Why didn’t they look in the backpack?

I don’t know where the kid in Michigan had the gun that he used to kill four people at Oxford High School last November.  But from the news accounts I’ve read, it seems certain that he had the gun with him at school that entire morning.  I expect you have also read about this case. School counselors were concerned about the student to the point that they met with the parents and asked them to take the boy home and get him into counseling.  The parents refused to do that.

The gun had to have been in the boy’s backpack, or locker, or someplace where he hid it. But it had to be at the school.  Lawsuits have already been filed, so I’m sure we will learn more about what really happened, what the counselors and administrators knew or did not know, and what they did or did not do. 

For today, let’s just remember the basics about searching a student’s belongings.   This issue has been to the U.S. Supreme Court in the case of New Jersey v. T.L.O. SCOTUS held that the 4th Amendment does apply in the school setting. This means that school officials cannot just willy nilly poke into backpacks, cell phones, and purses out of curiosity.  On the other hand, they don’t need a warrant or “probable cause” like the police do.  They need a reasonable basis for a suspicion that the search will turn up something that violates school policy. 

The courts ask two questions in a 4th Amendment case. Was the search justified at the inception? And was it reasonable in scope?   To satisfy that standard, I have long suggested that administrators ask themselves two questions before initiating a search: what am I looking for? And why do I think I might find it where I’m looking?  There should be sensory data to support your answers to those questions, meaning something that you saw, or heard, or smelled. 

“Reasonable in scope” means that you look only in those places where the item might be found, and that you don’t go on the proverbial “fishing expedition.” But one thing we can discern from the case law is that a search for a firearm can be more intrusive than a search for something less dangerous. The reasonableness of the search is, in part, measured by the urgency of the situation. Nothing is more urgent than preventing a school shooting. 

As the litigation goes forward, I will be very interested to learn if any search of this student took place. And if not, why not.  From the news accounts I’ve read, it sounds like there was ample justification to look into the backpack and locker, and to question the student closely.  But news accounts are not the same as testimony and evidence in a court case, so we will keep an eye on this case as it moves forward.


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com

Tomorrow: notice of nonrenewal sent twice…hearing requested once.