Running Title: An Analysis of the Fourth Amendment in Higher Education

An Analysis of the Fourth Amendment in Higher Education

Nicole A. Patton

Concordia University
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Institutions of higher education have a complicated relationship with the law. For a long

time, the administrators of a college or institution were seen as the rightful guardians of students,

and as such did not have many limitations to their decisions. As this relationship has modernized,

however, differences have shown up between how public and private institutions interact with the

law. One example of a law that has different implications at different types of institutions is the

Fourth Amendment to the U.S. Constitution.

The Fourth Amendment states that “the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and

no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized” (U.S. Const. Amend.

IV). As Constitution Annotated explains, this amendment was very important to colonials because

of how limited their freedom of security was by the British. However, it also comes from the

British idea that “every man’s house is his castle” (Constitution Annotated, n.d.). Saman’s Case,

which happened in 1603 in England, sets the groundwork for this amendment. In this case, the

court recognized that someone should be allowed to prevent even a king’s agents from entering

their home unlawfully. This and other early English cases emphasized the need for probable cause

in order for a warrant, or in England, writs of assistance, to be issued.

The Fourth Amendment was very quickly added to the U.S. Constitution as part of the Bill

of Rights, which was ratified in 1791, four years after the Constitution was approved. It took a bit

longer, however, for higher education to acknowledge students’ rights to be protected from

unreasonable searches and seizures. Residence Halls, more commonly called dorms, are almost

always owned by the university or at least run by them. In addition, students are not typical

tennants, and tend to live there only for a short term, between one semester and a full year. With
An Analysis of the Fourth Amendment in Higher Education 3

these items in mind, institutions have had to discern whether residence halls are purely residences,

or if they are mainly spaces of education, and whether the residents should mostly be treated like

tenants, or like students. When the use of dormitories was first adopted, universities operated in

loco parentis, or in place of parents. This meant that policies were not very supportive of the

Fourth Amendment, and for a long time, this did not raise concern with the courts.

As discussed in The Law of Higher Education, written by William Kaplin, Barbara Lee,

Neal Hutchins, and Jacob Rooskby (2020), the case of Piazzola v. Watkins saw a shift towards

students being able to expect privacy. In 1971, the local police requested that a dean of men at a

state university cooperate with them by searching two students’ rooms. The college’s policy stated

that it “reserves the right to enter rooms for inspection purposes. If the administration deems it

necessary, the room may be searched and the occupant required to open his personal baggage and

any other personal material which is sealed” (Kaplin et al, 2020, p. 485). Both university officials

and the local police were involved in the search, but did not use a warrant. The students were

arrested after the search turned up marijuana. The Fifth Circuit U.S. Court of Appeals ended up

reversing the convictions based on the idea that students should be protected by the Fourth

Amendment, and that since a warrant was not used, the amendment was not upheld.

Piazzola and other similar cases led to the decision that the Fourth Amendment is viewed

as more important than an administrator’s belief that students can not expect privacy, or that they

have an interest in the health and safety of the students. Once this became the expectation,

institutions needed to find ways to legally enter students’ rooms. As explained in The Law of

Higher Education (2020), they can do so by including verbiage in their housing policy that gets

students’ general permission. However, they cannot force a student to waive their right. Even in

these circumstances, only staff of the institution would be allowed to enter rooms, not police or
An Analysis of the Fourth Amendment in Higher Education 4

other government officials. One example of a lawful search would be a statement in the housing

policy clearly authorizing inspections that safeguard an education environment and protect the

institution’s property. Under this same idea, health and safety checks are also typically lawful,

particularly when students are informed of when they will happen ahead of time.

A warrantless search can be done in an emergency situation, but must be done so carefully.

The Law of Higher Education (2020) shared the case of Commonwealth v. Neilson. A maintenance

worker reported what he thought was a cat in a suite. The university officials began by doing a

lawful check. However, during that check they found marijuna in Neilson’s room. The mistake

happened when the university police then entered the room and took the marijuana plant without a

warrant or Neilson’s consent. Kapin et al. discuss one final way that a warrantless search could be

lawful, which is through the use of a plain view exception. In State of Washington v. Chrisman,

campus security at a student’s door for a lawful reason when he noticed some drugs and

paraphernalia in the room. Since these items were in plain view, the officer was able to take action.

As The Law of Higher Education clarifies, “administrators at private institutions are

generally not subject to Fourth Amendment restraints, since their actions are usually not state

action” (Kaplin et al, 2020, p. 409). Because of this, many of the above scenarios do not apply to

private institutions. However, these institutions must still follow through with any contractual

language surrounding how searches and privacy will be handled. In addition, this leniency only

applies to institution staff, and police or other similar officials are not allowed to ignore the

protection provided by the Fourth Amendment, largely due to the fact that police actions are

viewed as state action.

Concordia University St. Paul is a private, religiously affiliated institution. Their policy

regarding the search of residence hall rooms, as found on their website, begins with the following:
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“The University recognizes residents’ desire for privacy, particularly in the context of their living

situation, and will do all it can to protect and guarantee their privacy. However, the University’s

designated staff member reserves the right to enter a resident’s room at any time for the following

purposes” (Student Policies, n.d.). It then goes on to list the reasons for which someone might enter

a room, including many of the reasons discussed above. Noticeably, they also include “To silence

unattended loud alarms and music” as a reason for entering a student’s residential space (Student

Policies, n.d.). The handbook then goes on to state some contractual language explaining under

which circumstances a room search by a staff member might occur. They indicate that items may

be seized, but that in order for a member of law enforcement to enter a room, either a warrant must

be used or a student must give permission. Finally, they explain the possible consequences of

failing to adhere to their search policy, and explain that the reasoning for their policy is to “provide

an orderly, safe living environment” (Student Policies, n.d.)

An important part of Fourth Amendment policy at all institutions is the idea of due care or

due process. Institutions should work to protect privacy where possible and conclude that someone

is responsible before putting them through an intensive search and conduct procedure. Richard M.

Re discusses this in his chapter “Fourth Amendment Fairness” in Michigan Law Review (2018): “a

principle requiring certainty of guilt would place an impossible burden on police (...). At the

opposite extreme, innocent individuals could reasonably reject principles that exposed them to a

high risk of suffering burdens” (Re. 2018, p. 1429). Beyond needing reasonable suspicion, Re

states the importance of having individualized suspicion. He gives a hypothetical example where

statistics might show that the majority of the residents in a residence hall have some sort of illegal

item in their room. He explains that this is not enough proof for police to enter every room in the

hall, despite the fact that the police would undoubtedly find many illegal items. This might seem
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particularly counter-intuitive based on the origins of privacy in dormitories, where the greater good

of the university and education were the driving factors, since “ if a single search is socially

beneficial when it is likely to bear fruit, then police could plausibly maximize social welfare by

conducting as many of those searches as possible” (Re. 2018, p. 1431). The reason for the need for

individualized suspicion pulls in the ethics and morals behind the law - specifically the belief that

innocent people must be protected and given the opportunity to make the right decisions. Building

policy based on general statistical evidence does protect each student’s right to make their own

decision.

Re’s arguments respect individual choice, but do not completely disregard the importance

of evidence. As explained above, Re says that evidence must be specific, not generalized.

Concordia University St. Paul’s Student Handbook states that a staff member can enter a room “to

determine compliance with all relevant health and safety regulations (e.g. fire alarms, lock downs,

health and safety checks, etc.)” (Student Policies, n.d.). A hypothetical statistic might show that 75

percent of students who have their windows open when the temperature is below 60 degrees have

disabled their fire alarms- this would be a generalized assumption. Entering every room that has

their window open in the winter to check to see if their smoke detectors are disabled would likely

yield results, but would not respect individual choice. Another hypothetical statistic might show

that 99 percent of rooms alarms that do not go off when a building’s alarm is going off are

disabled. Given this statistic, if a staff member were to notice that there was no alarm sound

coming from one room during a drill, entering that room to check their alarm would respect

individual choice. The basis behind Re’s arguments here is that law and policy should give

individuals the choice to not break them, and thus to avoid search, seizure, arrest, or whatever else

the consequences of the action might be.

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Thomas Miller and Roger Sorochty explain in their book Risk Management in Student

Affairs: Foundations for Safety and Success that “the key legal test to Fourth Amendment

challenges is the matter of what is reasonable as opposed to unreasonable. One of the primary tests

of reasonableness relates to the expectation of privacy” (Miller and Sorochty. 2014, p. 32). They

explain that just because a resident expects privacy does not mean that it is reasonable. State of

Washington v. Chrisman is a good example of this. While Chrisman undoubtedly expected privacy

in his room, the officer was outside the doorway lawfully, and as such, Chrisman should not have

expected that his choices that were visible in plain sight would be kept private. Similarly, if an RA

were doing their nightly rounds, walked past a room while the door was closing, and saw alcohol

on the coffee table, they would reasonably be able to follow their institution’s procedures for an

alcohol related incident.

Miller and Sorochty outline another situation where staff members would need to pull from

their ethics and morals: “a contract may state that institutional officials reserve the right to enter

rooms for educational purposes, such as the protection of university property, but not for the

enforcement of criminal law” (Miller and Sorochty. 2014, p. 33). Concordia University’s student

handbook has similar wording, and before winter break, staff enter every room in the first year

residence halls to check for safety and maintenance concerns that could cause problems over break.

If an RA took advantage of this opportunity to dig through a resident’s drawers, looking for

contraband, they would not be following the Fourth Amendment. However, if they were to enter a

room, notice that the minifridge was leaking, and discover alcohol while cleaning up the mess,

they would only have discovered a policy violation as a result of protecting university property.

At the heart of work in higher education is a desire to see students grow and help them

achieve their goals. As such, staff at a university should not be constantly out to find the rule
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breakers and lay down the law. “Sound student affairs practice should include a general sensitivity

to the issues associated with student expectation of privacy” (Miller and Sorochty. 2014, p. 34).

Student Affairs practitioners should have a strong moral compass, as lack of one might not only

cause them to break the law and their institution’s policy, but more importantly would not be

considerate of the students. Regardless of whether a professional works at a private or public

institution, all student affairs staff should consider the reasoning behind the laws that public

institutions must follow, and consider whether doing so themselves might not be the most ethical

decision to make.

References

Amdt4.1 Fourth Amendment: Historical Background. Constitution Annotated (n.d.). Retrieved

December 22, 2021, from https://constitution.congress.gov/browse/essay/amdt4_1

Kaplin, W.A., Lee, B.A., Hutchens, N. H., Rooksby, J.H. (2020). 7.4. Student Housing. In The

Law of Higher Education (6th ed., pp. 473-492). Jossey-Bass.

An Analysis of the Fourth Amendment in Higher Education 9

Miller, T. E., & Sorochty, R. W. (2014). Risk management in student affairs : Foundations for

safety and success. John Wiley & Sons, Incorporated.

Re, R. M. (2018). Fourth Amendment Fairness. Michigan Law Review, 116(8), 1409–1463.

Student Policies. Concordia University St. Paul. (n.d.). Retrieved December 22, 2021, from

https://www.csp.edu/about/csp-policies/student-policies/

U.S. Const. Amend IV.References