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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5753

August 6, 1980

SCHOOLS AND SCHOOL DISTRICTS:

Regulations for search of school property used by teacher

SEARCHES AND SEIZURES:

Regulation to search school property used by teacher

The board of education of a school district may adopt reasonable regulations concerning employer inspection of files, lockers, desks and lesson plans of teachers of the school district.

The Honorable Francis R. Spaniola

House of Representatives

State Capitol

592 Roosevelt Building

Lansing, Michigan 48909

You have requested my opinion on the following question:

Is it constitutionally permissible for a school administrator to search files, lockers, and desks used by the school district's teachers?

In your opinion request, you refer to a prior letter opinion of this office, issued on April 19, 1979 to Representative Kennedy, holding, inter alia, that a public school administrator must obtain a search warrant to search a student's locker. That opinion was directed to searches conducted for the purpose of obtaining evidence to be used in a subsequent criminal prosecution. In answering the question you have posed, I am proceeding upon the assumption that the search in question is for purposes other than obtaining evidence to be used in a subsequent criminal prosecution.

Both the Fourth Amendment to the United States Constitution and Const 1963, art 1, Sec. 11 prohibit unreasonable searches and seizures. The constitutional guarantees of the Fourth Amendment apply to the states through the Fourteenth Amendment. Ker v State of California, 374 US 23; 83 S Ct 1623; 10 L Ed 2d 726 (1963).

The Michigan Supreme Court has ruled that conduct permitted by the Fourth Amendment may, nevertheless, be prohibited by Const 1963, art 1, Sec. 11. People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), cert den, 423 US 878 (1975).

However, research has failed to disclose any Michigan case law dealing with the question you raise.

Turning to the federal cases, it is clear that the claim of Fourth Amendment protection against unreasonable searches and seizures depends upon whether the invaded area was one in which there was a reasonable expectation of freedom from governmental intrusion. Katz v United States, 389 US 347, 352; 88 S Ct 507; 19 L Ed 2d 576 (1967). The applicability of Fourth Amendment protection to the situation presented in your question is, thus, department upon finding that (1) a person has exhibited an actual expectation of privacy and (2) that the expection is one that society is prepared to recognize as reasonable.

In Gillard v Schmidt, 579 F2d 825 (CA 3, 1978), Gillard, a school guidance counselor, alleged a violation of his Fourth Amendment right to be free from unreasonable government intrusion as to his desk furnished by the school district and commenced a cause of action under 42 USC Sec. 1983. The court held that, in the absence of an accepted practice or regulation to the contrary, a non work-related search of a school guidance counselor's desk by a school board member, to ascertain the author of a cartoon critical of the board of education, violated the Fourth Amendment. The court found that the plaintiff met the two requirements for recovery under 42 USC Sec. 1983 by showing that a constitutional deprivation occurred under color of state law and that Gillard had a reasonable expectation of privacy as to private papers in his desk in the absence of an accepted practice or regulation to the contrary. While the amount of damages appeared to be 'minimal' or 'nominal', the case was remanded for an entry of judgment in favor of Gillard and for a hearing to determine the amount of damages.

Other courts have held that a government employer may conduct a workrelated search of an employee's desk or office to obtain official property for official use or to review the work performance of a government employee. United States v Blok, 88 US App DC 326, 328; 188 F2d 1019, 1021 (1951); United States v Nasser, 476 F2d 1111, 1123 (CA 7, 1973). For example, a building principal's search of an absent teacher's classroom including, if necessary, the teacher's desk, to obtain the teacher's lesson plans for the use of a substitute teacher would clearly be a work-related search.

Moreover, courts have held that a government employer may search an employee's locker in accordance with a regulation or practice that dispels, in advance, any reasonable expection of privacy. United States v Bunkers, 521 F2d 1217 (CA 9, 1975) cert den, 423 US 989; 96 S Ct 400; 46 L Ed 2d 307 (1975); United States v Donato, 269 F Supp 921 (E.D. Penn, 1967), affirmed 379 F2d 288 (CA 3, 1967). It has also been held, in the absence of such a regulation or practice, that a police officer had a reasonable expectation of privacy against employer searches of his police locker. United States v Speights, 557 F2d 362 (CA 3, 1977).

Boards of education have the authority to adopt reasonable regulations for the proper management of the public schools of the district. 1976 PA 451, Sec. 1300, MCLA 380.1300; MSA 15.41300. Thus, boards of education may adopt reasonable regulations concerning employer inspections of files, lockers and desks supplied by school districts for use by their teachers. Such regulations may include the availability of teacher lesson plans for employer review and use by substitute teachers. However, it should also be noted that these regulations may be subject to the collective bargaining process as conditions of employment. 1947 PA 336, Sec. 15, MCLA 423.215; MSA 17.455(151). Detroit Police Officers Association v City of Detroit, 391 Mich 44, 54-55; 214 NW2d 803, 808-809 (1974). Central Michigan University Faculty Association v Central Michigan University, 404 Mich 268, 276-278; 273 NW2d 21, 24-25 (1978).

It is my opinion, therefore, that the board of education of a school district may adopt reasonable regulations concerning employer inspection of files, lockers, desks and lesson plans of teachers of the school district.

Frank J. Kelley

Attorney General


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