Part Two: Confiscation and searches of student property – searching students and student property
This is the second article in a two-part series on the myriad issues associated with managing inappropriate student materials. Part One is available here. In this series, Craig D’cruz, National Education Consultant at CompliSpace, explores managing the confiscation of student materials and the legal, regulatory and guidance to consider when dealing with this matter. In Part Two of this series, Craig discusses how to search student property and students themselves.
Searches of student property
Staff should be trained regarding how to and when they can conduct a search of student property, if they are made aware of a contraband item being in a student’s bag, desk or locker. Staff who have not been trained in how to conduct a search should seek the assistance of someone who has been appropriately trained, so that the school cannot be held liable or accountable for inappropriate staff actions.
Differing jurisdictions have different regulations regarding searches of student property – such as a school bag or uniform. One matter however is very clear across all jurisdictions, a student can be asked to empty the content of their bag or pockets but if they refuse, unless there are very specific circumstances, the search cannot be carried out. That is when parents or perhaps the Police need to be involved and they can carry out the search. The student should be kept isolated but in full view of their property so that no access to it may be made by the student or by staff, until a parent or the Police arrive.
School property such as the student’s desk, and even the student’s locker (depending on the type of locker contract), can be searched without permission. Some jurisdictions advise that student bags can also be searched without permission. According to FindLaw: “A teacher has no legal right to search you or your schoolbag unless you agree to be searched, except where they have a reasonable concern for the safety of other students.” According to LawStuff in WA: “Teachers can only search your stuff without your permission if they think it’s reasonably necessary to manage or care for students, maintain order or prevent you placing others’ safety at risk or damaging or any property. A teacher can search your desk, locker and bag if it’s necessary to do these things. They don’t need your permission to do this.”
There are certainly occasions where a student’s bag can be searched without permission. For example, if a student is having an asthma attack or an anaphylactic reaction, and they have a Ventolin puffer or EpiPen in their bag, there would probably be no time to seek permission to search the bag for the necessary lifesaving medication. It is also extremely doubtful that anyone would complain about an action that was designed to help save a life.
However, apart from this type of emergency, it would not be considered good practice to search a student’s bag without permission.
Searches of Students
School principals have a legal obligation to ensure school campuses remain safe and secure for students, staff and other visitors. This duty arises from both the common law duty of care and Work Health and Safety obligations. Therefore, students bags and possessions can be searched if staff have reasonable grounds to believe that the student is in possession of something that may adversely affect the safety or welfare of anyone on the school’s premises. However, does this then allow for personal searches of students to be conducted?
In an Australia New Zealand Education Law Association (ANZELA) paper, Student Searches in Australia: A Consideration of Roles, Responsibilities and Rights of Students, School Staff and Police (Joy Cumming and Ralph Mawdsley), it notes that the policy for government schools in Queensland and New South Wales is that school staff may not search students’ persons for weapons or drugs but must seek Police assistance. Their article considers the practicality of such an approach, whether it is the most appropriate for our schools and students, or whether the professional judgement of school principals and teachers should be enhanced to address such situations to allow searches by staff. They argue that teachers must exhibit professional judgement and wisdom when determining whether to intervene in an incident where child safety may be at risk. Nonetheless, according to the ANZELA paper and New South Wales and Queensland Department of Education guidelines for government schools, it is still not permissible for school staff to conduct personal searches of students for drugs or weapons (Cumming and Mawdsley).
Professor Joan Squelch in her paper Searches and School Safety: A Comparative Analysis of Australia, New Zealand and United States of America notes: “Conducting searches of students and their property in public (and private) schools is often a necessary step in maintaining discipline and safety. However, the legality of such searches is open to challenge and it is a matter that schools should be addressing in their school discipline and safety policies.” Squelch also notes that there are no Australian laws that deal with searches of students in government or non-government schools and no court decisions have dealt with this issue.
However, once again coming to the fore, regulation 38 School Education Regulations 2000 (WA) states that a member of staff in a government school, may take “physical action as is reasonable” to prevent or restrain a person (such as a student) at the school from acting in a manner which places at risk the safety of the student or other person, or damaging any property. However, how this could be managed in a situation where a teacher wishes to search a student, who may be in possession of drugs or a weapon, is not known.
In a recent School Governance article regarding teachers and student violence it was noted that; “Before intervening, teachers must remember that they never have a duty to put themselves at risk of physical harm.” In addition to this, any searches of a student or a student’s property has the potential to impact on a student’s privacy.
However, Squelch identifies some valuable points that schools may wish to consider if they have or intend to have a search policy. She suggests that any policy on student searches should cover:
- the scope of school searches – the policy should cover suspicion-based searches and random searches;
- procedures for searching a student;
- who may conduct searches;
- when searches may be conducted;
- the number of people who should be present when conducting a search;
- the use of metal detectors, especially hand-held detectors for frisking over students;
- the prohibition of strip searches and pat downs;
- searches by Police officers;
- advanced warning of searches;
- documenting a search;
- notifying parents of a search;
- the custody of confiscated property; and
- reporting criminal conduct to the Police.
In general, teachers do not have the power to search students without very probable cause and, regardless, it would be considered extremely unwise to do so. If a personal search is deemed to be necessary, Police should be involved.
The overriding duty of care requires effective action, accompanied by suitable training, to be taken where there is a foreseeable risk of injury, but not where it endangers the student concerned or anyone who may be involved in a search.
About the author
Craig D’cruz is the National Education Consultant at CompliSpace. He can be contacted here.