Ben Lowenthal: Students Don't Have The Same Privacy Rights As Everyone Else - Honolulu Civil Beat

About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at

The Hawaii Supreme Court set the standard for student privacy in the 1990s and it hasn’t shifted.

Somebody accused three students at Kapolei Charter School of smoking cannabis on the bus during a field trip. Four days after that bus ride, the girls were called into the principal’s office.

What happened next is hazy. The girls say their principal had them lift their shirts up. Then they allege she grabbed some of their bras and forced them all to jump up and down.

They say the principal told one of them to pull her pants down to her knees and they were all patted down over their waists, hips, and buttocks.

It’s unclear from the complaint in the lawsuit that followed if they found anything.

The students not only sued the principal but included the public charter school, and the state. The bevy of claims they brought include negligence in hiring the principal, inflictions of emotional distress and a violation of their constitutional rights.

Their lawsuit raises a fundamental question about how far government officials can or even should go when it comes to searching people — especially kids.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects” from unreasonable searches and seizures. When the government wants to search a person or enter some protected space, it needs a warrant based on probable cause.

This is why the police need to get search warrants before they can go into a private space like a home, a vehicle, or even someone’s body.

The Hawaii Constitution gives us a similar right, but it’s broader and more protective. It not only protects people from searches and seizures, but it expressly includes “invasions of privacy.”

And courts have extended these rights to students and on school campuses — but not really.

In the early 1990s, kids at Kapaa High School called the culvert across the street from their school the Tunnel. It was 6 feet high and several hundred feet long. And that’s where students from the high school and the intermediate school smoked cigarettes and cannabis.

One September morning, campus security spotted kids ditching class and heading to the Tunnel. They followed them, smelled weed, and ordered everyone out. Four students marched out. The principal ordered them to empty their pockets and had one of them — another girl — empty her purse.

They found a small bag of cannabis.

When she was prosecuted as a juvenile drug offender, her lawyers argued that the warrantless search of her purse violated her constitutional rights. She lost on Kauai and appealed to the Hawaii Supreme Court.

She lost again.

photograph by Cory Lum/Civil Beat
The Hawaii Constitution protects people from searches and seizures and explicitly from “invasions of privacy”. A recent lawsuit revived the issue of what searches are justified for public school students. (Cory Lum/Civil Beat/2018)

The court recognized that students still have the constitutional right to be free from unreasonable searches and seizures. It also acknowledged that public school officials are government representatives and must conform to the requirements of the state and federal constitutions.

But at the same time public schools “are a unique social environment, and teachers and administrators have a legitimate and substantial interest in maintaining discipline in the classroom” and campus. The court highlighted that while “drug use and violent crime are socially detrimental forms of behavior in general,” in a school setting “their repugnance is exacerbated.”

It even went so far to declare the drugs and crime situation in public schools a “crisis.” 

That justified a watering down of the constitutional rights for students. Public school officials don’t need a warrant. They don’t even need probable cause to believe there’s a crime. Public school principals or security guards can search kids and seize property so long as it’s “reasonable under all the circumstances.” The court upheld the principal’s search at Kapaa High and left us with that standard ever since.

Does this mean the alleged strip search in Kapolei was “reasonable under all the circumstances?” Four days after the field trip? And what about the extent of the search? Allegedly making them lift their shirt, pull down their pants, be subjected to a pat down, and weirdly forced to jump up and down? Is that reasonable?

Long before the girls in Kapolei and the girl from Kapaa, there was the case against Candace Clark. The facts are disturbing. It starts when a 63-year-old man on vacation from Illinois brought two prostitutes to his Waikiki hotel room late one Saturday night in 1979. The women took his money and ran. The man had the gall to go to the police, who remarkably arrested Clark for theft. She was 28.

At a bathroom in the police station, Clark was ordered to take off her clothes. They found $100 cash — a few hundred short of what the man claimed. Next, the police attempted to conduct a “visual vaginal cavity search.” The station matron would later testify that this was “standard practice” for prostitutes.

Clark refused.

Undeterred, the police brought in a city doctor. Clark was put on a table and her legs were strapped in stirrups. The doctor used a speculum to examine her vagina and found more money. This was four hours after her arrest, and no one tried to get a search warrant.

The Hawaii Supreme Court has ruled that while students have a constitutional right to be free from unreasonable searches and seizures, the unique environment of public schools means there are circumstances where school staff can search kids and seize property. (David Croxford/Civil Beat/2022)

The case went up to the Hawaii Supreme Court. Chief Justice William Richardson told the lawyers in the case the right to privacy over one’s body is “the most sacred thing we have in our country” and declared the search was “not reasonable to me.”

A unanimous court threw out the evidence. Writing for the court, Chief Justice Richardson reminded us that the state and federal constitutions prohibit unreasonable government intrusions into a person’s “legitimate expectation of privacy” and that “there is no expectation of privacy of greater legitimacy than that which we have in our ‘private parts.’”

He noted that the visual inspection of private parts was “dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing” and “repulsive.” The court also noted its “strongest reservations” about strip searching arrestees.

Now, the claims in the lawsuit over what happened in Kapolei are nowhere near as extreme or intrusive as the Clark case. But the students still allege a strip search. Is that reasonable? 

Just before the Kapolei trial was scheduled to start, the judge issued a summary judgment not necessarily because the principal was allowed to do what she’s accused of doing, but because sovereign immunity — a legal doctrine prohibiting government employees from being civilly liable — bars their civil claims for compensation.

The students are still hoping to get back to trial by asking the court to reconsider its ruling. Whether the principal’s search violated the girls’s watered-down constitutional rights — remains unanswered.

And for now, it might just stay that way.

Civil Beat’s education reporting is supported by a grant from Chamberlin Family Philanthropy.

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About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at

Latest Comments (0)

I think the state exempts itself from punitive damages - which would definitely come into play here. But it will still be tough to prove the principal acted with malice. Additionally, Hawaii State Tort Liability Act ("HSTLA" ) waives sovereign immunity only for "traditionally recognized common law causes of action in tort," which does not include constitutional torts. So the students' civil rights violation for privacy rights is off the table. Maybe causes of action like negligent hiring, training, and supervision, etc. can survive. Good luck to the plaintiff lawyers. I'd be interested in hearing how it progresses (or doesn't progress). I wonder what the Judiciary chairs think of HSTLA.

Frank_DeGiacomo · 1 month ago

I consistently shake my head at the privatization of government services that is prevalent today. It always results in greater cost and less value to the public. But what irks me even more is the extension of essentially police powers and sovereign immunity and other governmental protections (immune from UIPA, no transparency in hiring, contracts, spending, etc., etc.). This is a *private* school -regardless of some sort of quasi alliance with the DOE, and inordinate amounts of taxpayer money being appropriated to these for profit businesses.

Frank_DeGiacomo · 1 month ago

I'm surprised the author didn’t mention the 2009 SCOTUS case Safford Unified School District #1 et al. v. Redding which said that a school couldn't strip search a student to look for ibuprofen. That case would be supreme over anything the Hawaii courts rules.

CATipton · 1 month ago

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