DATE: Friday, August 1, 1997                TAG: 9708010717

SECTION: LOCAL                   PAGE: B1   EDITION: FINAL 

SOURCE: BY MARC DAVIS, STAFF WRITER 

DATELINE: NORFOLK                           LENGTH:  112 lines

JUDGE RULES STUDENT HAD RIGHT TO REFUSE SEARCH

Granby High School freshman James A. DesRoches II was justified in refusing to let school officials search his backpack in May because the search would have been unconstitutional, a judge ruled Thursday.

U.S. District Judge Robert G. Doumar ordered school officials to wipe out DesRoches' 10-day suspension for refusing the search, but he did not award money damages.

In a 20-page ruling, Doumar said he ``hesitates to hamstring even further schools' attempts to restore order and discipline to the classroom.'' Nonetheless, he said, the search was illegal under the Fourth Amendment to the U.S. Constitution because there was no suspicion that DesRoches had committed a crime.

``This court has a duty to follow the law and to balance between the needs of the schools and the right of individuals to be secure from unreasonable searches and seizures,'' Doumar wrote. ``Our Constitution is a compromise of competing values, and the results of protecting it in any specific case taste sweet to some and bitter to others.''

It is not clear how this ruling will affect the school system's search policy, or whether it has ramifications for student search policies in other local school systems.

A separate lawsuit challenging random student searches in Norfolk public schools is pending in Circuit Court. That case is scheduled for trial in September.

DesRoches' father said he was elated with Thursday's ruling. His son was out of town with friends.

``Jimmy wanted to go back to Granby because he liked his teachers, he liked his friends, he just didn't want this to hang over him,'' said the father, James A. DesRoches.

``So it looks like he'll be going back to Granby.''

The American Civil Liberties Union of Virginia, which helped DesRoches file the lawsuit, said the ruling sends a message to teachers and principals.

``I hope they will recognize that searching a child is really an extraordinary thing to do,'' said Mary C. Bauer, an ACLU staff attorney in Richmond who handled the case. ``Schools should think twice, and maybe thrice, before engaging in a search of a student's belongings. It should be an unusual occurrence.''

School officials had little to say after the ruling. ``We will follow the judge's instructions and adjust our search procedures accordingly,'' said school district spokesman George Raiss.

Harold P. Juren, a senior deputy city attorney, said he probably will recommend that the School Board appeal.

The case arose from a search for missing sneakers.

On May 2, DesRoches was one of 19 students in an art class at Granby.

During class, one student changed her shoes, placing her sneakers on top of a desk. Soon after, the class left for lunch, then returned to find the sneakers gone.

Security officers ordered a search of all student backpacks, partly because a ring had disappeared from the same classroom one day earlier.

The officers asked if anyone in the class objected to the search. Two students did: DesRoches and one other. Officers told the pair that they would be automatically suspended 10 days if they refused the search. DesRoches still objected, but the other student complied. The sneakers were never found.

DesRoches' parents were called to the school, and the student was suspended for 10 days.

Six days later, DesRoches and his father sued the Norfolk School Board, Superintendent Roy D. Nichols Jr. and Granby Principal Michael Caprio. They sought unspecified money damages and an order reinstating DesRoches.

Midway through the suspension, school officials agreed to let DesRoches return to school. The case was tried May 28, but the judge delayed ruling until Thursday.

In his ruling, Doumar said the proposed search of DesRoches was unconstitutional because there was no ``individualized suspicion'' that he stole the sneakers.

Doumar ruled that the Fourth Amendment ban on unreasonable searches and seizures applies to public school students. Citing a 1985 New Jersey case, he wrote, ``Students have a reasonable expectation of privacy in their possessions at school, including their backpacks.''

In the New Jersey case, the U.S. Supreme Court ruled that a school search is justified if officials have ``reasonable grounds'' to suspect that it will turn up evidence that the student violated the law or a school rule.

Usually, Doumar said, that means there must be some ``individualized suspicion'' against the person to be searched. That general rule can be broken, Doumar said, only when the need for a search is great - in cases of public safety, for example, such as searches for guns or drugs - and when the intrusion is limited and when a more rigorous standard would be unworkable.

In this case, Doumar ruled, a search for sneakers is not as important as searching for weapons or drugs.

``A search of all 19 students in the class, especially when it is not certain that one of them is guilty, casts too wide a net when the evil combated is petty larceny of an object that could not harm others,'' Doumar wrote.

The judge said school officials could have questioned students and teachers to narrow the range of suspects, but they did not.

Doumar apologized for not laying down precise rules on when students can be searched in particular circumstances.

In general, Doumar advised: ``When searching for tennis shoes and similar objects, school officials must have some individualized suspicion as to each student the school wants to search.''

Doumar also noted that if this were a private school, there would be no case. Public school employees are agents of the government; private school employees are not.

Finally, Doumar ruled that Caprio, the principal at Granby High, is not liable for money damages because he did not know the search was illegal.

``Surely a school principal cannot be charged with full and comprehensive knowledge of subtle aspects of constitutional law,'' Doumar wrote.

DesRoches voluntarily dropped his claim for money damages against the School Board and the superintendent. MEMO: Staff writer Denise Watson contributed to this story. ILLUSTRATION: [Color Photo]

James A. DesRoches II was suspended after he would not consent to be

searched. KEYWORDS: RULING SEARCH NORFOLK SCHOOLS LAWSUIT

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