J.P. v. Millard Public Schools ( 2013 )

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Love Signs had a duty to discover any latent defect in the sign
that could cause the sign to collapse.
The district court concluded that Love Signs clearly had
no duty to inspect, maintain, or care for the sign and pole on
Wilkinson’s premises. It concluded that Love Signs’ obliga-
tions were to service the sign and replace lamps and ballasts
within the sign. It sustained Love Signs’ motion for sum-
mary judgment. The district court did not err in sustaining
the motion.
CONCLUSION
Durre’s claims against Tri-City are time barred by the statute
of repose in § 25-223. There was no fraudulent concealment
by Tri-City that prevented Durre from timely filing his claim
against Tri-City. Love Signs owed Durre no duty to discover
any latent defect in the sign. Therefore, we affirm the judgment
of the district court.
Affirmed.
McCormack, J., participating on briefs.
J.P., a minor, by and through his father and
next friend, A.P., appellee, v. Millard
Public Schools et al., appellants.
___ N.W.2d ___
Filed May 17, 2013. No. S-11-777.
1. Administrative Law: Schools and School Districts: Appeal and Error.
Appeals from the district court under the Student Discipline Act are governed by
the Administrative Procedure Act.
2. Administrative Law: Final Orders: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to the
Administrative Procedure Act may be reversed, vacated, or modified by an appel-
late court for errors appearing on the record.
3. Administrative Law: Judgments: Appeal and Error. When reviewing an order
of a district court under the Administrative Procedure Act for errors appearing on
the record, the inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. Constitutional Law: Schools and School Districts: Search and Seizure:
Appeal and Error. In reviewing claims of Fourth Amendment violations in
connection with searches conducted by school officials, an appellate court
Nebraska Advance Sheets
J.P. v. MILLARD PUBLIC SCHOOLS 891
Cite as 285 Neb. 890applies the same two-part standard of review utilized with respect to such
issues in criminal cases. Regarding historical facts, the appellate court reviews
the trial court’s findings for clear error. But an appellate court independently
reviews the trial court’s determination of whether those facts violated the Fourth
Amendment’s protections.
5. Constitutional Law: Warrantless Searches: Search and Seizure: Police
Officers and Sheriffs. The Fourth Amendment’s prohibition against unreason-
able searches and seizures generally requires a law enforcement officer to have
probable cause to conduct a warrantless search without consent.
6. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless
searches and seizures are per se unreasonable under the Fourth Amendment, sub-
ject only to a few specifically established and well-delineated exceptions, which
must be strictly confined by their justifications.
7. Schools and School Districts: Search and Seizure: Proof. There is a two-part
test for determining the reasonableness of school searches. First, the search must
be justified at its inception. Second, the search must be reasonably related in its
scope to the circumstances which justified the interference in the first place.
8. Schools and School Districts: Search and Seizure: Probable Cause. Under
ordinary circumstances, a search of a student by a teacher or other school official
will be justified at its inception when there are reasonable grounds for suspecting
that the search will turn up evidence that the student has violated or is violating
either the law or the rules of the school.
9. ____: ____: ____. Reasonable grounds for a search exist when school officials
reasonably believe that there is a moderate chance of discovering evidence
of wrongdoing.
10. Schools and School Districts: Search and Seizure. A search is permissible in its
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.
11. Schools and School Districts: Statutes: Legislature. A school district is
a creature of statute and possesses no powers other than those granted by
the Legislature.
12. Schools and School Districts: Search and Seizure: Probable Cause. Implicit
within the school-needs exception set forth in New Jersey v. T. L. O., 469 U.S.
325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985), requiring only reasonable suspi-
cion for the search of students on school grounds, is that school officials had the
authority to conduct the search.
13. Schools and School Districts. On school grounds, school officials have authority
to regulate and control student conduct.
14. Schools and School Districts: Search and Seizure: Motor Vehicles. Permitting
school officials to search a student’s vehicle based upon a nexus to the school
because a student drove the vehicle to school is overly broad and would lead to
confusing inquiries into whether vehicles parked off school grounds were suf-
ficiently connected to the school.
15. Appeal and Error. In order to be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the brief of the
party asserting the error.
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Appeal from the District Court for Douglas County: James T.
Gleason, Judge. Affirmed.
Jeff C. Miller, Duncan A. Young, and Keith I. Kosaki, of
Young & White Law Offices, for appellants.
Richard P. McGowan, of McGowan Law Firm, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ.
Wright, J.
NATURE OF CASE
This case originated from a school official’s search of a stu-
dent’s pickup truck that was parked on a public street across
from the school. Without permission and in violation of school
policy, the student retrieved a wallet and sweatshirt from his
truck. When the student returned to school grounds, the assist­
ant principal searched the student’s person, backpack, and wal-
let. The search disclosed only a cellular telephone and a set of
keys. Without the student’s consent, the assistant principal then
searched the truck. Drug paraphernalia was found, and the stu-
dent, J.P., was suspended for 19 days.
The school board upheld the suspension. On appeal under
the Student Discipline Act, Neb. Rev. Stat. § 79-254 et seq.
(Reissue 2008 & Cum. Supp. 2012), the district court reversed
the school board’s decision based on the court’s conclusion that
the search violated the Fourth Amendment. For the reasons set
forth, we affirm.
SCOPE OF REVIEW
[1] Appeals from the district court under the Student
Discipline Act are governed by the Administrative Procedure
Act. Busch v. Omaha Pub. Sch. Dist., 261 Neb. 484, 623
N.W.2d 672 (2001).
[2,3] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate
court for errors appearing on the record. Id. When reviewing
an order of a district court under the Administrative Procedure
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Cite as 285 Neb. 890Act for errors appearing on the record, the inquiry is whether
the decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreason-
able. Id.[4] In reviewing claims of Fourth Amendment violations
in connection with searches conducted by school officials, an
appellate court applies the same two-part standard of review
utilized with respect to such issues in criminal cases. Regarding
historical facts, we review the trial court’s findings for clear
error. But we independently review the court’s determina-
tion of whether those facts violated the Fourth Amendment’s
protections. See State v. Sprunger, 283 Neb. 531, 811 N.W.2d
235 (2012). The Fourth Amendment’s prohibition on unreason-
able searches and seizures applies to searches conducted by
state officers, including public school officials. See, Vernonia
School Dist. 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132
L. Ed. 2d 564 (1995); New Jersey v. T. L. O., 469 U.S. 325,
105 S. Ct. 733, 83 L. Ed. 2d 720 (1985) (T.L.O.). Thus, we
conclude that our two-part standard of review is also appli-
cable to claims of Fourth Amendment violations in school
search cases.
FACTS
Search
On August 18, 2010, J.P. drove his truck to Millard West
High School (Millard West). The majority of students parked
on school property, but about 15 percent parked along 176th
Avenue, which bordered the east side of the campus. J.P.
parked on 176th Avenue in front of a private residence located
across the street from Millard West.
J.P. arrived at school around 7:45 a.m. and went to his first
class. Afterward, he tried to leave the building. Lori Bishop, a
hall monitor, saw J.P. and a classmate approach the front door.
Bishop asked where they were going, and the classmate said he
had to get a book. Bishop allowed the classmate to leave but
told J.P. to remain in the building.
Later, a parking lot security person, Dennis Huey, saw J.P.
walk from the school building with a female student. Huey
drove up next to the two students and asked them where they
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were going and why they were outside. They responded that
they needed to get some things out of J.P.’s truck. Huey fol-
lowed them to the truck and observed them until they reentered
the building. J.P. testified at the disciplinary hearing that he
went directly to his truck from the school building and that
Huey watched him walk to the truck, get his wallet and sweat-
shirt, and immediately return to school.
J.P. and the female student returned through the front doors
of the school at 9:46 a.m., and Bishop asked why they had
been outside. J.P. took his wallet from his back pocket and said
he had to go out and get it. The students said Huey had given
them permission to leave the building. However, when Bishop
asked Huey whether he gave J.P. permission to leave the build-
ing, Huey stated that he had not.
Around 9:50 a.m., Bishop radioed Harry Grimminger, an
assistant principal, and reported the incident. Grimminger
became suspicious and decided to investigate. A school
security guard escorted J.P. to Grimminger’s office, and J.P.
spoke with Grimminger alone. Even when challenged by
Grimminger, J.P. continued to claim he had permission to
leave the building.
Grimminger then decided to search J.P.’s person and his
truck. He told J.P. to empty his pockets and searched his back-
pack. J.P. removed his cellular telephone, keys, and wallet and
put them on Grimminger’s desk. Grimminger did not find any
contraband. He returned J.P.’s wallet and cellular telephone,
but told J.P. his truck would be searched. When J.P. said his
father did not want the truck to be searched, Grimminger
responded that J.P.’s father would not make that decision. At
Grimminger’s request, a school resource officer then joined
Grimminger and J.P.
When Grimminger and J.P. reached the truck, J.P. stood in
front of the driver’s side door and refused to allow the search,
but eventually, he moved away from the door. It is clear he
did not give his consent to the search, which took about 10
minutes. Grimminger looked under and behind the seats, in the
glove box, and in a compartment behind the front seat con-
sole. In the console, Grimminger found “a small drug pipe and
zigzag papers.” In the compartment in back of the console, he
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Cite as 285 Neb. 890found another drug pipe. He also found cigarettes and lighters
in the truck. Once he had completed his search of the truck, he
and J.P. returned to the school building. Grimminger searched
the two students who were with J.P. earlier, but he found no
drug-related contraband.
School Discipline P roceedings
J.P. and his father were informed by letter dated August 19,
2010, that he had been recommended for suspension but could
request a hearing. J.P.’s father requested a hearing, and a hear-
ing examiner was appointed. J.P. was charged with violating
§§ III.A. and VI.F. of the district standards for student conduct,
which were contained in the “Millard West High School 2010-
2011 Student Handbook” (Student Handbook). Section III.A.
prohibited “[p]ossession or use of an illegal narcotic drug,
controlled substance . . . or possession or use of drug para-
phernalia.” Student Handbook at 47 (§ III. Violations Against
Public Health and Safety). Violation of this section required a
19-day suspension if the violation occurred on school grounds,
though the suspension could be reduced in certain circum-
stances. § III.A.1.a. Legal authorities were required to be con-
tacted. § III.A.1.c. In general, sanctions for conduct off school
grounds required a citation or admission by the student to a
violation of a particular subsection of the Student Handbook.
§ III.A.2.a. “‘Citation’ shall mean a summons to appear in
court issued by a law enforcement officer.” Student Handbook
at 58 (§ IX. Definitions).
“On school grounds” was defined as “on District property,
in a vehicle owned, leased, or contracted by the District being
used for a school purpose or in a vehicle being driven for a
school purpose by a school employee or his or her designee,
or at a school-sponsored activity or athletic event.” Id., § IX.Q.
at 59.
Section VI.F. prohibited “[d]isruptive [b]ehavior,” which
was defined as “[b]ehavior or possession of any item
that materially interferes with or substantially disrupts
class work, school activities, or the educational process.”
Student Handbook at 54 (§ VI. Violations Against School
Administration).
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On August 24, 2010, the hearing officer found that J.P. had
committed the charged offenses and that a 19-day suspension
was appropriate. He determined that “[t]echnically, the search
of the [truck] by the assistant principal was beyond school
jurisdiction, since the school boundary, in this situation, ended
at the curb.” However, the hearing officer found that the search
was not simply justified, but required, based on the truck’s
proximity to the school and the school’s obligation to protect
the learning environment.
He concluded that the Student Handbook extended school
jurisdiction to “‘any other place where the governing law per-
mits . . . discipline . . . for prohibited conduct’” and that the
truck, on a curb “immediately adjacent” to the school, was
“‘any other place.’” Section IX.V. of the Student Handbook
defined school jurisdiction as
on District property, in a vehicle owned, leased, or con-
tracted by the District being used for a school purpose or
in a vehicle being driven for a school purpose by a school
employee or his or her designee, or at a school-sponsored
activity or athletic event, or any other place where the
governing law permits the District to discipline students
for prohibited conduct.
Id. at 60 (§ IX. Definitions).
The director of pupil services reviewed the hearing officer’s
decision. On August 27, 2010, he upheld the suspension, and
J.P.’s father requested an appeal. Before the September 29
hearing, J.P. completed his 19-day suspension. He returned to
school on September 15. He subsequently asked a committee
of the board of education of Millard Public Schools (Board)
to remove the suspension from his record. The committee
upheld the suspension and did not expunge the suspension
from J.P.’s record.
District Court Decision
Through his father, J.P. brought an action in the dis-
trict court for Douglas County under the Student Discipline
Act, § 79-254 et seq. The petition alleged, summarized and
restated, that the decision of the Board should be reversed
because (1) the decision was based on evidence found during
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Cite as 285 Neb. 890a search that violated J.P.’s rights under the 4th and 14th
Amendments to the U.S. Constitution and article I, § 7, of
the Nebraska Constitution; (2) the decision was arbitrary and
capricious; and (3) J.P. was charged with a violation for con-
duct occurring on school grounds when the truck was parked
off school grounds.
The district court initially addressed whether the issue was
moot because J.P. had already completed his 19-day suspen-
sion. It concluded that because J.P. claimed he was innocent
of the violations charged and the suspension would be part
of his permanent record, he was entitled to have the suspen-
sion reviewed on appeal and that, therefore, the issue was
not moot.
In addressing the constitutionality of the search of J.P.’s
truck, the district court discussed T.L.O. It determined that the
repeated emphasis on activity occurring on school grounds
distinguished T.L.O. from the present case, because J.P.’s truck
was searched while parked off school grounds.
The district court proceeded to apply traditional Fourth
Amendment jurisprudence. It noted that, generally, searches
without a warrant are unreasonable under the Fourth
Amendment. J.P. did not consent to the search, and Grimminger
had no reason to believe contraband or evidence of a crime
would be found in J.P.’s truck. There was no indication that
J.P. was in possession of drugs or weapons, and school officials
had not witnessed J.P. commit any illegal acts.
It recognized that Grimminger’s claim that “[J.P.] skipped a
class, left the school building without permission, and lied to
school officials” allowed Grimminger to search J.P.’s person
and belongings out of concern for school safety. However, it
concluded that because no contraband was found in the search
of J.P.’s person and belongings, Grimminger lacked probable
cause to expand the search to the truck. The court concluded
the search of J.P.’s truck violated the Fourth Amendment. It
reversed the decision of the Board and ordered the offenses
and the 19-day suspension removed from J.P.’s school record.
The defendants, Millard Public Schools, the Board, and various
school officials (collectively the District), appealed. Pursuant to
our statutory authority to regulate the dockets of the appellate
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courts of this state, we moved the case to our docket. See Neb.
Rev. Stat. § 24-1106(3) (Reissue 2008).
ASSIGNMENTS OF ERROR
The District assigns, summarized and restated, that the dis-
trict court erred in (1) determining that the search violated
J.P.’s Fourth Amendment rights and (2) reversing the decision
of the Board.
ANALYSIS
Background
[5,6] The Fourth Amendment’s prohibition against unrea-
sonable searches and seizures generally requires a law enforce-
ment officer to have probable cause to conduct a warrantless
search without consent. See State v. Borst, 281 Neb. 217, 221,
795 N.W.2d 262, 267 (2011) (“warrantless searches and sei-
zures are per se unreasonable under the Fourth Amendment,
subject only to a few specifically established and well-­
delineated exceptions, which must be strictly confined by
their justifications”). Probable cause to search requires that
the known facts and circumstances are sufficient to warrant a
person of reasonable prudence in the belief that contraband or
evidence of a crime will be found. State v. Howard, 282 Neb.
352, 803 N.W.2d 450 (2011).
[7-10] But in T.L.O., the U.S. Supreme Court relaxed the
Fourth Amendment’s reasonableness standard for school
searches to balance students’ legitimate privacy interests with
“the substantial need of teachers and administrators for free-
dom to maintain order in the schools.” 469 U.S. at 341. There
is a two-part test for determining the reasonableness of school
searches. First, the search must be justified at its inception.
Second, the search must be reasonably related in its scope to
the circumstances which justified the interference in the first
place. Id.Under ordinary circumstances, a search of a student by
a teacher or other school official will be “justified at its
inception” when there are reasonable grounds for suspect-
ing that the search will turn up evidence that the student
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the school.
T.L.O., 469 U.S. at 341-42. Reasonable grounds for a search
exist when school officials reasonably believe that there is a
moderate chance of discovering evidence of wrongdoing. See
Safford Unified School Dist. #1 v. Redding, 557 U.S. 364, 129
S. Ct. 2633, 174 L. Ed. 2d 354 (2009). A search is permissible
in its 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.” T.L.O., 469 U.S. at 342.
Authority to Search
The District contends that the court erred in applying a prob-
able cause standard to Grimminger’s search of J.P.’s truck. It
argues that the court should have applied the reasonable sus-
picion standard for school searches because a probable cause
standard will unnecessarily tie its hands. J.P. asserts that the
court correctly applied the probable cause standard and that
even under a reasonable suspicion standard for school searches,
the search violated his Fourth Amendment rights.
In our consideration of the reasonableness of the search, we
examine the authority of school officials to search J.P.’s truck.
The district court’s determination that school officials lacked
probable cause to search the truck implies that school person-
nel had the authority to search the truck if they had probable
cause. The question is whether the school officials had the
authority to conduct a search of J.P.’s truck when it was across
from the school on a public street.
[11] The District is granted its powers by statute. “Every
duly organized school district shall be a body corporate and
possess all the usual powers of a corporation for public pur-
poses . . . .” Neb. Rev. Stat. § 79-405 (Reissue 2008). A school
district is a creature of statute and possesses no other pow-
ers other than those granted by the Legislature. Robertson v.
School Dist. No. 17, 252 Neb. 103, 560 N.W.2d 469 (1997).
The Student Discipline Act sets out the permissible disci-
plinary actions that schools can take against students. And it
authorizes disciplinary actions against students for conduct
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that occurs on school property, in school vehicles, or at school-
sponsored activities.
Section 79-267 describes student conduct that
shall constitute grounds for long-term suspension, expul-
sion, or mandatory reassignment, subject to the proce-
dural provisions of the Student Discipline Act, when such
activity occurs on school grounds, in a vehicle owned,
leased, or contracted by a school being used for a school
purpose or in a vehicle being driven for a school purpose
by a school employee or by his or her designee, or at a
school-sponsored activity or athletic event.
(Emphasis supplied.) That conduct includes “[e]ngaging in the
unlawful possession . . . of a controlled substance or an imita-
tion controlled substance . . . .” § 79-267(6). Section 79-267
sets the limits of a school’s authority to discipline students for
unlawfully possessing a controlled substance. A student may be
expelled for unlawful possession of a controlled substance on
school grounds, in a vehicle owned by the school and used for
a school purpose by a school employee or their designee, or at
a school-sponsored activity or athletic event.
School officials are given no specific statutory authoriza-
tion to conduct searches. Such authority is implied by the
provisions of the Student Discipline Act, which grants school
officials the authority to discipline students. School personnel
“may take actions regarding student behavior, other than those
specifically provided in the Student Discipline Act which are
reasonably necessary to . . . further school purposes, or pre-
vent interference with the educational process.” § 79-258. But
because a school’s authority to search is implied by its author-
ity to discipline students to maintain order, its authority to
search is also limited by its authority to discipline.
We recognized that many courts, including the Nebraska
Court of Appeals, have expanded T.L.O.’s reasonable suspicion
standard to a school’s search of a student’s vehicle parked on
school grounds. See, e.g., Bundick v. Bay City Independent
School Dist., 140 F. Supp. 2d 735 (S.D. Texas 2001); Anders
ex rel. Anders v. Fort Wayne Commu. Schools, 124 F. Supp.
2d 618 (N.D. Ind. 2000); In re Interest of Michael R., 11 Neb.
App. 903, 662 N.W.2d 632 (2003); State v. Best, 403 N.J.
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J.P. v. MILLARD PUBLIC SCHOOLS 901
Cite as 285 Neb. 890Super. 428, 959 A.2d 243 (2008), affirmed 201 N.J. 100, 987
A.2d 605 (2010); State v. Slattery, 56 Wash. App. 820, 787
P.2d 932 (1990); State v. Schloegel, 319 Wis. 2d 741, 769
N.W.2d 130 (Wis. App. 2009).
The District also cites to federal cases extending the T.L.O.
standard to school searches conducted while a student was
attending a school-sponsored class or activity that was held off
campus. See, Shade v. City of Farmington, Minnesota, 309 F.3d
1054 (8th Cir. 2002); Hassan v. Lubbock Independent School
Dist., 55 F.3d 1075 (5th Cir. 1995); Webb v. McCullough, 828
F.2d 1151 (6th Cir. 1987); Rhodes v. Guarricino, 54 F. Supp.
2d 186 (S.D.N.Y. 1999).
But none of these cases, nor any that we have found, recog-
nize a right of school officials to conduct off-campus searches
of a student’s person or property which are unrelated to school-
sponsored activities. To the contrary, courts have held that
school officials lack authority to conduct such searches.
In Spencer v. Omaha Pub. Sch. Dist., 252 Neb. 750, 566
N.W.2d 757 (1997), we stated that any action taken by a school
board must be through either an express or an implied power
conferred by legislative grant. An administrative agency cannot
use its rulemaking power to modify, alter, or enlarge provisions
of a statute which it is charged with administering. Id.In Busch v. Omaha Pub. Sch. Dist., 261 Neb. 484, 488,
623 N.W.2d 672, 676 (2001), this court stated: “We have long
acknowledged that school boards are creatures of statute, and
their powers are limited. . . . Any action taken by a school
board must be through either an express or an implied power
conferred by legislative grant.”
Here, the District claims its school officials have the author-
ity to search if they reasonably suspect the student has engaged
in conduct that is subject to discipline by the school. It argues
that driving to and from school is a school-sponsored activity
and is a nexus to the school.
We find that the District’s claim of authority is too broad
and exceeds the authority given to school personnel pursu-
ant to the Student Discipline Act. In interpreting its state law,
one court that has addressed the authority to search off school
grounds has rejected a nexus to the school argument.
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For example, in Com. v. Williams, 749 A.2d 957 (Pa. Super.
2000), a Pennsylvania appellate court rejected the argument
that the district makes here: i.e., that a school has the author-
ity to search a student’s vehicle parked off campus because the
student’s conduct in driving to and from school has a nexus to
controlling student conduct on campus. There, Pennsylvania
law authorized school districts to obtain school police officers.
Unless they were specifically granted the same powers as city
police, they were limited to issuing summary citations, detain-
ing students until law enforcement arrived, and enforcing good
order on school property.
While off school grounds, an officer encountered three
students in a car. They made a U-turn, gave the officer “the
proverbial finger,” and drove off. Id. at 958. As expected, the
officer confronted the students in the vehicle, which was now
parked off school property. After they exited the vehicle, the
officer observed a sawed-off shotgun in plain view. He called
the city police, but before police arrived, he and other school
officers searched the vehicle and found three revolvers in addi-
tion to the shotgun. The trial court found the school officer
was acting within the scope of his duties even if the incident
occurred off school property.
The appellate court disagreed. It concluded that the gov-
erning statute “jurisdictionally limit[ed] the School Police
Officer’s authority to ‘in school buildings, on school buses
and on school grounds.’” Id. at 961. The court declined to
expand that authority to include any action that had a nexus
to enforcing good order on school grounds. It reasoned that if
the search were upheld, city police could obtain the fruits of a
search conducted without a warrant or exigent circumstances.
It further reasoned that a “‘nexus to the school under the total-
ity of the circumstances of the incident’ inquiry” would be
“nebulous, and would certainly lead to confusion,” both for
school officials deciding if they had authority to search off
school grounds and for courts in deciding if school officials
had authority to search and whether a sufficient nexus was
present. Id. at 962.
Similarly, in State v. Crystal B., 130 N.M. 336, 24 P.3d 771(N.M. App. 2000), a New Mexico appellate court reversed a
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Cite as 285 Neb. 890trial court’s refusal to suppress evidence obtained by an
assistant principal when he had seized a student (appellant)
and her belongings off campus. A student informant told the
assistant principal that appellant and two other girls had left
campus and were smoking cigarettes in an alley. The prin-
cipal found the girls and ordered them into his car. At his
office, a search of appellant’s bookbag disclosed a marijuana
roach, and appellant was suspended. Appellant was charged
on a delinquency petition for possession of marijuana, and
the trial court denied her motion to suppress. In reversing,
the New Mexico appellate court concluded the reasonable-
ness standard for school searches applied “only in further-
ance of the school’s education-related goals; that is in a
situation where the student is on school property or while the
student is under control of the school.” Id. at 339, 24 P.3d at
774, citing In re Josue T., 128 N.M. 56, 989 P.2d 431 (N.M.
App. 1999).
We agree. In T.L.O., the Court recognized that students
have a legitimate expectation of privacy, which must be
weighed against the interest of teachers and administrators
in maintaining discipline within the classroom and on the
grounds of the school. The school-needs standard of reason-
ableness was intended to “ensure that the interests of students
will be invaded no more than is necessary to achieve the
legitimate end of preserving order in the schools.” T.L.O.,
469 U.S. at 343. It was not intended to overlap the author-
ity of law enforcement officers to enforce order on the pub-
lic streets.
We agree with the Pennsylvania Superior Court that adopt-
ing a “nexus to the school” standard would lead to confus-
ing inquiries whether the student’s off-campus conduct was
sufficiently connected to maintaining school order. And it is
not hard to see how a nebulous nexus standard could lead
to school officials’ gathering evidence for the police even
when police officers could not have conducted the search. See
Com. v. Williams, 749 A.2d 957 (Pa. Super. 2000). Under the
district’s argument, school officials could search a student’s
vehicle parked off campus whenever a student had driven
the vehicle to attend school and the school had a reasonable
Nebraska Advance Sheets
904 285 NEBRASKA REPORTS
suspicion that a search would show the student had violated
the law.
Thus, we believe that under § 76-267(6), the Legislature
has wisely limited a school district’s jurisdiction to discipline
students for possession of a controlled substance to conduct
occurring (1) on school property, (2) at a school-sponsored
activity or athletic event, or (3) in a vehicle owned or used by
the school for a school purpose. We conclude that the school
district did not have implied authority to search a student’s
vehicle parked off campus.
Search of J.P.’s Truck
The District argues that T.L.O. permits the search of J.P.’s
truck, because contraband kept in a student vehicle off school
grounds still threatens the school environment and it is part of
the duty of the District to maintain order and discipline in the
school environment. It argues that because the initial search of
J.P.’s person and backpack in Grimminger’s office was autho-
rized, it could search J.P.’s truck. It claims that because J.P.
had keys to the truck, drove to school, broke school rules by
accessing his truck, and lied to school officials, Grimminger
had a reasonable basis to search J.P.’s truck. But the authority
to search the truck is not expanded, because officials could
search J.P. at the school.
In support of its claim that it could search J.P.’s truck, the
District relies upon In re Interest of Michael R., 11 Neb. App.
903, 662 N.W.2d 632 (2003). That case is readily distinguish-
able. The School Discipline Act specifically recognizes the
District’s authority to discipline this conduct, which occurred
on school grounds. See § 79-267. Michael R.’s vehicle was
located in the school parking lot on school grounds. A school
official overheard slang indicating that Michael might possess
illegal drugs. Michael admitted to speaking to another student
about “‘big bags,’” a slang term for marijuana. 11 Neb. App. at
905, 662 N.W.2d at 634. Because none of these facts are pres-
ent in the case at bar, the precedential value of In re Interest of
Michael R. is limited.
The District also relies on cases in which the search of a stu-
dent vehicle was found to be reasonable after a personal search
Nebraska Advance Sheets
J.P. v. MILLARD PUBLIC SCHOOLS 905
Cite as 285 Neb. 890of the student disclosed no contraband. See, Bundick v. Bay
City Independent School Dist., 140 F. Supp. 2d 735 (S.D. Tex.
2001); Anders ex rel. Anders v. Fort Wayne Commu. Schools,
124 F. Supp. 2d 618 (N.D. Ind. 2000); State v. Best, 403 N.J.
Super. 428, 959 A.2d 243 (2008), affirmed 201 N.J. 100, 987
A.2d 605 (2010); State v. Slattery, 56 Wash. App. 820, 787
P.2d 932 (1990).
In each case, there was a link between the student and con-
traband allowing school officials to reasonably suspect that
the student possessed contraband. More important, in each
case, the student’s vehicle was on school grounds when it
was searched.
In the case at bar, the district court did not directly address
school personnel’s authority to search J.P.’s truck. Instead, it
found that “Grimminger had no reason to believe contraband
or evidence of a crime would be found in [J.P.’s] vehicle”
and, therefore, lacked probable cause to search J.P.’s truck.
Requiring that school officials have probable cause to search
the truck implies that the District had authority to search if it
had probable cause.
Within its claim that it had authority to search J.P.’s truck,
the District argues that the location of J.P.’s truck is irrelevant
because the search of his person and the truck were both rea-
sonable. We disagree. In order for the search to be reasonable,
the District must have the authority to search.
[12] Implicit within the T.L.O. school-needs exception,
requiring only reasonable suspicion for the search of students
on school grounds, is that school officials have the authority
to conduct the search. It is important to point out that T.L.O.
did not extend the District’s authority to search to a student’s
vehicle parked off school grounds. See Stuart C. Berman,
Note, Student Fourth Amendment Rights: Defining the Scope
of the T.L.O. School-Search Exception, 66 N.Y.U. L. Rev.
1077 (1991). The expansion of the authority to search beyond
the search of a student’s person has evolved from various
court decisions applying the two-step analysis set forth in
T.L.O. These courts have extended T.L.O.’s reasonable suspi-
cion standard to searches of student vehicles parked on school
grounds. See Annot., 31 A.L.R.5th 229 (1995), and cases cited
Nebraska Advance Sheets
906 285 NEBRASKA REPORTS
therein. And Nebraska law does not expressly authorize such
a search.
The District cites to federal cases from the Fifth, Sixth,
and Eighth Circuits as well as a New York federal district
court which have recognized that the T.L.O. special-needs
exception is not dependent solely on location. See, Shade
v. City of Farmington, Minnesota, 309 F.3d 1054 (8th Cir.
2002); Hassan v. Lubbock Independent School Dist., 55 F.3d
1075 (5th Cir. 1995); Webb v. McCullough, 828 F.2d 1151(6th Cir. 1987); Rhodes v. Guarricino, 54 F. Supp. 2d 186(S.D.N.Y. 1999). We find that those cases are distinguishable
on their facts.
In those cases, the school remained in control of the student
and was responsible for the safety of the student during the
event. The courts did not address the specific question whether
school officials had the authority to search a student vehicle
parked off school grounds.
Courts have supported the logical inference that school
grounds include the school parking lot. See State v. Schloegel,
319 Wis. 2d 741, 769 N.W.2d 130 (Wis. App. 2009), citing
Myron Schreck, The Fourth Amendment in the Public Schools:
Issues for the 1990s and Beyond, 25 Urb. Law. 117 (1993).
They have recognized the authority of school personnel to
search a student’s vehicle parked in the school parking lot.
See State v. Best, 403 N.J. Super. 428, 959 A.2d 243 (2008),
affirmed 201 N.J. 100, 987 A.2d 605 (2010).
The District also cites examples in which courts have upheld
actions by school officials on school-sponsored trips con-
ducted off school grounds, specifically Hassan v. Lubbock
Independent School Dist., supra, and Webb v. McCullough,
supra. But these cases leave unanswered whether the District’s
authority to search a student’s vehicle extends to searches of
off-school-grounds vehicles.
As further support of its claim that it could search J.P.’s
truck, the District relies upon Morse v. Frederick, 551 U.S.
393, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007). We find that
case readily distinguishable. The Court held that the student
could not claim to be outside the school’s authority. The stu-
dent could not stand in the midst of his fellow students, during
Nebraska Advance Sheets
J.P. v. MILLARD PUBLIC SCHOOLS 907
Cite as 285 Neb. 890school hours, at a school-sanctioned activity, and claim he was
not at school.
The District argues Morse establishes that “students cannot
claim to be beyond the reach of school authorities simply by
stepping off school property . . . when such conduct occurs dur-
ing school hours and is intimately connected with the school’s
educational environment.” Brief for appellants at 25. It claims
that J.P.’s truck was associated with a school-sponsored event
because J.P. drove the truck to school, he was attending school
under Nebraska’s mandatory education law, and the search
occurred during school hours.
We disagree. J.P.’s driving to school and parking off school
grounds was not a school-sponsored event, nor was it associ-
ated with a school-sponsored event. Morse v. Frederick, supra,and Shade v. City of Farmington, Minnesota, supra, described
school-sponsored events. At those school-sponsored events, the
school created an environment for students, gave them permis-
sion to enter that environment, and took responsibility for their
safety in that environment.
But under the facts of this case, parking a vehicle off school
property was not a school-sponsored event. The District did not
sanction J.P.’s drive to school, give him permission to travel to
school in his truck, or take responsibility for his safety while
he drove to school. Driving to school and parking off school
property is readily distinguishable from the activities in those
cases in which courts have allowed school officials to search
off-school premises based upon a school-sponsored activity or
event. The cases relied upon by the District are distinguishable
because they all involved school officials exercising control
of the students during a school-sponsored activity or event.
In contrast, in Com. v. Williams, 749 A.2d 957 (Pa. Super.
2000), which involved the search of an off-school-grounds
vehicle, the Pennsylvania Superior Court held that the search
was invalid because school officials lacked statutory authority
to search.
The District argues a school official’s ability to search is
based on the relationship between the school official and the
student, rather than the location of the search. But this relation-
ship must be examined under the facts of the case. The relevant
Nebraska Advance Sheets
908 285 NEBRASKA REPORTS
conduct (having contraband in the truck) occurred off school
grounds. And there was no event that would tie J.P.’s conduct
to a school activity. How or when the contraband was placed
in the truck is unknown. There was no evidence that the con-
traband was ever on school property.
[13] On school grounds, school officials have authority to
regulate and control student conduct. See, § 79-262; State
v. Best, 403 N.J. Super. 428, 959 A.2d 243 (2008), affirmed
201 N.J. 100, 987 A.2d 605 (2010). They have the authority
to discipline students for certain conduct occurring on school
grounds. § 79-267. But school officials are not given express
or implied authority to search on a public street, at a student’s
home, or on other premises off school grounds, including an
off-school-grounds vehicle that is not associated with a school-
sponsored event or activity.
School officials and police officers both enforce order as
agents of the state. School officials regulate and control student
conduct on school grounds and at school-sponsored events and
activities occurring off school grounds. But school officials
are not given greater authority than police officers to regu-
late student activity outside the school context. The court in
Com. v. Williams, supra, refused to expand statutory author-
ity of school officers in a way that would allow such officers
to gather evidence for police that the police could not gather
for themselves.
[14] The District urges us to apply an analysis similar to
the nexus to the school analysis rejected by Williams, argu-
ing it may search an off-school-grounds vehicle because the
vehicle is sufficiently connected to the school environment.
We decline to adopt this analysis. Permitting school officials
to search a student’s vehicle based upon a nexus to the school
because a student drove the vehicle to school is overly broad
and would lead to confusing inquiries into whether vehicles
parked off school grounds were sufficiently connected to
the school.
The District cannot create the authority to search where
none is given by statute. Section 79-267 makes a clear distinc-
tion between conduct that occurs on school grounds and con-
duct that occurs off school grounds. The Student Handbook
Nebraska Advance Sheets
J.P. v. MILLARD PUBLIC SCHOOLS 909
Cite as 285 Neb. 890recognizes the distinction between “on school grounds” and
“off school grounds.” But, these definitions do not extend the
authority of school officials to search J.P.’s truck parked on
176th Avenue.
Lack of authority to search off school grounds does not
leave school officials without a means to deal with student
conduct off school grounds. Section 79-293 requires the prin-
cipal or principal’s designee to notify appropriate law enforce-
ment authorities of a student’s conduct or act described in
§ 79-267 which the principal or designee suspects is a viola-
tion of the Nebraska Criminal Code. School officials who
report an alleged violation are not civilly or criminally liable
for reporting such conduct unless the report is false or made
with negligent disregard for the truth or falsity of the report.
See § 79-293. Succinctly stated, if school officials suspect a
student’s conduct occurring off school grounds is a violation
of the Nebraska Criminal Code, they are required to notify the
appropriate law enforcement authorities.
Grimminger’s personal search of J.P. disclosed no contra-
band, and no one claimed to have seen J.P. with contraband
or overheard him talking about possessing or selling drugs.
School officials had not received a student report or other
information that J.P. possessed or was distributing contraband.
The contraband was found in J.P.’s truck, which was not in the
school environment or under the dominion and control of the
school. In short, there is no evidence J.P. possessed drugs or
drug paraphernalia on school grounds.
For the search of J.P.’s truck to be reasonable, the District
must have authority to conduct the search. The District’s
authority is based upon the Student Discipline Act, which
does not authorize the District to search J.P.’s truck off school
grounds unassociated with a school activity or athletic event.
Contrary to the suggestion of the dissent, our recognition
of this limitation upon the authority of school officials will
not permit students to “violate important school rules with-
out consequence” or “hide” from school authority, nor will
it impair the ability of school officials to maintain a safe
environment. The facts of this case demonstrate the fallacy of
the dissent’s suggested “parade of horribles.” As the dissent
Nebraska Advance Sheets
910 285 NEBRASKA REPORTS
acknowledges, the misconduct at issue was J.P.’s act of leav-
ing and then reentering the school building with another
student without permission to do so. School officials dealt
with that conduct by confronting J.P. when he reentered the
building and determining that he had no contraband on his
person or in his backpack. At that point, school officials had
all the information they needed to impose discipline on J.P.
for his unauthorized absence. And they knew that J.P. was not
endangering the school environment by bringing contraband
on campus.
The Legislature has not deputized school officials to act
beyond the boundaries of their authority. If they still sus-
pected that there was contraband in J.P.’s truck parked off
campus, despite finding none on his person, they should have
notified law enforcement authorities, who are trained in the
principles of when and how to conduct a lawful warrantless
vehicle search.
And Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618,
168 L. Ed. 2d 290 (2007), relied upon by the dissent, has no
application. In that case, no search took place. At a school-­
sponsored event, the student was disciplined for displaying
a banner promoting drug use. The student could not stand
in the midst of his fellow students during school hours at a
school-sanctioned activity and claim he was not subject to
school rules.
R emedy
The district court ordered that the offenses of possession of
drug paraphernalia and disruptive behavior be removed from
J.P.’s record. We review the district court’s decision to deter-
mine whether it conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreason-
able. See Busch v. Omaha Pub. Sch. Dist., 261 Neb. 484, 623
N.W.2d 672 (2001). The search of J.P.’s truck was invalid, and
therefore, the only question remaining is whether the district
court’s decision ordering removal of the offenses from J.P.’s
record was an appropriate remedy.
“The court may . . . reverse or modify the decision [of
the board] if the substantial rights of the petitioner may have
Nebraska Advance Sheets
J.P. v. MILLARD PUBLIC SCHOOLS 911
Cite as 285 Neb. 890been prejudiced because the board’s decision is . . . [i]n viola-
tion of constitutional provisions.” § 79-291(2)(a). The Student
Discipline Act specifically grants the district court the power to
reverse the Board’s decision if J.P.’s constitutional rights were
violated. See Kolesnick v. Omaha Pub. Sch. Dist., 251 Neb.
575, 558 N.W.2d 807 (1997). The district court exercised that
power and reversed the decision of the Board.
Here, however, the search of J.P.’s truck was unauthorized
and violated J.P.’s Fourth Amendment right to be free from
unreasonable searches. J.P. had served his suspension by the
time the district court issued its ruling. Removing the offenses
from J.P.’s record was the only meaningful relief the court
could grant. The court’s decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable.
R emaining Arguments
The district court ordered that the suspension for alleged dis-
ruptive behavior be removed from J.P.’s record. The disruptive
behavior charge and suspension were based upon the interven-
tion required by school officials and were not dependent on the
search of the truck.
[15] The District claims the court erred in reversing the
suspension upheld by the Board. The District has not argued
the issue of suspension based upon J.P.’s disruptive behavior
on appeal. In order to be considered by an appellate court,
an alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error.
Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).
Therefore, we do not consider whether the district court erred
in ordering the offense of disruptive behavior removed from
J.P.’s school record.
Based on our resolution of this case, we do not address the
parties’ remaining assignments of error.
CONCLUSION
For the reasons set forth herein, we affirm the district court’s
order which reversed the decision of the Board and ordered the
suspension and offenses expunged from J.P.’s school record.
Affirmed.
Nebraska Advance Sheets
912 285 NEBRASKA REPORTS
Heavican, C.J., dissenting.
I respectfully dissent from the majority’s finding that the
school district did not have authority to search J.P.’s vehicle,
which was parked directly adjacent to the school. I would find
that the school had the statutory authority to discipline J.P.,
that such disciplinary authority included the power to search
both J.P.’s person and his vehicle, and that the search should
be measured by the reasonable suspicion standard set out in
New Jersey v. T. L. O.1 I would remand this cause to the district
court to determine if the school had reasonable suspicion to
search J.P.’s vehicle.
FACTUAL BACKGROUND
On the day of the search at issue, J.P. arrived at school
around 7:45 a.m. and went to his first class. Afterward, he tried
to leave the building. Lori Bishop, a hall monitor, saw J.P.
and a classmate approach the front door. Bishop asked where
they were going, and the classmate said he had to get a book.
Bishop allowed the classmate to leave but told J.P. to remain
in the building.
Later, Dennis Huey, a parking lot security staff member,
saw J.P. walk from the school building with a female student.
Huey drove up next to the two students and asked them where
they were going and why they were outside. They responded
that they needed to get some things out of J.P.’s vehicle. Huey
followed them to the vehicle and observed them until they
r
­ eentered the building.
J.P. and the female student returned through the front doors
of the school at 9:46 a.m., and Bishop asked why they had
been outside. J.P. took his wallet from his back pocket and said
he had to go out and get it. The students said Huey had given
them permission to leave the building. However, when Bishop
asked Huey whether he gave J.P. permission to leave the build-
ing, Huey replied that he had not.
Following these events, a school official searched J.P.’s per-
son and extended the search to his vehicle. The search of the
vehicle revealed that J.P. had marijuana in his vehicle.
1
New Jersey v. T. L. O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720(1985).
Nebraska Advance Sheets
J.P. v. MILLARD PUBLIC SCHOOLS 913
Cite as 285 Neb. 890NEW JERSEY v. T. L. O.
The U.S. Supreme Court discussed school-related searches
in the case of T. L. O.,2 in which the Court fashioned the
standard for assessing the legality of searches conducted by
public school officials. Of course, the Fourth Amendment’s
prohibition against unreasonable searches and seizures gen-
erally requires a law enforcement officer to have probable
cause to conduct a warrantless search without consent.3 But
in T. L. O., the Court relaxed the Fourth Amendment’s
search-and-seizure standard for school searches in an effort
to balance a student’s legitimate privacy interests with the
substantial need of teachers and administrators to maintain
order in the schools.4
T. L. O. established a two-part test for determining the
reasonableness of school searches. First, the search must be
justified at its inception. Second, the search must be rea-
sonably related in its scope, considering all of the circum-
stances which justified the interference in the first place.5 The
Court noted:
Under ordinary circumstances, a search of a student by
a teacher or school official will be “justified at its incep-
tion” when there are reasonable grounds for suspecting
that the search will turn up evidence that the student
has violated or is violating either the law or the rules of
the school.6
After establishing this school search exception to the Fourth
Amendment in T. L. O., the Court applied the exception to the
facts of the case, and ultimately upheld the constitutionality
of an assistant principal’s search of a female student’s purse
which took place inside the school building during regular
school hours.
In T. L. O., the Court did not discuss the boundaries of when
and where a school official may utilize his or her authority to
2
Id.3
State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011).
4
T. L. O., supra note 1.
5
Id.
6
Id., 469 U.S. at 341-42.
Nebraska Advance Sheets
914 285 NEBRASKA REPORTS
conduct searches without a warrant or without having probable
cause to conduct the search. The Court provided only that the
reasonableness of such searches should be determined after
considering all of the circumstances of the search.
The case before this court raises the question of the param-
eters for the use of this authority by school officials. The
Nebraska Court of Appeals held in In re Interest of Michael R.7
that pursuant to the U.S. Supreme Court’s holding in T. L. O.,
a school official may search a student’s vehicle parked in
the school parking lot. But no Nebraska court has addressed
whether a school official may search a car parked adjacent to
the school. This case presents that question.
MORSE v. FREDERICK
Relevant to the question presented in this case is the Court’s
decision in Morse v. Frederick.8 Though dealing with the First
Amendment, not the Fourth Amendment, the U.S. Supreme
Court discussed a school’s authority to discipline students. In
that case, students at a school-sanctioned and school-supervised
event displayed a banner stating “‘BONG HiTS 4 JESUS.’”9
The students had been allowed to gather just off campus during
normal school hours to watch the Olympic Torch Relay. The
event was sanctioned and supervised by the school. The school
principal approved the event as a class trip or social event, and
school district rules stated that district conduct rules applied to
such events.
The principal interpreted the banner as promoting illegal
drug use. When she directed the students to take down the
banner, one of the students who had brought the banner to the
event refused to do so and was suspended.
The Court held on these facts that students could not claim
to be beyond the reach of school authorities simply by stepping
off school property when such conduct occurs during school
hours and is intimately connected with the school’s educational
7
In re Interest of Michael R., 11 Neb. App. 903, 662 N.W.2d 632 (2003).
8
Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290(2007).
9
Id., 551 U.S. at 397.
Nebraska Advance Sheets
J.P. v. MILLARD PUBLIC SCHOOLS 915
Cite as 285 Neb. 890environment.10 The Court concluded that the student in Morse
could not stand in the midst of his fellow students, during
school hours, at a school-sanctioned activity, and claim he was
not at school or subject to school rules.11
FEDERAL COURT JURISPRUDENCE: SCHOOL
SEARCHES AT SCHOOL-SPONSORED
EVENTS OR ACTIVITIES
Although the U.S. Supreme Court has not specifically
addressed whether the T. L. O. school search exception to the
Fourth Amendment is dependent on a school official’s or a
student’s location, various federal courts have further inter-
preted T. L. O. to conclude that a school official has authority
to search a student outside of the traditional boundaries of
school property.
As the majority acknowledged, the Fifth, Sixth, and Eighth
Circuits, as well as a New York federal district court, have
recognized that the school search exception to the Fourth
Amendment is not dependent on the location of a school offi-
cial or student.12 These courts note that at events such as local
school-sponsored field trips or school-sponsored out-of-state
travel, school officials maintain the authority to search students
pursuant to the reasonable suspicion standard of T. L. O.
During such events, it is incumbent upon school officials
to watchfully maintain student safety in unstructured environ-
ments different from the school buildings.13 At events that
take place off school campus, but are school sponsored, the
school remains in control of the students and is responsible
for the safety of the students during the event.14 Thus, at the
events described in these cases, the school officials retained
10
Id.11
Morse, supra note 8.
12
Shade v. City of Farmington, Minnesota, 309 F.3d 1054 (8th Cir. 2002);
Hassan v. Lubbock Independent School Dist., 55 F.3d 1075 (5th Cir.
1995); Webb v. McCullough, 828 F.2d 1151 (6th Cir. 1987); Rhodes v.
Guarricino, 54 F. Supp. 2d 186 (S.D.N.Y. 1999).
13
Webb, supra note 12.
14
Shade, supra note 12.
Nebraska Advance Sheets
916 285 NEBRASKA REPORTS
their authority to search students because they maintained their
authority to discipline and protect the students.
STATUTORY AUTHORITY TO SEARCH
STUDENTS IN NEBRASKA
Implicit within the school search exception to the Fourth
Amendment that requires only reasonable suspicion for the
search of students is that school officials have the authority to
conduct the search. The majority correctly analyzed where this
authority comes from in Nebraska. Pursuant to Neb. Rev. Stat.
§ 79-267 (Cum. Supp. 2012), the Legislature circumscribed
a school district’s jurisdiction to discipline students. Section
79-267 describes student conduct that
shall constitute grounds for long-term suspension, expul-
sion, or mandatory reassignment, subject to the proce-
dural provisions of the Student Discipline Act, when such
activity occurs on school grounds, in a vehicle owned,
leased, or contracted by a school being used for a school
purpose or in a vehicle being driven for a school purpose
by a school employee or by his or her designee, or at a
school-sponsored activity or athletic event.
Thus, a school district may discipline students for conduct
occurring (1) on school property, (2) at a school-sponsored
activity or athletic event, or (3) in a vehicle owned or used by
the school for a school purpose.15 School officials are given no
specific statutory authorization to conduct searches under this
statutory scheme. Rather, such authorization is understood to
be granted pursuant to the provisions of the Student Discipline
Act, which provides school officials with the authority to dis-
cipline students.16
APPLICATION OF § 79-267
TO THIS CASE
The majority found that the conduct in this case did not
occur “on school property” and that thus, the school did not
have the authority to search J.P.’s vehicle. It alternatively found
15
§ 79-267.
16
Id.
Nebraska Advance Sheets
J.P. v. MILLARD PUBLIC SCHOOLS 917
Cite as 285 Neb. 890that the conduct did not occur “at a school-sponsored activ-
ity” wherein the school was exercising control of J.P. Thus,
the majority found inapplicable federal case law jurisprudence
extending school officials’ authority to search students at off-
campus, school-sponsored activities.
I disagree with the majority’s conclusions and instead find
that this is both a school property and a school activity case
and that the school had authority to search J.P.’s vehicle. Most
of the pertinent suspicious activity in this case occurred on
school property. During regular school hours, students at the
high school do not have permission to leave the school. The
“Millard West High School 2010-2011 Student Handbook”
provides, under the “Attendance Procedures” section at page
6, as follows:
Students Leaving the Building During the School Day
Any student leaving the building during the school
day must be in possession of an authorized pass issued
by the attendance office. Students will exit through the
front door and display the pass for a security staff person
when leaving.
Any student choosing to leave the building without a
pass from the attendance office will be subject to disci-
plinary action.
Here, while on school property during regular school hours,
J.P. lied to school officials on multiple occasions and J.P. exited
the school without authorization and reentered the school on
two separate occasions. During all relevant and material times,
the school maintained control over J.P. As J.P. exited the school
without authorization to access his vehicle and then returned
to the school, the school was responsible for J.P.’s safety and
maintained the ability to discipline J.P. This is so because J.P.’s
conduct occurred at the ultimate school-sponsored activity—
attending school during regular school hours.
The school’s responsibility for J.P. was the same as if he
was at a school-sponsored activity or event held off campus.17
Also, at all times during the suspicious conduct of this case,
17
See cases cited supra note 12.
Nebraska Advance Sheets
918 285 NEBRASKA REPORTS
the school remained not only in control of J.P. but also the rest
of the student population affected by his conduct.18
This reading of the statute is compatible with the balanced
approach to student discipline set out in T. L. O. and the fed-
eral case law jurisprudence allowing searches of students off
school property while students remain under the protection
and disciplinary authority of school officials. Moreover, as
J.P.’s conduct occurred during school hours and was intimately
connected with the school’s educational environment, it is
logical to conclude the school maintained its authority to dis-
cipline J.P. during his conduct.19
Although we think of school-sponsored activities as being
basketball games, speech contests, or field trips held off
school grounds, it is not a strained reading of § 79-267 to sug-
gest that the classes and activities occurring during a regular
school day are “school-sponsored activit[ies].” The major-
ity’s suggestion that “J.P.’s driving to school and parking off
school grounds was not a school-sponsored event, nor was it
associated with a school-sponsored event,” ignores the obvi-
ous. Although it is true that J.P. drove the vehicle to school
and parked it off school grounds, this is not the activity which
placed J.P. under the school’s control, protection, and author-
ity. The activities of emphasis here are (1) J.P.’s act of exit-
ing the school without permission, (2) J.P.’s decision to bring
another student to his vehicle, and (3) J.P.’s reentrance into
the school. It is undeniable that J.P.’s conduct occurred during
regular school hours and was subject to the rules of regular
school day attendance and that J.P. associated his vehicle with
his conduct.
When considering the school’s authority to search vehicles
parked in the school parking lot versus vehicles parked off
campus, location may be a determinative factor regarding stu-
dent’s privacy rights.20 In this case, however, J.P. associated
his vehicle with his unauthorized exit and reentrance into the
18
Id.
19
Morse, supra note 8.
20
See, e.g., State v. Crystal B., 130 N.M. 336, 24 P.3d 771 (N.M. App.
2000); Com. v. Williams, 749 A.2d 957 (Pa. Super. 2000).
Nebraska Advance Sheets
J.P. v. MILLARD PUBLIC SCHOOLS 919
Cite as 285 Neb. 890school. In turn, J.P. changed the status of privacy rights he
had in his off-campus vehicle by associating it with a school-­
sponsored activity. As such, the fact that J.P.’s vehicle was
parked adjacent to the school, rather than in the parking lot, is
not the material factor in determining whether the school had
authority to search the vehicle.
As the suspect conduct in this case occurred both on school
property and at a school-sponsored activity, I would find that
the school had authority to regulate and control J.P.’s conduct
and to discipline J.P for such conduct. Thus, the school had
authority to search J.P. and J.P.’s vehicle, which vehicle was
inherently associated with J.P.’s conduct of exiting and reenter-
ing the school building without permission.
PUBLIC POLICY
It is a fundamental understanding and expectation of parents
and citizens that schools will provide a safe environment for
students to learn and develop into productive adults. In today’s
world, that especially means that parents and citizens expect
schools will be drug free and gun-violence free. The School
Disciplinary Act includes specific references of the duties of
schools in regard to guns and in regard to providing a safe
environment for students.21
The majority’s opinion allows students to violate important
school rules without consequence. It permits students to hide
from authority simply by parking their vehicles across the
street. And finally, the majority opinion lessens school offi-
cials’ ability to provide students with a safe, structured envi-
ronment during regular school hours.
CONCLUSION
For all of the above reasons, I would remand this cause to
the district court to measure the search of J.P.’s vehicle using
the reasonable suspicion standard set out in T. L. O.22
21
§§ 79-262 and 79-263.
22
T. L. O., supra note 1.