Does My Child Have any Privacy Rights in a School Setting?

Does My Child Have any Privacy Rights in a School Setting?

Child Privacy Rights in School

The short answer to the question “Does My Child Have any Privacy Rights in a School Setting”  as posed in the title is, yes. But that answer comes with some caveats.

Years ago in New Jersey v. T.L.O. (1985), the U.S. Supreme Court recognized that school administrators (more so public school administrators) are State actors for purposes of triggering the constitutional requirements of the 4th and 5th Amendments as they relate to search/seizure and due process. However, the Supreme Court has also recognized that the school setting creates a special circumstance where the interest of maintaining a safe and effective learning environment can often trump individual civil liberties. And for that reason, it is important that your children know their rights when confronted by school administrators, particularly School Resource Officers (SRO).

The 4th Amendment

Let’s start with the 4th Amendment, which prohibits unreasonable searches and seizures. As it pertains to school officials, a “reasonable suspicion” that a student is engaging in prohibited conduct, has engaged in a prohibited conduct, or may be in possession contraband, can lead to the temporary seizure and search of their person and property (including lockers, backpacks, cars, computers, etc.). If “reasonable suspicion” seems like a low threshold, well, it is. Something as simple as an informant tip can lead to the search and seizure of persons or property. And that’s not to say reasonable suspicion is always required to conduct a search or seizure. Under the guise of ensuring a drug-free atmosphere at the school, random, non-individualized sweeps using drug-sniffing dogs have been upheld as constitutional, as has drug-testing for individuals involved in extracurricular activities. What needs to be understood is this: the justifications for ensuring that pedagogical interests are maintained are endless. Your child should not feel that he or she has any expectation of privacy as to their personal effects in a school setting.

The 5th Amendment

Perhaps of more concern to parents than having their child’s possessions searched by a suspicious faculty member, is the possibility that their child may be questioned about criminal activity without their permission or outside their presence. That is where the 5th Amendment comes into play, particularly the Self-Incrimination Clause which affords an individual the right to remain silent. But just when and where that 5th Amendment right comes into play in a school setting is where it becomes tricky. Traditionally speaking, that right is only triggered (and Miranda warnings required) when an individual is in custody (under arrest or restraint of liberty similar to arrest) and being subjected to interrogation (questioning likely to elicit incriminating statements).

School Resource Officers with authority to arrest

A school setting raises separate issues because school administrators do not have authority to arrest. Therefore, most statements elicited by a member of the faculty or administration are admissible in subsequent legal proceedings even if the child was not Mirandized. However, many schools today employ SRO’s who are agents of the police department and do have authority to arrest. Therefore, questioning for purposes of a criminal investigation conducted by an SRO (or with an SRO present) do implicate 5th Amendment rights. The question then becomes, are these students in custody? In most cases, a student is not formally arrested prior to interrogation. However, in J.D.B. v. North Carolina (2011), the Supreme Court recognized that while a child may not be formally arrested there are other factors to consider as to whether the child is in custody for Miranda purposes. Some of those factors included age and intelligence, and the Court looked to whether or not that particular child felt he was free to leave.

Inform your children ahead of time of their privacy rights

Realistically speaking, I can’t imagine any situation (regardless of age or intelligence) where a student would feel they can just up and walk out of school while being questioned by a uniformed SRO. But on the flipside, I wouldn’t want to rely on any court to conclude that my kid was too young or dumb to understand the gravity of the situation. The better approach is to inform your children ahead of time that they are never obligated to give statements to school staff, SRO’s, or police. Instead, they should politely decline to speak and request the presence of their parents and an attorney.

If you believe your child or loved one had their rights violated, contact the expert attorneys at Dworken & Bernstein to learn more and find out your options today!

In Lake County, call 440.946.7656

In Cuyahoga County, call 216.861.4211


Ethical, Responsive, Committed and Compassionate

Entrust Our Team of Attorneys to Skillfully Advocate for You in Any Legal Matter

Translate »