                                                   131 Nev./ Advance Opinion       24
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                IN THE MATTER OF LAW., A MINOR.                       No. 63683

                L.A.W.,
                Appellant,
                                                                             FILED
                vs.                                                           MAY 0 7 2015
                THE STATE OF NEVADA,                                       TRAC E K. LINDEMAN
                Respondent.                                              CLE O. SUPPE ■     '    T
                                                                        BY               E S.)1)-L-'
                                                                                           "iijB
                                                                             CHIEF DEP     ERK




                            Appeal from a district court order adjudicating the minor
                appellant delinquent on one count of possession of a controlled substance
                with intent to sell. Eighth Judicial District Court, Family Court Division,
                Clark County; William 0 Voy, Judge.

                            Reversed and remanded.



                Philip J. Kohn, Public Defender, and Jennifer A. Fraser, Deputy Public
                Defender, Clark County,
                for Appellant.

                Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                District Attorney, Jonathan E. VanBoskerck, Chief Deputy District
                Attorney, and Daniel Westmeyer, Deputy District Attorney, Clark County,
                for Respondent.




                BEFORE PARRAGUIRRE, SAITTA and PICKERING, JJ.




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                                                 OPINION
                By the Court, PICKERING, J.:
                            This caseS presents the question of whether the State can
                condition a prospective minor student's access to public education on that
                student's waiver of his right to be free from unreasonable search and
                seizure under the Fourth Amendment of the Federal Constitution and
                Article 1, § 18 of Nevada's Constitution. The State claims that the student
                had educational options open to him that made his consent to random
                searches of his person and property in order to attend public high school in
                Las Vegas voluntary, but the record does not support this claim. We
                therefore reverse and remand to the district court with instructions that
                the court suppress any evidence resulting from the search of the minor,
                and to conduct any further proceedings accordingly.
                                                     I.
                            Due to previous behavioral problems, the appellant, L.W.,
                then a minor, was told he was being given a "last chance" to enroll in
                Legacy High School (Legacy) but only on a trial basis and on the condition
                that he sign a "Behavior Contract." Among other conditions, the Behavior
                Contract stipulated that:
                            The following information lists the terms and
                            conditions upon which [L.W.'s] enrollment in
                            Legacy High School is based[:]


                            7. I realize that I am subject to random searches
                            by school administration.
                Both L.W. and his father signed the document.
                            The school's administration decided to conduct a search of all
                its trial enrollees. During the search of L.W., a Legacy teacher found $129

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                   and a large plastic bag, containing two smaller bags with an eight-ball
                   imprinted on them, each holding a "green, leafy substance." At the
                   administration's direction, a campus police officer conducted a field test of
                   the substance in one of the smaller bags, which came back positive for
                   marijuana. The officer advised L.W. of his rights under Miranda v.
                   Arizona, 384 U.S. 436 (1966), and, after questioning him, placed the boy
                   under arrest.
                               The State charged L.W. with possession of a controlled
                   substance with intent to sell. At a contested hearing on the charges
                   against him, L.W. objected to the admission of evidence resulting from the
                   search in question—specifically, testimony by the searching teacher and
                   the campus police officer describing the fruits of the search, including
                   statements that L.W. allegedly made explaining how he came to be
                   holding the cash and baggies—but the Hearing Master declined to
                   suppress on the grounds that L.W. had consented to the search via the
                   Behavior Contract. Ultimately, the Hearing Master found that the "green
                   leafy substance" was marijuana, that L.W. carried it with the intent to
                   sell, and judged him guilty of the State's charge. The district court
                   affirmed the Hearing Master's findings of fact, conclusions of law, and
                   recommendations, and formally adjudicated L.W. a delinquent. L.W.
                   appeals.


                               In many ways, public schools act "in loco parentis," and school
                   administrations are therefore granted certain authority, which "permitls]
                   a degree of supervision and control that could not be exercised over free
                   adults." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995). But
                   this authority is not carte blanche, and "lilt can hardly be argued

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                  that. . . students. . . shed   their       constitutional   rights . . . at   the
                  schoolhouse gate." Robinson v. Bd. of Regents of E. Ky. Univ.,          475 F.2d
                  707, 709 (6th Cit. 1973) (quoting Tinker v. Des Moines Sch. Dist., 393 U.S.
                  503, 506 (1969)) (third alteration in original). Thus, a warrant- and
                  suspicion-less search of a student, of the sort that the Legacy
                  administration conducted upon L.W., is presumptively unreasonable,
                  absent that student's consent (or other applicable exception, of which the
                  State's briefing concedes there are none).       See New Jersey v. T.L.O., 469
                  U.S. 325, 341-42 (1985) (holding that a school's search of a student is
                  reasonable if, at its inception, 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"); State v. Ruscetta, 123
                  Nev. 299, 302, 163 P.3d 451, 453-54 (2007) (holding warrantless searches
                  presumptively unreasonable absent valid consent). To qualify,
                  constitutionally speaking, such consent must be both intelligently and
                  voluntarily given. Ruscetta, 123 Nev. at 302, 163 P.3d at 454.
                               Courts of other jurisdictions have held that the State cannot
                  condition access to public education on a prospective student's
                  renunciation of his right to be free from otherwise unconstitutional
                  searches and seizures—even in the context of higher education—because,
                  in light of the draconian result of a student's failure to give consent, such
                  clauses amount to contracts of "adhesion" and therefore lack the requisite
                  earmarks of intelligence and voluntariness.         Smyth v. Lubbers, 398 F.
                  Supp. 777, 788 (W.D. Mich. 1975); see Robinson, 475 F.2d at 709 ("[T]he
                  state, in operating a public system of higher education, cannot condition
                  attendance at one of its schools on the student's renunciation of his
                  constitutional rights."); Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 156

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                    (5th Cir. 1961) (holding that a tax-supported college "cannot condition the
                    granting of even a privilege upon the renunciation of the constitutional
                    right to procedural due process"); Morale v. Grigel, 422 F. Supp, 988, 999
                    (D.N.H. 1976) (stating that a school could not condition a student's
                    attendance upon a waiver of constitutional rights); Moore v. Student
                    Affairs Comm. of Troy State Univ., 284 F. Supp. 725, 729 (M.D. Ala. 1968)
                    (recognizing that a college may not condition admission on a waiver of
                    constitutional rights); Devers ix S. Univ., 712 So. 2d 199, 206 (La. Ct. App.
                    1998) (noting the unconstitutionality of conditioning college dormitory
                    occupancy on waiver of constitutional rights); cf. Tinker, 393 U.S. at 506
                    (noting that students retain First Amendment rights while attending
                    school). But this reasoning does not pertain where a student seeks to
                    pursue special activities beyond education because "Daly choosing to 'go out
                    for the team,' or to engage in other voluntary, nonathletic activities, such
                    students also "voluntarily subject themselves to a degree of
                    regulation. . . higher than that imposed on students generally." Vernonia,
                    515 U.S. at 657. And so there is a line of cases wherein the United States
                    Supreme Court has upheld random and suspicion-less searches of certain
                    minor students as a condition of their participation in said
                    extracurriculars. Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie
                    Cnty. v. Earls, 536 U.S. 822, 831 n.3, 834 (2002) (upholding drug testing of
                    students who wished to participate in extracurricular activities); Vernonia,
                    515 U.S. at 664-65 (upholding random urinalysis requirement for
                    participation in interscholastic athletics in schools).
                                The State argues that L.W.'s concession in his Behavior
                    Contract—"I realize that I am subject to random searches by school
                    administration"—amounted to his free and intelligent consent to

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                otherwise unconstitutional searches. According to the State, though
                "[L.W.] may have faced a difficult choice about whether to enroll in school,
                he had other options and was not forced into signing a behavior contract."
                And the existence of these "other options," the State argues, takes the
                circumstances of L.W.'s consent outside the rubric of Robinson and its
                progeny, and into the narrower class of cases exemplified by Vernonia and
                Earls.
                            Both Vernonia and Earls ultimately rest on the "special needs"
                exception to the Fourth Amendment's warrant requirement, Earls, 536
                U.S. at 829, 836-37; Vernonia, 515 U.S. at 653, an exception that the
                State, in its briefing, confessed has no applicability here—
                "[A] dministrators were not relying on a special need exception to search
                [L.W.] in the instant case; they were relying on [his] consent." But even
                setting aside the State's waiver of the special needs exception, and
                Vernonia and Earls' poor fit to its remaining argument, see Edwards v.
                Emperor's Garden Rest., 122 Nev. 317, 330, 130 P.3d 1280, 1288 (2006)
                (finding waiver of an argument where a party "neglected [its]
                responsibility to cogently argue" the issue), in terms of the availability of
                the "other options" the State claims were available to L.W., the record
                simply does not support their existence—the State did not proffer any
                such evidence before the juvenile Hearing Master or juvenile court, nor did
                the State make any argument on such grounds below; the juvenile
                Hearing Master likewise made no mention of the availability of
                alternative schooling to L.W. in its discussion of the supposed
                voluntariness of the consent to search. Indeed, the only mention in the
                appellate record of the availability of such "other options" to which the
                State can point is a statement by the juvenile court that, because of L.W.'s

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                    age, "[hie could have [gone] over to Adult Ed alternative school as an
                    alternative at St. Louis."
                                This statement by the juvenile court appears to have been
                    based upon its own understanding of Nevada's educational system and not
                    upon any evidence presented by the State, as the full exchange
                    demonstrates:
                                THE COURT: He's seventeen. He could have
                                [gone] over to Adult Ed alternative school as an
                                alternative. . . .
                                [L.W.'s counsel]: Yeah I'm not—I'm not sure about
                                that. So—
                                THE COURT: I am Now, if he was sixteen your
                                argument would be. . . stronger. But seventeen
                                there are other options than going back to regular
                                school.
                    And, the juvenile court judge's anecdotal assurance does not qualify as
                    supporting evidence of the supposed educational options available to L.W.
                    because it was neither "[g]enerally known within the territorial
                    jurisdiction of the trial court," as L.W.'s counsel's uncertainty
                    demonstrates, nor can we say it is "Eclapable of accurate and ready
                    determination by resort to sources whose accuracy cannot reasonably be
                    questioned," because the district court made no mention of the sources he
                    relied upon for such information. See NRS 47.130; see also NRS 47.150.
                                There being no meaningful evidence that L.W. had alternative
                    public education available to him, the circumstances of his appeal differ
                    from those of the students in either Vernonia and Earls—he asked for
                    nothing more than mere access to a public education. Thus, and despite
                    the State's arguments to the contrary, nothing sets L.W. apart from the
                    public school student body as a whole; put differently, if the State may

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                condition L.W.'s access to public education upon his waiver of his
                constitutional right to be free from unreasonable search and seizure, it
                could seemingly do the same for any prospective public school student.
                This is an outcome that Vernonia and Earls, even assuming their
                pertinence in the context of consent searches, plainly do not sanction.   See
                Earls, 536 U.S. at 830 (noting that the Court's opinions "did not simply
                authorize all school drug testing, but rather conducted a fact-specific
                balancing");    Vernonia,   515 U.S. at 665 (cautioning "against the
                assumption that suspicionless drug testing will readily pass constitutional
                muster in other contexts"). The facts of L.W.'s appeal thus fall squarely
                under the Robinson line of cases, wherein a state conditioned attendance
                at one of its schools on the student's renunciation of his or her
                constitutional rights.
                               Even admitting so, the State urges this court to ignore
                Robinson, et al., and instead follow an Oregon appellate court case, State
                a rel. Juvenile Dep't v. Stephens, 27 P.3d 170 (Or. Ct. App. 2001), which
                holds inappositely. The circumstances of Stephens are undeniably similar
                to those at hand—a youth with behavioral problems signed a
                "Family/School Agreement," which included a clause whereby the youth
                agreed to "[s]ubmit to random searches of possessions, lockers, [and]
                person," as a condition of his enrollment in a "last chance" school. Id. at
                172 (emphasis omitted). The Oregon Court of Appeals determined that
                the youth's acquiescence to that clause amounted to his constitutionally
                valid consent because he could have opted not to complete his education
                and was therefore not "obligated to attend [the school]."    See id. at 174
                (citing ORS 339.030, which provides exemptions from compulsory school
                attendance, as evidence of the lack of the youth's obligation). Thus,

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                      according to the Oregon appellate court, the youth's circumstances in
                      choosing to complete his public education were analogous to those "where,
                      in exchange for a desired benefit, a citizen must agree to a search of his or
                      her person or belongings." Id. (citing to State v. Brownlie, 941 P.2d 1069
                      (Or. Ct. App. 1997), wherein the same court held that a defendant's
                      consent to x-ray screening of her purse could be inferred from her conduct
                      in placing it on a conveyor belt at a courthouse, and State v. Kelsey, 679
                      P.2d 335 (Or. Ct. App. 1984), where it held that defendant impliedly
                      consented to a pre-boarding search at terminal gate by attempting to
                      board an airplane).
                                  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 (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

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                (1954) supplemented sub nom. Brown v. Bd. of Educ. of Topeka,      349 U.S.
                294 (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 (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

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                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.


                             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




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                  (1990))). Accordingly, we reverse and remand to the district court for
                  proceedings consistent with this opinion



                                                                                J.



                  We concur:


                                                 J.
                  —94)teir
                  Parraguirre


                                                 J.
                  Saitta




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