73 Am. U. L. Rev. F. 277 (2024).

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Abstract

This invited Response to Josephine Ross’s Abolishing Police Consent Searches Through Legislation: Lessons from Scotland applies Professor Ross’s insights about consent searches to the context of K-12 schools. Even more than the adults she discusses, minors in schools are especially susceptible to state displays of authority. As a result, what police and courts refer to as “consent” to a search is more likely to be mere acquiescence. In school with students, as in public with adults, a consent search constitutes a legal fiction.

Nonetheless, this Response suggests that abolition of consent searches in public schools is unlikely. Because administrators have a moral and legal obligation to keep students safe, they seem especially likely to rely on consent searches in responding to such alleged offenses as assault, larceny from the person, and drug distribution. However, school districts can and should create policies that prohibit administrators—except where they are statutorily obligated otherwise—from using the fruits of a consent search as the basis for a referral of a student for prosecution in juvenile or criminal court. Avoiding criminalization of school-based misconduct is essential for creating and maintaining the positive staff-student relationships on which successful schools depend.

* Reef C. Ivey II Excellence Fund Term Scholar and Associate Professor of Law, University of North Carolina School of Law. Thank you to Joseph Kennedy, Brandon Garrett, and the participants in the 13th Conference on Adversarial and Inquisitorial Systems at Duke Law School and UNC School of Law for helpful comments on an earlier draft. Thanks to the editors of the American University Law Review Forum for inviting this Response and for excellent editorial assistance.