The general rights for employees are similar, but not identical to
those of students.
School personnel are restricted in the scope of the searches they make of an employee and his or her personal possessions. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures by government entities. A public school official may, however, search for weapons, drugs, other prohibited items, or evidence under certain circumstances. Whether that conduct is constitutional will depend upon whether it is a “search” or “seizure” under the Fourth Amendment, and, if so, whether the search or seizure is reasonable.
1. Fourth Amendment
“Searches.” The determination whether a search is subject to the
Fourth Amendment turns, in large part, upon whether the student has a
reasonable expectation of privacy in the area to be searched.
Employees may have a reasonable expectation of privacy in the work
areas, if so may be protected from warrantless employer searches by the
Fourth Amendment (O’Connor v. Ortega, 480 U.S. 709 (1987)). The
workplace includes those areas and items that are related to work and
are generally within the Employer’s control including hallways,
offices, locker rooms, break rooms, cafeterias, desks, and file
cabinets. Personal items, however, such as closed personal
luggage, briefcase, or hand bag are not considered part of the
workplace merely because the employee brings them to work.
When a school administrator is deciding whether to search an employee’s workspace, the supervisor should consider whether the employee has a reasonable expectation of privacy in the area and if so, what factors may defeat the privacy expectation in order to make the search reasonable under the circumstances. (State v. Ziegler, 637 So.2d (109, 112 (La. 1994)).
The circumstances that affect whether an employee has a reasonable expectation of privacy in the workplace include: (1) legitimate employer regulation; (2) actual workplace practices and procedures; and (3) the extent to which others, including coworkers and supervisors, regularly enter the area in question. (United States v. Simons, 206 F.2d 392 (4th Cir. 2000)).
a. A school’s policy reserving the right to access certain areas or items that belong to an employee diminishes the employee’s expectation of privacy. (United States v. Thorn, 375 F.2d at 679 (8th Cir. 2004)). In Thorn the court concluded that where an employee is “fully aware” of a policy that an employer may have access to the area or item at issue, the employee does not have a legitimate expectation of privacy. The court in Thorn found it significant that the defendant employee made a written acknowledgment of the policy that gave the employer access to his computer.
However, if a school has no such regulation or practice in place, then the employee may well enjoy a reasonable expectation of privacy in that area. (Simons, 206 F.3d at 399).
b. Public school employers in some jurisdictions can conduct even random, suspicionless searches of employees who occupy certain “safety sensitive” positions. Safety sensitive means that the job requires an employee to perform duties which may result in injury to others. (Crager v. Bd. Of Educ. Of Knott County, 313 F.Supp.2d 690, 693 (E.D.Ky.2004). The Sixth Circuit upheld a drug testing policy that provided that the following individuals occupy safety sensitive positions: principals, assistant principals, teachers, traveling teachers, teacher aides, substitute teachers, school secretaries, and school bus drivers. (Knox County Educ. Assoc. v. Knox County Bd. Of Educ., 158 F.3d 361, 366-68 (6th Cir. 1998).
c. A public school teacher cannot claim a reasonable expectation of privacy in information that the employee voluntarily turns over to a third party. In Alinovi v. Worcester School Committee, 777 F.2d 776 (1st Cir. 1985) a teacher refused to give the school principal a copy of a paper that the teacher wrote for a college course about a special education student in her class. The court held that because the teacher gave a copy of the paper to her evening course professor and, more importantly, because she gave a copy to one of the school’s administrators, the teacher lost whatever expectation of privacy she had in that paper.
d. An employee has been found to have a diminished expectation of privacy in an area in a school that is open to other employees. The Ohio Court of Appeals concluded that public school custodians did not have a reasonable expectation of privacy in a break room that was open to other employees. (Brannen v. Kings Local Sch. Dist. Bd of Educ., 761 N.E.2d 84 (Ohio Ct. App. 2001)).
e. The ownership of property searched by a school district is also relevant, but not a determinative factor in considering whether an employee had a reasonable expectation of privacy. For example, the Seventh Circuit has held that a government employee did not have a legitimate expectation of privacy in the contents of filing cabinets kept in a government office, despite the fact that they were not government property and the employee purchased them with her own funds. (Gossmeyer v. McDonald, 128 F.3d at 481 (7th Cir. 1987)).
f. Even if the employee can demonstrate a reasonable expectation of privacy in an item or area that does not necessarily preclude the employer from conducting a search in that area. In Leventhal v. Knapek, 266 F.2d 64, 73 (2d Cir. 2001), the court ruled that an employee of a state agency, despite having reasonable expectation of privacy in his office computer, was subject to search, when the agency possessed reasonable suspicion to justify its after hour review of his hard drive. In that particular case, the employee had a private office with a door, had exclusive use of the computer, the agency did not routinely conduct searches of office computers, nor had the agency adopted a policy against storage of personal files on agency computers.
To the extent that the district has an interest in reviewing information within the system the school districts should have an acceptable use policy which is distributed to all users of its computers, including staff as well as students. The policy should include a statement to the effect that users of the school’s computer system and equipment have no expectation of privacy in data stored on any part of the system.
2.
Fourth Amendment Requirements. Where an action constitutes
a search or a seizure, within the meaning of the Fourth Amendment,
courts have held that it must be justified at its inception and
reasonable in its scope.
a. Justified at its inception. A plurality of the Supreme Court has held that public employers may, consistent with the Fourth Amendment, conduct workplace searches without a warrant and without probable cause when there are reasonable grounds to suspect work-related misconduct (United States v. Thorn, 375 F.2d at 682).
To determine the reasonableness of a search in the workplace, “the court must balance the invasion of the employees’ legitimate expectation of privacy against the government’s need for supervision, control, and the efficient operation of the workplace”. (Thompson v. Johason County Comty. College, 930 F.Supp. 501, 507 (D.Kan. 1996) affi’d, 108 F.3rd 1388 (10th Cir. 1997)).
A number of courts have noted that the interest of public employers who conduct workplace investigations are different than those from law enforcement investigations. The courts have commented that “public employers have the direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner” (O’Connor v. Ortega, 480 U.S. 709 (1987)).
b. Reasonable in its scope. The Seventh Circuit in Gossmeyer v. McDonald, 128 F.3d at 481 (7th Cir. 1987) held that a search was reasonable in its inception and scope where the government employer search of a state child protective investigator’s office, filing cabinet, and desk was justified at its inception where the employer acted pursuant to an anonymous, but reliable, tip that the plaintiff employee kept child pornography in her file cabinet. The Gossmeyer Court reasoned that the targets of the search were those places where the employee would likely store the alleged pornographic pictures.
Searches that are not work-related, however, even though conducted in the workplace, generally require a warrant. Where an employee’s misconduct fits into both the work-related misconduct and criminal violation categories, the employer may have two purposes: 1) in conducting a search – to locate evidence of work-related misconduct, and 2) evidence of a criminal violation. The Fourth Circuit has upheld the search of an employee’s office in those circumstances using the reasonable suspicion standard, rather than the probable cause standard, to be appropriate. (United States v. Simons, 206 F.3d at 392 (4th Cir. 2000)).
Conclusion
Because courts will address the reasonableness of a search on a case-by-case basis, public school administrators who seek to search a student or employee’s space or belongings may find it difficult to predict what a particular court will consider to be an unreasonable search. The district should consider several measures to minimize the likelihood of violating the Fourth Amendment. First, the district should institute a policy that specifically outlines areas or items that an administrator may access. Schools which are planning to institute such policies should implement a mechanism to ensure that all students and employees acknowledge such policies and are fully aware of them. Second, the district should take steps to reduce the intrusiveness of any searches.
Prepared by: Zukowski Law Offices, © 2009
Note: These general suggestions are for general informational
purposes only and should not be regarded as a substitute for specific
legal advice to your District. Instead, administrators should
consult with legal counsel whenever any question arises as to the
District’s responsibility or the rights of any parent or student.