Students Have Rights When Searched or Questioned at School

Submitted by dave mallon on Wed, 07/25/2012 - 07:56
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Students can be charged with a juvenile crime for something he or she did at school. Many schools have “school resource officers” (or SROs).  What a student says to an SRO, school staff and other students can be used against him or her in juvenile court.  It is important to know that students have rights when they are in public school.  This is true even when a student is accused of breaking a school rule or a state law.

Students have rights to be protected from an “unreasonable search or seizure” or from being questioned in a “custodial” setting when they are:

  • in school,
  • at a school event, or
  • on school property. 

Your child’s rights depend on whether it is school staff or the police who are doing the search, seizure or questioning.  The rules are stricter, meaning your child has more protections, if the police are involved.

Searching Students

People have an “expectation of privacy” when it comes to what is in their pockets, backpacks, cars, houses, etc.  This “expectation of privacy” applies to students in public school.  A search looks for evidence of wrongdoing in places where someone has an “expectation of privacy.”

A search can be of your child’s:

  • person (empty pockets, pat downs, etc.), 
  • property (backpack, purse, car, etc.) or
  • school property your child uses (desk, locker, etc.).

There is usually no “expectation of privacy” when it comes to school property your child uses, like a locker or desk.   This means school staff can look at what is in a student’s locker or desk.   School staff may also be able to give permission to the police to look in a locker or desk.  This is true even though your child is the one who uses it.  The school district may have a policy about this.  You can call your school administrative office or check out your school’s website to see if there is a policy on this.  You have a right to ask for a copy of that policy.

When it comes to your child’s body and property (what is in his/her pocket, backpack, purse, car, etc.), there are rules that must be followed. 
School staff may search a student if there are “reasonable grounds” that the search will turn up evidence that the student broke a school rule.  School staff must have more than a hunch your child did something wrong to search him or her.  The search must be:

  • justified when it starts, and
  • reasonable in how it is done.

School staff must have a specific reason to believe your child broke a school rule.  For example, someone told school staff your child had cigarettes in his or her bag.  If there is not a specific reason, then the search is probably not justified when it starts.
The search must also be reasonable in how it is done.  All the circumstances must be looked at, such as:

  • your child’s age
  • your child’s gender (boy/girl), and
  • the rule or law that is believed to be broken.

For example, if a student is accused of having aspirin, and breaks the school drug policy, it is reasonable for school staff to have the student empty pockets and to look in a backpack.  But, if nothing is found, it  is not ok to have her pull out her bra and underwear bands for a woman staff member look for aspirin there.

Police officers must follow a higher standard to search your child.  The police must have either “probable cause” or a search warrant from a court.  “Probable cause” means a reasonable person believes a crime was, is or will be committed.  If the police do not have probable cause or a warrant, your child can refuse to be searched.  If your child is still searched and evidence of a crime is found, that evidence may be kept out of court.  It will not be kept out of a school discipline hearing.

School resource officers are a little trickier.  Some courts in the country have said that school resource officers are like school staff and can follow the “reasonable grounds” rule.  Other courts in the country have said that school resource officers are the police and must follow the “probable cause” standard.  Maine courts have not ruled on this issue yet, so we do not know which rule must be followed by a school resource officer.

Questioning Students

School staff have the right to question students.  Maine law does not say anything about whether the school has to first contact a parent.  The school district may have a policy that talks about this.  You should check with your local school district to see if it has a policy.  Check the school’s website or call the administration offices to see if there is a policy.  It is important to know that anything your child says to school staff can be used against him or her in either a school discipline case or in a juvenile court case.

If the police are involved in questioning students at school, things change.  If the point of questioning your child is to find out if he or she committed a crime, the police have to follow the rules in any criminal investigation.  If they do not, what your child says to the police may be kept out of court if your child is charged with a crime.  You first need to find out if your child was in a “custodial setting” when the police questioned him or her at school.

What is a custodial setting? Generally, a person is in a custodial setting when he or she is with the police and does not feel free to leave.  If the police question the person, it is a “custodial interrogation.” There are two factors to look at:

  1. What were the circumstances leading up to someone    being in the setting, and
  2. Would a “reasonable person” have felt he or she could stop the police’s questions and leave?

You may not be told you are under arrest but still be in a custodial setting.

Last year, the U.S. Supreme Court decided a case about a 13-year-old student being questioned at school by a police officer.  The Supreme Court ruled that a student’s age must be considered by the police to decide if the student is in a custodial setting.  It is called the “reasonable child” standard.  The officer must know the child’s age or it must be obvious that the student is a child. The questions then become:

  1. Does a reasonable child feel free to leave?
  2. Does the child’s age affect his or her ability to voluntarily, knowingly and intelligently waive his Miranda rights.

If the interrogation is custodial (meaning the person does not feel free to leave), the police must give Miranda warnings to the person they are questioning BEFORE starting the questions.  Miranda warnings are:

  • The right to remain silent
  • To be warned that anything you say can and will be used against you
  • The right to an attorney
  • If you cannot afford an attorney, one be provided to you
  • Do you understand your rights?
  • Will you talk to me?

If your child understands his or her Miranda rights and still agrees to talk to the police, your child has waived those rights.  That means what your child says to the police can be used against him or her.  In deciding if a child has knowingly and voluntarily waived his or her rights, the reasonable child standard must be used.

All the circumstances must be looked at, including:

  • Does the state law require a child of certain ages to go to school?
  • Do students get in trouble for not following school rules?
  • Where was the student during the questioning?
  • How did the student get to where the questioning happened?
  • Was the door closed or open?
  • Was the student told he or she could leave?
  • Was the police officer in uniform or have a weapon?
  • Was anyone else in the room with the student and police officer?
  • How long was the student in the room?
  • Was the student told he was going to juvenile detention or jail?

If your 13-year-old child was brought to a room by a uniformed police officer, and the door to the room was closed, and there was a uniformed police officer and school staff in the room, and your child was questioned for 30 minutes and then threatened with detention, that would be a custodial interrogation.  The police would have to give your child his or her Miranda warnings.   And, in Maine, if your child is arrested, the police must notify you and tell you where your child is.  Your child cannot be questioned until you are notified of the arrest and:

  • You are there with your child
  • You agree to let the police question your child without you being there, or
  • The police made a reasonable effort to reach you but were unable to, and your child is questioned about continuing or imminent criminal activity. 

You have the right to assert your child’s Miranda rights for him or her.


Depending on what your child is accused of, he or she may face school disciplinary action, or juvenile charges in court or both.  They can happen at the same time or one after the other.  The school discipline action will happen much faster than a court case.  Anything your child says in the school discipline case can be used against him or her in the court case.  If your child is charged with a crime and evidence from a school search is going to be used in court, it will be up to your child’s defense attorney to try to keep that evidence out.  This is a called a motion to suppress.  It will be based on what whether the person doing the search followed the rule that he was supposed to follow. 

AUTHOR’S NOTE about Tribal schools and Tribal courts:  If your child goes to your tribe’s elementary or middle school, then local tribal policies, laws and practices may be a little different.  If your child is charged with a juvenile crime, and the case is in tribal court, the tribal court will follow its own procedures.  Tribal courts will follow the Indian Civil Rights Act (ICRA). This is very similar to the federal Bill of Rights. But, tribal judges can interpret the ICRA in ways that reflect tribal values and culture.