Contribution prepared by Isaac Jabulani Sithole:
Director- Jobe and Associates CC.
1. Norms and Standards for Search and Seizure in schools
South African schools have become haven of activities that are not so palatable
to the educational setting. Such activities are stretching from drug and
substance abuse, existence of dangerous weapons, Learners' cases of rapes and
sexual abuse incidents of bullying, murders and brutal killings of fellow
learner, educators being attacked by the learners and educators dealing drugs
etc. Several incidents of safety in schools were noted in the past few years
since transformation. Violence is prevalent in schools and unfortunately this
phenomenon warrants prompt action by all stakeholders in education.
All of these issues dictate that the South African nation should once again
mobilize itself to quash the alluded elements if we are to preserve our fragile
democracy. Therefore, schools via the officials are accorded extra task outside
their original charge as centres of educational excellence to that of the
eradication criminal activities by ensuring that fruitful learning takes place
in all South African schools.
Search and seizure in schools is an apparent issue in its context and
applications. The point of departure for conceptualizing relevant norms and
standards is the actual status of public schools. According to the Act (SASA
1996 Section 15), 'Every public school is a juristic person, with legal
capacity to perform its functions,' Taking this clause to its practical
implication is that although, learners are bestowed with all the rights
characteristic of democracy, some of their inherent rights are limited. This
question is thus, asked: Does it mean that all learners surrender some of their
rights at their respectful school yard gates?
The response to this question is yes if the following issues are
considered:
·
Governments' major objective acting via schools: to
provide education for its citizenry in a healthy and Safe environment,
·
Children's best interest are upheld
·
Above all, search and seizure should be administered
through which reasonable scope is a guiding principle.
·
Whereby reasonable suspicion be a causation.
·
Establishing a duty of care is essential.
However, truthfully the learners' do not shed their constitutional
rights at the schoolhouse gate, but the school need to act when the behaviour
of the learner is inconsistent with the educational mission and vision of the
school.
In educational settings, the definition of such duty of care is founded from
notions of in loco parentis to statutory duties imposed on schools, e.g.
Tutelage or custodial to learning related activities. The typical
standard or general duty of care include language that is the duty of all
persons to exercise the care a reasonable prudent person would exercise under
whatever circumstances. Therefore, K-12 schools, school officials owe a certain
duty of care to minors in their care during the school day.
Educators and principals have frequently found it necessary to search learners
for items which may be harmful to them or to others. Today, however, the
prevalence of drugs, guns and any other dangerous weapons have broaden the
importance of school search. Therefore, it should be incumbent upon all schools
to develop and implement their individual schools' policy as proffered .by the
ACT and each schools' governing body should ensure adherence to such codes.
Attempting to pave. a sound path for determining appropriate procedures school
officials in search and- seizure instances in South African schools
a, foundation should be referenced from the Constitution.(RSA-) wherein rights
such as the following are guaranteed:
1.1 Human dignity:
Everyone has inherent dignity and the right to have their dignity
respected and protected. However, in a school setting there could be instances
of strip searches when there is a reasonable suspicion that a specific
student/learner is carrying something illegal or extremely dangerous. The logic
is that the more intrusive the search becomes the more necessary is a showing
of probable cause.
1.2. Freedom and security of the person:
Learners have a right of privacy to be secured in their persons and this right
protects them against unreasonable searches and seizures. Any search must be
specific as to what is sought in the search and the location where it is
secreted. However, it is crucial that there should be a reasonable suspicion
which should be shown within a reasonable scope. The legality of a
search of a learner should depend on the reasonableness under all
circumstances, of the search.
1.3. Privacy:
The right of privacy is not absolute but is subject to reasonable school regulation
within the bounds of reasonable suspicion. For this instance to find base, the
schools' policies via various codes of conduct should delineate procedures for
conducting searches and seizures so that learners could understand that in the
school environment they have lesser expectation of privacy than the general
population. Other court elsewhere have ruled that students have a right to
privacy and this right cannot be invaded unless the intrusion can be justified
in terms of the school's legitimate interest.
2. Reasonableness Standard
learners' common law rights as enunciated by the precedents of the courts in
developed countries like US, create an intricate balance between student rights
and the powers and the priority of the government in maintaining and providing
conducive and efficient education for its citizen. This balance in common law
is defined in terms reasonableness and what is necessary to effectuate the
common good. Reasonableness is the common taw fulcrum on which the school /
learner relationship is poised, the equilibrium of which is not always readily
apparent. There should be two levels whereby a constitutional validity of a
search is to be determined.
The first level involves consideration of whether the search is justified at
its inception. The inception of the search is the point at which reasonable
suspicion comes into play. The question that needs to be asked is: Was
the motivation for the search reasonable in light of the information obtained
by the school official? The second level concerns the reasonableness of the
search itself:- the measure adopted for the search must be reasonably related
to the objectives of the search and should not be excessively intrusive in
light of the age and sex of the learner and the nature of the infraction. A
search is not reasonable if-it lacks specificity, or if it excessively intrudes
on the learner's privacy. It is clear that excessively intrusive searches must
be supported by a strong degree of suspicion by the school officials.
There should however be, a corresponding relationship between the extensiveness
of grounds supporting reasonable suspicion and the degree to which a search
intrudes on a learner's privacy.
Reasonablenness suspicion is a standard less rigorous of proof than the
requirement of probable cause. Probable cause requires more than mere suspicion
or even reasonable suspicion. Most critically, probable cause is the standard
required of police to obtain a warrant from a magistrate or a judge before a
search can be legal. Therefore, school officials need to only have reasonable
suspicion, not the more stringent probable cause. Reasonable suspicion is a
belief or an opinion based on facts and circumstances. Although the standard of
reasonable suspicion is a lower standard than that of probable cause required
for police to obtain a warrant, it is not unrestrictive as to place no
constraints on school personnel.
NOTE: A learner's freedom from unreasonable search and seizure must be balanced
against the need for school officials to maintain order and discipline and to
protect the health and welfare of all learners. This notion concurs with the
clauses in the South African Constitution that include rights such as; Freedom
and security of a person and / or Environment. The question, therefore, arises
as to whether the reasonable suspicion criterion for schools forbids any
possibility of suspicion-less searches. The answer is no. As alluded earlier,
the reasonable suspicion standard for schools while far less stringent than
probable cause, does require a showing that the suspicion was generated by some
specific evidence that something harmful is concealed in the plan to be
searched.
3. Issues to consider in Search and Seizure
Consent: School authorities do not need the consent of the learner(s) in
order to conduct a search. On the other hand if the police participate in the
search, they must have a warrant or obtain the learners' consent through their
LRC's. Accordingly, the police cannot lawfully ask a school official to
influence the learner's decision to permit a search.
Police involvement: Police involvement in search and seizure may be in
extreme (murder, drugs, guns and ammunitions etc) instances where criminal
charge was laid against the learner(s) and where a search warrant is available.
Exclusionary Rule: Reasonably, the school officials should be primarily
concerned with removing contraband from the school environment for the
betterment of other students and not for use in the criminal prosecution of
learners. The question arises, can Illegal materials seized by officials be
used in criminal prosecutions or must they be excluded as evidence? We should
try to interrogate this question fully behind the background that our schools
have since become haven for criminal activities
4. Types of Search and Seizure issues
Note: 'These are just mentioned here for the purpose of alerting the
prospective policy makers to take heed. Consult the table of cases in the
reference section for further clarity. In case I am invited for deliberations I
will be more than happy to provide some insight on each case'.
4.1 Metal detector searches: The use of metal detectors to search
'learners is reasonable where the context of the search is justified due to
violence in the school or there are threats of harm to learners. Therefore, the
use of metal detectors is reasonable when the degree of intrusion on a
learner's privacy is overbalanced by the school's compelling need for security
which should be clearly stated in its policy for safety. The School officials
shou1d make sure that specific clauses that are related to the searches are
reflected on their school rules in the language that is accessible to the
school's clientele.
4.2, Locker searches: The school's policy should clearly state that,
lockers are made available to learners for the limited purposes of storing
legitimate materials needed for educational purposes. By clearly stating the
latter, learners would then not have reasonable expectation of privacy. This
would mean that the learner is not in sole possession of the locker rather the
school is the owner and reserves right of entry to its own property anytime.
With such clear right of entry to lockers, school officials can require that
all lockers be emptied if they fear that something is hidden there that might
be harmful to student (reasonable suspicion).
4.3 Strip searches and Less intrusive searches: Here the school
officials attempting to conduct strip searches which might prove to be
intrusive in nature have to thread very careful because the object of the
search is very important. Example, discovery of drugs, weapons or any items
that may be harmful to the health and safety of other learners weigh more
heavily than searches of objects which are lesser importance to the health and
welfare of others. When strip searches take place, the fallowing procedures
need to considered: (a) have members of the same sex perform the search
(note-this can be tricky now that there are gay and lesbian members within
every occupation and profession=the jury might still be out on this one 'no
offence intended' (b) use a room where only the participants are present to
conduct a search and (c) limit the search to exclude body cavities.
4.4 Drug searches: At this point, I am not too convinced that schools
would be capable of conducting drug searches unless in a compartmentalize
setting like extra curricular activities. However, it is incumbent upon the
school to include in its policy some aspect of drugs that would not be allowed
and if for some reason, a learner under strict medical treatment, the school
should be informed about such. As you might know that in athletics, participant
undergo a urine test which constitute an intrusive search which on one hand
would require the school to develop a consent form for all earners to sign
agreeing to a random suspicion-less search.
4.5 Canine/ Dog-sniffing searches: This type of search maybe necessary
when conducting a search however it would require a thorough preparation by the
principal and school officials. Canine searches are in their nature random
because of the innate ability of a dog to sniff a broader radius therefore,
trained dogs and masters should administer these searches at the request of the
school officials if they in turn have a reasonable suspicion that their school
is plagued with drugs. The school policy should also reflect that at some stage
during a school term police officers with dogs will be summoned to the school
to conduct drug searches using sniffer-dogs. This aspect will form part of the
consent form to be signed by parents.
4.6 Field trip Searches: These searches would be within the reasonable
scope where the learners will be encouraged to sign waivers promising not to
use drugs or alcohol; Where they will be specifically informed that room checks
will be conducted during the school sponsored trip by the school official who
will be acting in loco parentis especially when learners are exhibiting a
behaviour that is unbecoming. The caveat emptor in this instance is always
'make your intentions known.'
4.7 Automobile Searches (might be less evident in South Africa, standard
for their search should be formulated)
5. Conclusion
The technical aspects of the search are important as to its reasonableness.
Facts must be presented regarding the inception of the search, intrusiveness of
the search and the context of the search. Most importantly is to note that the
learners have a right of privacy; reasonableness is determined by magnitude of
the offence and the intrusiveness of the search; reasonable suspicion must be
supported by evidence of the particular situation, background of student,
school rules violated, etc.; and the search must be supported by specificity
and particularized knowledge of the whereabouts of the illegal items.
Canine searches, strip searches, and drug testing all add differing elements to
the requirements of necessary specificity and knowledge of school officials. In
carrying out searches and other disciplinary functions, school officials act as
representatives of the state. Additionally, the validity of the search must
rest on its reasonableness. In determining reasonableness (a) consider whether
the action was justified at its inception and (b) whether the search as
actually conducted was reasonably related in scope to the circumstances which
justified the search in first place. Lastly, it is paramount that the school
rules and policies spell-out all aspects/types of the searches and seizures
that the school will conduct and possible intervals when such actions will take
place. The schools should also fine tune the formulation and the language in
various indemnity forms that they intend to use.
6. References
Constitution of the Republic of South Africa Act No. 108, Chapter 2 §
10,12 (a) & (c), 14 (a)-{c) and 24 (a) (1996)
The South African schools Act No 84, 1996, Chapter 3 § 15
6.1 Table of Cases
United States v. Cortez (U.S Supreme Court) 1981 Katz v. United States CU.S
Supreme Court) 1967 New Jersey v. T.L.D. (U.S Supreme Court) 1985 R.D.l. v.
State ( Florida Appellate Court,1986)
Williams by Williams v. Ellington (6th Cir. 1991)
Cornfield by .Lewis v. Consolidated High School District No. 230 (7th
Crr.1993)
State of West Virginia v. Mark Anthony B. (-W. Va. 1993)
Vernonia School District 471 v. Acton (U.S Supreme Court) 1995
Singleton v. Board of Education CD.Kan. 1995)
C.B v. Driscoll (11th Cir. 1996)
Konop v. Northwestern School District (D.S.D. 1998)
Rudolf v. Lowdness Co.Board of Education (M.D. Ala.2003)