NC Supreme Courts Hears Arguments Regarding Student Bra Searches

Last month, the North Carolina Supreme Court heard arguments regarding whether or not it is an unconstitutional search when school officials force a student to pull her bra away from her body so they can check to see if she if hiding drugs in her bra. This type of search was actually conducted in a North Carolina school in 2008 when they found a student in possession of drugs. The ultimate decision by the North Carolina Supreme Court will impact the privacy rights of 1.5 million public school students.

Facts Regarding the "Bra Search"

The search in dispute occurred in 2008 when the principal at an alternative school in North Carolina ordered the searches after the school received a general tip from students that prescription pills were being smuggled into the school. The tip didn't include any information regarding the type of pills being brought in or who was actually smuggling them. But, the principal did claim that she knew students would generally hide drugs in the tongues of their shoes, socks and underwear, including bras.

As part of the search, students were required to first pass through metal detectors and then directed to wait in the lunchroom. The students were then brought into a classroom one at a time to be searched. In order to find drugs hidden in bras, female students were required to pull out their shirts and put their thumbs under their bra and pull out - with the hope that any drugs hidden in their bras would fall out. However, there is no evidence that male students were required to participate in a similar search.

During the search, a white powder and drug paraphernalia were discovered on one of the female students - the student is simply known as T.A.S. in court filings since she was only 15-years-old at the time of the search. The powder was later classified as Percocet.

After the trial court judge refused the student's request to exclude the evidence found during the search, she pleaded guilty to two drug-related crimes, but preserved her right to appeal the trial court's denial of her motion to suppress.

The Constitutionality Student Searches

The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures by the government. Generally, a search requires a warrant based on probable cause, but even warrantless searches still usually require probable cause. However, while a warrant and probable cause may deem a search reasonable, reasonableness depends on the context of the search, and public schools are a context where the U.S. Supreme Court has determined that the Fourth Amendment determination of reasonableness "stops short of probable cause."

In a U.S. Supreme Court case titled New Jersey v. T.L.O, the Court acknowledged that students do have legitimate expectations of privacy, but that the special needs of schools require a standard less than probable cause to determine whether a student search was reasonable, and thus constitutional. The Court developed a two part test to answer this question, which includes:

  • Was the action justified at its inception, and
  • Was the search as actually conducted reasonably related in scope to the circumstances which justified the interference in the first place

The Court in T.L.O. provided additional guidance when applying this test, specifically the Court said that ordinarily the search of a student by school officials will be "justified at its inception" when there are reasonable grounds for believing that the search will result in discovering evidence that the student violated the law. Further, the search will be of permissible scope when 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."

Appellate Court "Bra Search" Decision

When applying T.L.O., the Court of Appeals in North Carolina ultimately sided with the student when they reversed the trial judge's order denying the suppression of the evidence obtained during the bra search. The appellate court held:

While certain aspects of the search here may have been reasonable based on the general suspicion that pills were coming into the school - possibly by concealment in some students' undergarments - the search of T.A.S.'s bra, without individualized grounds for suspecting that she had the pills on her person, was excessively intrusive. Once the search extended to such intimate places, the generalized suspicion upon which the trial court relied was no longer sufficient to justify the heightened intrusion.

Following this decision, the state decided to appeal to the North Carolina Supreme Court, arguing that the "compelling governmental need" to promote the safety and health of students outweighs the individual student's privacy rights, and that students at alternative schools have lower privacy rights than students at other schools, which was argued in the state's brief.

The legal issues presented in the case are extremely complicated, and this article barely scratches the surface of the law surrounding the constitutionality of student searches in North Carolina - and as such this article should not be considered legal advice. However, regardless of the way the North Carolina Supreme Court comes out on these issues, their decision will have a lasting impact on schools in North Carolina.