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Excerpts from the Dissenting Opinions
Justice Brennan, with Justice Marshall
joining, wrote an opinion concurring in part and dissenting
in part.
.
. . Today's decision sanctions school officials to conduct
full scale searches on a "reasonableness"
standard whose only definite content is that it is not
the same test as the "probable cause" standard
found in the text of the Fourth Amendment. . .
.
. . Our holdings that probable cause is a prerequisite
to a full-scale search are based on the relationship
between the two Clauses of the Fourth Amendment. The
first Clause ("The right of the people to be secure
in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated
. . .") states the purpose of the Amendment and
its coverage. The second Clause (". . . and no
Warrants shall issue but upon probable cause . . .")
gives content to the word "unreasonable" in
the first Clause.
.
. . For me, the finding that the Fourth Amendment applies,
coupled with the observation that what is at issue is
a full-scale search, is the end of the inquiry. But
even if I believed that a "balancing test"
appropriately replaces the judgment of the Framers of
the Fourth Amendment, I would nonetheless object to
the cursory and shortsighted "test" that the
Court employs to justify its predictable weakening of
Fourth Amendment protections.
.
. . As compared with the relative ease with which teachers
can apply the probable-cause standard, the amorphous
"reasonableness under all the circumstances"
standard freshly coined by the Court today will likely
spawn increased litigation and greater uncertainty among
teachers and administrators . . .
.
. . Applying the constitutional probable-cause standard
to the facts of this case, I would find that Mr. Choplick's
search violated T.L.O.'s Fourth Amendment rights. After
escorting T.L.O. into his private office, Mr. Choplick
demanded to see her purse. He then opened the purse
to find evidence of whether she had been smoking in
the bathroom. When he opened the purse, he discovered
the pack of cigarettes. At this point, his search for
evidence of the smoking violation was complete.
.
. . On my view of the case, we need not decide whether
the initial search conducted by Mr. Choplick—the
search for evidence of the smoking violation that was
completed when Mr. Choplick found the pack of cigarettes—was
valid. For Mr. Choplick at that point did not have probable
cause to continue to rummage through T.L.O.'s purse
. . . Therefore, the fruits of this illegal search must
be excluded and the judgment of the New Jersey Supreme
Court affirmed.
Justice
Stevens, with Justice Marshall joining, and with Justice
Brennan joining in part, wrote an opinion concurring
in part and dissenting in part.
.
. . [T]he New Jersey court . . . reasoned that this
Court's cases have made it quite clear that the exclusionary
rule is equally applicable "whether the public
official who illegally obtained the evidence was a municipal
inspector, a firefighter, or a school administrator
or law enforcement official." It correctly concluded
"that if an official search violates constitutional
rights, the evidence is not admissible in criminal proceedings".
.
. . Schools are places where we inculcate the values
essential to the meaningful exercise of rights and responsibilities
by a self-governing citizenry. If the Nation's students
can be convicted through the use of arbitrary methods
destructive of personal liberty, they cannot help but
feel that they have been dealt with unfairly. The application
of the exclusionary rule in criminal proceedings arising
from illegal school searches makes an important statement
to young people that "our society attaches serious
consequences to a violation of constitutional rights,"
and that this is a principle of "liberty and justice
for all".
.
. . A standard better attuned to this concern would
permit teachers and school administrators to search
a student when they have reason to believe that the
search will uncover evidence that the student is
violating the law or engaging in conduct that is seriously
disruptive of school order, or the educational process.
.
. . In the view of the state court, there is a quite
obvious and material difference between a search for
evidence relating to violent or disruptive activity,
and a search for evidence of a smoking rule violation.
This distinction does not imply that a no-smoking rule
is a matter of minor importance. Rather, like a rule
that prohibits a student from being tardy, its occasional
violation in a context that poses no threat of disrupting
school order and discipline offers no reason to believe
that an immediate search is necessary to avoid unlawful
conduct, violence, or a serious impairment of the educational
process.
.
. . Like the New Jersey Supreme Court, I would view
this case differently if the Assistant Vice Principal
had reason to believe T.L.O.'s purse contained evidence
of criminal activity, or of an activity that would seriously
disrupt school discipline. There was, however, absolutely
no basis for any such assumption—not even a "hunch".
.
. . The schoolroom is the first opportunity most citizens
have to experience the power of government. Through
it passes every citizen and public official, from schoolteachers
to policemen and prison guards. The values they learn
there, they take with them in life. One of our most
cherished ideals is the one contained in the Fourth
Amendment: that the government may not intrude on the
personal privacy of its citizens without a warrant or
compelling circumstance. The Court's decision today
is a curious moral for the Nation's youth. Although
the search of T.L.O.'s purse does not trouble today's
majority, I submit that we are not dealing with "matters
relatively trivial to the welfare of the Nation. There
are village tyrants as well as village Hampdens, but
none who acts under color of law is beyond reach of
the Constitution."
I
respectfully dissent.
Questions to Consider:
- In
the first dissenting opinion, what is the objection
of Justice Brennan to the "reasonableness"
standard used in the Court's majority opinion?
- What
does Justice Brennan say will be the likely result
of using the "reasonableness" standard?
- Why
does Justice Brennan say the search of T.L.O.'s purse
should have been held unconstitutional?
- In
the second "separate opinion", Justice Stevens
says, "The application of the exclusionary rule
in criminal proceedings arising from illegal school
searches makes an important statement to young people
that 'our society attaches serious consequences to
a violation of constitutional rights,' and that this
is a principle of 'liberty and justice for all'".
Do you agree or disagree?
- Justice
Stevens suggests an alternate standard for use in
judging the legality of school searches. What is that
standard? Do you think this standard would work better
than the standard in the Court's majority opinion?
- In
his conclusion, Justice Stevens makes an argument
that the Court's decision is a "curious moral
for the Nation's youth". Do you agree or disagree
with this argument? Why?
- Did
reading the separate opinions in this case change
your opinion about the Court's decision? Explain.
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