Last Updated on March 17, 2021 by Michelle Ball
By Michelle Ball, California Education Attorney for Students since 1995
Most parents will never have much involvement with the drama of school expulsions, heavy allegations against their kids, nor the shock of hearing their child had something improper at school hidden in their pocket. Occasionally, however, there are horror stories involving searches by school officials looking for alleged contraband which go way too far.
In the infamous case Safford v. Redding,
the United States Supreme Court found a school strip search of an Arizona eighth grader in violation of the student’s Fourth Amendment right to be free from unreasonable search and seizure. The Court in Safford, however, left some questions open for Arizona, such as whether a strip search could proceed with a specific allegation of a dangerous object being in e.g. underwear. However, California had already answered this question prior to Safford, strictly prohibiting searches of private places and underwear.
No school employee shall conduct a search that involves:
(a) Conducting a body cavity search of a pupil manually or with an instrument.
(b) Removing or arranging any or all of the clothing of a pupil to permit a visual inspection of the underclothing, breast, buttocks, or genitalia of the pupil.
This means that school employees can’t lift a girls shirt to see if she has a joint in her bra. They can’t pull down a boys pants to see if he has a pipe, nor lift a girl’s skirt to see if she has a weapon hidden. Such searches are illegal and flat prohibited in California.
Only a handful of times since 1994 have I personally met parents with stories of searches gone wild, where a student was made to take off articles of clothing or things were moved to reveal underwear. Often these situations are hard to prove, hard on the kids testifying, and school predators may get away with their wrongful conduct. This is because there is a bias in our society against youths and their believability. Schools and adults, when faced with an adult versus child situation, usually believe the adult. Predators know this which is why kids are the easiest targets. Who will believe Tim, who said I pulled his pants down to check his underwear? Not many will, and maybe not even his parents. And how do you prove it? It is a tough situation in every regard.
Regardless, I wanted to put out there and remind students and parents that schools MAY NOT search them internally, nor extend any search for contraband to underwear, bras, or private places.
Stories that I hear once in a while of the overstepping which can occur would shock most parents. They are occasional at best, but still something to know about and discuss with your kids. If something untoward occurs, it should be jumped on immediately with appropriate reports and complaints filed.
For more information, see also: https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1753&context=lawfaculty
Education Attorney for Students
LAW OFFICE OF MICHELLE BALL
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Sacramento, CA 95814
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Please see my disclaimer. This is legal information, not legal advice and no attorney-client relationship is formed by this posting. This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.