Thurgood Marshall

“ If, on the other hand, the new standard permits searches of students in instances when probable cause is absent — instances, according to this Court's consistent formulations, when a person of reasonable caution would not think it likely that a violation existed or that evidence of that violation would be found — the new standard is genuinely objectionable and impossible to square with the premise that our citizens have the right to be free from arbitrary intrusions on their privacy. ”

“ Ignoring what Gates took such great pains to emphasize, the Court today holds that a new "reasonableness" standard is appropriate because it
will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense. ”

“ Finally, teachers can observe the behavior of students under suspicion to corroborate any doubtful tips they do receive.
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. Of course, as this Court should know, an essential purpose of developing and articulating legal norms is to enable individuals to conform their conduct to those norms. ”

“ In particular, the test employed by the Court vastly overstates the social costs that a probable cause standard entails and, though it plausibly articulates the serious privacy interests at stake, inexplicably fails to accord them adequate weight in striking the balance. ”

“ I agree with the Court that we can take judicial notice of the serious problems of drugs and violence that plague our schools. As JUSTICE BLACKMUN notes, teachers must not merely "maintain an environment conducive to learning" among children who "are inclined to test the outer boundaries of acceptable conduct," but must also "protect the very safety of students and school personnel." Ante at 352-353. A teacher or principal could neither carry out essential teaching functions nor adequately protect students' safety if required to wait for a warrant before conducting a necessary search. ”

“ For instance, just as police officers may conduct a brief stop and frisk on something less than probable cause, so too should teachers be permitted the same flexibility. A teacher or administrator who had reasonable suspicion that a student was carrying a gun would no doubt have authority under ordinary Fourth Amendment doctrine to conduct a limited search of the student to determine whether the threat was genuine. ”

“ Moved by whatever momentary evil has aroused their fears, officials — perhaps even supported by a majority of citizens — may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. ”

“ Third, categories of intrusions that are substantially less intrusive than full-scale searches or seizures may be justifiable in accordance with a balancing test even absent a warrant or probable cause, provided that the balancing test used gives sufficient weight to the privacy interests that will be infringed. ”

“ Especially for shy or sensitive adolescents, it could prove extremely embarrassing for a teacher or principal to rummage through its contents, which could include notes from friends, fragments of love poems, caricatures of school authorities, and items of personal hygiene. ”

“ Brignoni-Ponce, 422 U.S. 873, 880 (1975) , usually "consume [d] no more than a minute"; the Court explicitly noted that "any further detention . . . must be based on consent or probable cause." Id. at 882. See also United States v. Hensley, ante at 224 (momentary stop) ; United States v. Place, 462 U.S. at 706-707 (brief detention of luggage for canine "sniff") ; Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) (brief frisk after stop for traffic violation) ; United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976) (characterizing intrusion as "minimal") ”