Search and seizure grey area for schools

Media Release

Search and seizure grey area for schools

Schools need more certainty around their right to search students and seize items according to the New Zealand School Trustees Association.

Search and seizure is becoming more common in schools and schools need to tread carefully in this area says former school trustees adviser Ray McMillan.

With the rise in numbers of students taking drugs, dangerous objects and other contraband to school, Mr McMillan says the issue of search and seizure is coming under more scrutiny.

“There’s a division in the legal community about whether or not schools can do this at all. We don’t have any definitive answer in New Zealand yet.”

Mr McMillan says that schools in other countries such as the United States and Canada have rights to search students that are enforced by the courts.

“It’s not that schools in New Zealand don’t have the right to search students when they genuinely suspect something, indeed in many cases they have an obligation to, it’s just that should a student wish to take the matter to court – we have no precedent cases to guide us.”

There is no express provision in the law allowing schools to search students. Mr McMillan says under the Education Act schools do have a mandate to control and manage schools - so it is considered an implied right. However, as to whether searching could be a breach of the student’s rights has yet to be tested.

“I would expect that if a student did wish to push the point and take the matter to court, that a school would have the right to search validated – provided they carried out the search correctly.”

There is a checklist of steps a school should go through before searching a student. This includes first having a good reason to believe the student is in possession of a prohibited item and then following school procedures.

Mr McMillan says schools should not be put off carrying out searches when they have good grounds to do so, and when they do it properly.

“When it comes to the crunch, schools have the right to keep students safe, and searching and seizing is sometimes part of this”.

There are some things that are considered unreasonable says Mr McMillan.

“Schools can’t strip search students, but if they believe they have good grounds, they could pat a student down. They also can’t go on fishing expeditions – like searching the whole class for one stolen ipod.”

Mr McMillan says there is anecdotal evidence that schools today are having to carry out searches and seizure more often because of drugs being brought into schools. There is also some anecdotal evidence that searching is becoming more frequent at the year seven and eight level.

“Searching students for drugs is not uncommon at intermediate schools now. And in some schools the drug problem has become so bad they have gone beyond looking through school bags and now use sniffer dogs.”

Search and seizure is one of the many potential situations facing trustees today being discussed at the New Zealand School Trustees Association conference in Wellington this week.

Ray McMillan will also be exploring the wider issue of setting school rules – and how the rights of students must be considered under the Bill of Rights. He will look at how boards deal with rules around school uniform, discipline, activities outside school, and to what degree a school can allow access to students from outside agencies such as the police and Child Youth and Family.

ENDS

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