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A Texas Court of Appeals recently ruled on the constitutionality of a procedure that has become common in many Texas districts.  Students at a high school in the Austin Independent School District were required to leave their property in a classroom and wait in the hall while police officers instructed trained dogs to sniff the items left behind.  The dogs reacted to the backpack of D.H., a sixteen-year-old student.  The officers then called D.H. back into the classroom and searched her backpack, where they discovered marijuana.  Criminal charges were pressed, and D.H. was placed on probation.  On appeal, she challenged the legality of the search, arguing that the marijuana was seized in violation of her Fourth Amendment right to be free from unlawful search and seizure. 

Austin attorney Karla Schultz of Walsh, Anderson, Brown, Gallegos & Green says that the type of search at issue in D.H. is “pretty standard operating procedure in most districts.”  D.H.’s claim was somewhat unique in the context of Fourth Amendment case law in that she did not argue the search of her backpack was unconstitutional.  Rather, she complained that the District’s requiring her to leave the classroom without her property was an unconstitutional seizure.  Therefore, this case is useful to school administrators, as it is the first time a court has examined this specific practice. 

The court in D.H. cited a three-part test from Board of Education v. Earls, a 2002 case in which the United States Supreme Court upheld suspicionless drug testing as a prerequisite to participation in extra-curricular activities.  The Earls test looks at “the nature of the implicated privacy interest, . . . the character of the intrusion, and finally . . . ‘the nature and immediacy of the government's concerns and the efficacy of the [school's action] in meeting them.’”  Applying this standard, the search of D.H.’s backpack was reasonable because D.H.’s privacy interest as a public school student was relatively low while the inspection was minimally intrusive and addressed an “important governmental concern.” 

Schultz, an associate attorney with an interest in constitutional issues, reports that she often receives questions from administrators regarding drug searches.  According to Schultz, an important factor in D.H. was AISD’s ability to show the existence of a drug problem on campus.  Schultz explains that the Earls standard requires a court to consider whether the procedure in question “effectively addresses the problem of student drug use,” therefore districts need to have concrete evidence of a “demonstrated drug use, possession or dealing issue.”

Other factors that districts should keep in mind include the minimally intrusive nature of the inspection.  Districts can minimize the potential of embarrassment by searching a student’s property individually.  Schultz advises districts not to let dogs sniff the students directly. 

The case is In the Matter of D.H., __ S.W.3d __, 2010 WL 744117 (Tex. App. – Austin, 2010).  Look for a summary in the May issue of the Legal Digest.