Today we travel to the spring of 1980, where the presidential campaigns of Reagan and Carter take a back seat to an act of disobedience committed by a 14-year-old girl in Piscataway, New Jersey. The highest court in the land has to decide, how are your 4th Amendment protections different when you happen to be a student?
This episode features the voices of Professor Tracey Maclin from Boston University School of Law and Professor Sarah Seo from Columbia Law School.
Click here to download a Graphic Organizer for students to take notes on while listening to the episode.
Episode Resources
Search Me from the American Bar Association: Line students up and ask them to step forward or backward depending on whether they think a hypothetical search/seizure is lawful or not.
Episode Segments
Transcript
TLO full.mp3
[00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.
Nick Capodice: [00:00:04] Did you did you ever get in trouble at school for anything?
Hannah McCarthy: [00:00:07] Exactly One incident it's not worth...
Nick Capodice: [00:00:10] Just tell me what it was.
Hannah McCarthy: [00:00:11] I knew a girl had the wrong answer. It was like an outloud test. I indicated to her that she had the wrong answer. And the teacher said that Hannah McCarthy ruined the day for everybody.
Nick Capodice: [00:00:23] Oh, my God.
Hannah McCarthy: [00:00:23] I think I was in second grade.
Nick Capodice: [00:00:25] I hacked into...I knew how to use DOS, so I hacked in to find out the teacher passwords for the kids grades.
Hannah McCarthy: [00:00:32] I can't believe you did that
Nick Capodice: [00:00:33] Yeah. I feel terrible about it.
Nick Capodice: [00:00:36] Every episode we work on gives me another reason to fall in love with Supreme Court cases. And today it's that a relatively minor offense can rise through the court system to achieve the stature of landmark decision. And the story of this case starts in spring 1980.
Nick Capodice: [00:00:56] Empire Strikes Back is about to hit theaters, Queen is [00:01:00] at the top of the charts with crazy little thing called love. Former Governor Ronald Reagan is campaigning against Jimmy Carter using the fresh new slogan,
[00:01:10] "Ronald Reagan for President, Let's make America great again."
Nick Capodice: [00:01:14] And in Piscataway, New Jersey, 14 year old girl broke a school rule and started her journey to the highest court in the land.
Hannah McCarthy: [00:01:25] She broke school rule and ended up in the Supreme Court. What was she doing?
Nick Capodice: [00:01:30] Oh, I'll tell you, Hannah.
Nick Capodice: [00:01:37] You're listening to Civics 101, I'm Nick Capodice.
Hannah McCarthy: [00:01:39] I'm Hannah McCarthy,
Nick Capodice: [00:01:40] And we are looking at another Supreme Court case dealing with our right to privacy. Today, The case that defines your Fourth Amendment protections as a student, New Jersey v TLO, 1985.
Hannah McCarthy: [00:01:52] First, I have to ask you about the name of this case. Who is TLO?
Nick Capodice: [00:01:56] TLO is the respondent in this case. She was a minor at the time, [00:02:00] so the court just used her initials. She was a freshman at Piscataway High School in New Jersey.
Tracey Maclin: [00:02:06] She was caught smoking in the girls room. Remember Barnsville? What is it, that song, Smoking in the Boys room?
Nick Capodice: [00:02:14] This is Tracey Maclin. He's a professor at Boston University School of Law. And when I called him, neither of us could remember the name of the band. It was a Brownsville Station, by the way, later covered by Motley Crue, and the song, I sure do know, smoking in the boys room.
[00:02:29]
Nick Capodice: [00:02:33] And I bring this up because I have to point out that smoking was allowed at this school at the time, just not in the bathroom. This is important later. But TLO and another girl smoked in the bathroom just the same.
Hannah McCarthy: [00:02:47] And they got caught.
Nick Capodice: [00:02:48] They were they were caught by a teacher and they were marched to the office of Assistant Vice Principal Choplick.
Tracey Maclin: [00:02:53] And he asked her whether she had been smoking and she denied it. And she said she never even, she didn't even smoke. [00:03:00]And so at that point, he he grabbed her purse. Opened it up and saw a package of cigarettes.
Hannah McCarthy: [00:03:11] All right, stop. This is the moment where I can see the Fourth Amendment getting involved. That's the amendment that protects us against unreasonable search and seizure. Did the assistant vice principal have the authority to search her purse?
Nick Capodice: [00:03:25] This is the crucial moment in the case. And everything rests on that question because it's not just about finding cigarettes. It's what he saw after he opened the purse and took the cigarettes out.
Tracey Maclin: [00:03:35] He found some rolling papers, a note that talked about the people that owed money to TLO, and a small amount of marijuana
[00:03:48] you left out one item in the pocketbook, the 40 bucks.
[00:03:52] I beg your pardon?
[00:03:52] You left out one item in the pocketbook. Which was forty dollars in one dollar bills which signified that she was [00:04:00] selling it.
[00:04:01] Yes, Your Honor.
Nick Capodice: [00:04:02] That was Justice Thurgood Marshall, by the way, questioning the advocate for New Jersey in the case. That combination of rolling papers, marijuana, a book of names of people who owed TLO money and a bunch of small bills was together enough evidence to get her sent to the police station with her mother, where she confessed. Yes, she had been selling marijuana in school and she was sentenced by the court to a year of probation.
Sarah Seo: [00:04:27] What's interesting about this case is that it first comes up with a question that is ultimately not decided in the decision.
Nick Capodice: [00:04:35] This is Sarah Seo. She teaches at Columbia Law School.
Sarah Seo: [00:04:38] The school admitted that the Fourth Amendment was violated and the question was, does the exclusionary rule apply?
Hannah McCarthy: [00:04:48] It starts as an exclusionary rule case.
Nick Capodice: [00:04:51] Yeah, we talked about the exclusionary rule in our Mapp v Ohio episode. But Professor Seo gave us a quick recap.
Sarah Seo: [00:04:56] And this exclusionary rule is if the [00:05:00] state official violates a constitutional right to get that evidence, then that evidence must be excluded or cannot be used against the individual in a criminal proceeding. And so the issue was, could the evidence of the marijuana be used in the juvenile proceeding against TLO?
Hannah McCarthy: [00:05:21] If the initial search for cigarettes by Choplick was unconstitutional, then all other evidence he found after that search is not admissible as evidence.
Nick Capodice: [00:05:30] Right. Which started with rolling papers.
Tracey Maclin: [00:05:35] Now once he sees the cigarettes, then the rolling papers became what's known as plain view. That's a term of art for Fourth Amendment purposes. In other words, they were no longer private.
Nick Capodice: [00:05:44] Plain view is one of the exceptions to the exclusionary rule. If you can see evidence of a crime, if it's out in public, you can use it in court. But it only was in plain view in the first place because Choplick opened the purse. So TLO argued that the pot and the rolling [00:06:00] papers and the money and even her confession at the police station can't be used in court because it is fruit from a poisonous tree.
Hannah McCarthy: [00:06:07] Also, you said smoking was allowed in school, right?
Nick Capodice: [00:06:10] It was in designated areas
Hannah McCarthy: [00:06:12] So her having cigarettes in her purse wasn't even breaking a school rule.
Nick Capodice: [00:06:15] It wasn't. And Choplick said he only searched the purse because even though she was caught smoking, TLO lied and said she didn't even smoke at all.
Hannah McCarthy: [00:06:23] So Sarah said that it came to the court as an exclusionary rule case, but it changed into something else. What did it become about?
Nick Capodice: [00:06:31] The court doesn't even address the exclusionary rule in their decision, but instead it becomes a broad Fourth Amendment case. On a base level are your protections against unlawful search and seizure different if you're a student in a public school setting?
[00:06:48] OK, how did the court rule? Had TLO's Fourth Amendment rights been violated?
[00:06:53] So in New Jersey v TLO the court rules in favor of... New Jersey.
Tracey Maclin: [00:06:59] I believe [00:07:00] it was six to three decision they said no, there's no violation of the 4th amendment. Choplick's actions were reasonable within the meaning of the Fourth Amendment because while students have some Fourth Amendment rights, they don't have the same rights that you and I have. In other words, they have diminished protections in schools.
Sarah Seo: [00:07:22] The court held a few things. One, it held that the warrant requirement of the Fourth Amendment doesn't apply in the school context and to that the probable cause standard also doesn't apply in the school context. What it held was that a school official can conduct a search if at the time of the search, the official has reasonable suspicion.
Hannah McCarthy: [00:07:46] The ruling states that a teacher only needs reasonable suspicion to search a student, not probable cause. So I'm going to need both of those terms defined.
Tracey Maclin: [00:07:54] That's a fair question. The problem with any answer you get is that the Supreme [00:08:00] Court itself has never defined what probable cause means, and there's a reason for that. But the best answer for your audience is that probable cause means a substantial chance that the government, the police, the FBI, there's a substantial chance, a fair probability that you'll find evidence of a crime.
Nick Capodice: [00:08:22] And this ruling stands today. You do have an expectation of privacy in school, but teachers and school officials only need reasonable suspicion to search You not probable cause. Now, reasonable suspicion is if you have a reasonable grounds for suspecting that your search will find evidence that a student violated a specific school rule, then that search is allowed.
Hannah McCarthy: [00:08:45] I come back to the same thing I always come to when we talk about Supreme Court cases, I always want to know what were the reverberations? How does it affect student privacy protections today?
Sarah Seo: [00:08:58] What's important to note about [00:09:00] this case is starting in the mid 1980s, the Supreme Court is starting to chip away at the Fourth Amendment by creating these exceptions to the exclusionary rule. The year before this case was decided, the Supreme Court for the first time created an exception to the exclusionary rule. It's called the Leon Good Faith exception to the exclusionary rule, where if a police officer in good faith relies on an arrest warrant but that arrest warrant turns out to be faulty, then the exclusionary rule will not apply.
Sarah Seo: [00:09:31] So this case comes up the next year asking does exclusionary rule apply in the school context or can there be an exception? And the court, of course, held, holds that there's actually another exception to the warrant requirement that is in the school context.
Sarah Seo: [00:09:47] The second thing I want to point out is this is the 1980s. We're in the middle of the war on drugs. Nancy Reagan is encouraging students to just say no,
[00:10:00] Say [00:10:00] no to drugs, and say yes to life.
Sarah Seo: [00:10:06] And drugs in schools becomes a huge concern. And so the court is addressing that concern by with this decision, by allowing school administrators and school officials to conduct searches in order to create drug free schools.
Sarah Seo: [00:10:23] So after this case came down, a lot of school administrators relied on this case to start doing strip searches of students to look for drugs.
[00:10:31] State police are investigating after staff at a Binghamton middle school were accused of strip searching four 12 year old girls. Governor Cuomo directed troopers to launch an investigation.
Nick Capodice: [00:10:41] That news clip is from 2019. A complaint was filed on behalf of four 12 year old students in Binghamton, New York, who were searched physically by the school nurse after they were seen talking and laughing in the hallway by school officials who described them as being, quote, hyper and giddy.
Hannah McCarthy: [00:10:58] Whenever we look at Supreme Court cases [00:11:00] that deal with students while at school, I always think of Tinker v. Des Moines or like Hazelwood v. Kuhlmeier
Nick Capodice: [00:11:06] yeah, cases about students' First Amendment rights.
Hannah McCarthy: [00:11:08] The court always wrestles with how things are different when we're talking about being in a school. And balancing a student's rights with maintaining a safe and undisrupted space to learn sounds tricky.
Nick Capodice: [00:11:21] If there's one thing I take away from the TLO decision, it's that every case afterward that dealt with reasonable suspicion and a search at school, like, can a teacher demand your phone or social media password if they suspect you of bullying? Can they search your locker if they think you have a weapon, can they pat you down in the hallway? It all depends on a very specific context. And the fifty four words that make up that Fourth Amendment are being reinterpreted every single day.
Nick Capodice: [00:11:54] That's it for the saga of TLO. You can listen to all of our other right to privacy episodes and a whole lot more [00:12:00] on our website, Civics101podcast.org.
Hannah McCarthy: [00:12:03] And while you're there, if you want to learn about all of the civics trivia nuggets that we cannot cram into our episodes, subscribe to our newsletter, Extra Credit.
Nick Capodice: [00:12:11] And see what the civics team is doing all the time by following us on Facebook or Twitter. Just come and say hi, for heaven's sake @civics101pod. Today's episode is produced by me Nick Capodice with You Hannah McCarthy. Thank you.
Hannah McCarthy: [00:12:24] Oh, you're welcome, Nick. Our staff includes Jackie Fulton. Erika Janik knows that vapin' ain't allowed in the Corn Maze.
Nick Capodice: [00:12:30] Music in this episode by Jahzzar, Blue Dot Sessions, Wildlight, Matt Oakley, Loo Loco, The Grand Affair and the Musical Toast of Corpus Christi, Chris Zabriskie.
Hannah McCarthy: [00:12:40] Civics 101 is made possible in part by the Corporation for Public Broadcasting and is a production of NHPR New Hampshire Public Radio.
