UC Irvine Law Review

It’s the forgotten, discarded, disposable people. That’s so often who you find in jail—the forgotten.

—Rev. David Kelly, explaining why he devotes himself to working with children coming out of the juvenile detention system.

Many schools treat children as “disposable.”

—Francisco Arenas, Juvenile Probation Officer at Cook County Juvenile Probation.

Schoolchildren are being strip-searched based on little or no reasonable suspicion, and schoolchildren are being targeted for searches based on their race, disability status, gender, or homelessness. This is possible because the Supreme Court has issued only two opinions in its history about the right of schoolchildren to be free from unreasonable searches and seizures in schools. With those two cases, the Court has established a special test for schoolchildren, far more permissive than that applied to those suspected of serious criminal wrongdoing. Two cases in thirty-five years are not enough to regulate the lower courts’ oversight of literally millions of searches and seizures conducted in schoolhouses throughout the nation every year—a lack of oversight that lower courts have exploited to permit schools extraordinary discretion over schoolchildren and approve highly invasive searches. The existing literature focuses almost exclusively on the Supreme Court’s minimalist jurisprudence; in contrast, this Article uses a combination of methodological approaches to show how the law of searches and seizures in schools operates on the ground by conducting an in-depth case study of one jurisdiction, Illinois. We examine every case decided in Illinois and show that lower courts exploit the porousness of the Supreme Court’s test to permit questionable and sometimes even clearly illegal state actions. Yet even a comprehensive study of lower courts fails to fully grasp the extent of the problem: a minuscule proportion of the intrusions on schoolchildren by the state ever become cases—most internal school procedures are never independently reviewed at all, even if they involve unconstitutional intrusions. To understand how common searches and seizures of schoolchildren are and how often they cross the line into unconstitutionality, we draw on testimony from interviews with experts in the field. These interviews reveal that schools discriminate among students based on factors such as race, disability, homelessness, wealth, and community characteristics; and schools target some students for searches that can result in exclusion from school for shockingly long periods. Multiple interviewees independently described the system as treating some schoolchildren as disposable. The judiciary is failing to provide basic protections to our children, and Supreme Court intervention is imperative.