By now, we all know juveniles have the same protections of the law as adults, and in many cases increased protections. However, it wasn’t always that way. It was in 1967 when the United States Supreme Court held juveniles shall be afforded the same rights of the Due Process Clause of the 14th Amendment to the United States Constitution, as adults.1 Fortunately for children, courts and the legislature have expanded and further explained the application of due process rights for juveniles. This article explores the due process rights of children in schools and particularly regarding cell phones.
Is a Child Capable of Being Reasonable?
The scientific world has recognized the adolescent brain continues to develop until the average age of 25. A juvenile’s brain lacks a fully developed prefrontal cortex, resulting in a lack of rational, adult-like thought.2 As we know, though, an adolescent of 17 years is prosecuted as an adult. And, interestingly, an adolescent need only attain the age of 18 to make important decisions, such as voting, joining the military, or partaking in non-voidable contracts, despite the inability to think rationally. However, some industries, such as car rental companies and insurers, recognize the underdevelopment of juvenile brains, and charge higher premiums and prohibit certain activities accordingly. The criminal justice system has increasingly acknowledged the need to treat juveniles differently because they don’t have the ability to think like adults and should therefore not suffer similar repercussions as adults. As a consequence, juveniles may not be sentenced to death or life without the chance for parole.3
The United States Supreme Court held age is a factor when determining if a child believes they’re in custody.4 The subjectivity (with an objective basis) of determining custody is well established in Texas. In fact, the Third Court of Appeals established what is essentially the reasonable juvenile standard for purposes of ascertaining custody twelve years before the United States Supreme Court required age as a factor in a custodial analysis. While we know the standard for determining custody is whether a reasonable person would feel free to leave, when dealing with juveniles we look to “whether, based upon the objective circumstances, a reasonable child of the same age would believe [their] freedom of movement was significantly restricted.”5 Most children will say they are prevented from leaving the confines of a school, but does that mean they are in the State’s custody Mondays through Fridays?
Do Children Have Rights at School?
The government’s mandate of compulsory school attendance has been a fact of life in everyone’s childhood. Nevertheless, school children “do not shed their constitutional rights… at the schoolhouse gate,”6 but those rights have limitations. For example, the state of the law is that children are not in custody of the State when they are being restrained solely by a school administrator, such as a principal, despite being a State actor. However, if an officer (including a school resource officer-SRO) is present and participating in said restraint, the child is in custody.7 In fact, the Court in V.P. suggested the child was in custody while being transported to the principal’s office by a police officer, then custody ceased to exist once the officer left the room and V.P. was in the room alone with the principal. The disparate treatment of different adults handling children at school can be confusing for most, let alone children. Luckily, the courts have provided some guidance on the issue.
The seminal school search case (T.L.O. v. New Jersey) was decided by the United States Supreme Court in 1985.8 The T.L.O. Court held the 4th Amendment of the United States Constitution applies to searches of children in schools. However, the level of cause for school administrators to search children is reasonable suspicion and not probable cause. A 2-prong test was also established for searching children, to wit: 1) the search must be reasonable at its inception, and 2) the search must be reasonably related in scope to the initial purpose of the intrusion.9 Basically, a school official is not allowed to search a student for a reason unrelated to the inception of the encounter. For example, a school official is not permitted to search a student’s car as a result of the student being investigated for truancy.10 The bottom line is there needs to be a nexus between the student’s conduct and the purpose of the search. Of significance, the established lower level of cause to search students pertains to school administrators only, mainly because they are in the business of educating students and do not receive training in ferreting out crime, as police officers do.11
Continuing with the theme of determining the differing levels of cause to search a child at school, the Texas Tenth Court of Appeals, in Russell v. State, 74 S.W.3d 887, 891-92 (Tex.App. – Waco 2002, pet. ref’d), adopted a 3-category approach:
1) Searches initiated and conducted by school officials – reasonable suspicion;
2) Searches initiated and conducted by SROs – reasonable suspicion; and
3) Searches initiated by outside police officers, or school officials and SROs working at the behest of an outside police force – probable cause.12
The Russell Court ruling, which essentially equates the status of a school official and an SRO for purposes of investigating crime at school, forged a contradiction when one considers the decisions in T.L.O. and V.P. together. The T.L.O. Court rationalized requiring a lower level of cause for school officials because they are not trained as peace officers are and, therefore, should not be held to the same standard as police. Moreover, the V.P. Court ruled the child was only in custody when the SRO was present, but not in custody when he was alone with the principal. Therefore, there is a split in the Texas Courts of Appeals regarding the differing treatment of school officials and SROs when dealing with criminal investigations of delinquent conduct. Some courts have performed legal gymnastics to categorize school searches as administrative searches, thus lowering the level of cause required by the investigator, rather than focusing on the character of the searcher’s status or job.
There are certain searches that, as a matter of policy, are permissible and lack specific suspicion. Administrative, suspicionless searches occur daily at disciplinary alternative education program (DAEP) schools. The rationale behind the daily searches of children upon entering DAEPs derives from the school’s responsibility pursuant to the doctrine of in loco parentis, resulting in a duty in “maintaining a safe and disciplined environment,” particularly when dealing with a population of children with disciplinary issues.13 As a consequence, administrative searches at DAEPs serve to satisfy a governmental interest of providing a safe environment for students.14
Ordinarily, DAEPs require students and their parents to sign a contract, permitting the school to search the child upon entry. One justification for the intrusion is that the parent and child essentially consent (or are at least advised) to the search, resulting in a diminished expectation of privacy.15 Interestingly, children who are removed from their home school are required to attend a DAEP and are provided with a student handbook detailing daily searches as a matter of policy, thereby infringing on their 4th Amendment rights, and raising voluntariness issues. Students of DAEPs and their parents are put on notice and essentially consent to daily searches when provided with handbooks containing language similar to the following: “Students pass through a metal detector each morning and receive a pat search. This search entails patting the student’s outer clothing and checking pockets, socks, shoes, hems, and waistbands for prohibited items. Prohibited items will be confiscated (failure to comply could lead to suspension).”16 While schools may be permitted to confiscate prohibited items -cell phones in particular -they are not granted unfettered access to search through them.
Hell No! Not My Cell Phone!
As a parent of teenagers, and someone who has worked with teens and tweens for 20 years, I can emphatically say one of the worst punishments for kids today is the extraction of cell phones from their talon-like claws. Many children are likely extra protective of their cell phones because of the intimate nature of the information stored on it. The storage capacity of cell phones is tantamount to searching through a person’s cabinets, bureaus, and desks for personal effects.17 Hence, absent exigent circumstances such as a fear of destruction, a warrant is required to sift through the digital data.18 Even if a child consents to a search of his property, the voluntariness of said consent can still be suspect. The particular circumstances of each case in which a child gives consent must always be evaluated.
The case of a 13-year-old girl consenting to a search by the school nurse for prescription-strength ibuprofen in her bra and panties was deemed beyond the scope of reasonableness when she was asked to shake out her bra and pull out the waistband of her underwear.19 Luckily for Texans, the Family Code mandates that a child may only waive their rights under the United States Constitution or Texas Constitution if the child and their attorney both voluntarily waive the right, and only if the waiver is made in writing or in recorded court proceedings.20 It may seem unreasonable to require a child who is the subject of an investigatory stop to have their attorney with them to sign off on the waiver of their 4th Amendment right against an unreasonable search, but such is the plain language of the statute. It makes more sense once the diminished capacity of a child is considered. The safeguards are in place to level the playing field between juveniles and adult government actors. Lastly, the Court of Criminal Appeals reinforced the need for extra protection for children, even when a juvenile case is transferred and tried in adult court when they declared “…the juvenile is cloaked with the trappings of a non-criminal proceeding with attendant safeguards such as greater protections in areas of confession law,” and I would include search and seizure law as well.21
In conclusion, juveniles have underdeveloped brains, resulting in a lack of sophistication with the criminal justice system, and an inability to make rational, voluntary decisions. To counteract the inherent deficiencies in children, the legislature and courts have created extra safeguards for them. For instance, a child is not completely stripped of their constitutional rights when they enter a schoolhouse, although there are some limitations in certain circumstances. Additionally, a child’s cell phone carries with it extremely personal information, thus warranting the same constitutional protection afforded one’s personal effects. With regard to a child waiving their rights, their immaturity and underdevelopment requires they be joined in said waiver by a friendly adult who is tasked with advising them, their attorney. As a vulnerable group, children require and are afforded morally necessary protection from governmental intrusion.
- In re Gault, 387 U.S 1 (1967).
- Coalition For Juvenile Justice – SOS Project: Adolescent Brain Development, https://www.juvjustice.org/our-work/safety-opportunity-and-success-project/national-standards/section-i-principles-respondin-10
- Roper v. Simmons, 543 U.S. 551 (2005) (prohibiting the juvenile death penalty); and Graham v. Florida, 560 U.S. 48 (2010) (proscribing life without parole for juveniles).
- J.D.B. v. North Carolina, 564 U.S. 261 (2011).
- In re L.M., 993 S.W.2d 276, 289 (Tex.App.–Austin 1999, pet. denied).
- Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655-56 (1995) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
- In re V.P., 55 S.W.3d 25, 33 (Tex.App.–Austin 2001, pet. denied).
- T.L.O. v. New Jersey, 469 U.S. 325 (1985).
- Id. at 341.
- Coronado v. State, 835 S.W.2d 636 (Tex.Crim.App. 1992).
- T.L.O., at 342, n.7. (“We here consider only searches carried out by school authorities acting alone and on their own authority. This case does not present the question of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question.”)
- Russell v. State, 74 S.W.3d 887, 891-92 (Tex.App. – Waco 2002, pet. ref’d).
- In re O.E., No. 03-02-00516-CV (Tex.App. – Austin 2003) (not designated for publication).
- Id. (citing Vernonia 515 U.S. at 664-65).
- In re P.P., III, No. 04-08-00634-CV (Tex.App. – San Antonio 2009).
- Austin Independent School District, Alternative Learning Center Parent/Student Handbook, 2020-2021.
- Riley v. California, 573 U.S. 373, 393-94 (2014).
- Id. at 403.
- Safford Unified Sch. Dist.#1 v. Redding, 557 U.S. 364, 374-75 (2009).
- Tex.Fam. Code § 51.09.
- Griffin v. State, 765 S.W.2d 422, 427 (Tex.Crim.App. 1981) (quoting Vasquez v. State, 739 S.W.2d 37, 44 (Tex.Crim.App. 1987)).