NV: School couldn’t condition student’s entrance into building on a full search

A juvenile with chronic behavioral problems was made to sign a contract for readmission to school that he was subject to random searches of his person. The court distinguishes Earls and Vernonia on school drug testing and an Oregon case (State ex rel. Juvenile Dep’t v. Stephens, 175 Ore. App. 220, 27 P.3d 170 (2001)) and concludes that there was a right to a public education, and access couldn’t be conditioned like that. In re L.A.W., 131 Nev. Adv. Op. 24, 2015 Nev. LEXIS 31 (May 7, 2015):

But, even assuming that a minor’s access to public education is simply an amenity that can be likened to adults’ access to courthouses and airplanes, it is not clear that the State may always condition its grant of some “desired benefit” upon an individual’s waiver of a constitutional right. See Cafeteria & Rest. Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 894, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961) (“One may not have a constitutional right to go to Bagdad, but the Government may not prohibit one from going there unless by means consonant with due process of law.” (internal quotations omitted)); Dixon, 294 F.2d at 156 (acknowledging that the fact that a right is not constitutionally protected does not necessarily excuse a failure of due process in the State’s infringement thereupon). And, in fact, a minor’s access to publicly funded education is not as easily analogized to those privileges as the Oregon appellate court suggests—while the Supreme Court has stopped short of naming the right to attend public school as one fundamental to citizenship, it has indicated that it views public education to be the foundation of meaningful democratic participation. See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 493, 74 S. Ct. 686, 98 L. Ed. 873 (1954) supplemented sub nom. Brown v. Bd. of Educ. of Topeka, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, 71 Ohio Law Abs. 584 (1955). And this is because, according to the Court, public education is “a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment,” so much so, in fact, that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” Id. Thus, “the gift of a final chance in the public school system,” to borrow the State’s phrase, is in fact less luxury than necessity, and the improbability of a minor’s future positive prospects absent any access to state sponsored education, indeed, the reality that he or she may never become a “good citizen” without it, see id., draws into question whether a waiver of the constitutional right to be free from unreasonable search and seizure upon which such access is conditioned can ever be given “freely,” as our precedent requires. See Ruscetta, 123 Nev. at 302, 163 P.3d at 453-54.

We are moreover mindful that a school administration’s responsibility for “educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943). This seems especially true in the “last chance” context, where the young minds being given a “last chance” at a public high school education may also be those on the brink of entering into lifestyles antithetical to ordered society, for whom school administrators and campus police may be the most salient point of contact with the State. It is critical that such youth learn, through their interaction with these authority figures, that the State is fair, just, and trustworthy. See Ross L. Matsueda & Kevin Drakulich, Perceptions of Criminal Injustice, Symbolic Racism, and Racial Politics, 623 Annals Am. Acad. Pol. & Soc. Sci. 163, 164 (2009) (“If citizens view the system of justice [as untrustworthy], the social and political system is likely to be volatile and unstable.”). A school administration’s coercion of a child’s “consent” to unconstitutional searches by holding the threat of closed educational doors over his or her head does not facilitate the desired perception of justice.

III.

In light of these hefty considerations, we conclude that the State has failed to demonstrate that L.W.’s consent to search was voluntary—there was no record evidence that public education options beyond Legacy were available to him, and the State could not constitutionally condition L.W.’s access to a public education on his waiver of his right to be free from unreasonable search and seizure. The district court therefore should have suppressed the fruits of the administration’s search of L.W., including, specifically, the testimony of the searching teacher and campus police officer. See Torres v. State, 131 Nev., Adv. Op. 2, 341 P.3d 652, 657 (2015) (noting that “[c]ourts must also exclude evidence obtained after the constitutional violation as ‘indirect fruits of an illegal search or arrest'” (quoting New York v. Harris, 495 U.S. 14, 19, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990))). Accordingly, we reverse and remand to the district court for proceedings consistent with this opinion.