Student's Rights and Responsibilities

south dakota’s guide to

responsibilities& Designed for School Attorneys

SD Attorney General’s Office and SD Department of Education and Cultural Affairs

Table of Contents

Introduction...... 3 Suspension and Expulsion...... 11

Safe School Projects ...... 4 School Records...... 13

Student Rights and ...... 6 Search and Seizure ...... 15 Responsibilities Locker Searches...... 18 Conduct off School...... 7 Grounds Search by Drug-Sniffing Dogs ...18

Corporal Punishment ...... 7 Suspicionless Searches...... 18

Restriction on Dress...... 8 Terroristic Threats and...... 21 and Grooming False Reporting

Flag Salute and Pledge...... 8 Appeals...... 22 of Allegiance Conclusion...... 22 Freedom of Expression...... 9 Contact Numbers...... 22 School Rules...... 10

Possession of Tobacco,...... 10 Alcohol, Drugs, and Firearms

2 Introduction

I am pleased to provide school attorneys with this updated version of the South Dakota Guide to Student Rights and Responsibilities.

This publication is a reference guide for school law and school safety issues. Although we have attempted to give an overview of the subject area, this guide is not a comprehensive exposition on all aspects of the law. This guide is not intended as an official opinion of the Office of the Attorney General.

Schools are tasked with the responsibility of providing an education for our kids in a safe and secure environment. This duty to assure student and teacher safety has come to the forefront in recent years because of the tragic events in several schools nationwide. In this process of assuring safety, it is important that we don’t overlook the rights of students. We believe this guide will help sort out the rights and responsibilities of students, schools, teachers and administrators.

This guide was put together through the cooperative efforts of DECA and the Office of the Attorney General. We are fortunate to have a strong educational system in South Dakota. We hope this guide will serve as a useful reference tool for all people striving to maintain our high standards.

If you have any comments, questions, or suggestions concerning this guide, please contact either DECA or the Office of the Attorney General.

Mark Barnett Attorney General State of South Dakota

3 Safe School Projects

Recent school tragedies such as those in develop policies to address topics includ- District, 393 U.S. 503, 560 (1969). Littleton, Colorado; Jonesboro, ing discipline, behavior, contraband, and In our system, state-operated schools Arkansas; and Pearl, Mississippi, have search policies within their schools. may not be enclaves of totalitarianism. raised the awareness of school adminis- School officials do not possess absolute trators and school boards about the Diversity supports the idea of local authority over their students. Students in safety of students and teachers in school control of school districts. South Dakota, school as well as out of school are settings. Those tragedies present although classified as a rural state, has a 'persons' under our Constitution. They questions about the responsibility and population center in Sioux Falls of more are possessed of fundamental role of school districts in protecting than 100,000 people, and the Sioux Falls (inalienable) rights which the state must students and staff. School District is responsible for respect, just as they themselves must educating approximately 18,800 respect their obligations to the state. In South Dakota, all children are entitled students. In contrast, the Conde School Tinker v. Des Moines, 393 U.S. 503. to a free public education. That entitle- District is responsible for educating 73 ment includes the right to be in a safe students. While all districts must be It is critical that school legal counsel is environment, free of negative influences. concerned about their students safety involved in the development and The South Dakota Legislature has made and education, some of the issues implementation of school policies and it clear that the general operation, confronting the Sioux Falls School procedures to ensure that students' management, and supervision of public District are not the same as those facing rights are protected in the process of schools is vested in the local school the Conde School District. Therefore, it maintaining safe, quality schools. This board. State and federal law regulates is essential that local school boards have guide is simply meant to provide certain areas, most notably student the opportunity to develop policies and information about the rights and possession of guns, drugs, and alcohol. procedures to address their specific responsibilities of public school students However, these restrictions do not needs. in South Dakota and the role of local prevent local school boards from estab- communities in school safety. The exact lishing policies to further address these It is important to remember that although nature and extent of any legal right or concerns. Thus, school boards have the courts have emphasized the authority of duty depends upon circumstances right and responsibility to develop local school officials over school districts, unique to a particular case. These policies and procedures to ensure that students "do not shed . . . their guidelines should not be considered a their students receive a quality education constitutional rights at the schoolhouse final statement of all student rights or in a safe, secure environment. In that gates." Tinker v. Des Moines responsibilities. vein, school boards can and should Independent Community School

4 It is recommended that each school gang-related activities; and misuse or district: abuse of technology, including the Internet. · Establish a formal written policy on student conduct, safety, and welfare; While this is not an exhaustive list of concerns involving schools and school · Make the written policy public and districts, this guide attempts to address accessible to all students, parents, some of the common questions raised and community members; about school safety issues.

· Define student rights and responsibilities as specifically as possible within the policy, as well as;

· Identify unacceptable student behavior and consequences that may be imposed when such behavior occurs;

· Develop forms to be used by school personnel, including consent to search, search report form, rights to privacy with respect to lockers and/or vehicles in school parking lots.

The code of conduct should include student conduct and safety; policies for students who are disruptive on school grounds or at school activities or events; disciplinary actions including suspension, expulsion, and use of physical force;

5 Rights and Responsibilities

It is the Student’s Right to: · exercise freedom of assembly; · be aware of all rules and regulations for student behavior and act in · receive due process and equal accordance with them; · attend school free of charge; protection; · participate in and take advantage of · attend school and participate in school activities at no expense even · dress in such a way as to express the educational opportunities though married or pregnant; individual personality; provided by the school;

· establish and participate in student · respect the human dignity and worth · attend school until age 21, or graduation from high school, at public government. of all other individuals; expense, including free textbooks and instructional materials; · refrain from libel, slanderous remarks and obscenity in verbal and written expression; · expect that the school will be a safe place for all students to gain an It’s the Student’s Responsibility to: · refrain from disobedience, education; misconduct or behavior that disrupts · attend school daily, except when the educational process; · expect that the school will provide an excused or ill, and arrive on time for educational program that meets all classes; special needs, abilities and talents and also meets the standards · respect the reasonable exercise of · protect and show respect for public established for all schools by the authority by school administrators property; and teachers in maintaining discipline state legislature and the South Dakota Board of Education; in the schools and at school · pay only costs that are of a personal sponsored activities; nature or for participation in voluntary · exercise freedom of speech, press activities; and expression of views; · dress in a manner that meets fair standards of propriety, safety, health, · obey all restrictions on students in and good taste; accordance with board rules and regulations;

6 · take an active part in student school. More recent cases have their aids and assistants, have the government by running for office, or supported this position. authority to use the physical force that is voting for the best candidates; make reasonable and necessary for problems known to the school staff Even when students are engaged in supervisory control over students. Like through student representatives; school-sponsored activities after school authority over students is given any hours, they are still subject to the person delegated to supervise children · assume a rule is in effect until it is authority of school officials whether or who have been authorized to attend a waived, altered, or repealed. not the activity occurs on school school function away from their school property. In situations where the premises and to school bus drivers while behavior was not part of a school students are riding, boarding, or leaving sponsored activity, school officials may the buses. still discipline students for out-of-school activities when that conduct may affect Another law protects the proper use Conduct off School the safety and well-being of the student, of force. other students, or school officials. Grounds Disciplinary action may also be SDCL 22-18-5. To use or attempt or considered when the activity causes offer to use force upon or toward the Students do not automatically leave the damage to school property or makes person of another is not unlawful if control of the school authorities once management of the school more difficult. committed by a parent or the authorized they leave the school grounds. It is well agent of any parent, or by any guardian, settled in the law that school officials teacher or other school official, in the have the authority to control student exercise of a lawful authority to restrain conduct off school grounds and outside or correct his child or ward and if school hours. As early as 1859, a boy, restraint or correction has been rendered overheard making a derogatory comment Corporal Punishment necessary by the misconduct of such about his teacher, was disciplined the child or ward, or by his refusal to obey following day even though the comments South Dakota law allows for "physical force" when reasonable and the lawful command of such parent, or were made outside of the school day and authorized agent, guardian, teacher or off school grounds. The court upheld the necessary. other school official, and the force used punishment because the boy's remarks is reasonable in manner and moderate in could undermine management of the SDCL 13-32-2. Superintendents, principals, supervisors, and teachers and degree.

7 Although South Dakota law does allow potentially volatile situation. A "show of Recent cases have supported school the use of physical force in maintaining force" by authorities can often defuse a districts’ attempts to reduce the “gang discipline in schools, the parameters of tense situation, and if fewer students influence” in dress and grooming. Again, the acceptable level of force have not present during the "show of force" it will the schools must demonstrate the been established. It is strongly decrease the risk of injury or intervention discipline or other problems that resulted recommended that schools develop by other students. from the “gang influence” in dress and policies and procedures on the use of grooming. Prior restriction may not be physical force and the degree of physical constitutionally undertaken unless the force allowed. We also recommend that restriction is accompanied by discipline, all staff be trained on those policies and health, or safety reasons supporting the procedures. It is not advisable to use Restriction on Dress and style of dress or grooming. force in the absence of such guidelines and training. The Office of Attorney Gen- Grooming eral and Department of Education and Cultural Affairs do not recommend the It is well established that students have a use of physical force, but the statutes set constitutionally protected right to govern Flag Salute and Pledge of out above do set the parameters for its their appearance while attending a public use. school. To justify restrictions on this Allegiance right, the school district must meet a As our statutes dictate, the amount of “substantial burden of justification.” That The school board may legally provide for force used must be reasonable and is, school boards must show that there is a flag salute and pledge of allegiance as necessary given the student's age and an overriding public purpose to be a regular school exercise. Students sex, conduct of the student, and threat of served by limiting students’ rights to cannot, however, be required to take part harm to other students, staff, and the appear dressed in a certain fashion. The in these or other patriotic activities. A student. Schools should be careful to justification cannot be based on dissenting student should have a valid use the minimum amount of force speculation or prior restraint. The school reason (such as religious preference or a necessary to control the situation. It is district must demonstrate that the style of claim of a First Amendment privilege) for also helpful if the discipline occurs when dress or grooming restricted disrupts the not participating and should respect multiple authority figures are present, ongoing school program, invades the those who do participate by remaining and the student is isolated from other rights of others, or is a health or safety silent or by requesting permission to students to prevent escalation of a hazard. leave the area.

8 Moreover, while students do not have to and Hazelwood School District v. the same latitude is not required in salute the flag, they may not, under state Kuhlmeier, 108 S.Ct. 562 (1988), school settings. Schools have the right law, willfully and maliciously abuse or reinforced the rights of school and responsibility to regulate the use of show contempt for the flags of the United administrators to provide for a positive vulgar and offensive terms in public States of America or South Dakota. school climate. In those cases, the court speech in the school setting. SDCL 22-9-1.There may be sent a clear signal that inappropriate constitutional restrictions on these individual expression that negatively principles. influences others will not be constitutionally protected. The high court has also given school authorities more discretion in monitoring school sponsored journalism, plays, and other Freedom of Expression expression that is part of the curriculum. Connected with the limited authority to regulate dress and grooming, courts First Amendment rights of students in the have granted schools the right to restrict public school are not automatically certain types of student expression. As coextensive with the rights of adults in early as 1969, the United States other settings and must be applied in Supreme Court, in Tinker, 393 U.S. 503, light of the special characteristics of the confirmed that students have school environment. A school need not constitutionally protected rights with tolerate student speech that is respect to freedom of speech or inconsistent with its basic educational expression in the school setting. Like mission, even though the government other rights, however, this right is not could not censor similar speech outside unlimited. Wearing armbands or freedom the school. Hazelwood School District buttons has been upheld. But when a v. Kuhlmeier, 108 S.Ct. 562 (1988). disturbance occurs, the board may reasonably limit free expression. Under the First Amendment, an offensive or vulgar form of expression may be The United States Supreme Court in acceptable when an adult makes the Bethel v. Fraser, 478 U.S. 675 (1986) comment as part of a political forum, but

9 School Rules Possession of Tobacco, Alcohol, Drugs, and The school board and staff may legally While there is no hard and fast definition make reasonable and necessary rules of what is reasonable, a rule is generally Firearms governing the conduct of students in considered so if it utilizes a rational school. The rule-making power, means of accomplishing some legitimate however, is not unlimited; it must operate school purpose. The South Dakota Legislature has within statutory and constitutional decreed that possession of tobacco and restraints. A board of education has only Constitutionally protected activity may alcohol by minors is prohibited. In those powers which are enumerated in not be infringed unless school officials addition, possession of controlled the laws of the state, or which are can show that the failure to regulate substances and marijuana are crimes in necessarily implied for the orderly would create a material and substantial South Dakota, unless an authorized operation of the school. disruption of school work and discipline, healthcare provider specifically invade the rights of others, or would prescribes the controlled substance. The First Amendment spells out the result in a clear and present danger to Some substances are deemed so dan- constitutional rights of all Americans to the health, morals, safety, or general gerous that their possession may not be freedom of religion, association, speech, welfare of others. Whether such a legal, even by prescription. Severe state press, peaceable assembly, and petition. restraint is necessary is for the board and federal penalties are provided for The Fourteenth Amendment guarantees and its representatives to prove through violations under state law and the federal equal protection of the law and due factual evidence and not through "SAFE AND DRUG-FREE SCHOOLS process of law. The greater the loss of opinions. School rules are assumed to ACT." freedom through the operation of a board be "reasonable" until they are rescinded, rule, the more careful the board must be waived, or overturned by a court. The For example, SDCL 13-32-9 provides in assuring due process protections to first priority of the student should, suspension from extracurricular activities students. School boards may not make therefore, be to obey the rules while for controlled substance and marijuana rules that are arbitrary, capricious, or working through channels to help change violations. School officials are duty outside the authority given to them by the those that do not meet student approval. bound to observe and enforce these Legislature. Board rules must stand the laws. test of fairness and reasonableness. In addition, both the federal "GUN-FREE SCHOOLS ACT OF 1994" and SDCL 13-32-7 prohibit the presence of any

10 firearm or dangerous weapon on school or device, instrument, material or Detentions and in-school suspensions grounds. substance, whether animate or require no formal due process hearing. inanimate, which is calculated or The formality and need for SDCL 13-32-7. Any person, other than a designed to inflict death or serious bodily documentation of procedures quickly law enforcement officer, who intentionally harm." Whether an item is a escalates when the exclusion exceeds carries, has in his possession, stores, dangerous weapon is a factual question ten (10) days. This is because state law keeps, leaves, places or puts into the that should be discussed with legal grants students an "entitlement" to possession of another person, any counsel. education. The student may not be firearm or air gun, whether or not the deprived of this entitlement by the firearm or air gun is designed, adapted, government (i.e. school) without due used or intended primarily for imitative or process of law. Students' rights to noisemaking purposes, or any suspension and expulsion hearings are dangerous weapon, on or in any outlined in state law as follows: elementary or secondary school premises, vehicle or building or any Suspension and Expulsion SDCL 13-32-4. The school board of premises, vehicle or building used or every school district shall assist and leased for elementary or secondary Suspension and expulsion are cooperate with the administration and school functions, whether or not any disciplinary measures involving removal teachers in the governonce and person is endangered by such actions, is and exclusion from school. Short-term discipline of the schools. The board may guilty of a Class 1 misdemeanor. This suspension is an exclusion from school suspend or expel from school any section does not apply to starting guns for ten (10) days or less. Long-term student for violation of rules or policies or while in use at athletic events, firearms suspension is an exclusion from school for insubordination or misconduct, and or air guns at firing ranges, gun shows for more than ten (10) days but not more the superintendent or principal in charge and supervised schools or sessions for than ninety (90) days. Expulsion is of the school may temporarily suspend training in the use of firearms. This exclusion from school for not more than any student in accordance with SDCL section does not apply to the ceremonial twelve (12) months. Expulsion and long- 13-32-4.2. The rules or policies may presence of unloaded weapons at color term suspension are reserved for school include prohibiting the following: guard ceremonies. board action, and a hearing must be provided. A short-term suspension does Finally, dangerous weapon is defined in not require a formal hearing before the SDCL 22-1-2(10) as "any firearm, knife school board, but the student must be given an opportunity to be heard.

11 · the consumption or possession of brought a firearm onto school premises, This section does not prohibit a local beer or alcoholic beverages on the the expulsion may not be for less than school district from providing educational school premises or at school twelve months. services to an expelled student in an activities; alternative setting. However, the superintendent or chief · the use or possession of a controlled administering officer of each local school SDCL 13-32-4.2. The school board in substance, marijuana, drug district or system may increase or any district may authorize the summary paraphernalia, cigarettes, and huffing decrease the length of a firearm-related suspension of pupils by principals of materials, without a valid prescription, expulsion on a case-by-case basis. The schools for not more than ten school on the school premises or at school South Dakota Board of Education shall days and by the superintendent of activities; and promulgate rules pursuant to SDCL ch. schools for not more than ninety school 1-26-26 to establish administrative due days. In case of a suspension by the · the use or possession of a firearm, as process procedures for the protection of superintendent for more than ten school provided in SDCL 13-32-7, on or in a student's rights. The administrative due days, the pupil or his parents or others any elementary or secondary school process procedures shall include a having his custodial care may appeal the premises, vehicle, or building or any requirement that the school give notice of decision of the superintendent to the premises, vehicle, or building used or a student's due process rights to the board of education. Any suspension by a leased for elementary or secondary parent or guardian of the student at the principal shall be immediately reported to school functions or activities. time of suspension or expulsion. Each the superintendent who may revoke the school district board shall provide a suspension at any time. In event of an In addition to administrative and school procedural due process hearing, if appeal to the board, the superintendent board disciplinary action, any violation of requested, for a student in accordance shall promptly transmit to the board a full SDCL 13-32-7 shall be reported to local with such rules if the suspension or report in writing of the facts relating to law enforcement authorities. expulsion of the student extends into the the suspension, the action taken by him eleventh school day. and the reasons for such action; and the The period of expulsion may extend board, upon request, shall grant a beyond the semester in which the hearing to the appealing party. No pupil violation, insubordination, or misconduct This section does not preclude other may be suspended unless: occurred. Any expulsion for consumption forms of discipline which may include suspension or expulsion from a class or or possession of beer or alcoholic · The pupil is given oral or written beverages may not extend beyond ninety activity. notice of the charges against him; school days. If a student has intentionally

12 · The pupil is given an oral or written when suspending or expelling students. officials are notified when access to explanation of the facts that form the Copies of the South Dakota Board of student records is terminated by court basis of the proposed suspension; Education's rules should be available in order. and every school. In general, federal and state law on · The pupil is given an opportunity to Additional procedures may be required student records (FERPA) restricts the present his version of the incident. when disciplining special education release of information in a student's students. The South Dakota Board of permanent file to outside agencies In the event of a suspension for more Education has adopted due process without a court order or parental than ten school days, if the pupil gives procedures that public schools should permission. This does not mean that notice that he wishes to appeal the follow when considering suspension or school officials cannot discuss a suspension to the board, the suspension expulsion of special education students. student's behavior with law enforcement shall be stayed until the board renders its or social services without a court order or decision, unless in the judgment of the parental permission. superintendent of schools, the pupil's presence poses a continuing danger to School officials must be cautious in their persons or property or an ongoing threat dealings with outside agencies to limit of disrupting the academic process, in School Records the information they give to such which case the pupil may be immediately agencies. They can only share removed from school, and the notice and Students' school records are confidential. information that is outside of the hearing shall follow as soon as Authorized school personnel, parents student's educational record. For practicable. (whether custodial or not), legal example, a school principal could inform guardians, students who have reached law enforcement that he or she found a These statutes do not preclude other age 18, state and local education student with spray paint cans in his forms of discipline, which may include officials, and persons with court orders locker, where there was a recent rash of suspension or expulsion from a class or may inspect student records. Others vandalism in the school. School officials activity. must have the parent's written cannot share with law enforcement that permission. It is the school’s the student's grades have recently The South Dakota Board of Education responsibility to know who has been dropped and attendance has been has adopted a due process procedure allowed access to records and to keep sporadic. However, if a teacher is aware that must be used by a public school careful record of what was released to of a student’s absence from a specific whom and for what purpose. School

13 class, that teacher may share that remain, but parents are allowed to information with law enforcement. In the provide a written rebuttal to be · All records shall be open to challenge absence of a warrant or court order, first- permanently attached to the document or by an 18-year-old student or the hand knowledge is needed for a teacher information. parents or guardian of the student; to share information with law enforcement. With a valid court order, · A student's opinion shall not be The following policy should govern the law enforcement may have access to the disclosed to any outside person or collection and administration of student information in the student's file. Peer agency; records: grading of work has been held to not be

a violation of FERPA. · A student shall be free from punitive · A student's permanent file shall actions in evaluations of academic include only this information: Under the state's compulsory attendance competency and in college or job identifying data (including names and laws, parents have the right to inform references because of individual addresses of parents or guardian), themselves of their child’s progress in opinions; and birth date, academic work completed, school. School officials can be required level of achievement (grades, to interpret the contents of the file or to · When a student reaches the age of standardized achievement test explain the meaning of test results. eighteen (18), all rights concerning scores), attendance data, and In the case of parents with children school records transfer from the possibly medical records; receiving special education services, parents to the student. Parents no

records must be available five (5) days longer have a legal right to examine · Any other records shall be available prior to any meetings or hearings their child's records without the child's only to the student or parents or regarding IEPs, evaluations, or permission (there is a limited excep- guardian of the student and the placements. tion allowing parental access where school staff. All records shall be the parent can prove that the student governed by strict safeguards for Parents may challenge the contents of is dependent on the parent). confidentiality and shall not be their child's records and request a available to others in or outside of the withdrawal of information. If the school The school can make no charges for school except upon the consent of a declines the request, parents may insist record searches or information retrieval, parent or 18-year-old student. These upon a hearing. If the hearing officer but may charge only a reasonable fee for other records shall be considered determines the information in question is photocopying. In the case of special temporary and shall be destroyed accurate and appropriate, the content will education records, such photocopying when the individual leaves the school;

14 charges cannot preclude parental access personnel in maintaining discipline and searches are more questionable than a to records. fostering an environment where learning pat-down search. For example, a strip can take place. search of teenage girls (or boys) by a teacher for $50 would not be a permissible In T.L.O., the Court established a two- search. part test to determine the legality of Search and Seizure school searches by school personnel: Inspecting the student’s person or possessions, such as purse, backpacks, The United States Supreme Court in The legality of a search of a student or clothing, would constitute a search for New Jersey v. T.L.O., 469 U.S. 325 should depend simply on the Fourth Amendment purposes. Pat downs (1985), recognized that when school reasonableness, under all the or physically examining a person or his personnel look through a student's purse circumstances, of the search. possessions constitute a search. or backpack, this constitutes a search for Determining the reasonableness of any Movement of items or opening sealed Fourth Amendment purposes. The right search involves a two-fold inquiry: first, containers to have a "plain view" of an of school personnel to conduct a search one must consider "whether the . . . area would constitute a search. In on school grounds is broader than for a action was justified at its inception"; contrast, observing items in plain view is search conducted outside of the school second, one must determine whether the not a search. Observing abandoned items context. The United States Supreme search as actually conducted "was or where ownership is not claimed would Court in Veronia School District 47J v. reasonably related in scope to the not be a search. Detecting sights or smells Acton, 515 U.S. 646 (1995), stated that circumstances which justified the in a normal fashion is not a search. "students within the school environment interference in the first place." T.L.O., Peering in the windows of a vehicle does have a lesser expectation of privacy than 469 U.S. at 341. not constitute a search unless the car is members of the population generally." entered in some fashion. That does not mean that school A search can be executed if there are personnel have carte blanche to search reasonable grounds for suspecting that Ordinarily, for school officials to conduct a a student's belongings or person. The evidence of violation of law or school rule search of student or students, there must T.L.O. case defined the parameters will be discovered during the proposed be reasonable suspicion that: 1) a law or when school personnel conduct a search search. One must also consider the school rule has been violated; 2) the on school grounds. The student's scope of the search with respect to the student or students have violated the rule expectation of privacy must be balanced age, and sex of the student, and the or law; and 3) evidence of the violation against the substantial interest of school nature of the rule violation. Intrusive would likely be found in a particular place

15 or manner. For example, if the violation search. This protects the school district infractions or where immediate danger is is possession of a weapon such as a from liability and the individual student not at issue. That is not to suggest that gun, a search of the suspect's backpack, from an unreasonable search. There "strip searches" are never justified. purse, or car would be justified, but a must be reasonable suspicion for each "Strip searches" may be necessary to search of a coin purse would not be. A individual to be searched. Blanket detect the presence of controlled gun could not be in a coin purse. searches of an entire group are not substances or weapons. Because of the However, during a justified search, protected except under specific danger involved in those activities, the evidence may be discovered that would circumstances. "strip search" might, in rare circum- authorize an expanded search. For stances, be justified. example, during the search for the gun, A particular type of search that should marijuana was discovered, possession of almost never be used is a "strip search." Again, there must be individualized which is a violation of state law and As the name implies, this type of search reasonable suspicion at the outset, and school rules. In that circumstance, a is particularly invasive. Courts have the search must be limited to what is search of the coin purse would be indicated that "the Fourth Amendment necessary to find evidence. In other justified. In limited circumstances, some applies with its fullest vigor against any words, "strip searches" of an entire class searches may be undertaken without any indecent or indelicate intrusion on the would not be recommended to look for a suspicion. See the suspicionless search human body." Horton v. Goose Creek small amount of money. When school section for more information. Independent School District, 690 F.2d personnel have reasonable suspicion 470 (5th Cir. 1982). Even if the student that a student or students have on their is not asked to remove any or all clothing person weapons that put the student The concept of reasonable suspicion is in the "strip search," any search that body in danger, a "strip search" is likely based on common sense, considering all involves inspection of the body is justified. However, if the weapon is a of the facts and circumstances in a given particularly invasive and is not condoned gun, it is unnecessary that the student's situation. A mere hunch or supposition is by the courts, except in rare undergarments be removed, because the not reasonable suspicion. Since the circumstances. weapon would be visible through the question of reasonable suspicion may undergarments. arise following the search, it would be Schools should be particularly cautious prudent for local school districts to about conducting strip searches. Courts Schools should establish policies and develop a form to document the facts will carefully review the facts justifying a particular procedures for all searches. and circumstances that justified the "strip search." Clearly, "strip searches" search at its inception and the scope and should not be considered for minor These policies should be devised to procedures followed during a specific

16 minimize the intrusion on any student’s at the school with a search or arrest circumstances had upon the will of the privacy. warrant. Schools should have formal [student] and whether [his] will was legal policies in place about law overborne.” State v. Anderson, 2000 enforcement’s access to students during S.D. 45, ¶ 80, 608 N.W.2d 644, 667. An Important Caveat school hours. There are many factors that will be The general principles outlined about considered in making this ruling. For searches of students may not apply Under certain circumstances, example, was the consent in writing; did when law enforcement are involved or individualized reasonable suspicion may the student have access to food and present during the search. Even if law not be necessary before school personal water; was there any physical restraint or enforcement are not directly involved, but can conduct a search. See section 4. physical barriers; what is the level of school personnel are acting as agents of intelligence and/or experience and age of law enforcement, the principles are the student; what was the length of any different. When law enforcement is detention; and was the student told he involved in a search of students or was free to leave? This is not an school property there must be, at a mini- Consent inclusive list of factors. mum, probable cause to search. Law When students consent to a search of enforcement’s use of a drug dog on their person or belongings, the Fourth It may also be helpful to review factors school property is later in this document. Amendment is not impacted. It is that have been utilized to determine the recommended that a standard consent voluntariness of a consent outside a form be included in the local school A student has the right to counsel if he or school setting. See generally Anderson, district's code of conduct. If school Supra, and State v. Darby, 1996 S.D. she is being questioned by law officials have reasonable suspicion to enforcement as a suspect or witness to a 127, 556 N.W.2d 311. It is also conduct a search, consent is not important to have the student sign a potential crime. Prior to questioning, the necessary. In contrast, if a student student also maintains the right to inform consent form prior to the search. The consents to a search, reasonable student may not be coerced or forced to parents of the situation. The student suspicion is not at issue. It is important does not have to talk to law enforcement. provide consent or the consent is invalid. that the consent be knowing and In addition, the denial of consent may not voluntary. This determination will When the investigation involves child be used to form reasonable suspicion or depend upon the facts and to punish the student for violation of abuse, the parents may or may not be circumstances surrounding the consent notified as provided by South Dakota school rules. in each case. The court will review "the law. Finally, law enforcement may arrive effect [that] the totality of the

17 Reasonable suspicion may develop Also, vehicles in a school parking lot may Amendment purposes. Opening the during a consensual search that would be searched if there is reasonable container, whether it be a car, bookbag, justify continuing the search even after suspicion that evidence of a violation of or purse, is a search and must be based, consent is withdrawn. law or school rule will be found inside. at a minimum, on probable cause, if the As previously indicated, looking in the dog belongs to law enforcement. Again, windows of a car parked in a parking lot when law enforcement is involved in Locker Searches and observing evidence of a rule searches on school grounds, even if law Locker searches have long been violation is not a search. Schools may enforcement does not conduct the actual endorsed because the lockers belong to want to include notice in their code of search, the standards to justify the the school and are loaned to the conduct that cars parked on school search may differ. It is likely that a students during the school year for their property are subject to search. This positive "hit" by the drug dog would use. Some courts have indicated that information should also be posted constitute probable cause, warranting the when the students have put their conspicuously in the school. The written search of the container. personal items in the locker, they have notice reduces the expectation of privacy privacy rights in the contents of the of students. That notice does not lockers. Therefore, the lockers are not authorize random searches of the Suspicionless Searches school property and not subject to search interiors of students' personal cars. While searches of students by school without reasonable suspicion unless Reasonable suspicion or consent is still personnel have traditionally required students have been informed that the required before the vehicle may be individualized reasonable suspicion, lockers are school property and can be searched. recent cases have approved searched by school personnel. South suspicionless searches in schools under Dakota courts have not specifically limited circumstances. Veronia School addressed this issue. If local districts District 47J v. Acton, 515 U.S. 646 intend to search lockers on a random Search by Drug-Sniffing Dogs (1995). In Veronia, all school athletes basis, it is prudent for them to post notice A sniff of a closed container by a drug were subject to random drug tests in their code of conduct and/or in visible detection dog is not a search because it because of the prevalence of widespread places in the school. It is not appropriate, is "minimally intrusive." United States v. drug use by athletes in that school however, for a district to select only Place, 462 U.S. 696 (1983). Therefore, district. A fact significant to the Court certain students' lockers for inspection. when drug dogs are brought to a school was that the school district could That policy is constitutionally suspect. to "sniff" cars, lockers, bookbags, or demonstrate problems with drug use by purses, it is not a search for Fourth student athletes and the attempts used

18 to remediate the drug use in that specific Random searches of students as they district. Besides the physical dangers This area of the law continues to evolve. enter or leave school grounds would inherent with drug use by athletes, If a school district decides to institute a appear permissible based on existing discipline problems had increased, and program of suspicionless drug testing, it case law. Again, if a school has the student athletes were role models for must have a factual basis for it, and it reasonable suspicion to believe that a the other students. must carefully craft the program in close student has a weapon, they are justified consultation with the school’s attorney. to conduct a search of that person. The test for suspicionless searches is There must be a factual basis for suspi- one of reasonableness. Board of Edu- cionless drug testing, as the court held in cation v. Earls, 2002 WL 1378649 (U.S. Chandler v. Miller, 520 u.s. 305 (1997). Supreme Court. June 27,2002). In deter- This remains the law even after the Earls Summary mining reasonableness of suspicionless decision. The type of search and the justification searches of students, the court requires for the search depends on the extent and a “fact-specific balancing of the intrusion Courts have not clearly addressed the invasiveness of the search. The more on the children’s Fourth Amendment issue of suspicionless searches of invasive the search, the more procedural rights against the promotion of legitimate students for weapons. The danger and safeguards are required. Thus, the governmental interests.” Among the immediate need to discover weapons on search of a student's backpack requires considerations are the nature of the school grounds would suggest that less justification and procedural privacy interest compromised; the char- suspicionless searches of students safeguards than a rarely justified “strip acter of the intrusion; and the nature of through metal detectors or other non- search” of students. The more invasive immediacy of the school’s concerns. invasive methods will be approved. It is search may be acceptable depending on still unclear whether the courts would the possible outcome. That is, if the In Earls, a drug testing policy requiring support a more invasive suspicionless alleged contraband is a gun or a bomb, testing of all students in “competitive search for weapons of a particular group, and the risk of injury to students is great, extra-curricular activities” was upheld unless it can clearly be established that a more invasive search may be justified. where there was evidence of drug use in this group is a danger to the school and the schools, the giving of a urine sample there is reason to believe that the Generally speaking, searches of lockers was completed behind a closed rest students to be searched possess and parking lots, and the use of metal room stall door, and the results were weapons. It is important to emphasize detectors by school personnel are confidential and not used for disciplinary that these searches cannot be used as a permissible. Searches of students require individualized suspicion unless or criminal purposes. pretext to target certain individuals. the factual situation is such that a search

19 without individualized suspicion is re- be in a specific class and not wandering warranted until the student is controlled quired to address an immediate existing the halls, and students may be restricted or is moved to an appropriate place. problem. In other words, there must be a in what they bring to school or whether School districts have broad authority to real or perceived emergency. The courts they can carry a backpack to class. regulate local schools. For more have cautioned that blanket searches of These are not seizures for Fourth information, see the section on the entire student body should not be Amendment purposes. Suspension and Expulsion. condoned, except under very limited circumstances. There may be circumstances, however, where because of the conduct of a student, the student's freedom of Seizure movement may be more restricted. The The Fourth Amendment also regulates principles outlined on searches would the seizure of an individual or his also be applicable here. In addition, property. A seizure is an interference when law enforcement comes to the with a student's freedom of movement or school to arrest a student or seeks to interference with a student's possessory question a particular student, the district interest in property. Schools are unique should establish policies to address in that a large number of students are in those situations, so that the school a small area with a limited number of district is not involved in taking away a teachers and/or staff to control the student’s constitutional rights. students. The United States Supreme Court has acknowledged the difficulties Furthermore, when the specific inherent in controlling students while circumstances suggest that the student, providing a quality education. Moreover, because of mental health or other issues, during the school day, students are is an immediate danger to himself or under the control of school personnel others, state law, such as SDCL ch. 27A- rather than their parents or guardians. 15, lays out specific procedures that Thus, in a school setting, restrictions on should be followed to protect the a student's freedom of movement or individual student's rights and protect the possessory interest in property are other students and staff in the school. ongoing. For example, students need to Detention in such a situation would be

20 Terroristic Threats and False Reporting In 2002, the South Dakota Legislature causes either serious public A hoax destructive device is any device adopted a statute that significantly broad- inconvenience or the evacuation or that would cause a person to reasonably ened crimes involving terroristic threats serious disruption of any building, place believe that it is a dangerous explosive and the placing of hazardous or injurious of assembly, facility of public or school or incendiary device or similar devices or substances. The new transport, or school related event is guilty destructive device. statutes are found in SDCL Chapter of this new crime. It is a Class 4 felony, 22-14A. punishable by up to 10 years in prison. Upon being convicted of any of these This crime can be committed by actually crimes, the defendant may be ordered to These new statutes make several leaving a harmful substance in any make restitution to local, county, or state changes. SDCL § 22-14A-22 previously place, or by using an apparent public service agencies for any costs prohibited false reporting of a bomb, and dangerous weapon, destructive device, incurred, damages and financial loss or made doing so a Class 6 felony, dangerous chemical, biological agent, property damage sustained as a result of punishable by up to two years in the poison, or harmful radioactive substance. the commission of the crime. South Dakota Penitentiary. It also One thus can be guilty of the Class 4 imposed all costs of such a report on the felony by using an apparent substance, None of these statutes may be construed person making the report. The 2002 not just the substance itself. to create any cause of action against a amendment broadened this crime to person based upon or arising out of an include threats of placing dangerous In addition, the new § SDCL 22-14A-25 act relating to any good faith response to chemicals, biological agents, poisons or makes it a Class 5 felony (punishable by a terrorist act or attempted terrorist act. harmful radioactive substances. Now, up to five years in prison) to possess, Thus, those responding in good faith to false reporting of either a bomb or transport, use, or place any hoax terrorist acts are not subject to these destructive device, or of chemicals, substance or hoax destructive device statutes. biological agents, poisons, or harmful with the intent of causing anxiety, unrest, radioactive substances is punished fear, or personal discomfort. A hoax It is believed that these amendments and equally under the law. substance is any substance that would strengthening of the statutes will not only cause a person to reasonably believe permit a more effective response to In addition, SDCL § 22-14A-24 prohibits that it is a harmful substance. terrorist acts, threats, and hoaxes, but the use of any substance or device to will also impose all costs upon those who intentionally communicate a threat. Any commit such crimes. person who communicates a threat by leaving any substance or device, that

21 Appeals Contact Information

A person dissatisfied with a decision has Office of the Attorney General the right to appeal to a higher authority. 500 East Capitol Thus, the student may appeal a decision Pierre, SD 57501 of a teacher to the principal, and the Telephone: 605-773-3215 principal’s decision to the superintendent. If still not satisfied, the superintendent’s decision may then be appealed to the board. Any school board Department of Education action may be appealed to the circuit and Cultural Affairs court and ultimately to the State 700 Governors Drive Supreme Court. (SDCL Ch.13-46) Pierre, SD 57501 Telephone: 605-773-5669 Fax: 605-773-6139

Conclusion School safety is a concern for everyone. Schools have the difficult job of protecting students and staff while providing a quality education. In that vein, courts have recognized the unique role of schools in school discipline and safety. Schools still have an obligation to protect the constitutional rights of students within their supervision and should be aware of those rights as they develop policies and procedures.

22 Revised July 2002 by the Attorney General’s Office and the Department of Education and Cultural Affairs.