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Teachers

Searches and Surveillance in Schools

While reading her student code of conduct, Sasha is astounded by a new section that reads as follows: “The school administration reserves the right to perform any search deemed reasonable to ensure the safety of students and staff.” A metal detector was also recently installed at the school’s entrance and the administration has plans to install two video cameras in the locker room. Sasha wonders whether this is legal...

In this Infosheet, Éducaloi explains the rules regarding searches and surveillance in schools and your fundamental right to privacy.

What is a search?

A search is a procedure used to inspect you and/or your personal belongings. There are several ways to perform a search, the most common of which are frisking and using a metal detector. The law imposes restrictions on searches because they interfere with your privacy.

Why are teachers and the school administration legally allowed to search me?

While no specific law expressly grants teachers the right to search you, no law forbids it. When you are on school grounds, teachers and administrators have a legal duty to maintain order and discipline, much like parents in a home. Teachers are entitled to perform searches without a warrant (without a judge’s permission) because they are entrusted with watching over the places you frequent.

You are usually informed in your student manual that searches may occur. Schools reserve the right to perform searches in exceptional situations, in order to properly carry out their obligation to ensure order and discipline.

The right to perform searches, however, is not absolute. School staff must respect specific procedures and satisfy certain conditions. If they do not, the search may be considered illegal.

Under what circumstances is a search legal?

By law, everyone has the right to be protected from unreasonable (arbitrary, improper, abusive) searches and seizures. This right is intended to protect you from any unjustified invasions into your private life.

To avoid being considered unreasonable in the eyes of the law, a search conducted by the school staff must meet the following conditions:

• First of all, the school staff must have reasonable grounds to believe that a student broke a school rule or a law and that a search of this student will provide evidence of the violation.
  
  For example, the school principal can search a student where reasonable grounds exist for believing that he is concealing a dangerous weapon under his clothes.
  
  
• Secondly, the search must target a specific individual and not a group; if it does not, the search may be considered unreasonable. A systematic search by the school of all the students could be contested.
  
  For example, it would be unreasonable to ask 1,200 students in a high school to empty the contents of their lockers after a single report of theft. The school must have grounds leading them to believe that a student in particular committed the theft.
  
  
• Thirdly, the search must be done appropriately and respectfully, taking the nature and seriousness of the incident or violation into account. The teachers and school administrators should always conduct the least intrusive search possible.
  
  For example, a student who is believed to be hiding bubble gum prohibited by school rules should not be subjected to the same treatment as a student who is suspected of possessing a firearm.
  
  In the latter case, a complete search of the student is justified because there is an immediate threat to the safety of the other students. In the former case, this would be inappropriate.
  
  
• Finally, a search must be done with respect for the student, taking into account his or her age and gender.
  
  For example, it would be more appropriate for a female teacher to search a young girl than any other male employee in the building.

What types of searches are teachers allowed to perform?

When there is an immediate threat to the safety of students, such as when a student is believed to be carrying a weapon, the teacher’s power is almost unlimited. Such a situation justifies a quick and thorough search.

For example, the school administration may ask a teenager to take off his own clothes and personal items for inspection. Due to the serious interference with the student’s privacy, this type of search is only justifiable in the most serious of circumstances.

When the situation is serious, it is advisable to call the police so that they may perform the search themselves. To learn about a teacher’s duties when a student comes to school with a gun, consult our Infosheet entitled The liability of educators, custodians and supervisors  (http://www.educaloi.qc.ca/en/loi/teachers/125/).

Beyond these emergency situations, teachers must limit themselves to less-intrusive searches. They can search the outline of a person’s body or folds and pockets in clothing, but may never touch the person’s genitals. If the school staff wants to perform a more thorough search, they must call the police, who will then request a warrant to conduct the search themselves.

How should a search be carried out?

As much as possible, the school administration must try to obtain the consent of the young person who is to be searched. It is better if the student freely and voluntarily consents to the search rather than being forced. Still, if the health or safety of students or staff is seriously threatened, conducting the search without the student’s consent may be justifiable.

Before conducting the search, it is advisable for the school administration to inform the student of his right to have a lawyer and of his right to demand that his parents or any other adult he trusts be present.

During the search, the student must be treated with respect. The school staff must refrain from making any offensive remarks or intimidating accusations. Humiliation, harassment, and the use of excessive force are also forbidden.

Finally, as mentioned above, the school staff must always use the search procedure that will least interfere with the student’s rights. As such, a full body search of a person who is believed to have an object prohibited by the school in his pocket is generally unjustified. The school administration could have discovered the object simply by frisking the student.

There is talk of a metal detector being installed at the school’s entrance. Is this legal?

As previously mentioned, reasonable grounds for believing that a specific student has violated a school rule or a law must exist for a search to be legal.

At first glance, therefore, metal detector searches that systematically verify every student are unreasonable according to the law. It will, however, be permitted if the school administration obtained prior authorization from the students and parents.

By law, is the school administration allowed to check the contents of my locker?

The law does not indicate whether or not the school principal can open your locker and examine your personal belongings. Many schools take the position that they are entitled to do so. Because a locker search usually infringes a person’s right to privacy less than other searches, teachers and school administrators feel at greater liberty to verify locker contents. Several things can be done to avoid conflicts.

It is a good idea to familiarize yourself with your student manual or the internal rules of your school. Perhaps they include a statement to the effect that the school owns the lockers and therefore reserves the right to verify their contents. By notifying parents and students in this manner, the school’s administration protects itself to a certain degree against criticism and complaints.

These clauses by themselves do not, however, guarantee the legality of any searches conducted. Searches must still adhere to the rules listed above, specifically the reasonableness of the search.

Can my school’s administration film my comings and goings in the hallways and locker rooms?

More and more schools are equipping themselves with video surveillance systems in order to ensure the safety of their students and teachers.

The use of these devices does not pose a legal problem. However, video surveillance does become a problem when the school administration uses the images captured for reasons other than their original purpose (for example, eavesdropping on conversations or gathering information about students). When surveillance devices are used in a way that goes beyond what is required for security, their use becomes unreasonable or against the law.