” with no authority beyond that granted by the leg-
islature.
55
The court determined that this authority exists on school
grounds, in school vehicles, and at school-sponsored activities.
56
The
court noted that the warrant exception and reasonable suspicion stan-
dard handed down in
T.L.O.
had been “expanded” in subsequent cases
to include searches of student’s cars on school property and searches of
students occurring off school property during school-sponsored activi-
ties.
57
However, the court determined that
T.L.O.
did not apply be-
49.
Id.
at 895–96, 830 N.W.2d at 458–59.
See
M
ILLARD
P
UB
. S
CH
., M
ILLARD
W
EST
H
IGH
S
CHOOL
2010–2011 S
TUDENT
H
ANDBOOK
§§ III.A & IV.F.
50.
J.P.
, 285 Neb. at 896, 830 N.W.2d at 459 (quoting M
ILLARD
P
UB
. S
CH
.,
supra
note
49, at 60). The school district found that J.P.’s car was “any other place” and that
the school was required to act based on the truck’s proximity to the school and the
school’s obligation to protect the learning environment.
Id.
51.
Id.
at 896–97, 830 N.W.2d at 459.
52.
Id.
at 897, 830 N.W.2d at 460.
53.
Id.
54.
Id.
at 897–98, 830 N.W.2d at 460.
55.
Id.
at 899–900, 830 N.W.2d at 461–62 (citing Robertson v. Sch. Dist. No. 17, 252
Neb. 103, 560 N.W.2d 469 (1997)).
56.
Id.
at 899–900, 830 N.W.2d at 461. In reaching this conclusion, the court held
that this authority is granted pursuant to Section 79-267 of the Nebraska Re-
vised Statutes.
Id.
(citing N
EB
. R
EV
. S
TAT
. § 79-267 (Reissue 2008)).
57.
Id.
at 900, 830 N.W.2d at 462 (citing Anders
ex rel.
Anders v. Fort Wayne Cmty
.
Sch., 124 F. Supp. 2d 618 (N.D. Ind. 2000);
In re
Interest of Michael R., 11 Neb.
App. 903, 662 N.W.2d 632 (2003)).
2015]
J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS
1019
cause the search by Grimminger did not occur on school grounds or at
a school-sponsored activity.
58
Additionally, the court distinguished
Morse v. Frederick,
which ad-
dressed students’ First Amendment rights while off campus.
59
In
Morse
, a high school permitted its students to assemble across the
street from the school to watch the passing of the Olympic torch.
60
Once off-campus, a student unfurled a banner that read, “BONG HiTS
4 JESUS.”
61
The principal instructed the student to take the banner
down. When the student refused, the principal suspended the student
for promoting illegal drug use, a violation of the school’s code of con-
duct.
62
The U.S. Supreme Court held that the principal was within
her authority to discipline the student because the incident occurred
during a school-sponsored activity and the school district’s rules spe-
cifically stated that students are subject to school authority during
such events.
63
While the Court in
Morse
determined that the activity at issue was
school-sponsored, the court in
J.P.
held that the activity—driving to
school—was not school sponsored.
64
The court held that the school
had no authority to conduct the search regardless of the level of suspi-
cion possessed by school officials.
65
The court affirmed the lower
court’s order, expunging the suspension from J.P.’s record.
66
In contrast, the dissent argued the reasonable suspicion frame-
work of
T.L.O.
was applicable.
67
In doing so, the dissent relied upon
both
T.L.O.
and
Morse
.
68
The dissent disputed the majority’s distin-
guishing
T.L.O
. by noting that the standard articulated in
T.L.O.
was
not location specific and that the case did not discuss the boundaries
of a school official’s authority to conduct a search.
69
58.
Id.
at 901, 830 N.W.2d at 462.
59.
Id.
at 906–07, 830 N.W.2d at 465–66.
60. Morse v. Fredrick, 551 U.S. 393, 397 (2007).
61.
Id.
62.
Id.
at 398.
63.
Id.
at 400–01.
64.
J.P.
, 285 Neb. at 907, 830 N.W.2d at 466.
65.
Id.
66.
Id.
at 910–11, 830 N.W.2d at 468. In affirming the expunction, the court cited to
subsection 79-291(2)(a) of the Nebraska Revised Statutes, which allows a court to
reverse or modify a school’s board decision when “substantial rights of the peti-
tioner may have been prejudiced because the board’s decision is . . . [i]n violation
of constitutional provisions.”
Id.
(citing N
EB
. R
EV
. S
TAT
. § 79-291(2)(a) (Reissue
2008)).
67.
Id.
at 913–16, 830 N.W.2d at 469–71 (Heavican, C.J., dissenting).
68.
Id.
The dissent would have remanded the case to the district court to determine
whether reasonable suspicion existed.
Id.
at 912, 830 N.W.2d at 469.
69.
Id.
at 913–16, 830 N.W.2d at 469–71 (citing Shade v. City of Farmington, Minn.,
309 F.3d 1054 (8th Cir. 2002); Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075
(5th Cir. 1995); Webb v. McCullough, 828 F.2d 1151 (6th Cir. 1987); Rhodes v.
Guarricino, 54 F. Supp. 2d 186 (S.D.N.Y. 1999)).
1020 NEBRASKA LAW REVIEW [Vol. 93:1012
Additionally, the dissent applied
Morse
in order to understand the
extent of school authority and students’ constitutional protections be-
yond school grounds.
70
As the Court in
Morse
stated, “[the student]
cannot stand in the midst of his fellow students, during school hours,
at a school-sanctioned activity and claim he is not at school.”
71
The
dissent found this statement applicable to the search of J.P.’s truck.
72
The dissent disputed the idea that the violation did not occur
within the parameters of a school-sponsored activity.
73
More impor-
tant to the dissent were the facts that the bulk of the rule-breaking
conduct occurred on school grounds, that the school retained responsi-
bility for J.P., and that the entire episode occurred during “the ulti-
mate school-sponsored activity—attending school during regular
school hours.”
74
According to the dissent, the majority’s focus on J.P.’s
act of driving to school “ignore[d] the obvious.”
75
J.P.’s attendance at
school placed him under the school’s authority and his sneaking out of
the building during the school day to access his truck associated his
truck with the rule-breaking conduct.
76
III. ANALYSIS
Although the Nebraska Supreme Court decided
J.P.
based upon
the school’s statutory authority, the U.S. Supreme Court’s analysis in
T.L.O
. and its dissemination had substantial implications on the Ne-
braska Supreme Court’s adjudication of
J.P.
An analysis of prior pre-
cedent is necessary to understand the court’s holding.
A. Students’ Fourth Amendment Rights After T.L.O.
T.L.O.
’s adoption of a reasonable suspicion standard for school
searches quickly incurred a bevy of scholarly criticism.
77
In the wake
of the decision, one scholar speculated that, although counterintuitive,
the Court’s use of a balancing approach to apply the Fourth Amend-
ment may actually result in fewer overall Fourth Amendment protec-
tions than if the Court had simply denied students Fourth
Amendment protection entirely.
78
This same article notes, “While it
70.
Id.
at 914–15, 830 N.W.2d at 470–71.
71. Morse v. Fredrick, 551 U.S. 393, 401 (2007) (internal quotation marks omitted).
72.
J.P.
, 285 Neb. at 914–15, 830 N.W.2d at 470–71 (Heavican, C.J., dissenting).
73.
Id.
at 917, 830 N.W.2d at 472.
74.
Id.
75.
Id.
at 918, 830 N.W.2d at 473.
76.
Id.
77.
See
Gardner,
supra
note 4, at 919 (“Several critics have taken the Court to task
for its misuse of prior precedent in attempting to justify the rejection of the prob-
able cause standard in school searches in favor of the reasonable grounds, balanc-
ing approach.”).
78.
See id.
at 920 (arguing that the risk of the Court subsequently extending “sliding-
scale” analysis beyond the school context may mean that the court would have
2015]
J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS
1021
may eventually turn out that the Court’s new school-search standard
has some real fourth amendment [sic] teeth, its application in
T.L.O.
provides little basis for such hope.”
79
This skepticism has proven accurate, as
T.L.O.
has received “a
warm reception” by lower courts.
80
Casting aside the weight of schol-
arly commentary on the issue, courts have treated
T.L.O.
as applica-
ble to virtually all searches conducted by school officials.
81
Additionally, the Court’s articulation of reasonable suspicion has
proven to be an exceedingly low threshold for school officials to
meet.
82
These two judicial trends, the wide application of
T.L.O.
’s
framework and the seemingly ever-present nature of reasonable sus-
picion, call into question whether students enjoy any substantive
Fourth Amendment protection at school.
83
Contributing to this uncertainty is the fact that the Court in
T.L.O.
explicitly declined to rule on four related issues: (1) whether the exclu-
sionary rule is an appropriate remedy for Fourth Amendment viola-
tions by school officials; (2) whether a student has a reasonable
expectation of privacy in lockers, desks, and other school provided
storage; (3) what the appropriate standard for evaluating searches
conducted by school officials in conjunction with law enforcement is;
and (4) whether individualized suspicion is required for a search of a
student.
84
Leaving so many questions unanswered afforded lower
better ensured individual Fourth Amendment protections by holding the school
context a special exception to the Fourth Amendment entirely).
79.
Id.
80. Stuart C. Berman, Note,
Student Fourth Amendment Rights: Defining the Scope
of the
T.L.O.
School Search Exception
, 66 N.Y.U. L. R
EV
. 1077, 1078 (1991).
81.
Id.
82. Schreck,
supra
note 8, at 122 (1993) (noting that of the twenty-three school
search cases in the eight years following
T.L.O.
, reasonable suspicion was found
to be lacking in only three, whereas four such cases were found to lack reasonable
suspicion in the year prior to
T.L.O.
);
see also
Martin H. Belsky,
Random vs. Sus-
picion-Based Drug Testing in the Public Schools – A Surprising Civil Liberties
Dilemma
, 27 O
KLA
. C
ITY
U.L. R
EV
. 1, 19–20 (2002) (outlining the broad, seem-
ingly all-encompassing, sources of student behavior from which officials may de-
rive reasonable suspicion); Joseph M. Sanchez,
Expelling the Fourth Amendment
from American Schools: Students’ Rights Six Years After
T.L.O., 21 J.L. & E
DUC
.
381 (1992) (noting that the reasonable suspicion standard in the six years after
T.L.O.
had been “diluted to a point where the flimsiest of excuses . . . can precipi-
tate invasions of students’ legitimate expectations of privacy”).
83. In addition to the low threshold for reasonable suspicion, courts afford extreme
deference to school officials in undertaking actions they view as necessary to
maintain the school’s environment. Jacqueline A. Stefkovich,
Student’s Fourth
and Fourteenth Amendment Rights After
Tinker
: A Half Full Glass?
, 69 S
T
.
J
OHN
’
S
L. R
EV
. 481, 512 (1995).
See, e.g.
, New Jersey v. T.L.O., 469 U.S. 325, 342
n.9 (1985) (“[T]he courts should, as a general matter, defer to [a school official’s]
judgment and refrain from attempting to distinguish between rules that are im-
portant to the preservation of order in the schools and rules that are not.”).
84. Schreck,
supra
note 8, at 121.
1022 NEBRASKA LAW REVIEW [Vol. 93:1012
courts wide latitude in applying
T.L.O.
A body of scholarly analysis in
the years immediately following
T.L.O.
sought to extrapolate a more
illuminative jurisprudence from the Court’s holding.
85
For example, Stuart Berman argues that the Court’s restraint in
constructing its ruling in
T.L.O.
meant that the decision should be
read narrowly rather than as a complete abandonment of the warrant
requirement and of probable cause standards in school searches.
86
According to Berman, because the Court arrived at its conclusions re-
garding the warrant exception and the applicable standard for student
searches separately, it would follow that lower courts should employ
the same bifurcated analysis—weighing separately the appropriate-
ness of each component against the needs of the school.
87
Rather than this nuanced treatment, however, lower courts have
read
T.L.O.
quite broadly—almost always applying
T.L.O.
’s warrant
exception and reasonable suspicion standard to searches of students
by school officials.
88
Essentially, these courts have held that the two
components of
T.L.O.
’s analysis—clearly separated by the Court and
treated so differently in Justice Brennan’s concurrence—are inextrica-
bly intertwined and jointly applicable.
Since the Court’s decision, the reasonable suspicion standard and
warrant exception have been applied to searches of students’ automo-
biles,
89
lockers and desks,
90
students’ hotel rooms on school trips,
91
85.
See
Gardner,
supra
note 4, at 922–23; M. Teresa Harris, New Jersey v. T.L.O.
:
New Standard of Review or New Label?
, 9 A
M
. J. T
RIAL
A
DVOC
. 157 (1985);
Schreck,
supra
note 8, at 121; Berman,
supra
note 80; J. Chad Mitchell, Com-
ment,
An Alternative Approach to the Fourth Amendment in Public Schools: Bal-
ancing Students’ Rights with School Safety
, 1998 BYU L. R
EV
. 1207 (1998).
86. Berman,
supra
note 80, at 1079.
87.
Id.
at 1099–1100. Under this analysis, a court will likely reach one of three con-
clusions when considering the appropriate standard for a school-related search of
a student. A court may: (1) require a warrant issued upon probable cause, (2)
dispense with the warrant requirement but require probable cause, or (3) except
the warrant requirement and reduce the requisite standard to reasonable suspi-
cion.
Id
. According to Berman, the more the facts of a particular search differ
from those in
T.L.O.
, the more willing a court should be to adopt a stricter stan-
dard to validate the search and to require the school to obtain a warrant.
Id
.
88.
Id.
at 1078.
89.
See, e.g.
, State v. Best, 959 A.2d 243 (N.J. Super. App. Div. 2008),
aff’d
, 987 A.2d
605 (N.J. 2010).
90.
See In re
Dumas, 515 A.2d 984 (Pa. 1986) (holding that the
T.L.O.
reasonableness
standard applies to lockers). School districts commonly have policies that desks
and lockers can be searched for any reason because schools retain control of desks
and lockers as school property. Thus, students have no privacy interest in items
kept inside. Amy Vorenberg,
Indecent Exposure
:
Do Warrantless Searches of a
Student’s Cell Phone Violate the Fourth Amendment?
, 17 B
ERKELEY
J. C
RIM
. L.
62, 71 (2012).
See, e.g.
, M
ILLARD
P
UBLIC
S
CHOOLS
, M
ILLARD
W
EST
H
IGH
S
CHOOL
2011–2012 S
TUDENT
H
ANDBOOK
38 (2011) (stating that lockers and desks, as
school property, may be searched at anytime without notice or the student’s con-
sent),
archived at
http://perma.unl.edu/WW69-G5ZG.
2015]
J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS
1023
students attending field trips and off-campus classes,
92
and strip
searches of students.
93
Without a particularized suspicion require-
ment,
T.L.O.
’s framework has been applied to metal detectors in
schools,
94
as well as to random drug testing of student athletes,
95
stu-
dents in extracurricular activities,
96
and students driving to and from
school.
97
Even in a case where the Court found that a student’s
Fourth Amendment rights were violated when she was strip searched
by school officials, the Court found the case law sufficiently ambiguous
to entitle the school officials to qualified immunity.
98
Thus, the stu-
dent was denied relief from the officials for the violation.
99
Essentially, the approach by subsequent courts has been all or
nothing. Either
T.L.O.
applies, in which case there is no warrant re-
quirement and a school official needs only reasonable suspicion, or
T.L.O.
is inapplicable and a search is only valid with a warrant sup-
ported by probable cause. This all-or-nothing approach to Fourth
Amendment jurisprudence in school searches left the Nebraska Su-
preme Court with a stark choice in evaluating
J.P.
: either expand
school officials’ already extremely broad constitutional powers to allow
searches of students (and their vehicles) beyond school property, or
require the search to be conducted by law enforcement and supported
by probable cause.
91.
See
Rhodes v. Guarricino, 54 F. Supp. 2d 186, 192 (S.D.N.Y. 1999) (holding that
T.L.O.
’s reasonableness standard controls searches of students’ rooms on school
trips).
92.
See
Shade v. City of Farmington, 309 F.3d 1054 (8th Cir. 2002) (holding a search
of high school students traveling in a van from class off-campus was reasonable
because the teacher knew someone in the group possessed a knife but was unsure
of which student it was).
93.
See
Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316 (7th Cir. 1993)
(holding a strip search of a student for drugs was reasonable).
94.
See
People v. Pruitt, 662 N.E.2d 540, 545 (Ill. App. Ct. 1996).
95. Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 664–65 (1995).
96.
See
Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 838 (2002)
(holding that T.L.O.’s reasonableness standard allowed for policy of drug testing
students involved in any extracurricular activity).
97.
See
Todd v. Rush Cnty. Sch., 133 F.3d 984, 984–86 (7th Cir. 1998) (holding that
under
T.L.O.
, drug testing students who drove to and from school was reasona-
ble); Joye v. Hunderton Cent. Reg’l High Sch. Bd. of Educ., 826 A.2d 624, 655
(N.J. 2003) (holding that policy of drug testing students seeking parking privi-
leges was reasonable under the Fourth Amendment).
98. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 378–79 (2009) (“We
think [the] differences of opinion from [the Federal Courts of Appeals] are sub-
stantial enough to require immunity for the school officials in this case.”).
99.
Id.
at 379.
1024 NEBRASKA LAW REVIEW [Vol. 93:1012
B. J. P. ex rel. A.P. v. Millard Public Schools
1. Section 79-267 of the Nebrasa Revised Statutes and the
Rejection of the “Nexus to the School” Analysis
In many ways,
J.P.
is an extended and, at times, contentious de-
bate on when a student is or is not “at school.” While such a question
seems elementary, the facts of the case are well-suited to confound
any articulable qualification of when a student is present in the school
context. J.P.’s car was off-campus, but J.P. was attending class when
he violated school policy. J.P. left school grounds to reach his truck,
but he never left the control of the school.
Section 79-267 of the Nebrasa Revised Statutes grants authority to
school officials to punish conduct in three circumstances: when the
conduct occurs (1) on school grounds, (2) in a school vehicle, or (3) at a
school-sponsored activity.
100
In applying Section 79-267 to J.P.’s case,
the dissent and majority diverged as to what specific conduct should
be analyzed. The majority identified J.P.’s driving to school as the rel-
evant conduct, while the dissent emphasized J.P.’s attempts to leave
the building to access his car.
101
The dissent argued the school had legal authority to investigate
and punish the conduct because it suspected J.P. of attempting to
bring contraband from his truck into the school.
102
J.P. “associated
his vehicle with his unauthorized exit and reentrance into the
school.”
103
According to the dissent, this association “changed the sta-
tus of privacy rights” J.P. had in his car because it was now associated
with a school-sponsored activity—the school day.
104
Under this anal-
ysis, the school had authority to search because the conduct occurred
on school grounds and at a school-sponsored activity.
105
The majority labeled the dissent’s association analysis as a “nexus
to the school standard.”
106
In addition to expressly rejecting this stan-
100. J.P.
ex rel.
A.P. v. Millard Pub. Sch., 285 Neb. 890, 917, 830 N.W.2d 453, 472
(2013) (Heavican, C.J., dissenting).
101.
See supra
text accompanying notes 64, 72–76.
102.
J.P.
, 285 Neb. at 912, 830 N.W.2d at 469 (Heavican, C.J., dissenting) (stating
that the case should be remanded to determine if reasonable suspicion existed to
support the search). The school district framed the issue as one of a continuing
threat to the school environment.
See
Brief for Appellants at 23, J.P.
ex rel.
A.P.
v. Millard Public Schools, 285 Neb. 890, 830 N.W.2d 453 (2013) (No. S-11-000777)
(arguing that the District believed it was obligated to search J.P.’s truck because
not doing so would allow J.P. to “move contraband between the school and his
truck, which would . . . threaten the safety and security of the school”).
103.
J.P
., 285 Neb. at 918–19, 830 N.W.2d at 473 (Heavican, C.J., dissenting).
104.
Id.
105.
Id.
at 917, 830 N.W.2d at 472 (“J.P.’s conduct occurred during the ultimate
school-sponsored activity—attending school during regular school hours.”).
106.
Id
. at 908, 830 N.W.2d at 467 (majority opinion). This nexus to the school argu-
ment appears to be the majority’s synthesis of three highly similar arguments: (1)
the dissent’s association argument, (2) the Appellant’s argument, and (3) the
2015]
J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS
1025
dard on policy grounds,
107
the majority stated, “[p]ermitting school of-
ficials to search a student’s vehicle based upon a nexus to the school
because a student drove the vehicle to school is overly broad.”
108
The
dissent posited that the relevant conduct, rather than J.P.’s driving to
school, was his attempts to reach his car during the school day.
109
The majority’s and dissent’s differing interpretations of the rele-
vant conduct at issue results from the specific facts of
J.P
. Three facts
are noteworthy for the majority: (1) J.P. was intercepted before reach-
ing his truck after his first class, foreclosing the possibility that he
snuck out to his truck prior to that point; (2) a school officer observed
J.P. remove items from his truck, thus J.P. could neither have depos-
ited nor collected any contraband at that time; and (3) Grimminger’s
search of J.P. revealed no contraband, therefore making it extremely
unlikely that J.P. had possessed contraband on school property at any
point during the day.
110
Thus, the only act of which the school could
have suspected J.P. was possession of contraband in his truck, and the
only relevant conduct, according to the majority, was driving to school
with the contraband in his truck.
111
The majority arguably could have arrived at the same place by
holding that possessing contraband in one’s vehicle off-campus was
not a violation of school policy and thus conferred no authority to
search.
112
But focusing on J.P.’s drive to school refutes the appellant’s
argument because none of the characteristics of school-sponsored ac-
tivities enumerated by the appellant are present for the drive to
school.
113
nexus to the school standard articulated in
Commonwealth v. Williams
.
See
Brief
for Appellants,
supra
note 100, at 25; Commonwealth v. Williams, 749 A.2d 957,
963 (Pa. Super. Ct. 2000).
107. The majority rejected the nexus to the school standard out of concern it would
lead to “confusing inquiries.”
J.P.
, 285 Neb. at 908, 830 N.W.2d at 467. This
sentiment resembles the Court’s reluctance in
T.L.O.
to entrust school officials to
competently adjudicate the probable cause standard.
See supra
text accompany-
ing note 33.
108.
J.P.
, 285 Neb. at 908, 830 N.W.2d at 467.
109.
Id.
at 918, 830 N.W.2d at 473 (Heavican, C.J., dissenting).
110.
Id.
at 908, 830 N.W.2d at 466 (majority opinion) (“There was no evidence that the
contraband was ever placed on school property.”).
111.
See id
. (“The relevant conduct (having contraband in the truck) occurred off
school grounds.”).
112. The court noted that section III.A.2.a of the Millard West High School Student
Handbook required a “citation or admission” to punish a student for off-campus
conduct. Furthermore, section III.A.1.c of the handbook required that legal au-
thorities be contacted when drug contraband was discovered.
Id
. at 895, 830
N.W.2d at 458–59. It is unclear from the court’s opinion whether the school con-
tacted authorities and J.P. was given a citation. The issue does not affect the
school’s authority under Section 79-267 of the Nebraska Revised Statutes.
113.
See
Brief for Appellants,
supra
note 102, at 16 (asserting that the search occurred
“in a public school setting” and that J.P. was in the “temporary custody and care”
of the school at the time).
1026 NEBRASKA LAW REVIEW [Vol. 93:1012
Framing the issue in terms of J.P.’s drive to school further serves
to rebut the dissent’s application of
Morse
. To the dissent,
Morse
, like
J.P.
, involved a student stepping just off school grounds and claiming
to be beyond the reach of school discipline.
114
Yet in
Morse
, the Court
found that the student was still subject to school authority.
115
As the
dissent notes, in both cases the school retained control and responsi-
bility over the student.
116
If the relevant conduct is J.P.’s attempt to
leave the school,
Morse
appears analogous to J.P.’s case.
117
However,
if the relevant conduct is driving to school, then there was no school-
created environment and no control over J.P while he drove to school.
Furthermore, viewing J.P.’s case within this framework accentuates
the similarities between this case and the majority’s primary support-
ing precedent—
Commonwealth v. Williams
.
118
2. Undesirable Outcomes
Complicating the analysis of J.P.’s case is the fact that both the
majority and dissent can point to undesirable outcomes resulting from
deciding the case either way. A hypothetical scenario illuminates the
considerations.
A student is off school grounds and participating in a school-spon-
sored activity. The student sneaks away from the group without per-
mission and sets down his book bag before returning to the school
group. A school official intercepts the student and, suspecting the stu-
dent of sneaking away to dispose of contraband, accompanies him to
retrieve his book bag. There would be little question that the official
in this case would be within her authority to search the book bag if she
had reasonable suspicion. Yet there does not seem to be a clear way to
distinguish this case from J.P.’s without conceding that a school offi-
cial’s authority is more restricted during the school day, the “ultimate
school-sponsored activity,” than at other school-sponsored
activities.
119
114.
J.P
., 285 Neb. at 918–19, 830 N.W.2d at 473 (Heavican, C.J., dissenting) (citing
Morse v. Frederick, 551 U.S. 393 (2007)).
115.
Morse
, 551 U.S. at 400–01.
116.
J.P
., 285 Neb. at 919, 830 N.W.2d at 473 (Heavican, C.J., dissenting).
117.
See
Shade v. Farmington, 309 F.3d 1054, 1061 (8th Cir. 2002) (“The nature of
administrators’ and teachers’ responsibilities for the students entrusted to their
care, not school boundary lines, renders the Fourth Amendment standard in the
public-school context to be less onerous.”).
118. 749 A.2d 957 (Pa. Super. Ct. 2000). In
Williams
, a case in which the court found
a police officer similarly exceeded authority, the defendant was never on school
property before a school officer searched the car and found illegal firearms.
Id.
at
958–59.
119. One counterargument is that the amorphous boundaries of an off-campus school
activity, such as an out-of-town, high-school trip, requires this flexibility because
there is no clear delineation of authority (such as the school’s property line). This
is a valid point but to apply this reasoning in every case of off-campus activities is
2015]
J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS
1027
The alternative is to decide that school officials may exercise their
authority beyond the school’s property line when certain conduct “as-
sociates” their suspicion with a location off campus. This has poten-
tially extreme constitutional implications. As the appellee noted in its
brief, such a holding would theoretically allow a school official, with
nothing more than reasonable suspicion, to search J.P.’s house if, in-
stead of parking across the street, J.P. lived in close proximity to the
school.
120
Of course, the heightened privacy of the home may be
enough for a court to distinguish the situation,
121
but this scenario
presents a constitutional dilemma that cannot be adequately ad-
dressed through
T.L.O
.’s framework and its subsequent interpreta-
tions. Unleashing school officials’ authority beyond school grounds
presents a substantial reduction of Fourth Amendment protection for
all citizens in the name of school discipline. There is simply no readily
identifiable limiting principle to be found in
T.L.O.
or its progeny.
C. Impact of the Court’s Decision
The court’s decision will likely have several ramifications for how
school officials regard their authority to search students and how the
court will analyze school search cases in the future. Three areas of
Nebraska law appear likely to be particularly affected by the decision:
(i) the extent of schools’ authority over students on school-sponsored
activities, (ii) the court’s interpretation of reasonable suspicion, and
(iii) the court’s treatment of the school’s need to maintain order and
ensure student safety.
1. School-Sponsored Activities
Despite
J.P.
’s extensive treatment of the issue of school-sponsored
activities, the court’s holding is not likely to end questions regarding
to dismiss the weight of potentially heightened student-privacy concerns, such as
on overnight trips.
See
Berman,
supra
note 80, at 1120–21 (arguing that, with
fewer numbers of students, the need to reduce constitutional protections to main-
tain order diminishes and that student privacy expectations rise, especially on
overnight school-sponsored trips).
But see
Hassan v. Lubbock Indep. Sch. Dist.,
55 F.3d 1075, 1080 n.15 (5th Cir. 1995) (citing Webb v. McCullough, 828 F.2d
1151 (6th Cir. 1987)) (“School field trips often present greater, not lesser, chal-
lenges to school officials trying to maintain order and discipline than do the rela-
tively orderly confines of a school.”). The ease with which both arguments can be
framed to show the legitimate need of the official illuminates the primary reason
reasonable suspicion has proven such an easily met standard. When the situa-
tion involves groups of schoolchildren, any articulable safety concern can readily
appear serious and substantial enough to override a student’s limited constitu-
tional protections.
120. Brief for Appellee at 10, J.P.
ex rel.
A.P. v. Millard Pub. Sch., 285 Neb. 890, 830
N.W.2d 453 (2013) (No. S-11-000777).
121.
See
Wilson v. Layne, 526 U.S. 603, 612 (1999) (identifying the right to residential
privacy as the “core of the Fourth Amendment”).
1028 NEBRASKA LAW REVIEW [Vol. 93:1012
the definition of such activities. Whether a search occurred during a
school-sponsored activity will be a pivotal issue in future cases. If the
search occurred during a school-sponsored activity, then a school offi-
cial needs only reasonable suspicion to conduct a search. However, if
the court determines the search occurred outside the bounds of a
school-sponsored activity, the school official’s search is likely to be
found statutorily impermissible under Nebraska law.
The majority held that school-sponsored events described in the
relevant precedent were events where the school “created an environ-
ment for students, gave them permission to enter that environment,
and took responsibility for their safety in that environment.”
122
Though the court does not say so explicitly, each clause appears to be
a required element of a school-sponsored activity in the eyes of the
Nebraska Supreme Court. The act of driving to school met none of
these enumerated elements, but what if an activity meets only one or
two of the elements? For example, how does this definition apply to
retreats by school organizations, car-wash fundraisers supervised by
faculty, or off-campus, after-school artistic performances in which the
school furnishes tickets but students provide transportation? Cer-
tainly a wide variety of school-sponsored activities exist on a contin-
uum, but future cases regarding school-sponsored activities will
require a “yes” or “no” determination. Given the court’s apparent re-
quirements, it appears that schools should interpret school-sponsored
activities somewhat narrowly, likely reserving the designation for ac-
tivities that meet all three elements.
123
2. The Court’s Interpretation of Reasonable Suspicion
Because the court determined that the school officials did not
posses statutory authority to search students’ vehicles off school
grounds, it did not decide whether the facts of the case provided school
officials with reasonable suspicion to conduct the search.
124
However,
the majority’s examination of reasonable suspicion in dicta indicates a
willingness to subject school searches to a higher level of scrutiny than
the virtual
carte blanche
afforded school districts in other
jurisdictions.
125
The court did not expressly say that reasonable suspicion was lack-
ing, but it repeatedly expressed skepticism that the school possessed
reasonable suspicion to search J.P.’s car, even if such a search were
122.
J.P.
, 285 Neb. at 907, 830 N.W.2d at 466.
123. Conceivably, the vast majority of activities where one element is present will
have the other two as well.
124.
Id.
at 909, 830 N.W.2d at 467 (“For the search of J.P.’s truck to be reasonable, the
District must have authority to conduct the search.”).
125.
See id
. at 904–05, 830 N.W.2d at 464–65.
2015]
J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS
1029
statutorily authorized.
126
The majority distinguished a host of cases
that allowed searches of students’ vehicles because in those cases the
vehicle was parked on school grounds and there was a “link between
the student and contraband allowing school officials to reasonably sus-
pect that the student possessed contraband.”
127
The “link” in those
cases included a drug dog alerting officials to a student’s car
128
and
the knowledge that students had previously used tobacco in the school
parking lot.
129
Based on these statements, it appears that the court
will henceforth require a specific, articulable link between the student
searched and the suspected violation, rather than a mere showing
that the student violated an unrelated, or tenuously related, school
policy.
130
Specific to student searches for contraband, a school official
will likely need information linking the student to the contraband
sought before the search is undertaken.
3. Halting the “Parade of Horribles”
If the
T.L.O.
framework is to be understood as a balance between
students’ constitutional interests and the need for school safety and
order, then inarguably the scale has come down most often in favor of
school order.
131
In evaluating school needs, courts frequently engage
in superficial policy discussions regarding threats to school secur-
ity.
132
Conversely, courts tend to undervalue student constitutional
126.
Id.
at 904–08, 830 N.W.2d at 464–67.
127.
Id.
at 905, 830 N.W.2d at 464.
See
Bundick v. Bay City Indep. Sch. Dist., 140 F.
Supp. 2d 735 (S.D. Tex. 2001); Anders
ex rel.
Anders v. Fort Wayne Cmty. Sch.,
124 F. Supp. 2d 618 (N.D. Ind. 2000); State v. Best, 959 A.2d 243 (N.J. Super.
App. Div. 2008),
aff’d
, 987 A.2d 605 (N.J. 2010); State v. Slattery, 787 P.2d 932
(Wash. Ct. App. 1990).
128.
See Bundick
, 140 F. Supp. 2d at 738 (holding that a search of student’s car was
supported by reasonable suspicion where a drug-sniffing dog “alerted to” the stu-
dent’s car).
129.
See Anders
, 124 F. Supp. 2d at 621.
130. This requirement is consistent with several of the rare court opinions where
searches by school officials lacked reasonable suspicion.
See, e.g.
,
In re
William
G., 709 P.2d 1287, 1295–97 (Cal. 1985) (noting that reasonable suspicion requires
“articulable fact”); Cales v. Howell Pub. Sch., 635 F. Supp. 454, 455–57 (E.D.
Mich. 1985) (holding that a search for drugs was not supported by reasonable
suspicion where the student was found out of class when not allowed, lying about
her identity, and in possession of re-admittance slips against school policy).
131.
See
Randall R. Beger,
The “Worst of Both Worlds”: School Security and the Disap-
pearing Fourth Amendment Rights of Students
, 28 C
RIM
. J
UST
. R
EV
. 336, 337
(2003); Jessica Feierman,
The Decriminalization of the Classroom: The Supreme
Court’s Evolving Jurisprudence on the Rights of Students
, 13 J.L. S
OC
’
Y
301, 303
(2011).
132.
See
Stefkovich,
supra
note 83, at 512; s
ee also
Beger,
supra
note 131, at 338 (not-
ing the exaggerated view of school violence held by the public due to widely-publi-
cized but infrequent examples); Sarah Jane Forman,
Countering Criminalization:
Toward a Youth Development Approach to School Searches
, 14 S
CHOLAR
301, 317
1030 NEBRASKA LAW REVIEW [Vol. 93:1012
rights possibly, in part, because of the historical lack of constitutional
protections afforded students at school.
133
While ensuring student safety is one of the most critical missions
of school officials,
134
courts seem to find that the general threat of
school safety overrides almost any concern for students’ constitutional
rights.
135
The idea of crime in schools, often identified as either drugs
or weapons, is occasionally portrayed as a new or unprecedented
threat, which requires special vigilance by schools and courts.
136
Sta-
tistical evidence, however, indicates that America’s schools remain ex-
ceptionally safe environments for students.
137
The Nebraska Supreme Court emphatically rejected the dissent’s
warning of the dangerous consequences of the majority’s holding.
138
(2011) (“[T]he narrative of youth criminality as a serious threat to society re-
mains a potent theme in American culture and a driving force of public policy.”).
133. For example, the doctrine of
in loco parentis
, expressly rejected by
T.L.O.
, has
continued to sporadically influence judicial thinking. Under this standard, school
officials act under the delegated authority of the student’s parents, and the stu-
dent enjoys no Fourth Amendment protection in school.
See
Alysa B. Koloms,
Stripping Down the Reasonableness Standard: The Problem with Using
In Loco
Parentis
to Define Students’ Fourth Amendment Rights
, 39 H
OFSTRA
L. R
EV
. 169,
189 (2010);
see also
Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 383
(2009) (Thomas, J., dissenting) (arguing the search in question should be upheld
under an
in loco parentis
standard or, alternatively, under
T.L.O.
’s reasonable
suspicion framework); Morse v. Frederick, 551 U.S. 393, 410–25 (2007) (Thomas,
J., concurring) (stating that the Court should overturn prior constitutional limits
imposed on public school officials conduct and replace it with an
in loco parentis
standard); Webb v. McCullough, 828 F.2d 1151, 1157 (6th Cir. 1987) (holding that
a school principal’s search of a student’s hotel room on school-sponsored trip did
not need to be supported by reasonable suspicion because the principal was act-
ing
in loco parentis
).
But see
Rhodes v. Guarricino, 54 F. Supp. 2d 186, 192
(S.D.N.Y. 1999) (rejecting Webb’s
in loco parentis
analysis in regards to chaper-
one’s search of student’s room on school-sponsored trip).
134.
See
W. David Hatkins & John S. Hooks,
The Legal Aspects of School Violence:
Balancing School Safety with Students’ Rights
, 69 M
ISS
. L.J. 641, 645 (1999) (not-
ing that school safety remains a significant concern despite statistical reductions
in violent occurrences).
135. Beger,
supra
note 131.
136. The Court in
T.L.O.
considered recent “particularly ugly forms” of school disorder
such as drug use and gang violence. New Jersey v. T.L.O., 469 U.S. 325, 339
(1985). But this language should be read in the context of the 1980s when crime
in schools reached its zenith.
See
Forman,
supra
note 132, at 315;
see also
Stefkovich,
supra
note 84, at 119 (noting that courts tend to erroneously treat
drug and weapon possessions as equally immediate threats).
137. Beger,
supra
note 131, at 338 (citing a number of empirical studies to demon-
strate that school violence rates dropped significantly over the course of the
1990s); Hatkins & Hooks,
supra
note 134, at 644 (noting that less than one per-
cent of homicides and suicides among school-aged youth nationwide occur in the
school context).
138. J.P.
ex rel.
A.P. v. Millard Pub. Sch., 285 Neb. 890, 909–10, 830 N.W.2d 453,
467–68 (2013) (“The facts of this case demonstrate the fallacy of the dissent’s
suggested parade of horribles.”) (internal quotations omitted).
2015]
J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS
1031
The court noted that the school was able to adequately investigate
whether J.P. was endangering the school environment and that the
school could have contacted law enforcement with further suspicion of
off-campus contraband.
139
This is sound policy by the court; too often
in prior cases the effectiveness of standard law enforcement proce-
dure, applicable to all citizens, has been overlooked in safeguarding
students.
140
The court’s language indicates that a cursory fear of
school disorder will no longer be sufficient to automatically override
students’ constitutional rights.
D. Policy Considerations
Two policy considerations support the court evaluating reasonable
suspicion with more scrutiny: (1) depriving students of all substantive
Fourth Amendment rights is counterproductive to the educational
mission of fostering healthy adults and functional citizens, and (2) the
lack of constitutional protection has contributed to a national school
system that sends too many of its students into the justice system
before they have even graduated.
The schoolroom is where most Americans are taught the basic les-
sons of their civil rights and civic duties under the Constitution. Yet
modern jurisprudence has immunized public school officials from re-
specting virtually any Fourth Amendment rights of their students.
141
Often overlooked by adjudicating courts is the fact that, regardless of
the school’s needs, searches by officials remain intrusive and unpleas-
ant for students, no matter the context surrounding the search.
142
Those searched are generally teenagers, who are developing a still-
nascent conception of individual privacy as adults.
143
There are seri-
139.
Id.
140.
See
Josh Gupta-Kagan,
Beyond Law Enforcement:
Camreta v. Greene
, Child Pro-
tection Investigations, and the Need to Reform the Fourth Amendment Special
Needs Doctrine
, 87 T
UL
. L. R
EV
. 353, 385 (2012) (questioning why educational
needs have been considered so exceptional as to merit lowered constitutional
standards while public safety and criminal justice, both of comparably para-
mount importance, are sufficiently administered by law enforcement that is sub-
ject to standard Fourth Amendment restrictions).
141.
See supra
text accompanying notes 89–99.
142.
See
Gardner,
supra
note 4, at 946 (“[E]ducators should be especially careful to
minimize privacy invasions as much as possible, not only because respecting a
student’s privacy is conducive to his healthy psychological development, but also
because invading a juvenile’s privacy ‘without adequate cause is to invite youth-
ful hostility to authority . . . .’” (quoting Irene Merker Rosenberg, New Jersey v.
T.L.O.
: Of Children and Smokescreens
, 19 F
AM
. L.Q. 311, 339 (1985))).
143. Gary B. Melton,
Minors and Privacy: Are Legal and Psychological Concepts Com-
patible?
, 62 N
EB
. L. R
EV
. 455, 488 (1983) (“[A]s children approach adolescence,
privacy becomes important as a marker of independence and self-
differentiation.”).
1032 NEBRASKA LAW REVIEW [Vol. 93:1012
ous concerns about how a total lack of constitutional protection hin-
ders students’ growth in these areas.
144
Furthermore, these searches send conflicting, potentially dysfunc-
tional signals about the Constitution to young citizens who are to be
entrusted with ensuring the Constitution’s continuing vitality.
145
Students are repeatedly taught in school about the benefits of the
Constitution, yet every search is a hands-on lesson in just how fleeting
and arbitrary those rights can be.
146
For example, what respect for
the Constitution did the defendant acquire in
Safford Unified School
District No. 1 v. Redding
147
when she was strip-searched by her ad-
ministrators and then denied relief by the Court, even though it found
her Constitutional rights had been violated?
148
In addition, some have argued that reduced Fourth Amendment
protections—in combination with other factors such as increased po-
144.
See
Jason P. Nance,
Random, Suspicionless Searches of Students’ Belongings: A
Legal, Empirical, and Normative Analysis
, 84 U. C
OLO
. L. R
EV
. 367, 396 (2013)
(quoting Jen Weiss,
Scan This: Examining Student Resistance to School Surveil-
lance
,
in
S
CHOOLS
U
NDER
S
URVEILLANCE
: C
ULTURES OF
C
ONTROL IN
P
UBLIC
E
DU-
CATION
213, 227 (Torin Monahan & Rodolfo D. Torres eds., 2010)) (noting that
students subjected to “strict security measures” were less likely “to speak out or
organize in response to issues that bother[ed] them”).
145.
See
New Jersey v. T.L.O., 469 U.S. 325, 354 (1985) (Brennan, J., dissenting) (“It
would be incongruous and futile to charge teachers with the task of imbuing their
students with an understanding of our system of constitutional democracy, while
at the same time immunizing those same teachers from the need to respect con-
stitutional protections.”); Doe v. Renfrow, 451 U.S. 1022, 1027–28 (1981) (Bren-
nan, J., dissenting from denial of certiorari) (“Schools cannot expect their
students to learn the lessons of good citizenship when the school authorities
themselves disregard the fundamental principles underpinning our constitu-
tional freedoms.”); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1947)
(“That [schools] are educating the young for citizenship is reason for scrupulous
protection of Constitutional freedoms of the individual, if we are not to strangle
the free mind at its source and teach youth to discount important principles of
our government as mere platitudes.”); Forman,
supra
note 132, at 332 (“A stu-
dent can be taught a lesson about the Fourth Amendment’s protections against
search and seizure in the morning, forced to submit to a search in the afternoon,
and charged with a crime resulting from that search the following day.”).
146.
See
Donald L. Beci,
School Violence: Protecting our Children and the Fourth
Amendment
, 41 C
ATH
. U. L. R
EV
. 817, 833 (1992) (“[S]tudents are more likely to
learn how to resolve conflicts between personal liberty and public safety from
witnessing bookbag searches than from passively completing their reading
assignments.”).
147. 557 U.S. 364 (2009).
148.
See
supra notes 98–99 and accompanying text;
see also
Scott A. Gartner,
Strip
Searches of Students: What Johnny Really Learned at School and How Local
School Boards Can Help Solve the Problem
, 70 S. C
AL
. L. R
EV
. 921, 943 (1997)
(“Permitting strip searches of children sets a curious moral for the nation’s
youth.”).
2015]
J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS
1033
lice presence in schools
149
and school officials actively gathering evi-
dence for use in criminal prosecutions against students—has created
a “school-to-prison pipeline.”
150
This “criminalization of the class-
room”
151
has a substantial negative impact on school performance.
152
Furthermore, the use of strict security measures that tend to generate
evidence for criminal proceedings is more prevalent in lower income
communities, which are disproportionately populated by minority stu-
dents.
153
Thus, modern Fourth Amendment jurisprudence has served
to disproportionately introduce minority students into the criminal
justice system.
154
The Nebraska Supreme Court demonstrated its
awareness of this constitutional shortcoming when it expressed its
concern that allowing teachers to search off-campus vehicles would
foreseeably lead to increased information gathering by school officials
for law enforcement.
155
IV. CONCLUSION
Nearly thirty years after the U.S. Supreme Court handed down its
decision in
New Jersey v. T.L.O.
, students’ Fourth Amendment rights
in schools exist at a bare minimum. Rather than the nuanced, narrow
interpretation of
T.L.O.
urged by the majority of scholarly research
published in the decision’s immediate aftermath, courts have applied
its framework far beyond its original facts, such as to situations in-
volving school parking lots and student hotel rooms. While
T.L.O.
ar-
ticulated a balancing approach for judging the reasonableness of
searches of students, in application this approach has effectively pro-
vided school officials with
carte blanche
to search students while in
school. This lack of constitutional protections has led to invasive and
counterproductive search policies and contributed to a school-to-prison
pipeline, particularly among the nation’s minority youth
population.
156
149. Michael Pinard,
From the Classroom to the Courtroom: Reassessing Fourth
Amendment Standards in Public School Searches Involving Law Enforcement
Authorities
, 45 A
RIZ
. L. R
EV
. 1067, 1076–79 (2003).
150. Katayoon Majd,
Students of the Mass Incarceration Nation
, 54 H
OW
. L.J. 343,
347, 369–70 (2011).
151. Josie Foehrenbach Brown,
Developmental Due Process: Waging a Constitutional
Campaign to Align School Discipline with Developmental Knowledge
, 82 T
EMP
. L.
R
EV
. 929, 962 (2009).
152. Nance,
supra
note 144, at 396 (citing C
ATHERINE
Y. K
IM
, D
ANIEL
J. L
OSEN
&
D
AMON
T. H
EWITT
, T
HE
S
CHOOL
-
TO
-P
RISON
P
IPELINE
: S
TRUCTURING
L
EGAL
R
E-
FORM
113 (2010)) (noting the odds of a student dropping out of school double if he
or she is arrested and quadruple if the arrest is coupled with a court appearance).
153. Nance,
supra
note 144, at 402.
154.
See
Majd,
supra
note 150.
155. J.P.
ex rel.
A.P. v. Millard Pub. Sch., 285 Neb. 890, 908, 830 N.W.2d 453, 467
(2013).
156.
See
Gartner
supra
note 148.
1034 NEBRASKA LAW REVIEW [Vol. 93:1012
In
J.P. ex rel. A.P. v. Millard Public Schools
, the Nebraska Su-
preme Court confronted many of the analytical flaws in modern
Fourth Amendment jurisprudence as it pertains to searches of stu-
dents by school officials. The court’s interpretation of Section 79-267
of the Nebraska Revised Statutes disallows an expansion of
T.L.O.
’s
reasonable suspicion standard beyond school grounds unless as a part
of a school-sponsored activity. The decision, however, leaves school
officials without substantial guidance in understanding what activi-
ties qualify as school sponsored. This is a significant shortcoming of
the court’s decision, as school officials’ authority to conduct a search in
the future will depend almost entirely upon this designation.
Although the court decided the case based on a school official’s
statutory authority under Nebraska law, the majority appears to sig-
nal that it will subsequently require a more detailed articulation of
school officials’ suspicion in order to find a search of a student reason-
able. This is a potentially substantial increase in Fourth Amendment
rights afforded students when compared with earlier courts’ treat-
ment of reasonable suspicion and school officials’ authority. Even ac-
cepting this possibility, students will continue to enjoy far fewer
Fourth Amendment protections while attending school than at virtu-
ally any other time during their lives.
