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Excerpts from the Concurring Opinion
Justice Blackmun wrote a concurring
opinion.
I
join the judgment of the Court and agree with much that
is said in its opinion. I write separately, however,
because I believe the Court omits a crucial step in
its analysis of whether a school search must be based
upon probable cause. The Court correctly states that
we have recognized limited exceptions to the probable-cause
requirement "[w]here a careful balancing of governmental
and private interests suggests that the public interest
is best served" by a lesser standard. I believe
that we have used such a balancing test, rather than
strictly applying the Fourth Amendment's Warrant and
Probable-Cause Clause, only when we were confronted
with "a special law enforcement need for greater
flexibility."
.
. . The Court's implication that the balancing test
is the rule rather than the exception is troubling for
me because it is unnecessary in this case. The elementary
and secondary school setting presents a special need
for flexibility justifying a departure from the balance
struck by the Framers.
.
. . Education "is perhaps the most important function"
of government, Brown v. Board of Education,
(1954), and government has a heightened obligation to
safeguard students whom it compels to attend school.
The special need for an immediate response to behavior
that threatens either the safety of schoolchildren and
teachers or the educational process itself justifies
the Court in excepting school searches from the warrant
and probable-cause requirement, and in applying a standard
determined by balancing the relevant interests. I agree
with the standard the Court has announced, and with
its application of the standard to the facts of this
case. I therefore concur in its judgment.
Questions to Consider:
- In
what way does Justice Blackmun disagree with the reasoning
of the majority opinion?
- Does
Justice Blackmun think school employees should need
to have a warrant to search students? Why or why not?
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