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This essay presents one doctrinal method for lawyers to defend children accused of criminal charges in juvenile or adult court: attacking the applicability of the nearly twenty-year old case, New Jersey v. T.L.O. to most school searches. T.L.O. established a lower standard for searches of students by school officials, but it explicitly did not decide what standard the government must meet to justify school searches performed by police officers, creating a doctrinal starting point for advocates to raise challenges to searches involving police. More fundamentally, the T.L.O. Court based its decision on the presumption that firm gates separate public school from law enforcement and criminal justice institutions. Later administrative search cases inside and outside of the school context show that the lower standard of T.L.O. depends entirely on programmatic purposes that distinguish school systems and "ordinary law enforcement."

Porous schoolhouse gates have allowed schools and law enforcement to become increasingly entangled. Police officers are stationed full-time in our schools; states, localities and school districts have set policies that require schools to turn children over to law enforcement; states have criminalized school-specific conduct; actions taken by schools can lead to violations of a student's probation order from juvenile court; and juvenile courts routinely share confidential information with schools.

This excessive entanglement between schools and law enforcement makes T.L.O. inapplicable in a school where such entanglement exists. This conclusion would require the government to choose: either it can search students using a lower standard and prevent such searches from leading to law enforcement action or it can guarantee students the same civil rights in school that they have on the street. Either choice would be a significant improvement of our current situation where school searches deny children basic civil rights and widen the net of the juvenile and adult criminal justice systems. This essay presents this argument, using specific facts and cases from New York and South Carolina as examples. This argument contrasts with the simplistic approach that several state courts have applied when presented with this issue. Lawyers for children should use the argument presented in this essay to challenge the applicability of T.L.O. If they do, they will win victories for their clients in some state and federal courts.


Criminal Law | Juvenile Law | Law | Law Enforcement and Corrections