TO BE PUBLISHED IN THE OFFICIAL REPORTS
Opinion No. 92-201----October 6, 1992
Requested by: CHARLES QUACKENBUSH, Member of the
California State Assembly
Opinion by: DANIEL E. LUNGREN, Attorney General
Mark L. Krotoski, Special Assistant
Attorney General
THE HONORABLE CHARLES W. QUACKENBUSH, MEMBER OF THE
CALIFORNIA ASSEMBLY, has requested an opinion on the following questions:
1. Under federal law, does the use of metal detectors in schools to deter and
detect the presence of weapons brought by students to school violate the "reasonableness"
requirement of the Fourth Amendment? Is "individualized suspicion" a required element under
the Fourth Amendment for student searches, such as metal detector searches?
2. Does any California statute provide for or permit the use of metal detectors on
school grounds? Does the use of metal detectors in school violate California law, including the
constitutional right of privacy, under article I, section 1? Of what bearing on these questions
arising under California law is the inalienable right to safe schools, under article I, section 28(c)
of the Constitution?
CONCLUSIONS
1. Under at least two separate legal theories, schools may use metal detectors to
deter the presence of weapons consistent with requirements under the Fourth Amendment.
First, school metal detector searches may be justified under the standard of "reasonableness,
under all the circumstances," as dictated by New Jersey v. T.L.O. (1985) 469 U.S. 325, and
related cases, which take into account the special circumstances of student searches conducted
by school officials. Alternatively, school metal detector searches may be warranted under the
administrative search doctrine, which has provided the constitutional basis for metal detector
searches in airports and at courthouses. Under either standard, appropriate procedures may be
employed which advance the substantial government issues at stake and minimize the degree of
intrusion into privacy interests. The application of the settled standards under either legal theory
also leads to the conclusion that individualized suspicion is not a prerequisite for school metal
detector searches of students.
2. Schools may decide to implement metal detector searches to deter weapons as
part of a school safety plan adopted pursuant to Education Code section 35294 et seq., or
consistent with Education Code section 49330 et seq., which permits the removal of "injurious
objects." Because no statute proscribes the use of metal detectors in schools, school districts
have the authority to employ metal detectors under Education Code section 35160 et seq. While
California law forbids any school employees from conducting body cavity or strip searches of
students, see Education Code section 49050, subjecting students to a metal detector examination
does not transgress this statutory prohibition.
Because several compelling interests independently outweigh the minimal
intrusion of privacy, the right of privacy under the California Constitution does not prohibit the
reasonable use of metal detectors to deter weapons in schools. While the right to safe schools is
an important inalienable right secured under the California Constitution, full consideration of
this provision is not required unless it is found to be in an unavoidable conflict with the right to
privacy. In that unexpected event, under settled principles of constitutional construction, the safe
1
schools clause would permit the reasonable application of metal detectors in schools.
OUTLINE OF ANALYSIS
I. OVERVIEW
II. FOURTH AMENDMENT ANALYSIS
A. OVERVIEW: WHETHER "SEARCH" IS
UNREASONABLE?
B. SPECIAL FOURTH AMENDMENT PRINCIPLES
APPLIED IN SCHOOL SETTING
1. Less Stringent Fourth Amendment Standard
2. Standard of "Reasonableness Under all
the Circumstances"
C. INDIVIDUALIZED SUSPICION FOR STUDENT
SEARCHES IN GENERAL
D. SCHOOL METAL DETECTOR SEARCHES AND
INDIVIDUALIZED SUSPICION
1. Privacy Interests in the School Setting
2. State/School Interests
a. Education and Training
b. Maintaining Discipline and Order
c. Interest in Safety/Duty to Protect
d. Weapons Deterrence
3. Adequate Safeguards to Minimize the Intrusion
a. Screening Device
b. Prior Notice
c. Minimizing the Intrusion At
Each Juncture
d. Indiscriminate Application of
Established Procedures
e. Random Application of
Established Procedures
(1) Schools
(2) Individuals
2
4. Balancing Test Application
5. Other Potential Contentions and Issues
a. The Relevancy of the Incidence of
Detection
b. Demonstrated Need
c. The Role of Less Restrictive
Alternatives
6. Conclusion
E. ADMINISTRATIVE SEARCH DOCTRINE
1. Discussion
2. The Role of "Qualified Consent"
Under the Administrative Search
Doctrine
F. CONCLUSION
III. STATE LAW ANALYSIS
A. DEVELOPMENT OF SAFE SCHOOL PLANS UNDER
EDUCATION CODE SECTION 35294 ET SEQ.
B. REMOVAL OF INJURIOUS OBJECTS UNDER
EDUCATION CODE SECTION 49330 ET SEQ.
C. STATUTORY PROHIBITION AGAINST BODY CAVITY
AND STRIP SEARCHES UNDER EDUCATION CODE
SECTION 49050 ET SEQ.
D. SCHOOL DISTRICT AUTHORITY UNDER EDUCATION CODE
SECTION 35160 ET SEQ.
E. RIGHT OF PRIVACY
1. Balancing Test
a. Compelling Interest Test
b. Reasonableness Test
c. Consideration of the Inalienable
Right to Safe Schools
F. UNREASONABLE SEARCHES UNDER
THE CALIFORNIA CONSTITUTION
IV. CONCLUSION
3
I. OVERVIEW
At least three states have enacted legislation permitting school metal detector searches.1/
More than fifty school systems across the country have used metal detectors to deter the
possession or use of weapons by students at school .2/ Some schools in California have also used
1. Tennessee law expressly provides:
To facilitate a search which is found to be necessary, metal detectors and other
devices designed to indicate the presence of dangerous weapons . . . may be used
in searches, including hand-held models which are passed over or around a
student's body, and students may be required to pass through a stationary detector.
Tenn. Code Ann. § 49-6-4207.
A Louisiana statute, governing student searches and searches of persons entering public
school buildings or grounds, explicitly permits "a random search with a metal detector." La.
Rev. Stat. Ann. §§ 17:416.3(A)(2), 17:416.6(A).
One Florida statute, which governs student searches, expressly provides that its terms do
not "prohibit the use of metal detectors" for student searches under the statute. Fla. Stat.
§ 232.256(4).
No reported decisions have been discovered discussing the applicability of these statutes
in the metal detector context.
2. According to one recent report, the following twenty-one school systems have used metal
detectors:
Birmingham, Alabama Boston Public Schools
Chester High School, Chicago Public Schools
South Philadelphia Dallas Independent School District
Detroit Public Schools Fairfax County, Virginia
District of Columbia Public Schools Houston Independent School District
Jackson, Mississippi Montgomery, Alabama
Jacksonville Public Schools, Florida New Orleans Parish School Board,
New York Public Schools, New York Louisiana
Pittsburgh Public Schools Norfolk Public Schools, Virginia
Richmond, Virginia Selma High School, Alabama
Shreveport, Louisiana Winston/Salem, North Carolina
St. Louis Public Schools, Missouri
Weapons in Schools, National School Safety Center Resource Paper (Nov. 26, 1991).
Another recent survey indicates 44 districts in which hand-held metal detectors are used:
Alief Independent School District Alief, Texas
Alvin Independent School District Alvin, Texas
Baton Rouge Public Schools Baton Rouge, Louisiana
Benton Harbor Area Schools Benton Harbor, Michigan
Boston Public Schools Roslindale, Massachusetts
Bridgeport Public Schools Bridgeport, Connecticut
Broward County School Board Ft. Lauderdale, Florida
Charleston County School District North Charleston, S. Carolina
4
Chicago Board of Education Chicago, Illinois
Clark County School District Las Vegas, Nevada
Compton Unified School District Compton, California
Detroit Public Schools Detroit, Michigan
Duval County Public Schools Jacksonville, Florida
Fairfax County Public Schools Burke, Virginia
Ferguson-Florissant School District Ferguson, Missouri
Galveston Independent School District Galveston, Texas
Hattiesburg Public Schools Hattiesburg, Mississippi
Hillsbororugh County Schools Tampa, Florida
Indianapolis Public Schools Indianapolis, Indiana
Inglewood Unified School District Inglewood, California
Jackson (MS) Public Schools Jackson, Mississippi
Jefferson County (AL) School District Birmingham, Alabama
Kansas City School District Kansas City, Missouri
Kansas City-Wyandotte Unified School District Kansas City, Kansas
Lansing School District Lansing, Michigan
Little Rock School District Little Rock, Arkansas
Lynwood Unified School District Lynwood, California
Mobile County Board of School Mobile, Alabama
Commissioners
Moss Point School District Moss Point, Mississippi
New Orleans Public Schools New Orleans, Louisiana
New York City Public Schools New York, New York
Norfolk Public Schools Norfolk, Virginia
North Forest Independent School District Houston, Texas
Oak Unified School District Oakland, California
Palm Beach County School Board Palm Beach Gardens, Florida
Prince William County School Board Manassas, Virginia
Roanoke Public Schools S.W. Roanoke, Virginia
Rochester City Schools Rochester, New York
San Antonio Independent School District San Antonio, Texas
San Bernardino City Schools San Bernardino, California
Spring Independent School District Houston, Texas
Volusia County School Board DeLand, Florida
Wake County Public Schools Raleigh, North Carolina
Washington, D.C. Public Schools Washington, D.C.
According to this survey, ten districts also use fixed station metal detectors:
Baton Rouge Public Schools Baton Rouge, Louisiana
Benton Harbor Area Schools Benton Harbor, Michigan
Boston Public Schools Roslindale, Massachusetts
Chicago Board of Education Chicago, Illinois
Detroit Public Schools Detroit, Michigan
Galveston Independent School District Galveston, Texas
New York City Public Schools New York, New York
North Forest Independent School District Houston, Texas
Pittsburgh Public Schools Pittsburgh, Pennsylvania
Roanoke Public Schools S.W. Roanoke, Virginia
R. J. Rubel (compiler), National Directory of School Security and School Police Operations
(National Alliance for Safe Schools) (1992 ed.); see also Regional News, USA Today, at 11A
5
metal detectors at selected school events, while others are giving serious consideration to this
issue.3/
Notwithstanding this current application of metal detectors, no published decision has
been discovered which directly and comprehensively considers the legal validity of using metal
detectors in schools under both federal and California law.4/ Consequently, this opinion will
(Sept. 16, 1992) (noting Milwaukee School Board Committee has approved a proposal for
random weapons searches of students with hand-held metal detectors); To Counter Violence,
Schools Tighten Security, Boston Globe, at 1 (Aug. 16, 1992) (noting weapons have declined
since Brockton schools began using hand-held metal detectors on a random basis); Clayton
Principals to Use Metal Detectors, Atlanta Journal and Constitution, at B3 (Aug. 13, 1992)
(reporting the Clayton County School District will be the first one in the Atlanta metropolitan
area to issue hand-held metal detectors to high school principals to check "students suspected of
carrying weapons on campus"); Regional News, USA Today, at 8A (Mar. 11, 1992) ("Knox
County school officials [in Tennessee] are being issued hand-held metal detectors in effort to
stop pupils from bringing weapons to class."); How to Keep Kids Safe, Newsweek, at 26 (Mar. 9,
1992) ("Nearly a quarter of all major urban high schools now use metal detectors."); Regional
News, USA Today, at 5A (Jan. 7, 1992) (noting "[r]andom use of metal detectors will begin
within month to reduce number of weapons brought to city schools" in Youngstown, Ohio);
Recruiting Defense Doesn't Hold Up, Chicago Tribune, at 24 (Dec. 8, 1991) (noting use of metal
detectors at high school basketball game in Milwaukee and that metal detectors will be used in
January at every boy's game); Student Searches Yield Fear, USA Today, at 1A (Nov. 12, 1991)
(noting the commencement of random metal detector searches in public schools in Indianapolis,
Indiana and general support for the program).
Other schools are considering the use of metal detectors. See, e.g., Teen-ager Shoots 6 in
School After Fight, Los Angeles Times, at A12 (Sept. 12, 1992) (after shooting incident at an
Amarillo, Texas high school, student calls for metal detectors and school administrator
acknowledges hand-held metal detectors had been previously ordered); Milwaukee School Chief
Seeks Metal Detectors to Find Guns, Chicago Tribune, at 3 (Apr. 6, 1992) (reporting school
officials "confiscated more than 40 firearms in public schools since autumn" and the Milwaukee
School Superintendent is recommending the use of metal detectors); P.G. Schools Looking into
Metal Detectors, Washington Post, at D4 (Mar. 17, 1992) ("School officials in Prince George's
County [in Maryland] said yesterday they are weighing the possibility of equipping high school
security officers with hand-held metal detectors in the wake of Friday's shooting at Potomac
High School."); School for Violent Youths, More Security Proposed in Montgomery, Washington
Post, at D3 (Jan. 22, 1992) (school superintendent proposing school security measures, including
metal detectors, for Montgomery County schools in Maryland); Norfolk May Scan Students;
Board Approves Metal Detectors, Washington Post, at C1 (Nov. 23, 1991) ("Norfolk's public
schools could become the first in the state to randomly search students with metal detectors in an
effort to deter them from carrying guns.").
3. See, e.g., East Bay High School Fans to be Searched, San Francisco Chronicle, at A19
(Feb. 15, 1992) ("Spectators at [Oakland] high school basketball games are being searched with
hand-held metal detectors under a new policy designed to thwart gang confrontations.");
Dorsey's Championship Season, Los Angeles Times, at B6, col.3 (Dec. 17, 1991) (noting in Los
Angeles City championship high school football game "[a]ll fans were searched with metal
detectors"); Plan for Metal Detectors in Oakland Schools, San Francisco Chronicle, at A26
(Nov. 8, 1991) (Oakland school superintendent calls for metal detectors in some schools.)
4. Only one unpublished federal court and one published state court decision have been
found expressly considering the constitutionality of using metal detectors in schools. In both
cases, the trial courts upheld the reasonable application of metal detectors in schools. See
6
fully evaluate the constitutional and statutory issues associated with whether the use of metal
detectors to deter the presence of weapons in schools may satisfy the "reasonableness"
requirement of the Fourth Amendment, and other standards mandated under the California
Constitution and statutes.
II. FOURTH AMENDMENT ANALYSIS
A. OVERVIEW: WHETHER "SEARCH" IS UNREASONABLE?
In other related contexts, the use of scanning devices such as metal detectors (or
magnetometers) has been deemed a "search" within the meaning of the Fourth Amendment.5/
The Fourth Amendment protection against unreasonable searches and seizures extend to
searches and seizures of students by public school officials. New Jersey v. T.L.O. (1985) 469
U.S. 325, 333; In re William G. (1985) 40 Cal.3d 550, 557, 561. The central question, therefore,
is whether metal detector searches of students by school officials constitute an "unreasonable"
search under the Fourth Amendment. See, e.g., Skinner v. Railway Labor Executives' Ass'n
(1989) 489 U.S. 602, 619 ("[T]he Fourth Amendment does not proscribe all searches and
seizures, but only those that are unreasonable."); Elkins v. United States (1960) 364 U.S. 206,
222 (same).6/
Bradley v. Milliken (E.D. Mich. Apr. 10, 1986) No. 70-35257 (holding that proposed amendment
and rules and regulations to Detroit public schools code of student conduct concerning student
metal detector searches "pass facial constitutional muster" and that whether there is "a sufficient
basis for a particular search must be determined on a case-by-case basis"); People v. Dukes (N.Y.
City Crim. Court Jan. 31, 1992) No. 91N050052, 580 N.Y.S.2d 850, 151 Misc.2d 295
(upholding hand-held metal detector searches at a New York City high school under 1989 Board
of Education guidelines). No published or unpublished appellate court decision has been
discovered.
5. See, e.g., United States v. Edwards (2d Cir. 1974) 498 F.2d 496, 499 & n.8 (use of
magnetometer at airport); United States v. Albarado (2d Cir. 1974) 495 F.2d 799, 803 (same);
United States v. Epperson (4th Cir.) 454 F.2d 769, 770 (same), cert. denied (1972) 406 U.S. 947;
People v. Hyde (1974) 12 Cal.3d 158, 164 (same); see also United States v. Henry (9th Cir.
1980) 615 F.2d 1223, 1227 (concerning x-ray scan of briefcase at airport security checkpoint;
noting x-ray scan is also more intrusive than a magnetometer).
Reference in this opinion to metal detectors is synonymous with magnetometers. These
devices, which have now become common at airports and at entrances to many public buildings
and elsewhere, are intended to detect the presence of weapons by activating when an established
amount of metal is passed or carried through the zone of detection. See United States v. Lopez
(E.D.N.Y. 1971) 328 F. Supp. 1077, 1083, 1085-86, 1100-01 (discussing operations of
magnetometer).
6. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized.
The Fourth Amendment has been made applicable to the unreasonable searches
and seizures by state officials through the due process clause of the Fourteenth Amendment.
See, e.g., T.L.O., 469 U.S. at 334 (and cases cited therein).
7
B. SPECIAL FOURTH AMENDMENT PRINCIPLES APPLIED IN SCHOOL
SETTING
As a starting point, the United States Supreme Court has repeatedly noted that what is
reasonable under the Fourth Amendment "depends on all the circumstances surrounding the
search or seizure and the nature of the search or seizure itself." United States v. Montoya de
Hernandez (1985) 473 U.S. 531, 537 (quoted in Skinner, 489 U.S. at 619); see also T.L.O., 469
U.S. at 337 (noting "what is reasonable," under the Fourth Amendment, "depends on the context
within which a search takes place") (emphasis added). Recent decisions of the United States
Supreme Court and California Supreme Court have highlighted special Fourth Amendment
considerations to be applied in evaluating student searches by school officials arising in the
school setting.
1. Less Stringent Fourth Amendment Standard
After carefully weighing the student's legitimate expectations of privacy and the school's
interest in maintaining an educational environment, the United States Supreme Court concluded
"the school setting requires some easing of the [Fourth Amendment] restrictions to which
searches by public authorities are ordinarily subject." T.L.O., 469 U.S. at 340. In light of
concerns unique to the school environment, two significant modifications were made to the
Fourth Amendment analysis which is traditionally employed in the criminal law context.
First, the court held that school officials do not need to satisfy the warrant requirement of
the Fourth Amendment before conducting a student search. Second, the court concluded that the
level of suspicion to justify the search need not rise to the level of probable cause T.L.O., 469
U.S. at 340-41. The California Supreme Court has adopted each of these holdings for student
searches. See William G, 40 Cal.3d at 564.
As the United States and California Supreme Courts have noted, in most instances it
would be impractical for school officials to satisfy the warrant and probable cause requirements
prior to conducting a student search. T.L.O., 469 U.S. at 340; William G, 40 Cal.3d at 564-65.
Often maintaining order requires close supervision and a swift and flexible response. T.L.O.,
469 U.S. at 340 (noting "swift and informal disciplinary procedures" are often required); id. at
352-53 (Blackmun, J., concurring); William G, 40 Cal.3d at 564-65. Certainly, the substantial
school interest in maintaining order would be frustrated by compliance with the warrant
requirement. T.L.O., 469 U.S. at 340. While the warrant and probable cause standards are
mandated for law enforcement, students and teachers, in contrast, hold a special relationship,
often founded on day-to-day familiarity and contact with one another. Id. at 349 (Powell, J.,
concurring). In taking these sui generis factors into account, the United States Supreme Court
concluded that the application of the Fourth Amendment standard in the school setting should
"spare teachers and school administrators the necessity of schooling themselves in the niceties of
probable cause and permit them to regulate their conduct according to the dictates of reason and
common sense." Id. at 343.
2. Standard of "Reasonableness Under all the Circumstances"
With regard to the second aspect involving "the level of suspicion of illicit activity
needed to justify a search," the United States Supreme Court held that the propriety of a search
of a student by school officials, under the Fourth Amendment, depends on the "reasonableness,
8
under all the circumstances, of the search." T.L.O., 469 U.S. at 340 & 341.7/ According to the
Court, this Fourth Amendment analysis of "reasonableness" in the school context is based upon
two separate inquiries.
The first is whether the search was "justified at its inception;" that is, whether "there are
reasonable grounds for suspecting that the search will turn up evidence that the student has
violated or is violating either the law or the rules of the school." Id. at 341-42 (citing Terry v.
Ohio (1968) 392 U.S. 1, 20). The second determination is whether the search "was reasonably
related in scope to the circumstances which justified the interference in the first place;" that is,
whether "the measures adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of the age and sex of the student and the nature of the infraction."
Id.; see also William G, 40 Cal.3d at 564 (adopting two-step inquiry).8/
In other Fourth Amendment circumstances, this two-part test has been applied by the
United States Supreme Court to evaluate the reasonableness of a search where suspicion has
generally focused on the conduct of an individual or group of individuals.9/ Since the conducting
of metal detector searches on an entire student body constitutes a suspicionless search, this
opinion next confronts the question of whether "individualized suspicion" is a prerequisite for
searches of students by school officials.
7. The United States Supreme Court made clear that it only determined the standard
governing "searches carried out by school authorities acting alone and on their own authority."
T.L.O., 469 U.S. at 341 n.7. The Court did not address "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 authorities." Id.
The California Supreme Court also left open the question of "what standard should apply
where law enforcement officials are involved at the outset of a student search, or where a school
official acts in cooperation with, or as an agent of, law enforcement." William G, 40 Cal.3d at
562 n.12.
8. While the majority of the T.L.O. Court did not say so at the time, this framework of
analysis for student searches, dictated under T.L.O. and its progeny, is an aspect of the Fourth
Amendment doctrine where "special needs, beyond the normal need for law enforcement, make
the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin (1987) 483
U.S. 868, 873 (quoting T.L.O., 469 U.S. at 351 (Blackmun, J., concurring)). As the United
States Supreme Court has subsequently acknowledged, "A State's . . . operation of a school . . .
presents `special needs' beyond normal law enforcement that may justify departures from the
usual warrant and probable-cause requirements." Griffin, 483 U.S. at 873-74; see also Skinner,
489 U.S. at 620 (listing the operation of a school as a "special needs" context under the Fourth
Amendment); O'Connor v. Ortega (1987) 480 U.S. 709, 720 (noting unsuitability of warrant
requirement to school environment). Having determined under T.L.O. and other cases that a
search of students by school officials satisfies the "special needs" exception, the United States
Supreme Court has instructed that the standard of "reasonableness under all the circumstances"
should apply in the school setting, as it has in other "special needs" contexts. Compare, e.g.,
O'Connor, 480 U.S. at 725-26 (adopting same reasonableness standard, including two-part test,
for public employer intrusions on government employees "for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct").
9. See O'Connor, 480 U.S. at 725-26 (public employer intrusions of government employees
for investigations of work-related misconduct or for noninvestigatory, work-related objectives);
Montoya de Hernandez, 473 U.S. at 541 (detention of traveler at border based on reasonable
suspicion that contraband is being smuggled); Terry, 392 U.S. at 20 (permitting police officer
"stop and frisk" based only upon reasonable suspicion).
9
C. INDIVIDUALIZED SUSPICION FOR STUDENT SEARCHES IN GENERAL
Because the facts of its decision in T.L.O. involved individualized suspicion, the United
States Supreme Court expressly left open the question "whether individualized suspicion is an
essential element of the reasonableness standard" which the Court adopted "for searches by
school authorities." T.L.O., 469 U.S. at 342 n.8. This issue arguably has been settled, however,
under current California case law for student searches in general.
The Court of Appeal had the opportunity to consider directly whether individualized
suspicion is required for student searches. In In re Alexander B (2d. Dist. 1990) 220 Cal.App.3d
1572, the only published California case directly confronting this question, the dean of students
at Grant High School in Van Nuys attempted to prevent a clash between two groups of students
during a summer session. One member of one group said, "Don't pick on us; one of those guys
has a gun," as the student pointed toward a third group consisting of five or six students
remaining near the confrontation. Id. at 1576. At the request of the dean, two members of the
Los Angeles Unified School District Police Department conducted a search of the students for
weapons, ultimately discovering a machete knife and scabbard. The court rejected the student's
argument that the school lacked individual suspicion to search him. Id. at 1577-78. In
upholding the search, the court noted "suspicion was focused on a group of five or six students.
Given the potential danger to students and staff which would have resulted from inaction, a
weapons search of the several accused students was reasonable." Id. at 1578 (emphasis added).
Significantly, the appellate court held that the search "was not only reasonable, it was
constitutionally compelled." Id. at 1577. This portion of the ruling was also based upon the
constitutional right to safe schools under the California Constitution, article I, section 28(c).
Id.10/
10. In contrast, William G was decided before the students' "inalienable right" to attend safe
schools became effective. The search in William G occurred on October 1, 1979, prior to the
passage of Proposition 8, which included the right to safe schools in article I, § 28(c), on June 8,
1982. See William G, 40 Cal.3d at 558 n.5.
While the William G decision was based upon "both state and federal law," id., the
California Supreme Court has not had occasion to consider whether a requirement of
individualized suspicion is a prerequisite for school metal detector searches or, alternatively,
whether it may be required in light of the mandatory, inalienable right to safe schools under
California Constitution article I, § 28(c), or other statutory provisions. See Discussion in Section
III(E)(1)(c), infra.
In William G, the California Supreme Court adopted a standard which "is consistent
with" the United States Supreme Court's decision in T.L.O. See William G, 40 Cal.3d at 564.
Both the United States and California Supreme Courts referred to their standards as requiring
"reasonable suspicion." See, e.g. T.L.O., 469 U.S. at 346; William G, 40 Cal.3d at 566. As
already noted, the United States Supreme Court expressly left open the question of whether
individualized suspicion is required for student searches. In articulating the standard of
reasonableness, the California Supreme Court specified that the standard requires a showing of
"articulable facts, together with rational inferences from those facts, warranting an objectively
reasonable suspicion that the student or students to be searched are violating or have violated a
rule, regulation or statute." William G, 40 Cal.3d at 564. As a corollary, the Court noted that a
search "predicated on mere curiosity, rumor, or hunch" is "unlawful." Id.
While the majority in William G never used the terms "individualized suspicion," the
concurrence and dissent of Chief Justice Bird did. See William G, 40 Cal.3d at 569 (Bird, J.,
concurring and dissenting). This language in the concurrence and dissent, of course, is not
dispositive. Most importantly, the question of whether individualized suspicion is a prerequisite
10
While the holding of Alexander B therefore suggests, as a general matter, that
individualized suspicion may not be required for student searches on school grounds, that
broader issue has not been presented by the questions raised in this opinion. Wholly apart from
the question of whether individualized suspicion is required for student searches in general, no
federal or state court published decision has addressed this issue in the separate and specific
context of school metal detector searches. This narrower, open question of whether
individualized suspicion should be required for school metal detector searches is considered
next.
D. SCHOOL METAL DETECTOR SEARCHES AND
INDIVIDUALIZED SUSPICION
A review of pertinent Fourth Amendment case law leads to the conclusion that
individualized suspicion is not required for metal detector searches on school grounds.
In certain limited circumstances, the United States Supreme Court has held that the
Fourth Amendment does not mandate a requirement of individualized suspicion for searches or
seizures to be reasonable.11/ Although "some quantum of individualized suspicion is usually a
prerequisite to a constitutional search or seizure," Martinez-Fuerte, 428 U.S. at 560, "a showing
of individualized suspicion is not a constitutional floor, below which a search must be presumed
unreasonable." Skinner, 489 U.S. at 624. Thus, the United States Supreme Court recently
observed, a search may be reasonable without individualized suspicion "where the privacy
interests implicated by the search are minimal, and where an important governmental interest
furthered by the intrusion would be placed in jeopardy by a requirement of individualized
suspicion." Id. (emphasis added); see also T.L.O., 469 U.S. at 342 n.8 (noting exception to
individualized suspicion requirement "where the privacy interests implicated by a search are
minimal and where `other safeguards' are [also] available `to assure that the individual's
reasonable expectation of privacy is not subject to the discretion of the official in the field'")
(quoting Delaware v. Prouse (1979) 440 U.S. 648, 654-55 (emphasis added; citation omitted)).
These competing interests must be considered and balanced in order to determine
whether the school's "need to conduct the suspicionless searches required" under a metal detector
program "outweighs the privacy interests" of students. Von Raab, 489 U.S. at 668. Further, the
existence of safeguards to minimize any intrusion of privacy and eliminate any opportunity for
the exercise of official arbitrary discretion must be explored and evaluated. The students'
legitimate expectations of privacy in the school environment are first considered.
to mass student searches by school officials was not before the William G court. The California
Supreme Court has found that individualized suspicion is not mandated for some searches. See,
e.g., Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1327 (upholding sobriety checkpoints).
Nonetheless, as a general matter, the reliance of the court in Alexander B on William G and other
Fourth Amendment cases and the safe schools clause under the California Constitution, at least
for now, indicates that individualized suspicion may not be a prerequisite for all student
searches. The next section addresses the more specific question whether individualized
suspicion is a prerequisite for metal detector searches in schools.
11. See, e.g., Michigan Dep't of State Police v. Sitz (1990) 496 U.S. 444, 448-51 (highway
sobriety checkpoint initial detention of all vehicles for brief examination for signs of
intoxication); National Treasury Employees Union v. Von Raab (1989) 489 U.S. 656, 668
(United States Customs Service urinalysis test from employees seeking transfer or promotion to
certain positions); Skinner, 489 U.S. at 624-33 (blood, urine and breath testing of railroad
employees in safety-sensitive positions); United States v. Martinez-Fuerte (1976) 428 U.S. 543,
560-62 (border vehicle check point referral from primary to secondary inspection station);
Camara v. Municipal Court of San Francisco (1967) 387 U.S. 523 (upholding "area" warrant to
inspect for building code violations).
11
1. Privacy Interests in the School Setting
It is well-settled that the Fourth Amendment protects only legitimate expectations of
privacy. See generally Katz v. United States (1967) 389 U.S. 347, 350-52. While "students
within the school environment have a lesser expectation of privacy than members of the
population generally," T.L.O., 469 U.S. at 348 (Powell, J., concurring); see also William G, 40
Cal.3d at 563; Stern v. New Haven Community Schools (E.D. Mich. 1981) 529 F. Supp. 31, 36;
accord People v. Kenway (4th Dist. 1990) 219 Cal.App.3d 441, 445 (noting "reduced expectation
of privacy . . . at school") (citations omitted), students do retain legitimate interests in privacy at
school. For example, the United States Supreme Court has noted that "schoolchildren may find
it necessary to carry with them a variety of legitimate, noncontraband items, and there is no
reason to conclude that they have necessarily waived all rights to privacy in such items merely
by bringing them onto school grounds." T.L.O., 469 U.S. at 339. The California Supreme Court
has also stated that "a student always has the highest privacy interests in his or her own person,
belongings, and physical enclaves, such as lockers." William G, 40 Cal.3d at 563.12/
In addition to the general lesser expectation of privacy of students in the school
environment, as a usual matter, the passing through a metal detector constitutes a minimal
invasion of privacy, particularly when contrasted with a frisk or pat-down or more intrusive
physical search. One federal appellate court has described the insubstantial intrusion resulting
from a metal detector scan as follows:
The passing through a magnetometer has none of the indignities involved in . . . a
frisk. The use of the device does not annoy, frighten or humiliate those who pass
through it. Not even the activation of the alarm is cause for concern, because
such a large number of persons may activate it in so many ways. No stigma or
suspicion is cast on one merely through the possession of some small metallic
object. Nor is the magnetometer search done surreptitiously, without the
knowledge of the person searched. Signs warn [participants] of it, and the
machine is obvious to the eye.
Albarado, 495 F.2d at 806 (quoted in Wilkinson v. Forst (2d Cir. 1987) 832 F.2d 1330, 1340,
cert. denied (1988) 485 U.S. 1034). Numerous cases have noted the minimal intrusion resulting
from metal detector scans.13/ Finally, relative to other suspicionless searches which have been
upheld, metal detector searches constitute an insubstantial intrusion of privacy.14/
12. In T.L.O., 469 U.S. at 337 n.5, the United States Supreme Court left open the question
"whether a schoolchild has a legitimate expectation of privacy in lockers, desks, or other school
property provided for the storage of school supplies." This issue is not implicated by metal
detector searches.
13. See, e.g., McMorris v. Alioto (9th Cir. 1978) 567 F.2d 897, 900 ("A magnetometer is a
relatively inoffensive method of conducting a search, and it is less restrictive than alternative
methods."); Epperson, 454 F.2d at 771 (noting minimal intrusion of magnetometer "because the
person scrutinized is not even aware of the examination"); United States v. Slocum (3d Cir.
1972) 464 F.2d 1180, 1182 (noting limited invasion of privacy by magnetometer); Hyde, 12
Cal.3d at 164 (noting magnetometer search at airport is "minimally intrusive"); People v.
Valenzuela (3d Dist. 1984) 151 Cal.App.3d 180, 186 (concluding "a walk-through metal detector
search involves an insignificant invasion of personal rights"); cf. People v. Owens (2d Dist.
1982) 134 Cal.App.3d 144, 147 (x-ray examination of checked airport luggage "imposes a
minimal invasion of privacy").
14. Compare Sitz, 496 U.S. at 448 (highway sobriety checkpoint where average vehicle delay
was "approximately 25 seconds"); Von Raab, 489 U.S. at 661-63 (urinalysis drug testing of
12
2. State/School Interests
As will be shown, the state and school interests in a metal detector search program, to be
considered against this minimal invasion of privacy, are both substantial and compelling. At a
minimum, these government interests include: (a) the education and training of the state's
students; (b) maintaining discipline and order in the classroom and on school premises; (c) an
obligation to furnish a safe, secure environment for learning; and (d) deterring the presence of
weapons on school grounds. Each of these interests is considered in turn.
a. Education and Training
Education has been called "the most important function of state and local governments."
Brown v. Board of Education (1954) 347 U.S. 483, 493 (quoted in T.L.O., 469 U.S. at 353
(Blackmun, J., concurring)). Clearly, the state has a "compelling interest" to educate and train its
students. T.L.O., 469 U.S. at 350 (Powell, J., concurring); see also Schaill, 864 F.2d at 1324
("[I]f students are to be educated at all, an environment conducive to learning must be
maintained."). Education represents one of the most important investments that society makes in
itself and its future, affecting not only individual development and potential but also the
economic and cultural well-being of the state and nation. See Plyler v. Doe (1982) 457 U.S. 202,
221-23 & n.20 (discussing importance of education in our society); Serrano v. Priest (1976) 18
Cal.3d 728, 767 (holding education under California equal protection clause is a fundamental
right), cert. denied (1977) 432 U.S. 907; Serrano v. Priest (1971) 5 Cal.3d 584, 608-10 (noting
several grounds for holding education to be a fundamental interest), cert. denied (1977) 432 U.S.
907.
The California Constitution has established the primary role of education in our state.
Article IX, section 1 stipulates that "[a] general diffusion of knowledge and intelligence [is]
essential to the preservation of the rights and liberties of the people." Section 5 of the same
Article mandates the Legislature "provide for a system of common schools by which a free
school shall be kept up and supported in each
district. . . ." Subject to specified exceptions, the Legislature has required that all children aged
six to eighteen must attend school full-time. Education Code section 48200; see generally In re
James D. (1987) 43 Cal.3d 903, 909-10, cert. denied (1988) 485 U.S. 959.
In fiscal year 1991, more than one-third of the state General Fund (nearly $16.5 billion or
37.5% of the total) is allocated to public education (K through 12) in California, representing the
state's largest single budget item. 1992-93 Governor's Budget Background Information, at 5, 9
(Jan. 9, 1992). The overall numbers of the California public school system demonstrate its
breadth. In October 1990, there were over 7,400 public schools (consisting of 4,867 elementary
schools, 853 intermediate schools, 136 junior high schools, 802 high schools, 432 continuation
schools, 181 alternative schools, 147 special education schools, and 67 county-run schools).
Fingertip Facts on Education in California, California Department of Education, at 2 (1991).
Nearly 210,000 full-time public school teachers taught over 4.9 million students (including over
3.5 million elementary school students and more than 1.3 million high school students). Id.
United States Customs Service employees seeking transfer or promotion to specified positions);
Skinner, 489 U.S. at 608-12 (blood, breath and urine drug testing of railroad employees in
safety-sensitive positions for mandatory post-accident testing; after a reportable incident or
specific rule violation; or after reasonable suspicion of drug or alcohol impairment); Martinez-
Fuerte, 428 U.S. at 558-60 (vehicle detention at permanent border checkpoint for visual
inspection, brief questioning, and possible production of documents and referral to secondary
inspection area); Schaill v. Tippecanoe County School Corp. (7th Cir. 1988) 864 F.2d 1309,
1310-11 (random urinalysis drug testing of high school athletes and cheerleaders); Ingersoll, 43
Cal.3d at 1327 (sobriety checkpoint average vehicle detention of 28 seconds).
13
These figures indicate the broad impact of and the considerable public resources committed to
education in California. As will be shown, the presence of weapons in schools poses a real
threat to the primary mission of school officials and administrators to educate and train our
state's students.
b. Maintaining Discipline and Order
To accomplish this vital mission of establishing and providing healthy learning
environments, the United States Supreme Court has recognized that the state has a "substantial
interest" in "maintaining discipline in the classroom and on school grounds." T.L.O., 469 U.S. at
339; see also id. at 350 ("Without first establishing discipline and maintaining order, teachers
cannot begin to educate their students.") (Powell, J., concurring); accord Penal Code § 627(a)(1)
(same); Katchak v. Glasgow Independent School System (W.D. Ky. 1988) 690 F. Supp. 580,
582-83 (noting role of discipline in education). To promote the interest in school discipline,
California law requires that "at least every four years . . . each public school . . . shall adopt rules
and procedures on school discipline applicable to the school." Education Code § 35291.5
(emphasis added). The statute sets forth the procedure for adoption, notice, enforcement, and
review of the promulgated discipline rules. Id. The Legislature also requires every public
school teacher to "hold pupils to a strict account for their conduct on the way to and from school,
on the playgrounds, or during recess." Education Code section 44807. This provision also
provides public school officials with statutory authority "to maintain order, protect property, or
protect the health and safety of pupils, or to maintain proper and appropriate conditions
conducive to learning." Id.; see also William G, 40 Cal.3d at 560; id. at 571-72 (Mosk, J.,
dissenting) (noting implicit in this statutory obligation "is the right of school officials to search
pupils and their property on reasonable suspicion of misconduct and a sincere belief that the
search is necessary to maintain `conditions conducive to learning'"); accord Sullivan v. City of
Sacramento (3d Dist. 1987) 190 Cal.App.3d 1070, 1079 (noting statutory duty to supervise
pupils under § 44807); Lehto v. City of Oxnard (2d Dist. (1985) 171 Cal.App.3d 285, 292
(same). As the California Supreme Court has stated, "Such regulation is necessary precisely
because of the commonly known tendency of students to engage in aggressive and impulsive
behavior which exposes them and their peers to the risk of serious physical harm." Dailey v. Los
Angeles Unified School Dist. (1970) 2 Cal.3d 741, 748 (citing, inter alia, Education Code
§ 13557, the predecessor to § 44807).
In discussing the interest in maintaining discipline, the United States Supreme Court
noted the problem of violent crime in schools by citing to a 1978 federal report. T.L.O., 469 U.S.
at 339. The problem of crime and violence in schools in general remains at unacceptable levels
and the presence and use of weapons in schools in particular has dramatically increased in recent
years. Consequently, this issue has been the subject of recent congressional hearings. See "Safe
Schools: Drawing the Line on Crime," Selected Crime Issues: Prevention and Punishment,
Hearings before the House Judiciary Subcommittee on Crime and Criminal Justice, 102d Cong.,
1st Sess. 563-706 (July 17, 1991); Gun-Free School Zones Act of 1990, Hearing before the
House Judiciary Subcommittee on Crime, 101st Cong., 2d Sess. (Sept. 6, 1990). To address the
problem of crime and violence in schools and their environs, federal and state statutes have been
enacted with the view of fostering drug-free or safe "school zones," usually within 1,000 feet of
school grounds.15/
15. See, e.g., Gun-Free School Zones Act of 1990, 18 U.S.C. §§ 921(25), (26), 922(q)
(prohibiting possession or discharge of a firearm on school grounds and within 1,000 feet of
school grounds); see also 21 U.S.C. § 860 (enhanced penalties for the distribution or
manufacturing of drugs "in" or "on" or "within 1,000 feet" of school grounds).
Similar safeguards on school grounds or within designated "school zones" are provided
under California law. See, e.g., Penal Code § 626.9 (prohibiting the possession or bringing of
14
In 1979, the Legislature found and declared that "violence on school grounds ha[d]
become pandemic in many areas of the state" during the prior decade and that [p]roliferation of
weapons and other injurious objects brought onto school grounds by pupils serves to exacerbate
instances of violence." Education Code section 49330 note (section 1(a) & (b) of Stats. 1979, c.
210, p. 454); see also Education Code section 32250 (1980 statute including Legislature's
recognition that "crime, including vandalism, and violence have reached an alarming level at
school sites throughout California"). The most recent report available on crime in California
public schools notes that high campus crime rates "continue to disrupt the educational process
for students and staff members." School Crime in California for the 1988-89 School Year, the
Fourth Annual Report Prepared for the California State Legislature Pursuant to A.B. 2483,
Chapter 1607 (Statutes of 1984) Penal Code Section 628, at v (Mar. 1990) [hereinafter "Fourth
Annual California School Crime Report"]. The most alarming reported trend is the increase in
weapons possession, including knives, explosives, guns and other weapons (such as clubs, rocks,
brass knuckles, and scissors). Over the four-year reporting period, total weapons possession
increased 28%, gun possessions shot up 100% and other weapon possessions climbed 54%. Id.
at 2 (table 1) (based on the crime rate per average school to take population changes into
account). Based on these figures, the Report advised that, "School administrators, parents, and
local law enforcement agencies need to give special attention to the increased incidence of
weapons possession, especially guns, on the school campus." Id. at vii. While schools have a
well-established duty to maintain discipline and order, it is evident that this objective is being
hampered by an increasing presence of weapons in schools.
c. Interest in Safety/Duty to Protect
In this unique, state-mandated forum, the state also has a concomitant duty to protect all
students, teachers and school personnel. As the California Supreme Court has stated, "Teaching
and learning cannot take place without the physical and mental well-being of the students."
William G, 40 Cal.3d at 563. Many cases have similarly acknowledged the interest in providing
a safe forum for learning. See, e.g., T.L.O., 469 U.S. at 332 n.2 (citing numerous authorities and
noting "the interest of the states in providing a safe environment conducive to education in the
public schools"); see also id. at 350 (Powell, J., concurring); id. at 353 (Blackmun, J.,
concurring); Schaill, 864 F.2d at 1314 (noting "a school official's primary mission is not to ferret
out crime, but is instead to teach students in a safe and secure learning environment"); Horton v.
Goose Creek Independent School Dist. (5th Cir. 1982) 690 F.2d 470, 480 (same), cert. denied
(1983) 463 U.S. 1207 (cited favorably in William G, 40 Cal.3d at 563); Mitchell v. Board of
Trustees of Oxford Municipal Separate School Dist. (5th Cir. 1980) 625 F.2d 660, 664-65
(noting school is "under an obligation to provide a safe environment for the children so they can
learn").
firearms on public school grounds); Penal Code § 626.10 (prohibiting the possession or bringing
of weapons on public school grounds); A.B. 1866, chapter 661 (1991) (amending Penal Code
§ 186.22) (enhanced punishment for felonies committed by any criminal street gang within 1,000
feet of school grounds); see also Health & Safety Code § 11353.1(a)(2), (5), (f) (enhanced
punishment for certain drug offenses occurring within 1,000 feet of school grounds); Juvenile
Drug Trafficking and Schoolyard Act of 1988, Health & Safety Code § 11353.6 (enhanced
punishment for certain drug offenses occurring within 1,000 feet of school grounds); Health &
Safety Code § 11380.1 (a)(2), (f) (similar enhanced punishment).
Other states have similar prohibitions against the use of firearms on or near school
grounds. See, e.g., Wis. Stat. § 948.605 (1991) (gun-free school zones statute prohibiting the
possession or discharge of firearms within 1,000 feet from school grounds); Mo. Rev. Stat. §
571.030, subsections 1(6), (8) (prohibiting the carrying of a firearm into any school or the
discharge of a firearm "within 100 yards of any occupied school house").
15
Special note of this obligation has repeatedly been made under California law, including
the state Constitution, statutes and case law. Since 1982, pursuant to a ballot initiative,
California Constitution article I, section 28(c) has expressly recognized a right to safe schools:
"All students and staff of public primary, elementary, junior high and senior high schools have
the inalienable right to attend campuses which are safe, secure and peaceful." (Emphasis added.)
The Legislature has expressly approved several statutes pursuant to this inalienable right in the
Education Code. See Education Code section 32261 (establishing Interagency School Safety
Demonstration Act); Penal Code section 627(c) (governing access to school premises); Penal
Code section 628.5 (concerning annual school crime report).
Numerous statutes have been enacted to promote school safety and address problems
with weapons and crime in schools. Enhanced penalties may be imposed for the commission of
an assault or battery on school property. Penal Code sections 241.2, 243.2. It is a felony to
bring or possess firearms or weapons on school grounds. Penal Code sections 626.9, 626.10.
Since 1979, California law has provided procedures for the removal of "injurious objects" from
students, including firearms and switchblade knives having a blade over two inches in length.
Education Code section 49330 et seq. Students may be suspended or expelled from school for
possessing "any firearm, knife, explosive, or other dangerous object." Education Code sections
48900(b), 48915(a)(2); see generally Fremont Union High School Dist. v. Santa Clara County
Board of Education (6th Dist. 1991) 235 Cal.App.3d 1182 (construing Education Code § 48900).
Law enforcement authorities are required to be notified of student conduct involving the use of
firearms or weapons. Education Code section 48902(a), (b) & (c). As part of a recognized "duty
to provide a safe educational setting," the Legislature has provided general authority for public
school guards. In re Frederick B. (1st Dist. 1987) 192 Cal.App.3d 79, 85, 88 (citing Education
Code §§ 39670, 39671); see also Education Code section 39670 (noting district school board
"may employ personnel as necessary to ensure the safety of school district personnel and pupils
and the security of the real and personal property of the school district"). The Legislature has
enacted legislation restricting and conditioning the access of unauthorized persons on school
grounds in order to safeguard students, school employees and property. Education Code § 627 et
seq.; see also Education Code § 32210 (willful disturbance of a public school or public school
meeting constitutes a misdemeanor); Education Code § 32211 (authorizing principal or designee
to request non-designated persons to depart public school grounds upon the conclusion that "the
continued presence of the person . . . would be disruptive of, or would interfere with, classes or
other activities of the public school program"). The Legislature has established a School/Law
Enforcement Partnership to administer interagency safe school programs and activities as well as
a statewide interagency school safety cadre to reduce, inter alia, school violence and crime.
Education Code section 32262, et seq. & Education Code section 32290, et seq. A school safety
and security resource unit has been created in the Department of Education to assist in
combating school crime. Education Code section 32250 et seq. Each school is required to adopt
regular rules and procedures on school discipline and is also encouraged to develop
comprehensive school safety plans. Education Code section 35291 et seq. & Education Code
section 35294 et seq. In order to ensure that adequate data and information is available on
school crime, the Legislature has also mandated annual Department of Education reports
compiling current school crime statistics from each school district. Education Code section 628
et seq. Teachers also have "a moral duty and a legal obligation" to "`protect[] the health and
safety of students'" under the Code of Ethics of the Teaching Profession. William G, 40 Cal.3d
at 574 (Mosk, J., dissenting) (quoting Cal. Admin. Code, tit. 5, § 80130); see also Education
Code section 58700 et seq. (establishing pilot programs to reduce youth gang violence in
elementary and secondary schools).
Independent of these state constitutional and statutory provisions, the California Supreme
Court has noted "the right of all students to a school environment fit for learning cannot be
questioned. . . . The school premises, in short, must be safe and welcoming." William G, 40
16
Cal.3d at 563.16/ Other California cases have also noted the duty of schools to protect students
and school personnel. See, e.g., Peterson v. San Francisco Community College Dist. (1984) 36
Cal.3d 799, 806 n.3 (discussing duty of school authorities to supervise and protect students);
Rodriguez v. Inglewood Unified School Dist. (2d Dist. 1986) 186 Cal.App.3d 707, 715 ("Based
on prior case law and the characteristics of public education along with recent statutory
pronouncements, we readily come to the conclusion that a special relationship is formed between
a school district and its students so as to impose an affirmative duty on the district to take all
reasonable steps to protect its students.") (emphasis added); Gordon J. v. Santa Ana Unified
School Dist. (4th Dist. 1984) 162 Cal.App.3d 530, 544 (noting "duty of the school administration
to protect law abiding students from delinquents among them").
In sum, the school interest in safety and duty to protect students and school personnel is
firmly rooted in three separate sources: the state Constitution, statutes, and decisional law.
Together, these three independent legal sources establish the specific programs and obligations
on schools to foster the goal of safety in school.
d. Weapons Deterrence
At least one other interest, which is inextricably intertwined with the three
aforementioned interests, is the school interest in deterring weapons on school grounds and
surroundings. As already noted, according to the most recent school crime report, the increased
presence of weapons in schools is having a "disrupt[ive]" impact in fostering an educational
environment in many schools. Moreover, California law currently proscribes the bringing or
possession of firearms or weapons on school grounds. See Penal Code sections 626.9, 626.10.
Weapons clearly have no legitimate role in the education forum except in those rare instances
where they are limited to authorized academic or extracurricular programs. See Education Code
section 49330 note (section 1(c) of Stats. 1979, c. 210, p. 454). The state and schools have an
obvious interest in promoting these statutory objectives and mitigating the potentially
debilitating impact weapons have on the primary school mission to teach. As a prophylactic
measure, if schools can keep weapons off school grounds to begin with, potentially disruptive or
injurious circumstances may be avoided altogether. Moreover, valuable school resources need
not be diverted to discipline or otherwise handle or gain control over a potential weapons
confrontation. Finally, deterrence promotes and maintains the safety and security of the
school.17/
3. Adequate Safeguards to Minimize the Intrusion
Before balancing these government interests against the intrusion of privacy, a separate
Fourth Amendment concern of suspicionless searches is addressed. This requires an evaluation
of whether adequate safeguards are employed "to assure that the individual's reasonable
expectation of privacy is not `subject to the discretion of the official in the field.'"18/ The
16. William G was decided prior to the enactment of the inalienable right to safe schools.
See William G, 40 Cal.3d at 558 n.5; see also note 10, supra.
17. The interest in deterrence has also been noted in other suspicionless search cases. See,
e.g., Von Raab, 489 U.S. at 674, 676; Skinner, 489 U.S. at 629; Martinez-Fuerente, 428 U.S. at
557; Ingersoll, 43 Cal.3d at 1331 & 1337 (noting the "primary purpose" of sobriety checkpoints
"is to prevent and deter conduct injurious to persons and property").
18. T.L.O., 409 U.S. at 342 n.8 (quoting Prouse, 440 U.S. at 654-55); see also Skinner, 489
U.S. at 613-14 (The purpose of the Fourth Amendment is to "guarantee[] the privacy, dignity,
and security of persons against certain arbitrary and invasive acts by officers of the Government
17
consideration of "adequate safeguards" involves an assessment of the reasonableness of the
procedures employed to minimize the intrusion on privacy interests. See, e.g., Von Raab, 489
U.S. at 672 n.2 (noting specific procedures adopted to minimize intrusion on privacy); Skinner,
489 U.S. at 624-27 (same). As will be shown, several suggested procedures can be adopted
which minimize unnecessary intrusions into a student's privacy. Many of these safeguards are
borrowed from analogous metal detector cases in the airport or courthouse context (which are
primarily based upon the Fourth Amendment administrative search doctrine, which is also
governed by a standard of reasonableness and is considered in Subsection II(E), infra).
a. Screening Device
It deserves noting at the outset that metal detectors are employed as a screening
mechanism, "used only to determine whether a further physical search is indicated." Henry, 615
F.2d at 1229; see also United States v. Doran, (9th Cir. 1973) 482 F.2d 929, 932 ("[T]he
magnetometer . . . is no more than a gratuitous means by the government to reduce the number of
persons searched."); Lopez, 328 F. Supp. at 1084 ("Measured against the air travelling
population as a whole, [use of the magnetometer and other airport screening methods] is highly
effective in narrowing the group which needs particular attention."); accord Albarado, 495 F.2d
at 808 (noting that "any further investigation after activation of the magnetometer is for the metal
which did the activation"). The minimal or insubstantial intrusion of privacy from metal detector
scans therefore serves to identify a smaller class of individuals upon whom a further search or
inquiry may be warranted. Students who do not activate the metal detector would, therefore, not
be subject to any further search.
b. Prior Notice
One of the most important safeguards to minimize the already minor intrusion resulting
from metal detector scans is advance notice of the search, including the use of signs or public
announcements.19/ For example, school officials could provide each student and his or her
or those acting at their direction."); Martinez-Fuerte, 428 U.S. at 554 ("The Fourth Amendment
imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive
interference by enforcement officials with the privacy and personal security of individuals.");
Schaill, 864 F.2d at 1321 (finding "adequate safeguards" included in suspicionless urinalysis
search program of high school student athletes).
Whether adequate safeguards are taken to minimize the intrusion of privacy essentially
entails the same evaluation as the second-step of the reasonableness standard mandated under
T.L.O.: whether "the measures adopted are reasonably related to the objectives of the search and
not excessively intrusive in light of the age and sex of the student and the nature of the
infraction." 469 U.S. at 341-42.
19. Compare, e.g., United States v. Pulido-Baquerizo (9th Cir. 1986) 800 F.2d 899, 902
(airport signs warned passengers of luggage inspection); United States v. Lopez-Pages (11th Cir.
1985) 767 F.2d 776, 779 n.2 (sign at airport security checkpoint warning of search); United
States v. De Angelo (4th Cir. 1978) 584 F.2d 46, 47-48 (signs in airport terminal), cert. denied
(1979) 440 U.S. 935; Edwards, 498 F.2d at 499, 501 (signs and announcement over airport
loudspeakers); Albarado, 495 F.2d at 802, 808 (signs posted in English and Spanish throughout
airport terminal and at the boarding gate and periodic announcements made in English and
Spanish); Doran, 482 F.2d at 931 (sign at airport boarding podium and before reaching
magnetometer in boarding area and public address announcement); Lopez, 328 F. Supp. at 1083
(signs in English and Spanish at airport boarding gates); compare also Henry, 615 F.2d at 1229,
1231 (inferring knowledge through increasing public awareness of airport security searches);
United States v. Skipwith (5th Cir. 1973) 482 F.2d 1272, 1273, 1274 (knew or should've known
18
parents with written notice prior to the school year that metal detector searches will take place
under specified circumstances at schools within the district. As one court has observed, "the
offensiveness of the screening process is somewhat mitigated by the fact that the person to be
searched must voluntarily come to and enter the search area. He has every opportunity to avoid
the procedure by not entering the boarding area." Skipwith, 482 F.2d at 1275-76. While students
aged six to eighteen are under a statutory compulsion to attend school, see Education Code
section 48200, advance notice allows for the removal of items which might otherwise cause
embarrassment if revealed during the metal detector scan. Compare Hyde, 12 Cal.3d at 175-76
(Wright, C.J., concurring); Lopez, 328 F. Supp. at 1083.
c. Minimizing the Intrusion At Each Juncture
In addition to prior notice, other suggested steps can be employed with the goal of
minimizing the intrusion into privacy during each phase of the search. Prior to the metal
detector scan, all students may be asked to empty their pockets and belongings of all metal
objects. If the metal detector is activated during a walk-through, any expanded search should be
as limited as possible consistent with the objective of preventing or deterring the presence of
weapons on school grounds and with the noted school interests (e.g., in maintaining discipline
and order). For example, after an initial metal detector activation occurs, a second walk-through
could be requested. Cf. Albarado, 495 F.2d at 803 n.3, 808-09. If a second activation results, a
hand-held magnetometer could be used, if available, to focus on and discover the location of the
metal source. If the activation is not eliminated or explained, it may then be necessary to expand
the scope of the search. Cf. Wilkinson, 832 F.2d at 1340 (authorizing use of "magnetometer
searches of persons and packages" at Ku Klux Klan rallies "followed by frisks where the
magnetometer indicates the presence of metal and the situation cannot be resolved by the use of
the magnetometer alone"); Epperson, 454 F.2d at 772 (noting after opportunity to remove metal
objects and once the activation of the magnetometer at the airport "was not satisfactorily
explained," "the subsequent physical `frisk'" was justified and reasonable).
Under the governing test of "reasonableness, under all the circumstances," any greater
subsequent intrusion could be minimized by asking the student to proceed to a private area.
Compare, e.g., Lopez-Pages, 767 F.2d at 779 (intrusion minimized by moving from general
airport security area to a private office before proceeding to a pat-down search); United States v.
Moreno (5th Cir.) 475 F.2d 44, 51 (same), cert. denied (1973) 414 U.S. 840. Any expanded
search, such as a request to open purses or bookbags or frisks, could be conducted by school
officials of the same sex as the students searched. Further, school officials may be specifically
instructed to limit any search to the detection of weapons. Compare McMorris, 567 F.2d at 900
(similar instruction concerning courthouse searches); compare also Albarado, 495 F.2d at 808
(noting "any further investigation after activation of the magnetometer is for the metal that did
the activation; activating the magnetometer is not a general license to search for anything").
Thus, a school official could not use the fact of an unexplained activation to search a container
which could not hold a weapon. Cf. United States v. Kroll (8th Cir. 1973) 481 F.2d 884, 887 (in
airport search, it was unreasonable to examine envelope's contents for possibility of weapons). If
no less restrictive alternatives remain available, a limited pat-down might then be necessary.
airline passengers were subject to search); Barrett v. Kunzig (M.D. Tenn. 1971) 331 F. Supp.
266, 270, 274 (front and rear entrance signs furnishing advance notice of courthouse search),
cert. denied (1972) 409 U.S. 914; Hyde, 12 Cal.3d at 175-76 (Wright, C.J., concurring)
(discussing role of advance notice as a major factor in analyzing validity of the search); cf.
Schaill, 864 F.2d at 1321-22 (prior written notice and consent forms of suspicionless urinalysis
program given to high school student athletes); but see People v. Dooley (1st Dist. 1976) 64
Cal.App.3d 502, 513-14 (noting under some circumstances advance notice of an airport luggage
search may not be required, such as where an anonymous telephone report of a bomb has been
made).
19
Albarado, 495 F.2d at 808. Another relevant factor may include whether the search is subject to
supervision and is conducted within scrutiny of the public. Skipwith, 482 F.2d at 1276. For
purposes of "reasonableness" under the Fourth Amendment, each aspect of the search or
invasion of privacy is evaluated separately. See, e.g., T.L.O., 469 U.S. at 343 (evaluating two
searches of student's purse separately); see also Klarfeld v. United States (9th Cir. 1991) 944
F.2d 583, 586-87 (evaluating separate search concerning request for removal of shoes after
magnetometer had activated twice); Albarado, 495 F.2d at 805-10 (analyzing use of
magnetometer separately from frisk).
These steps, which are only suggestive and not mandatory for all metal detector searches
of students, seek to minimize the intrusion of privacy at each phase of any expanded search.
This recommended approach permits the deterrence objective of metal detector searches to be
attained while respecting the privacy interests at stake. Other steps may be taken which are not
mentioned here that also promote these aims. Ultimately, the question of whether a specific
search satisfies the standard of "reasonableness, under all the circumstances," will turn on the
facts presented in the particular case.
d. Indiscriminate Application of
Established Procedures
One suggested manner of conducting metal detector searches is on an indiscriminate
basis. A search which screens every individual or object will not be "subject to the discretion of
the official in the field."20/ A fixed, permanent metal detector which is applied to all individuals,
of course, eliminates any exercise of official discretion in determining who is searched.21/
Further, any possible stigma associated with a metal detector search dissipates by the even-
handed application of the search. Skipwith, 482 F.2d at 1275.
20. Camara, 387 U.S. at 532; compare Henry, 615 F.2d at 1228 (non-discriminatory x-ray
scan of every object brought to airport boarding gates); Edwards, 498 F.2d at 500 (metal detector
search applied to everyone and all carry-on baggage); Albarado, 495 F.2d at 805 (noting "all
passengers are searched" by the magnetometer at airports even though few weapons are
detected); United States v. Davis (9th Cir. 1973) 482 F.2d 893, 910 (indiscriminate security
check of all carry-on luggage); Barrett, 331 F. Supp. at 270, 274 (Because the "packages and
briefcases of all persons who enter the [courthouse] building, except those who work there and
have been issued special identification cards, are inspected" "the inspection is not accusatory in
nature.") (emphasis added); compare also 4 W. LaFave, Search & Seizure, A treatise on the
Fourth Amendment (2d ed. 1987) § 10.6(c), at 18 ("Such a risk [of arbitrary discretion of the
official in the field] is not present under the hijacker detection screening system, as all those who
pass the check point are subject to the established procedures and those conducting the searches
play no part in determining who will choose to include themselves within the group of persons to
be screened.").
21. As Justice Stevens has observed:
Permanent, nondiscretionary checkpoints could be used to control serious
dangers at other publicly operated facilities. Because concealed weapons
obviously represent one such substantial threat to public safety, I would suppose
that all subway passengers could be required to pass through metal detectors, so
long as the detectors were permanent and every passenger was subject to the same
search.
Sitz, 496 U.S. at 473-74 (Stevens, J., dissenting); see also Hyde, 12 Cal.3d at 177 (Wright, C.J.,
concurring).
20
The absence of a fixed, permanent metal detector, however, does not mean a metal
detector scan is necessarily unreasonable, within the meaning of the Fourth Amendment. For
example, any potential for arbitrary interference by school officials is eliminated by the even-
handed application of the metal detector search to all individuals or objects at the school or event
at which the search is conducted. Thus, a school may decide that non-permanent metal detector
searches may be warranted only at certain school events (e.g., football games or dances). To
promote the interest in safety and to maintain order and discipline, school officials are entitled to
some flexibility in determining when and where to use metal detector searches. Cf. T.L.O., 469
U.S. at 340.
e. Random Application of Established
Procedures
The reasonableness of random metal detector searches turns on whether adequate
safeguards are employed so that metal detector searches will not be "subject to the discretion of
the official in the field." The salient factor in considering if a random search is reasonable is
whether a uniform, established procedure is employed to all those subject to the search. Where a
preestablished administrative plan is followed, the opportunity for officials in the field to
exercise arbitrary discretion is diminished or eliminated. See, e.g., Brown v. Texas (1979) 443
U.S. 47, 51 (noting that one manner of "assur[ing] that an individual's reasonable expectation of
privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the
field" is to require that the search or the seizure is "carried out pursuant to a plan embodying
explicit neutral limitations on the conduct of individual officers"); cf. Ingersoll, 43 Cal.3d at
1341-42 ("The decision to establish a sobriety checkpoint, the selection of the site and the
procedures for the checkpoint operation should be made and established by supervisory law
enforcement personnel, and not by an officer in the field. This requirement is important to
reduce the potential for arbitrary and capricious enforcement."). As long as the opportunity for
arbitrary discretion by officials in the field is purged by procedures established in an
administrative policy, random searches may satisfy the requirement of "reasonableness" under
the Fourth Amendment.
(1) Schools
The application of metal detector searches to randomly selected schools within a
particular school district, where reasonably applied, may further the deterrence objective.
School officials may conclude there are no less restrictive alternatives to random metal detector
searches to deter the presence of concealable weapons in some instances. Moreover, some
school districts may not be able to afford fixed, permanent metal detectors at every entrance in
every school.
The best means of protecting against arbitrary discretion is by the even-handed
application of metal detectors to all individuals and objects entering the school. While the
particular school may have been randomly selected, this approach ensures that the same
established procedure is applied to all who pass through. Further, the random selection of a
particular school by neutral criteria mitigates the possibility of arbitrary discretion.
(2) Individuals
Correspondingly, it would not be unreasonable under the Fourth Amendment to search
randomly students or entrants to the school so long as arbitrary discretion in the field was not
employed in selecting which specific persons would be searched. As Judge Friendly has written
in the related airport search context, "Since all air passengers and their baggage can thus be
constitutionally searched, there is no legal objection to searching only some, thereby lessening
inconvenience and delay, provided there is no national or racial discrimination without a rational
basis (such as the destination of a particular flight)." United States v. Bell (2d Cir. 1972) 464
21
F.2d 667, 675 (Friendly, C.J., concurring), cert. denied (1972) 409 U.S. 991. Thus, school
officials could use neutral criteria to determine that every fifth person entering the school, for
example, would be subject to the metal detector scan. This would retain the deterrent objective
of the search; eliminate any exercise of official discretion in the field as to determining whether
any specific person would be searched; and would minimize inconvenience and delay associated
with searching an entire school's population. This approach has been upheld in other
suspicionless searches. See Schaill, 864 F.2d at 1321 (finding that the urinalysis testing of high
school student athletes selected "by drawing numbers on a random basis" ensured that "officials
in charge will not exercise any discretion as to who will be chosen"); Ingersoll, 43 Cal.3d at
1327, 1342 (upholding sobriety checkpoint detention of every fifth car and supporting the
application of "a neutral formula such as every driver or every third, fifth or tenth driver" in
order to limit discretion of field officers); accord Von Raab, 489 U.S. at 667 (noting that where
government officials do "not make a discretionary determination to search based on a judgment
that certain conditions are present, there are simply `no special facts for a neutral magistrate to
evaluate,' as mandated under a warrant requirement") (citation omitted).
4. Balancing Test Application
Under recent United States Supreme Court case law, a consideration of the privacy rights
and governmental interests in issue dictates the conclusion that individualized suspicion is not
mandated under the Fourth Amendment for the reasonable application of metal detectors to deter
weapons in schools. First, as noted, a metal detector scan constitutes an insubstantial intrusion
of privacy. See Skinner, 489 U.S. at 624 (noting role of minimal intrusion on question of
whether individualized suspicion is required for particular searches); T.L.O., 469 U.S. at 342
(same); see also Discussion in Subsection II(D)(1), supra.
Second, the use of metal detectors serves as a screening device, isolating a smaller class
of individuals who may be subjected to an expanded search. Where a greater intrusion is called
for, other safeguards ensure that reasonable procedures are employed to minimize any intrusion
and protect against any potential for arbitrary exercise of discretion of officials in the field. See
Prouse, 440 U.S. at 655 (discussing role of other safeguards); Martinez-Fuerte, 428 U.S. at 562
(same). As already discussed, such reasonable steps may include, but are not limited to, prior
notice and a request to discard all metal objects before individuals pass through the metal
detector; searches by school officials of the same sex as the students searched; and the
conducting of more expansive searches out of view of the general student population. Moreover,
the adoption of an administrative plan by policymakers to govern metal detector searches
eliminates the risk of and potential for arbitrary discretion by officials in the field.
Finally, the use of school metal detectors to deter weapons may constitute one of those
"limited circumstances" where "the [school's] need to discover such latent or hidden conditions,
or to prevent their development, is sufficiently compelling to justify the [minimal] intrusion on
privacy entailed by conducting such searches without any measure of individualized suspicion."
Von Raab, 489 U.S. at 668. Several government interests at stake certainly independently
outweigh the minimal intrusion of privacy. See Von Raab, 489 U.S. at 668 (applying balancing
test); Skinner, 489 U.S. at 624; Martinez-Fuerte, 428 U.S. at 562. For reasons already stated, the
state has what has been termed a "compelling interest" in the education and training of students.
T.L.O., 469 U.S. at 350 (Powell, J., concurring); see also Discussion in Subsection II(D)(2)(a),
supra. Schools also have a "substantial interest" in maintaining discipline and order in the school
forum. T.L.O., 469 U.S. at 339; see also Education Code section 35291.5 (requiring each public
school to promulgate discipline rules); Discussion in Subsection II(D)(2)(b), supra. Further, the
government interest in safety and the duty to protect students and school personnel is well-
established in the California Constitution, statutes and case law. See Discussion in Subsection
II(D)(2)(c), supra. Finally, schools have a strong interest in deterring weapons on school
grounds. See Discussion in Subsection II(D)(2)(d), supra. A requirement of individualized
22
suspicion for school metal detector searches to detect concealed weapons could frustrate the
school's interest in deterring the presence of weapons on school grounds. Skinner, 489 U.S. at
624 (noting compelling interests "would be placed in jeopardy by a requirement of
individualized suspicion").
Significantly, this conclusion comports with analogous cases outside the school context
where individualized suspicion has not been mandated for metal detector searches, compare
Wilkinson, 832 F.2d at 1332, 1340 (holding individualized suspicion was not required for
magnetometer searches conducted at outdoor Ku Klux Klan rallies), as well as with cases in the
school setting where more intrusive searches have been permitted without individualized
suspicion. Compare Schaill, 864 F.2d at 1315-22 (upholding random urinalysis drug testing of
high school interscholastic athletes and cheerleaders without individualized suspicion).22/
5. Other Potential Contentions and Issues
In cases sustaining suspicionless searches, the United States Supreme Court and other
courts have addressed specific contentions and noted several factors which may bear upon the
reasonableness or validity of the search at stake. As will be noted, the reasonable application of
metal detector searches satisfies these concerns, including: (a) the relevancy of the incidence of
detection; (b) a showing of the prior demonstrated need for the search; and (c) the role of less
restrictive alternatives.
a. The Relevancy of the Incidence of Detection
One issue involves the use of particular suspicionless searches where the incidence of
detection of the harm at stake is low relative to the number of persons searched. This contention
was directly addressed by the United States Supreme Court in Von Raab, involving a drug-
testing program of U.S. Customs Service employees seeking transfer or promotion to specified
positions. There, the Court highlighted the substantial deterrence objective involved, noting that
where "the possible harm against which the Government seeks to guard is substantial, the need
to prevent its occurrence furnishes an ample justification for reasonable searches calculated to
advance the Government's goal." Von Raab, 489 U.S. at 674-75. In support of this proposition,
the United States Supreme Court quoted approvingly the language of Judge Friendly concerning
the suspicionless airport searches of individuals and carry-on luggage to deter dangerous conduct
in air travel:
When the risk is the jeopardy to hundreds of human lives
and millions of dollars of property inherent in the pirating or
blowing up of a large airplane, that danger alone meets the test of
reasonableness, so long as the search is conducted in good faith for
the purpose of preventing hijacking or like damage and with
reasonable scope and the passenger has been given advance notice
of his liability to such a search so that he can avoid it by choosing
not to travel by air.
Von Raab, 489 U.S. at 675 n.3 (quoting Edwards, 498 F.2d at 500 (emphasis in original)); see
also Albarado, 495 F.2d at 806 (similar).
22. Assuming arguendo, a requirement of individualized suspicion was held to apply to
school metal detector searches under the rationale of T.L.O. and its progeny (an unlikely
proposition in light of the substantial, compelling state interests and minimal intrusion of
privacy), such suspicionless searches would nonetheless be reasonable under the administrative
search doctrine. This separate exception to the warrant and individualized suspicion
requirements normally applied under the Fourth Amendment is considered in subsection II(E),
infra.
23
With regard to the low number of detected weapons in airline search cases, the United
States Supreme Court stated, "When the Government's interest lies in deterring highly hazardous
conduct, a low incidence of such conduct, far from impugning the validity of the scheme for
implementing this interest, is more logically viewed as a hallmark of success." Von Raab, 489
U.S. at 676 n.3. Similarly, numerous cases have held that a low incidence of detection does not
invalidate the search in the airport or in other contexts.23/
The same rationale employed in these related suspicionless search cases would result in
an identical conclusion from the use of school metal detectors. The minimal intrusion of privacy
from the metal detector scan averts the potential for grievous harm, including injury or the loss
of life of a minor or school personnel or property damage and the complete disruption of the
learning environment. In some instances, the trauma and shock to students and schools resulting
from a weapons incident may be among the most scarring and upsetting events imaginable. In
this environment, the detection of only a few concealable weapons by detectors in this
environment may serve as the best indicia concerning the efficacy of the deterrence objective.
b. Demonstrated Need
An associated question concerns whether an articulated demonstration of harm and need
must be established before metal detector searches can be employed at a particular school.
Certainly, the application of student metal detector searches would be most warranted at schools
where a causal nexus of necessity is established (i.e., a history of weapon usage). Before
resorting to metal detectors in particular schools or school districts, it is strongly recommended
that school administrators make a specific finding why this weapons deterrence system is being
adopted. For example, school officials might point to particular incidents involving weapons by
students or a developing pattern of weapon usage or presence. Such a finding would allow a
court, if necessary, to review the context in which the school decided to adopt a weapons
prevention program involving metal detectors.
Although it is highly recommended that schools adopt specific findings identifying the
rationale which lead to the employment of metal detectors, a prior pattern of harm resulting from
weapons has not been required in related suspicionless search contexts. In evaluating the
validity of metal detector searches at specific airports or courthouses, for example, courts have
traditionally taken judicial notice of the general harm warranting the use of these metal detector
23. See, e.g., Sitz, 496 U.S. at 454-55 (noting low number of drunk driving arrests made
through sobriety checkpoints); Martinez-Fuerte, 428 U.S. at 554 (noting low rate of
apprehension of deportable aliens relative to number of cars passing through permanent border
checkpoint); Schaill, 864 F.2d at 1320 n.14 (noting "the lack of positive urinalysis results"
among high school student athletes in one test "may be as easily explained by the deterrent effect
of the urinalysis program as by the absence of any drug usage among" the students); Albarado,
495 F.2d at 805 & 806 (noting use of magnetometers at airports "could be viewed as `inefficient'
in that all passengers are searched, but only a fraction of one per cent have weapons" and
concluding "the use of a magnetometer is a reasonable search despite the small number of
weapons detected in the course of a large number of searches"); Lopez, 328 F. Supp. at 1097
(noting that given the "substantial interest in preserving the integrity and safety of air travel by
preventing hijacking . . . a 6% danger of arms suffices to justify a frisk" for weapons at airport
boarding areas under the circumstances); Ingersoll, 43 Cal.3d at 1337 ("An absence of arrests
does not indicate a sobriety checkpoint is a futile exercise. It more likely indicates that the
existence of the checkpoint program has succeeded in inducing voluntary compliance with the
law, thus fulfilling the program's primary objective of keeping automobiles operated by impaired
drivers off the road.").
24
searches.24/
As a general matter, the pervasive and growing problem of weapons in many California
schools is now beyond dispute. The most recent report from the California Department of
Education notes a disturbing, unbroken trend of the increasing presence of weapons in public
schools. See Fourth Annual California School Crime Report (discussing dramatic increase in
student weapons possession over four-year reporting period), supra; and Discussion in
Subsection II(D)(2)(b), supra. Similarly, recent newspaper articles have reported specific
incidents and injuries resulting from students using weapons on or near school grounds.25/
24. See, e.g., McMorris, 567 F.2d at 899-900; United States v. Homburg (9th Cir. 1976) 546
F.2d 1350, 1353, cert. denied (1977) 431 U.S. 940; see also Justice v. Elrod (7th Cir. 1987) 832
F.2d 1048, 1050 (noting as "a matter of common knowledge" the "metal-detector method of
search" employed at the Cook County Circuit Court and upholding courthouse metal detector
searches where "there is some reason -- there needn't be much -- to expect that armed and
dangerous people might otherwise enter") (emphasis added); Downing v. Kunzig (6th Cir. 1972)
454 F.2d 1230, 1231 n.1 (briefcase search at federal courthouse); The Legal Aid Society of
Orange County v. Crosson (S.D.N.Y. 1992) 784 F. Supp. 1127, 1131 (in upholding the use of
metal detectors at state family court, noting that "the absence of [specific reports of violent
incidents or weapons at the specific court in question] does not prevent us from viewing the
prevention of such incidents as of significant importance" and that the court "does not need to
wait until a tragically violent episode occurs as happened at [another court] in 1984 before it can
institute magnetometer searches"); Barrett, 331 F. Supp. at 269 (in courthouse search case,
considering "[e]vidence . . . as to the number of bomb threats in this general area of the country"
and receiving "evidence . . . as to bombings in other areas of the country"); Hyde, 12 Cal.3d at
166-67 (taking judicial notice of number of reported annual hijackings with regard to airport
searches); Rhode Island Defense Attorneys Ass'n v. Dodd (R.I. 1983) 463 A.2d 1370, 1372
("tak[ing] judicial notice that threats of violent acts directed at courthouses and court personnel
have given rise to an urgent need for security protections"); 4 W. LaFave, Search & Seizure (2d
ed. 1987) § 10.7(a), at 39 (noting for courthouse searches "it is not correct to say that the GSA
inspection program requires a building-by-building showing of the risk of bombing, any more
than the hijacker detection program requires an airport-by-airport showing of the risk of
hijacking") (emphasis added); accord Von Raab, 489 U.S. at 675 n.3 ("It is sufficient that the
Government have a compelling interest in preventing an otherwise pervasive societal problem
from spreading to the particular context.").
25. Some cases have based judicial notice in part on current newspaper articles. See, e.g.,
Homburg, 546 F.2d at 1353 & n.5.
A brief review of recent newspaper articles demonstrates the problem and danger of
weapons in California public schools. See, e.g., Increased Alarm Over Guns At School, San
Francisco Chronicle, at A14 (Aug. 3, 1992) (noting during the 1991-92 school year, "38 guns
and 51 knives [were] confiscated on public school campuses in Oakland . . . and authorities fear
that these weapons represent only a fraction of the lethal hardware being carried by students"); 4
Slain in School Terror, Sacramento Bee, at A1 (May 2, 1992) (Lindhurst High School tragedy
resulting in the shooting of 15 people and killing of 4); Up to 90,000 U.S. Students Carry Guns,
Experts Say, Los Angeles Times, at A25 (Mar. 26, 1992) (noting during 1990-91, 33 guns were
confiscated from elementary students, 137 from junior high school students, and 140 from high
school students, in or near the 651 schools of the Los Angeles Unified School District); Gangs:
Appalling Loss of Human Potential, Sacramento Bee, at A2 (Mar. 14, 1992) (noting "in
Sacramento County . . . officials are confiscating more than 40 guns and nearly 300 knives a year
on school grounds"); Van Nuys Man, 18, Charged In Campus Shooting, Los Angeles Times, at
B2, col. 5 (Mar. 4, 1992) (18-year-old was charged with shooting two 15-year-olds during a
gang confrontation, involving 5 or 6 shots as school commenced at Robert Fulton Junior High
25
Published California decisions have also indicated the problems of weapons in schools.26/
The reason a level of demonstrated need may not have been required in related metal
detector cases may be because of some difficulty the court could encounter in attempting to
interpose a specific quantum to justify the introduction of metal detectors. For example, in light
of the established general and growing problem with weapons in schools, in some circumstances,
to mandate that a specific threshold of harm must be crossed to justify the introduction of metal
School); Chula Vista; Student Argument Leads to Stabbing, Los Angeles Times, at B4 (Feb. 26,
1992) ("An argument between two Chula Vista High School students escalated into a knife fight
Tuesday that sent a student to the hospital with a collapsed lung."); East Bay High School Fans
to be Searched, San Francisco Chronicle, at A19 (Feb. 15, 1992) ("Police confiscated 60
weapons in a record 4,592 calls to Oakland schools from September through the end of
January."); Keep the Police at School, San Diego Union (Feb. 12, 1992) (editorial) (noting "143
weapons were confiscated, including 24 handguns" during the last school year in San Diego
schools); Student Wounded in Russian Roulette Dies, Los Angeles Times, at B6 (Jan. 10, 1992)
(Gunderson High School sophomore in San Jose shot himself with a .38-caliber revolver playing
Russian roulette in school parking lot); Girl wounded by gunshot at Kennedy High, Sacramento
Bee (Dec. 19, 1991) (noting shooting of 13-year old girl "by teenage boy who apparently fired a
pistol on a dare and did not intend to hit anybody"); School Cops in Elk Grove Call Again for
Guns, Sacramento Bee, at B1 (Dec. 14, 1991) (noting campus police in the Elk Grove Unified
School District wish to be armed "because they fear gun-toting youths"); 3 Junior High Youths
Plead Guilty in Failed Plot to Kill Fellow Student, Los Angeles Times, at A26, col.5 (Nov. 26,
1991) (reporting "two 13-year-olds and one 14-year-old were among 11 students accused" of
conspiracy to commit manslaughter at Walter Colton Junior High School near Monterey); Bay
Area Teachers Becoming Fearful, San Francisco Chronicle, at A1 (Nov. 20, 1991) (noting four
gun firings in Oakland schools since September and that in 1990-91 "219 students were
suspended for possessing weapons" in San Francisco "nearly twice as many as three years ago");
Eighth-Grader Wounds Himself with Gun Brought by Student, Los Angeles Times, at B1 (Mar.
13, 1991) (noting accidental incident at Northridge Junior High School and that 354 guns were
confiscated from Los Angeles Unified School District during the 1989-90 school year); Stabbing
Makes Schools Rethink Campus Security, San Jose Mercury, at 4B (Sept. 20, 1990) (noting
student knife stabbing at San Jose's Pioneer High School); see also It's Not Just New York,
Newsweek, at 25, 26 (Mar. 9, 1992) (reporting "almost 3 million crimes occur on or near school
campuses every year -- 16,000 per school day, or one every 6 seconds" and noting "[g]un
violence is on the rise in schools all over America, and the nation's children are trapped in its
path"); Life-And-Death Lessons; Education: County Schools May Begin Teaching Students
About Gun Dangers, Los Angeles Times, at B1, col.2 (Jan. 27, 1992) (reporting under one
estimate 135,000 students bring guns to school every day nationwide); Headline News: Guns in
Schools, USA Today, at 10A (Nov. 12, 1991) (noting "[u]p to 135,000 guns are carried into
schools each day" and listing numerous weapon incidents in schools in California and around the
country during 1991); Detroit Officials Grapple with Increase in School Shootings, L.A. Times,
at 16, col.4 (June 6, 1986) (noting that "the increased ease with which guns are becoming
available to teen-agers has worsened the climate of fear in many inner city schools").
26. See, e.g., Fremont Union High School District, 235 Cal.App.3d at 1184 (student used a
stun gun on another student during student altercation during school lunch period); Alexander B,
220 Cal.App.3d at 1577-78 (discovery of machete knife and scabbard held by Grant High School
student in Van Nuys); Frederick B, 192 Cal.App.3d at 83 (discovery of loaded pistol held by
Richmond High School student); In re Guillermo M. (2d Dist. 1982) 130 Cal.App.3d 642 (school
security agent removed knife with a four-inch blade from possession of minor on public school
grounds); see also Halliman v. Los Angeles Unified School Dist. (2d Dist. 1984) 163 Cal.App.3d
46, 48 (teacher at Milliken Junior High School hit in head by student who intentionally threw
rock).
26
detectors could unduly tie the hands of school officials pending the occurrence of an
unacceptable incident or injury. The proper school authorities must be able to respond whenever
a clear and present danger of weapons in schools exists. Concededly, determining when that
threshold level of harm has been reached will not always be easy to ascertain. Since schools are
charged with the duty of providing a safe learning environment, school officials are in the best
position to make this decision. Schools cannot be denied legitimate, proven, preventative means,
which are reasonably applied, in order to pursue their missions to: (a) educate and train; (b)
maintain discipline and order; (c) provide a safe school environment for learning; and (d)
deterring weapons on school grounds. The proper school officials, of course, would have to
determine whether their school or school district is an appropriate candidate for metal detector
searches or whether alternative safety approaches to deter weapons may be preferred to, or used
in conjunction with, metal detectors.
To reiterate, it is highly recommended that an explicit finding be made by school officials
stating the reasons for introducing metal detector searches in schools. Analogous case law
indicates, however, that a specific weapons accident or incident need not precede the
introduction of metal detectors in schools. In order to provide a safe learning forum, school
officials may respond to the general harm caused by weapons in their school or school district.
c. The Role of Less Restrictive Alternatives
The availability of less restrictive alternatives is an important factor concerning the
reasonableness of the search but is not dispositive on the validity of a search. In analogous metal
detector search cases which were based upon the administrative search doctrine, the United
States Court of Appeals for the Ninth Circuit has noted that the availability of less restrictive
alternatives alone could make the search in question unreasonable. Relying on United States
Supreme Court precedent, other federal courts have now expressly disagreed with this
proposition in the metal detectors search context.27/ In several cases, the United States Supreme
Court has clearly held that the mere availability of less restrictive alternatives does not mean a
27. The Ninth Circuit has applied a requirement of less restrictive alternatives as a
dispositive element. See, e.g., Klarfeld, 944 F.2d at 587 (suggesting and remanding on the
question whether "[a] method of search which exposes the person searched to substantial
embarrassment could well be more intrusive" than other less restrictive alternatives and
consequently unnecessary, and noting such a search may rise to the level of a fourth amendment
violation); Davis, 482 F.2d at 910 ("To meet the test of reasonableness, an administrative
screening must be as limited in its intrusiveness as is consistent with satisfaction of the
administrative need that justifies it."); but see Klarfeld v. United States, (9th Cir. 1992) 962 F.2d
866, 868 (Kozinski, J., dissenting from the denial of rehearing en banc) (noting the panel
decision in Klarfeld "gives everyone who walks through a magnetometer a constitutional right to
choose what particular screening method he would `rather' be subjected to").
By way of comparison, the United States Court of Appeals for the Second Circuit
previously imposed a requirement of less restrictive alternatives for metal detector searches. See
Albarado, 495 F.2d at 806. However, the Second Circuit has recognized under more recent
United States Supreme Court authority "this is undoubtedly no longer good law." Wilkinson,
832 F.2d at 1340 n.13; see also id. (and cases cited therein) (noting "the consideration of
alternative means that might have been employed remains a legitimate factor in fourth
amendment analysis" but the mere availability of less restrictive alternatives does not make a
search unreasonable) (emphasis added); cf. Rushton v. Nebraska Public Power District (8th Cir.
1988) 844 F.2d 562, 567 n.9 (citing United States Supreme Court cases for the proposition that
"the Fourth Amendment . . . does not require the government to choose the least intrusive
method").
27
search, including suspicionless searches, is necessarily unreasonable.28/
Therefore, under well-established United States Supreme Court precedent, one factor
bearing on the reasonableness of the metal detector search is whether the inspection is "confined
to minimally intrusive techniques designed solely to disclose the presence of weapons." Hyde,
12 Cal.3d at 168; see also People v. Bleile (2d Dist. 1975) 44 Cal.App.3d 280, 284-85 (under the
circumstances of the airport search, marshal was not required to pass laundry bag through
magnetometer before opening bag). As a general rule, less restrictive alternatives should always
be pursued in order to minimize the invasion of privacy interests. But in evaluating the
"reasonableness, under all the circumstances, of the search," the failure to employ a less
restrictive alternative will not alone violate the Fourth Amendment requirement of
reasonableness. Moreover, in the school setting, after considering or trying other means to deter
weapons in schools, school officials may come to the conclusion that metal detectors are the only
less restrictive alternative for their particular school or school district. Cf. McMorris, 567 F.2d
at 900 (noting magnetometer courthouse search "is less restrictive than alternative methods").
6. Conclusion
The analysis set forth in T.L.O. and William G, and their progeny, provides the most
suitable framework for evaluating Fourth Amendment issues concerning school official searches
of students. Since the Fourth Amendment test of "reasonableness" is contextual, these cases take
into account the unique interests and factors implicated in the school setting, including the
special relationship between students and teachers and the primary mission of schools to teach,
train, and maintain order and discipline. See Montoya de Hernandez, 473 U.S. at 537 (noting
"reasonableness" involves a contextual inquiry); T.L.O., 469 U.S. at 337 (same); see also
Skinner, 489 U.S. at 669 (recognizing that in limited circumstances, which involve "special
needs, beyond the normal need for law enforcement," the warrant and probable cause
requirements may not apply); T.L.O., 469 U.S. at 351 (Blackmun, J., concurring) (noting "special
needs" standard for application of Fourth Amendment in school context); and note 8, supra
(discussing application of "special needs" doctrine to schools).
In employing this analysis, the reasonable application of metal detector searches of
students by school officials satisfies the test of "reasonableness, under all the circumstances,"
mandated under the Fourth Amendment for student searches. Metal detectors serve to deter
weapons, including concealable weapons which may otherwise be difficult to discover. While
school officials must be sensitive to the legitimate privacy interests of students, metal detector
searches constitute a minimal intrusion of privacy. Moreover, as discussed, reasonable
procedures can be adopted which minimize the intrusion of student privacy and promote the
28. See Skinner, 489 U.S. at 629 n.9 (and cases cited therein) (noting "insistence on less
drastic alternatives" would permit judicial second-guessing); Illinois v. Lafayette (1983) 462
U.S. 640, 647 ("The reasonableness of any particular governmental activity does not necessarily
or invariable turn on the existence of alternative `less intrusive' means."); Bell v. Wolfish (1979)
441 U.S. 520, 559 n.40 (discussing the relevancy of issue and whether metal detection
equipment constituted a less intrusive alternative to cavity inspections of pretrial detainees);
Martinez-Fuerte, 428 U.S. at 557 n.12 (noting a requirement of less restrictive alternatives
"could raise insuperable barriers to the exercise of virtually all search-and-seizure powers");
accord Sitz, 496 U.S. at 453-54 (noting "for purposes of Fourth Amendment analysis, the choice
among such reasonable alternatives remains with the governmental officials who have a unique
understanding of, and a responsibility for, limited public resources, including a finite number" of
government officials); Schaill, 864 F.2d at 1321 (noting "[t]he school's choice of appropriate
means to combat this health and disciplinary problem [through a urinalysis program on student
athletes] will not be overturned unless unreasonable in light of available alternatives" and that a
supported, "reasonable decision . . . is entitled to considerable deference.").
28
primary deterrence objective. Under recent United States Supreme Court case law,
individualized suspicion is not required to conduct metal detector searches in schools, given the
minimal intrusion of privacy and countervailing school interests. As previously noted, these
school interests include the interest in: education and training of the students; maintaining
discipline and order in the classroom and on school premises; providing a safe, secure
environment for learning; and deterring weapons on school grounds. At stake are not only the
privacy interests of a particular student but also the safety concerns of others, including fellow
students as well as teachers and other school personnel. While the T.L.O. rationale is best suited
for evaluating student searches, this opinion will next consider an alternative legal theory under
the administrative search doctrine which has been used to confront Fourth Amendment issues
concerning metal detectors in other contexts.
E. ADMINISTRATIVE SEARCH DOCTRINE
In a number of limited contexts, the Fourth Amendment administrative search doctrine
has been used to conduct searches for a regulatory purpose without a warrant or without any
basis to suspect a particular individual of violating the administrative regulation. See, e.g.,
Camara v. Municipal Court (1967) 387 U.S. 523; see also Donovan v. Dewey (1981) 452 U.S.
594 (upholding federal statute authorizing warrantless inspections of underground and surface
mines); United States v. Biswell (1972) 406 U.S. 311, 316 (upholding federal statute authorizing
warrantless inspections of firearm or ammunition dealers). Administrative searches, for
example, have been used to justify the use of metal detectors to prevent or deter the carriage of
weapons aboard airplanes or into courthouses, and for airport searches of quarantined fruits,
vegetables and plants.29/ As will be shown, the administrative search doctrine provides an
independent basis to justify the reasonable application of metal detectors in schools.
1. Discussion
Under the administrative search doctrine, warrantless "searches conducted as part of a
general regulatory scheme in furtherance of an administrative purpose, rather than as part of a
criminal investigation to secure evidence of crime, may be permissible under the Fourth
Amendment though not supported by a showing of probable cause directed to a particular place
or person to be searched." Davis, 482 F.2d at 908; see also Hyde, 12 Cal.3d at 165; accord Von
Raab, 489 U.S. at 668 (noting "the traditional probable-cause standard may be unhelpful in
analyzing the reasonableness of routine administrative functions, especially where the
Government seeks to prevent the development of hazardous conditions or to detect violations
that rarely generate articulable grounds for searching any particular place or person") (citations
omitted; emphasis in original). Thus, in the airport context, including the use of metal detectors,
"screening searches of airline passengers are conducted as part of a general regulatory scheme in
29. See, e.g., Von Raab, 489 U.S. at 675 & n.3 (citing with approval airport search cases
analyzed under the administrative search doctrine); Klarfeld, 944 F.2d at 586 (warrantless
administrative search to inspect entrants to federal courthouse); McMorris, 567 F.2d at 899
(warrantless administrative search to inspect entrants to state courthouse); United States v.
Schafer (9th Cir.) 461 F.2d 856, 857 (warrantless administrative search to inspect for
quarantined agricultural items), cert. denied (1972) 409 U.S. 881; Owens, 134 Cal.App.3d at 147
(x-ray examination of checked airport luggage constituted valid administrative search); and cases
cited in note 5, supra.
See also 14 C.F.R. §§ 108.9, 121.538 (regulations permitting screening of airline
passengers and property); 40 U.S.C. §§ 318-318d (governing the protection of federal buildings);
41 C.F.R. §§ 101-20.301, 101-20.313 (1990) (regulations permitting inspection of packages of
persons on or entering federal property, including federal courthouses, and proscribing
explosives).
29
furtherance of an administrative purpose, namely, to prevent the carrying of weapons or
explosives aboard aircraft, and thereby to prevent hijackings." Davis, 482 F.2d at 908; see also
Von Raab, 489 U.S. at 675 & n.3 (favorably noting application of administrative search doctrine
to airport searches).30/
Several pertinent lessons and principles may be gleaned from the application of the
administrative search doctrine in analogous metal detector cases. First, the central regulatory
purpose of administrative searches at airports or courthouses is not to discover and apprehend
individuals carrying weapons, but instead to deter the presence of weapons on airplanes or in
courthouses. Davis, 482 F.2d at 908; McMorris, 567 F.2d at 900 (courthouse); Albarado, 495
F.2d at 804 (noting deterrence objective of airport searches); Hyde, 12 Cal.3d at 166; cf.
Wilkinson, 832 F.2d at 1341 (noting "the magnetometer searches are justified for the specific
purpose of keeping firearms away from [Ku Klux Klan] rallies"). While an administrative search
to deter weapons cannot be used as a pretext for other objectives or to enforce criminal laws,31/ it
is well-settled that "evidence inadvertently discovered as part of legitimate airport screening is
admissible in court." $124,570 U.S. Currency, 873 F.2d at 1247 n.7; see also Edwards, 498 F.2d
at 500; Davis, 482 F.2d at 908; Schafer, 461 F.2d at 859; Hyde, 12 Cal.3d at 166.
As in other Fourth Amendment contexts, the application of the administrative search
doctrine turns on the reasonableness of the search which requires employment of a balancing
test.32/ Under this balancing test, courts have uniformly found that a compelling government
30. Prior to the development of a general consensus relying on the administrative search
doctrine, many of the early airport cases were decided during a period when courts struggled to
apply the existing Fourth Amendment exceptions to the warrant and probable cause requirements
to the airport setting. See, e.g., Albarado, 498 F.2d at 803-04 (noting difficulty to fit airport
searches, including the use of magnetometers, into recognized exceptions to the Fourth
Amendment warrant requirement); Edwards, 495 F.2d at 498 & n.5 (same); see also Hyde, 12
Cal.3d at 169 n.6. For example, some courts based such airport searches in part on a consent
theory, see, e.g., Davis, 482 F.2d at 915, while other courts, including California courts,
expressly rejected such an approach. See, e.g., Hyde, 12 Cal.3d at 162 n.2 (and cases cited
therein); Bleile, 44 Cal.App.3d at 286-87. Other courts based some airport searches under the
Terry stop-and-frisk theory. See Davis, 482 F.2d at 905 n.32 (citing cases); Hyde, 12 Cal.3d at
162 n.3 (citing cases); see also 4 W. LaFave, Search & Seizure, A Treatise on the Fourth
Amendment (2d ed. 1987) § 10.6(b) (discussing the Terry-based approach). Other courts rejected
a Terry-based approach. See Hyde, 12 Cal.3d at 165; see also United States v. $124,520 U.S.
Currency (9th Cir. 1989) 873 F.2d 1240, 1247; Davis, 482 F.2d at 905-08.
31. See $124,570 U.S. Currency, 873 F.2d at 1245 (flight terminal security policy to report
and reward the detection of drugs and substantial amounts of currency to the United States
Customs and Airport Police fell outside the administrative search rationale for airport security
searches); see also McMorris, 567 F.2d at 900 (noting "record is devoid of any indication that
the [courthouse magnetometer] search was a mere subterfuge designed to gather evidence to be
used in criminal prosecutions"); Edwards, 498 F.2d at 500 (noting general concerns over but no
finding of pretextual search); Davis, 482 F.2d at 909 & n.44 (same); Schafer, 461 F.2d at 859
(same); accord Camara, 387 U.S. at 537 (noting limited invasion of privacy because search is
not "aimed at the discovery of evidence of crime").
32. Fourth Amendment analysis is usually predicated on the balancing of the government and
privacy interests at stake, even where multiple legal theories are considered. For example, in
considering searches at airports, the California Supreme Court first rejected upholding metal
detector searches based upon the stop-and-frisk rationale of Terry v. Ohio (1968) 392 U.S. 1.
Nonetheless, the court noted the similarity in tests: "It is ironic, therefore, that by adopting the
administrative search doctrine to evaluate the validity of airport screening procedures we must
30
interest in promoting traffic safety, deterring weapons on airplanes, and deterring potential
hijackers, outweighed the minimal intrusion of privacy resulting from the use of metal detectors.
See, e.g., $124,570 U.S. Currency, 873 F.2d at 1243, 1245; Davis, 482 F.2d at 910; Hyde, 12
Cal.3d at 166-67; see also McMorris, 567 F.2d at 899-900 (courthouse). Courts have also held
that a warrant requirement to justify the use of metal detectors would frustrate the purpose of the
administrative search. See, e.g., Davis, 482 F.2d at 910; Schafer, 461 F.2d at 858; Hyde, 12
Cal.3d at 168-69; accord Donovan, 452 U.S. at 603 (noting warrant may not be required for an
administrative search if a warrant would frustrate the governmental purpose behind the search);
Biswell, 406 U.S. at 316 (same); Camara, 387 U.S. at 533 (same). Further, courts have held that
individualized suspicion is not a prerequisite to metal detector searches under the administrative
search doctrine. See, e.g., Schafer, 461 F.2d at 859; Hyde, 12 Cal.3d at 167; cf. Schaill, 864 F.2d
at 1316-17 & n.7.33/
As with analogous airport and courthouse searches, the administrative search doctrine
would similarly permit the reasonable application of metal detectors in schools. See, e.g.,
People v. Dukes (N.Y. City Crim. Court Jan. 31, 1992) 580 N.Y.S.2d 850, 151 Misc.2d 295
(upholding the use of school metal detectors under the administrative search doctrine). The
regulatory purpose is the same, only the setting is different. Thus, under this doctrine, metal
detectors could be used to deter weapons in schools (analogous to preventing weapons in
courtrooms or on airplanes), not to procure evidence of crime. In this manner, as in related
cases, the administrative search doctrine advances "the public interest in preventing the
introduction of dangerous material into the particular area involved [where it is] sufficiently
strong to make it reasonable for the government (without a warrant or traditional probable cause)
to condition access by any person seeking to enter the area upon submission by that person to an
administrative inspection no more intrusive than necessary to meet the need to exclude the
dangerous material from the restricted area." United States v. Miles (9th Cir.) 480 F.2d 1217,
1219 (applying administrative search doctrine to army security guards' search of vehicle and its
contents prior to entry to an ammunition dump), cert. denied (1973) 414 U.S. 1008.
In employing the balancing test, the compelling state and school interests in: (a)
education and training; (b) maintaining discipline and order; (c) providing a safe school
environment for learning; and (d) deterring weapons, are all promoted by the reasonable
application of metal detectors. See Discussion in Subsection II(D)(2), supra. Analogous to the
airport and courthouse cases, these compelling interests outweigh the minimal intrusion in
privacy. See Discussion in Subsections II(D)(1) & II(D)(4), supra. As already noted, the
reasonable application of metal detectors in schools would include safeguards to respect any
invasion of privacy and protect against the arbitrary exercise of discretion of officials in the field.
See Discussion in Subsection II(D)(3), supra. For these reasons, the administrative search
doctrine supplies an alternative basis to support the reasonable use of metal detectors in schools.
undertake a similar process of balancing to that which would have followed from a reliance upon
Terry." Hyde, 12 Cal.3d at 166; see also Ingersoll, 43 Cal.3d at 1328 (noting majority and
concurring opinion in Hyde contained "no real inconsistency" as "both employed a balancing test
for reasonableness"); cf. Camara, 387 U.S. at 536-37 (noting "there can be no ready test for
determining reasonableness other than by balancing the need to search against the invasion
which the search entails"). Likewise, a balancing test under the administrative search doctrine
entails a similar inquiry as employed in evaluating whether individualized suspicion is required
for school metal detector searches.
33. Some federal courts have permitted airport searches to be based upon mere suspicion, a
standard less demanding than reasonable suspicion or probable cause. See Lopez-Pages, 767
F.2d at 778; Skipwith, 482 F.2d at 1276 ("mere suspicion of possible illegal activity"). This
opinion does not suggest that any standard lower than reasonable suspicion should be employed
for school official searches of students, consistent with T.L.O., William G., and their progeny.
31
2. The Role of "Qualified Consent" Under the Administrative Search
Doctrine
Some cases of the United States Court of Appeals for the Ninth Circuit have suggested
that metal detector searches under the administrative search doctrine are invalid absent "qualified
consent" to the search. See, e.g., McMorris, 567 F.2d at 901 (noting search "is performed only
after the individual seeking to enter the courthouse has consented, as that term is used in our
previous decisions") (emphasis added); see also Homburg, 546 F.2d at 1352; Davis, 482 F.2d at
913. This issue requires clarification, particularly as applied to the school setting.
The genesis of this requirement is Davis, 482 F.2d at 895, 915, where the Ninth Circuit
remanded the airport search case for a determination if the required element of consent had been
met. In Davis, 482 F.2d at 910-11, the court noted that under the duty to employ less restrictive
alternatives, "It follows that airport screening searches are valid only if they recognize the right
of a person to avoid [the] search by electing not to board the aircraft." (Emphasis added.) To the
extent this requirement flows from a duty to apply less restrictive alternatives, "this is
undoubtedly no longer good law." Wilkinson, 832 F.2d at 1340 n.13; see also Discussion in
Subsection II(D)(5)(c) (discussing the role of less restrictive alternatives), supra. Although other
courts were able to justify airport and courthouse metal detector searches without any
requirement of consent, to some extent, this consent theory under the Ninth Circuit cases may
have been predicated on federal executive branch regulations conditioning air travel on consent.
See Davis, 482 F.2d at 911 & n.51.
Whatever the source of this requirement, the notion of "implied or qualified consent" as a
prerequisite to any valid metal detector search under the administrative search doctrine is
peculiar in the courthouse or airport context. After all, any election not to be searched results in
a hardship or burden, often encumbering or conditioning the exercise of some constitutional
rights. For example, under such a consent-based theory, an attorney may be forced to choose
between "consenting" to a courthouse metal detector search or failing to discharge professional
duties. See McMorris, 567 F.2d at 901. Similarly, in order to bypass an airport search, a
traveler's right to interstate travel may be unduly burdened. With the purpose of avoiding a
courthouse search, some individuals may be compelled to forego the constitutional right to
attend public trials. Such a compelled choice between the waiver or foregoing of constitutional
rights certainly does not contemplate consent in the traditional application of the term. See, e.g.,
Kroll, 481 F.2d at 886 ("Compelling the defendant to choose between exercising Fourth
Amendment rights and his right to travel constitutes coercion."); see also note 50, infra
(discussing similar cases).
It, therefore, is not surprising that other courts, including those in California, have
rejected or avoided this "qualified consent" theory in applying the administrative search
doctrine.34/ California courts, for example, have held that while a passenger can avoid an airport
34. See, e.g., Hyde, 12 Cal.3d at 162 n.2; Edwards, 498 F.2d at 501; Albarado, 495 F.2d at
806-07. As one respected commentator has stated, such a theory of consent "is basically
unsound and in any event can hardly be employed, if the established standards of voluntary
consent are followed, as a means of justifying all of the [airport] searches which are made in the
screening process." 4 W. LaFave, Search & Seizure, A Treatise on the Fourth Amendment (2d
ed. 1987) § 10.6(g), at 31-32 (footnotes omitted); see also id. at 33 (rejecting "fiction of implied
consent"); see also K. Jesmore, The Courthouse Search (1974) 21 UCLA L.Rev. 797, 816
(calling the conditioning of "the public's exercise of the right of public access to trials upon an
implied consent" theory "untenable").
More recent cases have also circumscribed this notion of "consent" as applied under the
Ninth Circuit case law. Thus, in Pulido-Baquerizo, 800 F.2d at 902, the Ninth Circuit held:
32
search altogether by deciding not to travel, Hyde, 12 Cal.3d at 169; People v. Dooley (1st Dist.
1976) 64 Cal.App.3d 502, 512, once the passenger submits to the search procedures, an election
not to board can no longer be made. Morad v. Superior Court of San Mateo County (1st Dist.
1975) 44 Cal.App.3d 436, 440-41; Bleile, 44 Cal.App.3d at 286; see also United States v.
Herzbrun (11th Cir. 1984) 723 F.2d 773, 776 & 778 (citing Skipwith, 482 F.2d at 1281); United
States v. Haynie (4th Cir. 1980) 637 F.2d 227, 230-31, cert. denied (1981) 451 U.S. 972, 988;
DeAngelo, 584 F.2d at 48; but see Homburg, 546 F.2d at 1351-52.
The relevance of "consent" in evaluating metal detector searches based upon the
administrative search doctrine is not as a determinative element concerning the validity of the
search, but instead as one factor bearing on knowledge and acquiescence and the reasonableness
of the search. See Albarado, 495 F.2d at 808 n.16; Hyde, 12 Cal.3d at 176; see also Edwards,
498 F.2d at 501; id. at 501 n.1 (Oakes, J., concurring); United States v. Miner (9th Cir. 1973) 484
F.2d 1075, 1076 (noting passenger was aware of search through signs and prior travel); Doran,
482 F.2d at 932; Miles, 480 F.2d at 1219; Bleile, 44 Cal.App.3d at 286-87; accord Schneckloth v.
Bustamonte (1973) 412 U.S. 218, 249 (noting "while the subject's knowledge of a right to refuse
is a factor to be taken into account, the [government] is not required to demonstrate such
knowledge as a prerequisite to establishing voluntary consent"); Henry, 615 F.2d at 1229, 1231
(inferring knowledge through general public awareness of airport searches). Normally, advance
written notice, signs or other warnings can satisfy this element of notice of the search at stake.
See Pulido-Baquerizo, 800 F.2d at 902; Singleton v. Commissioner of Internal Revenue (3d Cir.
1979) 606 F.2d 50, 52.
Not only is a requirement of consent not mandated under the traditional application of the
administrative doctrine, but such a requirement is also not suitable to the use of metal detectors
in schools. Since students are compelled to attend school, see Education Code section 48200, it
can hardly be said that students may freely elect to avoid a metal detector scan by choosing not
to go to school. Consent is therefore not a prerequisite for the validity of school metal detector
searches under the administrative search doctrine.
This is not to suggest that consent, or more appropriately foreknowledge or acquiescence,
is not a legitimate factor in evaluating the reasonableness of certain school metal detector
searches. This factor, for example, may be appropriate as one variable bearing on the
reasonableness of the search where compulsion to attend is not present. For example, some
entrants to some special events (such as dances or athletic games) would not be compelled to
attend. Under these circumstances, prior notice of the search would be relevant to the question
of reasonableness.
F. CONCLUSION
For the foregoing reasons, current case law furnishes at least two independent bases for
upholding the reasonable application of metal detectors in schools. First, under the analytical
"The requirement in Davis of allowing passengers to avoid the search by electing not to fly does
not extend to a passenger who has already submitted his luggage for an x-ray scan. . . . A rule
allowing a passenger to leave without a search after an inconclusive x-ray scan would encourage
airline terrorism by providing a secure exit where detection was threatened. . . . Thus, if a
potential passenger chooses to avoid a search, he must elect not to fly before placing his baggage
on the x-ray machine's conveyor belt." (Emphasis added). Another Ninth Circuit opinion has
recognized, "The true voluntariness of an airport search is doubtful in any event." $124,570 U.S.
Currency, 873 F.2d at 1248 n.8 (noting coercive aspect of airport searches and that "many
travelers would reasonably conclude that they had no realistic alternative" to air travel) (internal
quotations and citation omitted).
33
framework of T.L.O., and other pertinent cases involving student searches by school officials in
the school setting, metal detector searches satisfy the Fourth Amendment test of "reasonableness,
under all the circumstances." Second, the administrative search doctrine supports the use of
metal detectors in schools, as it has in related contexts. As has been shown, individualized
suspicion is not a prerequisite under either legal theory. Ultimately, the validity of any metal
detector search will depend upon the facts of the particular case in issue. While the reasonable
application of school metal detector searches satisfies the requirement of reasonableness under
the Fourth Amendment, the remaining question is whether state law imposes separate, more
stringent standards which must be satisfied. This question is considered in the next section.
III. STATE LAW ANALYSIS
In T.L.O., the United States Supreme Court noted that the Fourth Amendment establishes
a constitutional floor for protection of privacy interests and that the legitimacy of a search of
students by school officials may turn on whether a state has "insist[ed] on a more demanding
standard under its own Constitution or statutes." T.L.O., 469 U.S. at 325 n.10. To address this
issue, several provisions under the California Constitution and statutes are considered. First,
relevant statutory provisions concerning school safety will be noted in order to respond to the
submitted question whether any statutory provisions permit the use of metal detectors in schools.
A. DEVELOPMENT OF SAFE SCHOOL PLANS UNDER EDUCATION CODE
SECTION 35294 ET SEQ.
One pertinent statute in the school safety area is Education Code section 35294 et seq.,
which was enacted in 1989. This statute provides for the development of school safety plans by
all public schools (from kindergarten through high school) in cooperation with local law
enforcement agencies, community leaders, school personnel, parents and students. Education
Code section 35294. No published opinion has been discovered applying this statute.
Among other things, the school safety plan may include an "[a]ssess[ment of] the current
status of school crime committed on school campuses and at school-related functions;" the
"[i]dentif[ication of] appropriate strategies and programs that will provide or maintain a high
level of school safety;" and the "[d]evelop[ment of] an action plan, . . . for implementing
appropriate safety strategies and programs." Id. section 35294.1(a). Through this statute, the
Legislature has expressed its concern over school safety and has encouraged schools to develop
action plans tailored to their campuses which promote safety.
While this statute does not expressly mention the use of metal detectors in schools,
consistent with and pursuant to its provisions, a public school could determine that the
reasonable application of metal detectors would be an integral or necessary part of its school
safety plan. This decision, under the statute, is appropriately made at the local level. In this
manner, local school administrators may appraise the suitability and feasibility of using metal
detectors on their particular campus. Local decision makers may also determine the role of
metal detectors within a comprehensive safety scheme. For example, a determination to use
metal detectors may limit their use to special events, such as dances and athletic contests, or may
utilize them during regular school hours on a random or permanent basis. Pursuant to this
statutory scheme, local school authorities therefore may decide whether and how metal detectors
should be used to deter weapons on their campus. If metal detectors are to be employed, this
statute provides a vehicle for the development of an administrative policy which may furnish
guidance to school officials in the field. See, e.g., Discussion in Subsection II(D)(3)(e), supra
(noting importance of preestablished administrative plan to eliminate arbitrary discretion by
officials in the field).
B. REMOVAL OF INJURIOUS OBJECTS UNDER EDUCATION CODE
SECTION 49330 ET SEQ.
34
A separate statute, enacted in 1979, would also permit the removal of weapons through
the use of metal detectors. This statute, which has not been the subject of any reported opinions,
provides, in pertinent part, that certificated school employees or other designated employees
"may take from the personal possession of any pupil upon school premises . . . any injurious
object in the possession of the pupil." Education Code section 49331 (emphasis added).
"Injurious object," within the meaning of the statute, includes "objects capable of
inflicting substantial bodily damage, not necessary for the academic purpose of the pupil," or a
switchblade knife with a blade longer than two inches (pursuant to Penal Code § 653k), or a
firearm (within the meaning of Penal Code sections 12001, 12020, or 12220). Under the terms
of the statute, injurious object "does not include any personal possessions or items of apparel
which a school age child reasonably may be expected either to have in his or her possession or to
wear." The removal or taking, as contemplated under the statute, is therefore limited to injurious
objects, including weapons. The statute also provides for the retention and return of removed
objects. See Education Code sections 49332 - 49334.
Consistent with the provisions of this statute, school officials could employ metal
detectors to deter the presence of weapons in school. Under this statute, metal detectors could be
used as a screening device, identifying those students who may hold concealed objects
containing metal which are capable of inflicting substantial bodily damage. In this manner,
metal detectors may help fulfill "the intent of the Legislature to empower school officials and
employees to take custody of any injurious object found in the possession of any pupil or any
other person on school grounds." Education Code section 49330 note (Section 1(c) of
Stats.1979, C. 210, p. 454).
C. STATUTORY PROHIBITION AGAINST BODY CAVITY AND STRIP
SEARCHES UNDER EDUCATION CODE SECTION 49050 ET SEQ.
The Education Code expressly prohibits school employees from conducting certain
student searches.35/ This provision, which was enacted in 1988, has also not been the subject of
any published California opinions.
Accepted principles of statutory construction supply two directives to guide student
searches under this statute. First, its plain language expressly forbids two forms of student
searches by school employees: (a) body cavity searches; and (b) searches which would permit a
visual inspection of a student's private areas.
35. Education Code section 49050 provides:
Prohibited searches
No school employee shall conduct a search that involves:
(a) Conducting a body cavity search of a pupil manually or with an
instrument.
(b) Removing or arranging any or all of the clothing of a pupil to permit a
visual inspection of the underclothing, breast, buttocks, or genitalia of the
pupil.
Section 49051 further provides:
Nothing in this article shall be construed to affect the admissibility of evidence in
subsequent juvenile or criminal proceedings.
35
Second, under the traditional rule of statutory construction, expressio unius est exclusio
alterius, other forms of prohibited searches will not be implied or presumed. See e.g., Wildlife
Alive v. Chickering (1976) 18 Cal.3d 190, 195; Henderson v. Mann Theatres Corp. (2d Dist.
1976) 65 Cal.App.3d 397, 403 (noting "expression of certain things in a statute necessarily
involves exclusion of other things not expressed"), cert. denied (1977) 434 U.S. 825. The
provision, entitled "prohibited searches," was drafted to enumerate those student searches which
the Legislature sought to proscribe. As a result of the Legislature's specificity in barring two
types of student searches, there can be no implied prohibition against other searches, including
the use of school metal detectors.
To the extent that reference to the legislative history could possibly become necessary to
resolve any statutory construction issues,36/ it would only reinforce this conclusion. As originally
introduced on March 6, 1987, A.B. 2496 represented a comprehensive legislative attempt to
govern all facets of students searches by school employees. According to the author and other
legislative materials, the bill was drafted as a response to the recent T.L.O. and William G rulings
which were viewed as having expanded the ability of school officials to conduct student
searches. See, e.g., Senate Committee on Judiciary, Background Report on A.B. 2496, at 2
(Aug. 1988) (quoting author); Assembly Committee on Public Safety, Background Report on
A.B. 2496, at 1-2 (May 1987) (same).
In several respects the legislation proposed greater protection from searches for students
than that held by adults under existing law. The legislation originally designated "protected
pupil areas," including "[a] pupil's body;" "[c]lothing worn or carried by a pupil;" "container[s]
used by a student for holding or carrying personal belongings of any kind and in the possession
or immediate proximity of the pupil;" and a "school locker, desk, or other receptacle or space on
school premises that school employees have issued or assigned to the pupil or that the pupil has
selected for the storage of personal belongings of any kind, which the pupil locks or is permitted
to lock." Warrantless searches of students and "protected pupil areas" were permissible "only if
the school employee has probable cause to believe that the search . . . will produce contraband."
Contraband was strictly defined as "an object, the possession of which is either unlawful or a
violation of a written school rule and poses a demonstrated danger of being used to inflict
substantial harm on the student or others in the school." (Emphasis added). Probable cause was
defined to include a requirement that a prudent person "believe that contraband is hidden." As
introduced, the bill also contained four prohibited student searches: (a) body cavity searches; (b)
strip searches; (c) trained animal searches for detection of controlled substances; and (d)
searches of students and protected pupil areas unless conducted by school employees of the same
sex. As amended on May 28, 1987, A.B. 2496 would have only permitted student searches by
"designated school employees," defined as an "employee with an administrative service
credential and who is a full-time public administrator or a public school employee who is a
school security officer." (Emphasis added.) After undergoing several amendments, most of
these provisions were deleted, resulting in the final enactment of Education Code sections 49050
and 49051. See note 35, supra.
In addition to the express terms of the provision, reference to the legislative history
therefore buttresses the conclusion that Education Code section 49050 does not proscribe the use
of metal detectors in schools. This is also supported by the rejection of several proposed
36. It is well-established that when the statutory language is clear and unambiguous, its plain
meaning is employed and there is no further need for statutory construction. See, e.g., Tiernan v.
Trustees of California State University & Colleges (1982) 33 Cal.3d 211, 218. Normally, it is
only where the plain meaning of the language of a statute is not clear and unambiguous (i.e., is
susceptible to more than one reasonable interpretation), that extrinsic aides such as the
legislative history, may be of greatest utility. See, e.g., Long Beach Police Officers Ass'n v. City
of Long Beach (1988) 46 Cal.3d 736, 743.
36
provisions and amendments which would have imposed stringent standards for student
searches.37/ Section 49050 therefore forbids school employees from conducting body cavity or
strip searches of students. Through this provision the Legislature established a bright line
beyond which school employees could not search. The use of metal detectors in and of itself
does not cross this bright line.
D. SCHOOL DISTRICT AUTHORITY UNDER EDUCATION CODE SECTION
35160 ET SEQ.
California law provides school districts with broad authority to implement programs and
activities which are not contrary to law. Pursuant to this authority, school districts may adopt
metal detector plans to deter weapons in schools.
Prior to 1976, school districts could only act pursuant to specific statutory grants. See,
e.g., Yreka Union High School District of Siskiyou County v. Siskiyou Union High School
District of Siskiyou County (3d Dist. 1964) 227 Cal.App.2d 666, 670 ("A school district is an
agency of limited authority; it may exercise only those powers granted by statute."); see also 63
Ops.Cal.Atty.Gen. 851, 852 (1980).
Pursuant to California Constitution Article IX, section 14,38/ the Legislature adopted
Education Code section 35160, which provides that school districts "may initiate and carry on
any program, activity, or may otherwise act in any manner which is not in conflict with or
inconsistent with, or preempted by, any law and which is not in conflict with the purposes for
which school districts are established." This statute confers upon school districts autonomy and
"flexibility" to respond to the "diverse needs" of their local schools. Education Code section
35160.1(a) (clarifying the purpose of § 35160). The Legislature has also specified that the
"broad authority to carry on activities and programs" under this statute is to be "liberally
construed." Education Code sections 35160.1(b) & (c); see also Cumero v. Public Employment
Relations Bd. (1989) 49 Cal.3d 575, 591 (noting "broad" powers conferred under § 35160
subject only to statutory preemption); Hartzell v. Connell (1984) 35 Cal.3d 899, 916 (construing
ballot pamphlet to Cal. Const., art. IX, § 14 to indicate that "the provision would enable the
Legislature to relieve itself of the necessity of granting specific authorization for every activity
carried out by local school districts"); Fleice v. Chualar Union Elementary School Dist. (6th
Dist. 1988) 206 Cal.App.3d 886, 890 (referring to § 35160 as "the local control statute"); 69
Ops.Cal.Atty.Gen. 84, 87 (1986) ("School districts now have more responsibility and flexibility
in choosing their own programs.").
Two primary limitations have been noted concerning school district authority under
section 35160. First, the action may not be contravened or preempted by statute. See, e.g., 60
Ops.Cal.Atty.Gen. 206, 208 (1977) (noting the inquiry under § 35160 is "whether particular
37. Cf. City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 89 (considering rejected
language from legislative history to construe breadth of statute); Morin v. ABA Recovery Service,
Inc. (4th Dist. 1987) 195 Cal.App.3d 200, 207 n.2 (same); Ford Motor Co. v. County of Tulare
(5th Dist. 1983) 145 Cal.App.3d 688, 691-92 (and cases cited therein); Berkeley Teachers Ass'n
v. Board of Education of Berkeley Unified School District (1st Dist. 1967) 254 Cal.App.2d 660,
672 (same).
38. This provision, adopted on November 7, 1972, specifies in pertinent part:
The Legislature may authorize the governing boards of all school districts
to initiate and carry on any programs, activities, or to otherwise act in any manner
which is not in conflict with the laws and purposes for which school districts are
established.
37
conduct is precluded" instead of whether the conduct is supported by "express or implied
authorization"). Clearly, a school district is proscribed from authorizing body cavity and strip
searches, expressly prohibited under Education Code section 49050. Second, as noted in the
ballot pamphlet to the initiative for Cal. Const. Art. IX, section 14, the school district action must
be "related to school purposes." 60 Ops.Cal.Atty.Gen. 177, 179 (1977); see also 71
Ops.Cal.Atty.Gen. 266, 269-70 (1988) (other citations omitted); 64 Ops.Cal.Atty.Gen. 146, 147-
48 (1981).
The adoption of metal detector plans by school districts would not transgress either of
these two limitations. Further, no statute has been discovered which expressly or impliedly
prohibits the use of metal detectors in schools. School districts may therefore decide that the use
of metal detectors constitutes one "unique solution" to deterring weapons in schools. Education
Code section 35160.1(a). School districts may also determine that metal detectors advance the
educational interests of maintaining discipline and order, promoting safety, and providing an
environment conducive to learning.
Consistent with section 35160, the Legislature has also authorized school districts to
"delegate to an officer or employee of the district any of [its] powers or duties." Education Code
section 35161. Further, school districts are expressly authorized to "convene hearings, make
findings, and adopt and issue policy statements setting forth the responsibilities of the pupils of
that school district regarding . . . attendance, in-school behavior, and any other aspects of school
life which the school district governing board may deem relevant to this task." Education Code
section 35181.
Collectively, these statutory provisions demonstrate the intent of the Legislature to
enable school districts to exercise their discretion to adopt and tailor flexible responses and
programs which reflect local education concerns. Pursuant to these provisions, local school
districts may determine that the use of metal detectors represents an appropriate local response to
deter weapons in their schools.
E. RIGHT OF PRIVACY
Among the inalienable rights secured by the California Constitution is the right of
privacy.39/ The California Supreme Court has held that for searches and seizures in the criminal
law context, the "privacy clause has never been held to establish a broader protection than that
provided by the Fourth Amendment of the United States Constitution or article I, section 13 of
the California Constitution." People v. Crowson (1983) 33 Cal.3d 623, 629. The question, then,
is whether the privacy clause under the California Constitution supplies a more demanding
standard than the Fourth Amendment under the United States Constitution for searches of
students by public school officials which are intended to deter weapons on school grounds, not to
39. Cal. Const., art. I, § 1, currently provides:
All people are by nature free and independent and have inalienable rights.
Among these are enjoying and defending life and liberty, acquiring, possessing,
and protecting property, and pursuing and obtaining safety, happiness, and
privacy.
The right of privacy was expressly adopted in the California Constitution by the voters in
1972. See Ballot Pamp. Gen. Elect. (Nov. 7, 1972) Proposed Amendments to Constitution,
Proposition 11, p. 11, 26-28; White v. Davis (1975) 13 Cal.3d 757, 773. By ballot initiative,
article I, section 1 was reworded in 1974. See Ballot Pamp. Gen. Elect. (Nov. 5, 1974)
Proposition 7, p. 26-27; White, 13 Cal.3d at 773 n.9.
38
gather evidence of criminal law violations.40/
While the California Supreme Court has found metal detector scans at airports to be
reasonable under the Fourth Amendment, see Hyde, 12 Cal.3d at 165-68, (weighing the
governmental interest against the intrusion), no California published decision has considered the
propriety of metal detector scans under the California Constitution privacy clause. Cf. Owens,
134 Cal.App.3d at 147 (x-ray examination of checked airport luggage); Garrett v. Los Angeles
City Unified School Dist. (2d Dist. 1981) 116 Cal.App.3d 472, 478 (biennial chest x-ray exams
of school employees to test for tuberculosis).
The significance of this question cannot be lost. To hold that school metal detector scans
are not permissible under the privacy clause could cast in legal doubt the use of metal detectors
in other related contexts, including at airports and courthouses. Moreover, in the school setting,
any application of metal detector scans may also need to take into account the independent,
inalienable right to safe schools under the California Constitution article I, section 28(c), as will
be discussed in subsection III(E)(1)(c), infra. Accord Alexander B, 220 Cal.App.3d at 1577
(noting, in Fourth Amendment case concerning student search, students' inalienable right to safe
schools under California law).
1. Balancing Test
Because the privacy clause is not absolute, a balancing test is employed to weigh the state
interests advanced by the intrusion against the affected privacy interests. See, e.g., Wilkinson v.
Times Mirror Corp. (1st Dist. 1989) 215 Cal.App.3d 1034, 1046 (review denied). In applying a
balancing test under the privacy clause, California courts have recently split on whether a
standard of reasonableness or a stricter compelling interest test should be engaged. Compare id.
at 1047 (reasonableness standard) with Luck v. Southern Pacific Transportation Co. (1st Dist.
1990) 218 Cal.App.3d 1, 20 & nn.12 & 13 (compelling interest test), modified 218 Cal.App.3d
1492b cert. denied (1990) 111 S.Ct. 344; compare also Hill v. National Collegiate Athletic Assn.
(1990) 230 Cal.App.3d 1714, 1728 n.7 (noting divergent standards) (review granted). In
considering the propriety of school metal detector searches under the privacy clause, both
40. If the use of metal detectors in schools arose in the criminal law context, then an analysis
under the Fourth Amendment would yield the same result under the right to privacy. See, e.g.,
People v. Owens (1st Dist. 1980) 112 Cal.App.3d 441, 448-49 (noting "the search and seizure
and privacy protections [are] coextensive when applied to police surveillance in the criminal
context") (emphasis added). Thus, a conclusion that the use of metal detectors satisfied Fourth
Amendment standards would dictate that the coextensive standard under the right to privacy
would similarly be met. However, as already noted, the Fourth Amendment analysis of the use
of metal detectors on students by school officials has been considered outside the criminal law
context. See, e.g. T.L.O., 469 U.S. at 341 n.7 (supplying standard for student searches by school
officials independent of law enforcement authority); Griffin, 483 US. at 873-74 (noting
evaluation of school official conduct "presents `special needs' beyond normal law enforcement
that may justify departures from the usual warrant and probable-cause requirements"); cf. Hyde,
12 Cal.3d at 165 (justifying metal detector search at airport under the administrative search
exception "as part of a general regulatory scheme in furtherance of an administrative purpose,
rather than as part of a criminal investigation to secure evidence of crime") (internal quotations
and citation omitted). Consequently, if the right to privacy analysis outside the criminal law
context imposes a more demanding standard than the standard of reasonableness under the
Fourth Amendment, it is possible that metal detector scans could satisfy the less demanding
standard but not the more exacting one. As will be shown, the use of metal detector scans in
schools passes muster under either a compelling interest test or standard of reasonableness under
the right to privacy.
39
balancing standards must therefore be evaluated.41/
a. Compelling Interest Test
Courts employing a compelling interest test under the privacy clause have weighed
whether any compelling interests justify the invasion of privacy interests. See, e.g., White, 13
Cal. 3d at 775; Luck, 218 Cal.App.3d at 21. Under this standard, several compelling interests
would independently justify the insubstantial invasion of privacy resulting from school metal
detector scans.
First, the interest in school safety has already been deemed an "inalienable right" in
California Constitution article I, section 28(c). Consequently, the people of California, who
adopted this provision by initiative in 1982, have already determined that the right to school
safety is tantamount to a compelling interest, protecting "[a]ll students and staff of public
primary, elementary, junior high and senior high schools." To resolve otherwise would lead to
the nonsensical conclusion that a constitutional inalienable right cannot rise to the level of a
compelling interest. In fact, Article I, section 28(a), which was enacted along with section 28(c),
expressly notes that protecting and encouraging public safety, including safety in schools, is "a
goal of highest importance." Moreover, as already noted, this compelling interest in school
safety has also been separately recognized by statute and case law.42/ Thus, there are three
independent sources which recognize the state's compelling interest in school safety.
Illustratively, as a result of growing concern over weapons in schools, Congress and the
Legislature have enacted legislation in recent years to establish safe "school zones," including
prohibitions against firearms and weapons on or near schools. See note 15, supra.
41. A threshold question concerns whether "privacy," within the meaning of the California
Constitution, encompasses metal detector scans. No court has directly confronted this question.
However, at least one federal court has held that the right of privacy under California law does
not provide a right to possess firearms. Fresno Rifle & Pistol Club, Inc. v. Van de Kamp,
(E.D.Cal.1990) 746 F. Supp. 1415, 1422, aff'd (9th Cir. 1992) 965 F.2d 723.
Because, as will be shown, the reasonable application of metal detectors in schools does
not transgress the privacy clause, this opinion need not reconcile the threshold question of
whether privacy rights are implicated by metal detector scans. Other than noting the issue, for
current purposes it may be assumed arguendo that the use of metal detectors in schools raises
privacy clause concerns.
42. See Discussion in Subsection II(D)(2)(c), supra. Other related Fourth Amendment cases
have noted a compelling government interest where safety is in issue. See Jones v. McKenzie
(D.C. Cir. 1987) 833 F.2d 335, 340 (noting in Fourth Amendment analysis of drug testing of
school personnel involved with the transportation of students that "a governmental concern is
particularly compelling when it involves the physical safety of the employees themselves or of
others") (emphasis added), vacated (1989) 490 U.S. 1001, amended (D.C. Cir. 1989) 878 F.2d
1476; Henry, 615 F.2d at 1231 n.10 (noting in Fourth Amendment case, "The need of airport
officials to satisfy themselves that it is safe to accept luggage for transportation is compelling")
(emphasis added); Homburg, 546 F.2d at 1353 (noting "compelling interest" of airport security
officers to satisfy themselves that appellant did not have a bomb) (emphasis added); Epperson,
454 F.2d at 772 (noting in Fourth Amendment analysis of the use of magnetometers at airports
that "[s]uch a search is more than reasonable; it is a compelling necessity to protect essential air
commerce and the lives of passengers") (emphasis added); Barrett, 331 F. Supp. at 274 (holding
courthouse inspections of packages and briefcases did not unduly burden the First Amendment,
the Fifth Amendment right against self-incrimination, and the Sixth Amendment right to
effective representation of a client by counsel).
40
It is also relevant that the safety interests in issue involve minor children, including those
of kindergarten through high school age. See, e.g., American Academy of Pediatrics v. Van de
Kamp (1st Dist. 1989) 214 Cal.App.3d 831, 845 (under the right to privacy, "[t]he status of the
person [e.g., minor or adult] may be relevant . . . to the question of whether a particular state
interest is in fact compelling. Thus, a compelling state interest may justify enacting a statute to
afford minors special protections even though the same statute, if applied to adults, would not
pass constitutional muster."). In evaluating the safety interest, a court would have to take into
account not only the privacy interests of a single student who might object to a metal detector
scan, but also the safety interests of other students and school personnel. The compelling
interest in school safety alone is sufficient to authorize the use of school metal detectors to
prevent weapons in schools.
Second, and related to the safety interest, is a compelling interest in deterring the
presence of weapons on school grounds. See Discussion in Subsection II(D)(2)(d), supra. As
already noted, a disturbing, consistent trend shows that students are bringing a greater number of
weapons to school over each of the last few years during which these statistics have been
maintained. The use of metal detectors in schools is intended as a prophylactic measure, not as a
means to gather evidence of criminal law violations. Significantly, in some schools, metal
detectors may represent one of the least intrusive manners to further this deterrence objective.
Cf. McMorris, 567 F.2d at 900. Analogously, many cases involving the use of metal detectors at
airports and courthouses have noted the interest in deterrence. See, e.g., Id.; Albarado, 495 F.2d
at 804; Davis, 482 F.2d at 908; Hyde, 12 Cal.3d at 166.
Third, the state and schools also have what Justice Powell called a "compelling interest"
in the education and training of minors. See T.L.O., 469 U.S. at 350 (Powell, J., concurring); and
Discussion in Subsection II(D)(2)(a), supra. The use of school metal detectors advances this
interest by promoting an environment conducive to learning, the primary mission of the state and
schools. School metal detectors also advance other express aspects of the safe school clause
concerning "secure" and "peaceful" campuses. Several airport search cases involving the use of
metal detectors have noted that many airline passengers often welcome the minimal intrusion of
privacy from metal detectors in order to promote their peace of mind and actual feeling of
security and safety. See, e.g., Edwards, 498 F.2d at 500; Epperson, 454 F.2d at 772; Hyde, 12
Cal.3d at 167; id. at 177 (Wright, C.J., concurring). Similarly, the increased fear of school
children attributable to the increased presence and use of weapons on school campus may be
dissipated by the reasonable use of metal detectors. See, e.g., Student Searches Yielded Fear,
USA Today, at 1A (Nov. 12, 1991) (one seventh-grader noting in Indianapolis junior high school
random metal detector search that she would "rather be searched than be shot by someone").
Fourth, and concomitantly, the United States Supreme Court has discussed the state's
"substantial" or compelling interest in "maintaining discipline in the classroom and in school
grounds." T.L.O., 469 U.S. at 339; see also Discussion in Subsection II(D)(2)(b), supra. Once
again, this concern is also protected by the inalienable right to "safe," "secure" and "peaceful"
school grounds. Unarmed school personnel may lose control of the school grounds if confronted
by armed students. Further, the discovery of weapons held by students may come too late to
avert a confrontation, or worse yet, an injury. School metal detectors, used largely as a
prophylactic measure, therefore promote the compelling interest in maintaining discipline on
school campuses.
Finally, the conclusion that the compelling interest test is satisfied by the use of school
metal detectors follows from case law involving the use of similar scanning equipment in
schools. In Garrett, 116 Cal.App.3d at 478, the Second District Court of Appeal rejected an
argument that a required biennial chest x-ray exam of school employees to determine that such
persons are free of active tuberculosis did not satisfy a compelling state interest. The court
concluded that "chest x-rays for teachers and even students is constitutional as a health measure
for the protection of society." Id. at 480. In applying the Garrett holding, school metal detector
41
scans would satisfy corresponding compelling school safety interests, particularly when x-ray
scans are considered more intrusive than metal detector or magnetometer scans. Cf. Henry, 615
F.2d at 1227.
Analogously, in Owens, 134 Cal.App.3d at 147, the Second District Court of Appeal
considered the use of an x-ray examination of checked airport baggage. In upholding the x-ray
scan, the court weighed "the gravity of the public danger sought to be prevented" against "the
personal interest in privacy (expressly protected in California by section 1, of article I of the state
Constitution)." Id. (parentheses in original). The court evaluated the "minimal invasion of
privacy" imposed against the fact that "the risk of loss of both property and life from the
checking of explosive and similar destructive material is great." Id. These cases, involving the
more intrusive x-ray examination (which is generally more revealing than metal detectors), lend
further support for the proposition that school metal detectors, reasonably applied, do not violate
the privacy clause.43/
In light of each of these independent compelling interests and current precedent, the use
of school metal detectors easily satisfies the stringent standard under privacy clause analysis.
Only if a court concluded otherwise would it become necessary to consider the more
complicated question of how the inalienable right to safe schools would affect the overall
analysis. Before turning to this issue, the less-demanding reasonableness standard under the
privacy clause is briefly considered.
b. Reasonableness Test
43. Most right to privacy cases have employed a traditional balancing test, weighing the
existence of a compelling state interest against the intrusion into privacy. See, e.g., White, 13
Cal.3d at 775. A smaller class of cases has applied the three-prong Bagley test (under the
"doctrine of unconstitutional conditions") to those situations where the receipt of some public
benefit is conditioned upon the waiver of a constitutional right. See, e.g., Committee to Defend
Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 257; Parrish v. Civil Service Comm'n of the
County of Alameda (1967) 66 Cal.2d 260, 271. Under Bagley, to uphold the conditions on the
pubic benefit, the state must establish that:
(1) "the imposed conditions relate to the purposes of the legislation which confers the
benefit or privilege;"
(2) "the utility of imposing the conditions . . . manifestly outweigh[s] any resulting
impairment of constitutional rights;" and
(3) there are no "less offensive alternatives" to achieve the state's objective.
Myers, 29 Cal.3d at 257-58 (quoting Bagley v. Washington Township Hospital Dist. (1966) 65
Cal.2d 499, 505-07).
First, it is questionable that the Bagley test would apply since public education is not
considered a benefit. See, e.g., Plyler, 457 U.S. at 221. Second, assuming arguendo it was
applicable, the Bagley test alone would also be satisfied by school metal detector searches. Cf.
Akin v. Board of Education of Riverside Unified School District (4th Dist. 1968) 262 Cal.App.2d
161, 169 (Bagley test satisfied and upholding "good grooming policy" challenged by 15-year old
high school student who refused to shave his beard), cert. denied (1969) 393 U.S. 1041.
Nonetheless, any proper application of the Bagley test to school metal detector scans must also
take into account the inalienable right to safe schools, under California Constitution article I, §
28(c). This issue is considered in subsection III(E)(1)(c), infra.
42
In construing California Supreme Court case law, at least one appellate court has recently
held that "even if challenged conduct has some impact on the right of privacy, as long as that
right is not substantially burdened or affected, justification by a compelling interest is not
required. Instead, the operative question is whether the challenged conduct is reasonable."
Wilkinson, 215 Cal.App.3d at 1047; see also Schmidt v. Superior Court (1989) 48 Cal.3d 370
(cited in Wilkinson, 215 Cal.App.3d at 1047); Miller v. Murphy (1st Dist. 1983) 143 Cal.App.3d
337.
After surpassing the more stringent requirements of the compelling interest test, a school
metal detector scan would certainly satisfy the reasonableness test under the privacy clause.
Under the Wilkinson formulation, a metal detector scan constitutes an insubstantial intrusion into
privacy. See, e.g., Albarado, 495 F.2d at 806 (noting "absolutely minimal invasion of privacy
involved" by use of magnetometers); Valenzuela, 151 Cal.App.3d at 186 ("The use of a walk-
through metal detector [under the Fourth Amendment] is one of the least intrusive searches.");
see also Discussion at Subsection II(D)(1), supra, and cases cited therein. This conclusion is
unavoidable when contrasted with the invasion of privacy in issue in other privacy clause cases
which have employed a test less stringent than the compelling interest standard,44/ as well as
under compelling interest test cases.45/ In sum, under the reasonableness test employed in
Wilkinson, the impact, if any, on the right of privacy from metal detectors is not substantially
affected and school metal detectors are unequivocally warranted by the state interests previously
discussed.
c. Consideration of the Inalienable Right to Safe Schools
The inalienable right to safe schools was adopted by the electorate as part of Proposition
8 on June 8, 1982. See Brosnahan v. Brown (1982) 32 Cal.3d 236. By its express terms, this
constitutional right "to attend campuses which are safe, secure and peaceful" is guaranteed to
"[a]ll students and staff of public primary, elementary, junior high and senior high schools." Cal.
Const. art. I, section 28(c) (emphasis added).46/ Article I, section 28(a) reiterates that the right of
44. See Schmidt, 48 Cal.3d at 390 (mobilehome park rule limiting residence to persons 25
years or older did not violate constitutional right to family privacy as it was neither irrational nor
arbitrary); Wilkinson, 215 Cal.App.3d at 1047, 1051 (employer's preemployment drug testing
policy did not violate constitutional right to privacy under reasonableness test); Miller, 143
Cal.App.3d at 346-48 (municipal pawnbroker regulations requiring customers' fingerprints did
not violate constitutional right to privacy under reasonableness test).
45. See White, 13 Cal.3d at 776 (complaint stated a prima facie violation of the right to
privacy under the compelling interest test where police officers posed as university students to
make covert records of professors and students); Hill, 230 Cal.App.3d at 1747 (drug testing of
college athletes during championship competitions violated right to privacy by failing
compelling interest test) (review granted); Luck, 218 Cal.App.3d at 20-24 (railroad computer
programmer employee termination for failing to submit to unannounced drug testing violated
constitutional right to privacy under compelling interest test).
46. The same constitutional provision which confers the inalienable right to "pursu[e] and
obtain[] privacy" also secures the inalienable right to "pursu[e] and obtain[] safety." See note
39, supra. Unlike the relatively recent constitutional right of privacy, this inalienable right has
been part of the California Constitution since its adoption. See Constitution of the State of
California, Annotated (1946) p. 1429.
While few California cases have considered and applied the inalienable right of safety,
this provision could similarly be implicated by an unavoidable conflict with the privacy clause.
See Brosnahan, 32 Cal.3d at 259-60 (rejecting argument that the safe schools clause could wreak
43
"public safety extends to public primary, elementary, junior high, and senior high school
campuses, where students and staff have the right to be safe and secure in their person."
As the California Supreme Court has noted, one of the objectives of this constitutional
amendment was to "provid[e] safety from crime to a particularly vulnerable group of victims,
namely school pupils and staff." Brosnahan, 32 Cal.3d at 247; see also id., at 248 (noting "the
right to safety encompassed" under the safe schools clause "was intended to be, is aimed at, and
is limited to, the single subject of safety from criminal behavior") (emphasis in original); id. at
247 (noting another objective of Proposition 8 was to "achiev[e] . . . more effective deterrence
of, criminal acts") (emphasis added). As previously noted, the Legislature has already
determined that the possession of firearms or weapons on school grounds is a felony, see Penal
Code sections 626.9, 626.10, and that "injurious objects" may be removed from students. See
Education Code section 49330 et seq. The use of metal detectors in schools may therefore serve
to deter weapons in schools and provide safety from this felonious behavior.
One potential question is what effect, if any, this inalienable right may have on the
analysis under the separate inalienable right to privacy. No published opinion has confronted a
direct conflict between these two provisions. A conflict from the application of the two
provisions would be irreconcilable if, for example, the use of metal detectors in schools,
consistent with the constitutional right to safe schools, failed to satisfy the compelling interest
test under the constitutional right to privacy. In this unexpected circumstance, to favor either of
the constitutional provisions at the expense of the other, would fail to give full effect to an
"inalienable" right. See Fields v. Eu (1976) 18 Cal.3d 322, 328 (noting constitutional
construction should "give effect to the scheme as a whole"). This would be tantamount to
concluding that one student's inalienable right to privacy from metal detector scans is paramount
to another student's or teacher's inalienable right to safe schools, promoted by the minimally
intrusive metal detector scans in schools. Under this construction, the inalienable right to safe
schools would be subjugated to the right of privacy and the electorate's will to secure the right to
safe schools could, in many instances, be unattainable.
In the unanticipated event that this constitutional conflict cannot be avoided, c.f. People
v. Williams (1976) 16 Cal.3d 663, 667 (noting general rule that courts "do not reach
constitutional questions unless absolutely required to do so to dispose of the matter" presented),
traditional principles of constitutional construction must be utilized to resolve this more
complicated and novel legal question. In construing the voters' intent in adopting constitutional
provisions through the initiative power, the language is first considered. Mutual Life Ins. Co. v.
City of Los Angeles (1990) 50 Cal.3d 402, 407; Lungren v. Deukmejian (1988) 45 Cal.3d 727,
financial havoc on schools and noting "the implementation of comparably broad constitutional
rights, such as the right to pursue and obtain 'safety' (Cal. Const., art. I, § 1) has not produced
any such financial ruin") (emphasis omitted); County of Alameda v. Superior Court (1st Dist.
1987) 194 Cal.App.3d 254, 261 (compelling disclosure of identity of mental patient who
allegedly raped another for use in a personal injury action and noting the case implicated, in part,
the "personal constitutional right to pursue and obtain safety"); cf. Melvin v. Reid (1931) 112
Cal.App. 285, 291 (relying on the substantive inalienable right to pursue and obtain happiness
under art. I, § 1, to support a claim for a right of privacy for money damages).
One appellate court has stated the inalienable right to safety does not confer "a private
right of action for damages or an affirmative duty on the part of the state." Clausing v. San
Francisco Unified School Dist. 1st Dist. (1990) 221 Cal.App.3d 1224, 1237 n.6 (review denied).
This conclusion is unfounded for at least three reasons. First, the reference is dicta. Second, the
opinion fails to take into account the above-cited cases which have treated the right to safety as a
substantive right. Finally, the cited authorities by the Clausing court do not support the
proposition asserted and do not pertain to the specific constitutional right to safety.
44
735. Reference to the plain language of the privacy clause and safe schools clause does not
reveal that either is intended to have greater weight over the other. See Assembly v. Deukmejian
(1982) 30 Cal.3d 638, 661, cert. denied and appeal dism'd (1982) 456 U.S. 941. Indeed, both are
specified to be "inalienable" rights guaranteed under the constitution. Both were adopted as
amendments to the constitution through the initiative power.
Since the plain meaning of the language fails to resolve the issue, resort to other tools of
constitutional construction is necessary. It is well-settled that constitutional provisions should be
harmonized where possible, to avoid any potential conflict. See, e.g., Lungren, 45 Cal.3d at 735;
Serrano, (1971) 5 Cal.3d at 596. The duty to harmonize is a corollary to the presumption against
implied repeals. See, e.g., In re Thierry S. (1977) 19 Cal.3d 727, 744 (noting doctrine in
statutory context). Both doctrines establish rules of constitutional construction intended to give
full effect to every part of the constitution. In re Lance W. (1985) 37 Cal.3d 873, 887 (noting
presumption against implied repeal requires maintaining integrity of both enactments); Penziner
v. West American Finance Co. (1937) 10 Cal.2d 160, 176 ("where a modification will suffice, a
repeal will not be presumed."). The presumption may be overcome if the two provisions in issue
are "irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent
operation." Penziner, 10 Cal.2d at 176; Lance W, 37 Cal.3d at 886. The presumption also does
not operate where a contrary intent is clearly expressed. Cf. People v. Harris (1989) 47 Cal.3d
1047, 1082 ("The presumption . . . has no application when the language is clear and does not
permit a contrary understanding."). These principles may permit the harmonization of the two
constitutional provisions.
The constitutional construction must also take into account the use of the initiative
power, under California Constitution article IV, section 1, which has been repeatedly called "one
of the most precious rights of our democratic process." Amador Valley Joint Union High School
Dist. v. State Board of Equalization (1978) 22 Cal.3d 208, 248 (citations and internal quotations
omitted). Consequently, the initiative power is liberally construed, jealously guarded, and any
reasonable doubts are resolved in favor of the exercise of this right. Id; see also Kennedy
Wholesale, Inc. v. State Board of Equalization (1991) 53 Cal.3d 245, 250; Brosnahan, 32 Cal.3d
at 241.
In construing constitutional provisions adopted through the initiative power, one long
accepted extrinsic aid is the election brochure pamphlet, which may constitute the only
legislative history of a constitutional amendment adopted through the initiative power. See, e.g.,
White, 13 Cal.3d at 775 (right of privacy). In addressing issues of constitutional interpretation,
the brochure arguments, analysis by the Legislative Analyst, and title and summary prepared by
the Attorney General may be considered.47/
47. See, e.g., Legislature v. Eu (1991) 54 Cal.3d 492, 504 (noting the analysis and arguments
contained in the ballot pamphlet may be considered to resolve ambiguities in the language), cert.
denied (1992) 112 S.Ct. 1292, 1293; Delaney v. Superior Court (1990) 50 Cal.3d 785, 803 & nn.
13 & 14 (considering ballot pamphlet argument and Legislative Analyst's Statement); Harris, 47
Cal.3d at 1082 n.16 (considering analysis of Legislative Analyst for article I, § 28(d)); Lungren,
45 Cal.3d at 740 n.14 (noting "well settled" "rule that the ballot pamphlet is an important aid in
determining the intent of the voters in adopting a constitutional amendment"); Long Beach City
Employees Ass'n v. City of Long Beach (1986) 41 Cal.3d 937, 943 n.5 (noting long practice in
considering ballot arguments "as an aid in construing constitutional amendments adopted via the
initiative process); Lance W, 37 Cal.3d at 888 (considering analysis of Legislative Analyst for
article I, § 28(d)); Los Angeles County Transportation Comm. v. Richmond (1982) 31 Cal.3d
197, 203 (noting ambiguities in an initiative "may be resolved by referring to the ballot
summary, the arguments and analysis presented to the electorate"); Amador, 22 Cal.3d at 245-46
(same); White, 13 Cal.3d at 775 & n.11 (and cases cited therein) (considering brochure
arguments); Methodist Hospital of Sacramento v. Saylor (1971) 5 Cal.3d 685, 695 (noting ballot
45
A review of the Ballot Pamphlet before the voters who considered Proposition 8
establishes three pertinent points concerning the safe schools clause. First, the title, summary,
analysis by the Legislative Analyst, and arguments clearly state that the proposals contained in
the initiative, including the safe schools cause, were drafted to amend the state constitution. See
Ballot Pamp. Elec. (June 8, 1982), official title and summary, analysis by the Legislative
Analyst, rebuttal to argument in favor of Proposition 8, p. 32, 34, reprinted in 32 Cal.3d 300; see
also Brosnahan, 32 Cal.3d at 261 (holding that Proposition 8 constituted a constitutional
amendment and not a revision). The electorate therefore sought, through Proposition 8, to
change the rules and rights previously secured by the Constitution.
Second, in the proposal to amend the Constitution, the Ballot Pamphlet noted, "The
Constitution currently provides that all people have the inalienable right of `pursuing and
obtaining safety, happiness, and privacy.'" Id. analysis by the Legislative Analyst, p. 32
(emphasis added). A major objective of the initiative was to "add" a new inalienable right to
safe schools. Id; see also id., p. 33 (preface of text of proposed law and text noting safe schools
clause "proposed to be added" to Constitution). The voters were therefore aware that the new
inalienable right to safe schools would supplement existing inalienable rights expressly secured
by the constitution, including the right of privacy. This conclusion from the Ballot Pamphlet is
corroborated by an Assembly Committee Report on Proposition 8, which noted the addition of
the inalienable right to safe schools to other inalienable rights. Assembly Committee on
Criminal Justice, Analysis of Proposition 8, The Criminal Justice Initiative, at 7 (Mar. 24, 1982)
(Report to the California Legislature) [hereinafter "Assembly Committee Report"].48/ The
constitutional modification was therefore being made in the context of existing privacy rights.
Third, one of the anticipated consequences of the safe schools clause was an incalculable
increase in claims resulting from the "enforcement of the right to safe schools," and an "increase
in school security costs to provide safe schools." See id. summary and analysis by the
Legislative Analyst (discussing fiscal effect), p. 32, 55; see also id. argument against Proposition
8, p. 35 (anticipating "court battles over compliance" with the "`safe schools' section"). This
conclusion is once again buttressed by the Assembly Committee Report, which also anticipated
that the courts would be called upon to enforce the right to safe schools. See Assembly
Committee Report, at 7-8, 70. Enforcement of the safe schools clause was clearly
contemplated.49/
pamphlet arguments for and against initiative in ascertaining intent of the electorate); see also
Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465 n.7 (noting "the
rationale for considering voter materials when construing an initiative measure" is that "it is
reasonable to infer that those who actually voted on the proposed measure read and considered
the materials in explanation of it, and that the materials therefore provide some indication of how
the measure was understood at the time by those who voted to enact it").
48. In construing Proposition 8, the California Supreme Court has made reference to this
report in the past. See Lance W, 37 Cal.3d at 886 n.6.
49. While the safe schools clause is without question mandatory, see, e.g., Clausing, 221
Cal.App.3d at 1236, some courts of appeal have held it is also not self-executing, i.e., it is not
enforceable because no private cause of action for damages has been established. See id. at
1236-38; Leger v. Stockton Unified School Dist. (3d Dist. 1988) 202 Cal.App.3d 1448, 1456; see
generally Taylor v. Madigan (1st Dist. 1975) 53 Cal.App.3d 943, 951 (noting a constitutional
provision may be mandatory without being self-executing). With regard to this determination
that the safe schools clause is not self-executing, several points must be kept in mind.
First, a strong argument can be made that the safe schools clause is self-executing. For
example, these decisions failed to consider the noted enforcement language from the Ballot
46
Based upon this legislative history, the central question to be reconciled is to what extent,
if any, the new inalienable right to safe schools qualified the preexisting inalienable right to
privacy. Obviously, the inclusion of a separate, new inalienable right devoted to a special,
specific subject area reflects the electorate determination that preexisting rights were insufficient
to address unique concerns over school safety. The voters decided that only by: (1) amending
the constitution, and (2) establishing a new, fundamental right -- of the status of an inalienable
right -- could school safety concerns be adequately addressed. To give full meaning to this
determination of the voters, some comportment and accommodation would have to be made
where this new, specific inalienable right conflicted with others. If the inalienable right to safe
schools is to have meaning and be given force, no other construction appears permissible. This
conclusion is further supported by general arguments in the Ballot Pamphlet that Proposition 8
would affect privacy rights. See id. rebuttal to argument in favor of Proposition 8 ("If you care
about your privacy . . . vote no on Proposition 8.") (emphasis omitted).
Moreover, either to avoid a constitutional conflict or where such a conflict is
unavoidable, "a recent specific [constitutional] provision is deemed to carve out an exception to
and thereby limit an older, general provision." Izazaga v. Superior Court (1991) 54 Cal.3d 356,
371, modified (1991) 54 Cal.3d 611a; Lance W, 37 Cal.3d at 887 ("The general rule is that courts
assume from a new enactment [through the initiative power] a purpose to change existing law.");
see also People v. Valentine (1986) 42 Cal.3d 170, 181; Serrano, 5 Cal.3d at 596; People v.
Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637, appeal dism'd (1954) 348 U.S. 859; Rose v.
State of California (1942) 19 Cal.2d 713, 723-24. The right to safe schools, adopted by initiative
ten years after the right of privacy was incorporated into the Constitution, is more specific and
narrower than the broader, general right of privacy. See, e.g., Rose, 19 Cal.2d at 724 ("A
specific provision relating to a particular subject will govern in respect to that subject, as against
a general provision, although the latter, standing alone, would be broad enough to include the
subject to which the more particular provision relates."). Accordingly, the last specific
expression of the electorate should prevail.
As a mandatory provision, all branches of government, including the judiciary, must
comply with the safe schools clause and are prohibited from contravening it. See Clausing, 221
Cal.App.3d. at 1236; Leger, 202 Cal.App.3d at 1454; see also Cal. Const. art. I, section 26 ("The
provisions of this Constitution are mandatory and prohibitory, unless by express words they are
declared to be otherwise."); Mosk v. Superior Court (1979) 25 Cal.3d 474, 493 n.17.
As Justice Mosk suggested in William G, where such a conflict exists, an accommodation
must be reached:
Pamphlet and Assembly Committee Report. This issue has yet to be definitively determined by
the California Supreme Court.
Second, even if the California Supreme Court agreed that the provision was not self-
executing, the safe schools clause cannot be disregarded in the right to privacy analysis. It is a
mandatory provision. As noted, under well-established principles of constitutional construction,
a possible conflict must be avoided and the provisions must be harmonized. Finally, to discount
the inalienable right to privacy is to discount the will of the electorate which adopted this right.
See, e.g., Brosnahan, 32 Cal.3d at 241 (noting the initiative process must be jealously guarded
and is "one of the most precious rights of our democratic process") (internal quotation and
citation omitted).
Third, even if the provision is deemed not self-executing, there is still an open question
whether a cause of action may be inferred from the Constitution. See Leger, 202 Cal.App.3d at
1457 n.4 (noting open issue); accord Rodriguez v. Inglewood Unified School Dist. (2d Dist.
1986) 186 Cal.App.3d 707, 722 (not reaching the question whether liability may be predicated
upon the safe schools clause).
47
Of course we must be alert to protecting the legitimate rights of students
who are suspected of criminal activity or violation of school regulations.
However, we must also realize that innocent, law-abiding students have a
constitutional right to protection from crime and criminals, and are entitled to a
safe school environment. The people of California made that clear when they
adopted article I, section 28, subdivision (c), of the Constitution.
William G, 40 Cal.3d at 574 (Mosk, J., dissenting) (emphasis added); see also Alexander B, 220
Cal.App.3d at 1577 (applying safe schools clause in Fourth Amendment student search case);
Gordon J, 162 Cal.App.3d at 544 (noting "duty of the school administration to protect law
abiding students from delinquents among them," based upon, inter alia, safe schools clause, and
holding that the exclusionary rule is inapplicable in high school disciplinary proceeding).50/
Thus, the inalienable right to safe schools would affect the privacy clause analysis in at
least one significant respect. This constitutional provision affects the initial determination of
whether a compelling interest test should be applied. Rigid application of the compelling
interest test would deprive the electorate of its determination to allow for the inalienable right to
safe schools. In the event that a compelling interest test fails to harmonize or take into full
account the independent, subsequent constitutional inalienable right to safe schools, the
compelling interest test should be confined, as it has under current case law, to those cases which
do not present a constitutional conflict between two inalienable rights.
F. UNREASONABLE SEARCHES UNDER THE CALIFORNIA
CONSTITUTION
California Constitution article I, section 13 contains language which is virtually identical
to the Fourth Amendment under the United States Constitution. Compare note 6, supra.51/ In
Lance W, 37 Cal.3d at 890, the California Supreme Court upheld the constitutionality of article I,
section 28(d) abolishing the use of independent state grounds for the exclusion of evidence for
search and seizure violations and relying upon such judge-made remedies solely to the extent
they are available under federal law. See also People v. May (1988) 44 Cal.3d 309, 318.
Therefore, under settled California law, any exclusionary rule asserted under article I, section 13
would operate to the extent available under the Fourth Amendment.
Any other possible reliance on article I, section 13 in challenging school metal detectors
would have to overcome two significant hurdles. First, since the use of school metal detectors
50. By analogy, other cases involving metal detector searches have noted a possible conflict
between the Fourth Amendment and other constitutional provisions, including the First
Amendment, the right to interstate travel, and the right to attend public trials. See, e.g.,
Wilkinson, 832 F.2d at 1339 (citing cases); see also $124,570 U.S. Currency, 873 F.2d at 1248
n.8 (noting "some compelling state interest must exist before the government can burden the
constitutional right to travel"); Davis, 482 F.2d at 912-13 & n.57 (noting requirement of "a
compelling state interest"); accord Albarado, 495 F.2d at 807 n.15 (noting "conditioning air
travel on a waiver of fourth amendment rights . . . if it serves a compelling governmental interest
may be justified, thereby making the search reasonable").
51. Article I, section 13 provides:
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable seizures and searches may not be violated; and a
warrant may not issue except on probable cause, supported by oath or affirmation,
particularly describing the place to be searched and the persons and things to be
seized.
48
has already been shown to satisfy even a compelling interest balancing test for the right to
privacy, it is difficult to conceive of any balancing test under article I, section 13 which a school
metal detector program could not satisfy, given the fundamental and substantial state interests at
stake weighed against the minimal intrusion, as previously discussed. Second, in order to give
effect to each constitutional provision, any analysis under article I, section 13 should take into
account the objectives of the independent, inalienable right to safe schools, safeguarded under
article I, subsection 28(c). See Discussion in Subsection III(E)(1)(c), supra. For these reasons,
article I, section 13 would not pose a barrier to the reasonable application of metal detectors to
students.
IV. CONCLUSION
Regrettably, weapons have proliferated in our schools. The incidence of weapons in
primary and secondary schools in California has risen to unacceptable levels, often threatening
the security of schools and the primary mission of schools to teach and train our students. In
many schools, school administrators and teachers are wrestling with appropriate responses to
deter weapons and promote a positive learning environment.
We conclude that the reasonable application of metal detectors in schools, as a matter of
law, does not violate the Fourth Amendment or California constitutional and statutory standards.
Thus, the use of metal detectors may represent a viable tool for school officials to deter weapons
on school grounds. As Justice Mosk observed only seven years ago:
We live in troublesome, indeed hazardous times. A decade or two ago the
potential delinquent pupil was merely truant, smoked cigarettes, and drove hot
rod cars. Today, the delinquent of the same age is often violent, and some use
drugs and deadly weapons. If we are not to have countless future generations of
adult criminals, we must make as certain as possible that we do not permit
criminality to begin with juveniles in public schools. We do not have police
officers in our classrooms. Therefore we must give to teachers and principals all
the tools they reasonably need to preserve order in classrooms and school
grounds.
William G, 40 Cal.3d at 574 (Mosk, J., dissenting); cf. Schaill, 864 F.2d at 1324 ("If the schools
are to prosper, school administrators must have reasonable means at their disposal to deter
conduct which substantially disrupts the school environment.").
Local school officials are the appropriate authorities to determine, as a matter of policy,
"if," "when," "where," and "how" metal detectors should be used to deter the presence of
weapons given the unique circumstances in their school. Therefore, where a substantial safety
problem exists, schools, at their discretion, may decide that metal detectors should be employed
as part of a plan to keep weapons out. If a decision is made to use metal detectors in one form or
another, school policy makers should establish an administrative plan to guide school officials in
implementing the plan.
As discussed above, at issue is not only the privacy concerns of individual students who
might question the particular use of metal detectors in schools but also the safety concerns of
other students and school personnel who may in fact welcome steps to mitigate the threat and
fear of weapons on school grounds, including the minimal intrusion resulting from a metal
detector scan. Moreover, for many schools there may be no less restrictive alternatives available
to deter otherwise concealable weapons. Students and teachers are entitled to attend safe schools
free of weapons. Importantly, the legitimate privacy interests of students can be protected and
respected by reasonable procedures in order to pursue the compelling interest to furnish a safe
learning environment free of weapons.
49
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50