By Steve Adams
School officials from time to time may take cell phones away from students for any number of reasons, such as violating a school rule prohibiting texting during class.
However, taking control of a cell phone during school hours does not give teachers or administrators free rein to search the data stored on the cell phone.
A longstanding rule established by the U.S. Supreme Court is that a school official’s search of a student must be justified at its inception and reasonable in scope. (New Jersey v. TLO, 469 U.S. 325 (1985).) While this is a lower standard than the “probable cause” needed for searches by police outside of the school context, teachers and administrators must have some reasonable basis to search a student.
As for searching student cell phones, no court opinion in Rhode Island or Massachusetts has yet addressed the question of the scope of a school’s authority to do so. However, other courts from around the country have recently tackled the issue.
The upshot of these rulings is that even though a student’s expectation of privacy is substantially less while on school grounds, school officials must nonetheless have a reasonable basis to search data stored on a cell phone.
According to one federal appeals court, “[u]sing a cell phone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantially or temporally to the infraction.” (G.C. v. Owensboro Public Schools, 711 F.3d 623 (6th Cir. 2013).)
In the case, the 6th U.S. Circuit Court of Appeals ruled that a Kentucky teacher should not have searched a student’s text messages despite her concern about the student’s suicidal tendencies and suspected drug use. While the student was upset his phone had been taken away as a result of texting during class, the teacher had no justification to read the text messages without more information about any threat of harm to the student or others, according to the court.
The court also observed that even if a cell phone search is justified, the scope of the search must be tailored to the nature of the infraction, and must be specifically related to the objectives of the search. Not all infractions involving cell phones will indicate or suggest further wrongdoing by a student, or injury to the student or another student, the court wrote.
As an aside, this reasoning is consistent with the U.S. Supreme Court’s decision in June that police must obtain a warrant to search data on a cell phone confiscated incident to an arrest. Cell phone data does not pose any risk of immediate harm to arresting police, nor is it likely that evidence on a cell phone will be destroyed unless police search through the data, the court found. (Riley v. California, 573 U.S. __ (2014).)
The Supreme Court in Riley signaled its concern over the government overstepping its authority, lending further credence to the general view that schools need to be circumspect before perusing a student’s cell phone.
Interestingly, in a case involving the expulsion of a Mississippi middle school student, a federal trial court judge took a broader view than the 6th Circuit of the right of school officials to examine information on a confiscated student cell phone. (J.W. v. DeSoto County School District, 2010 WL 4394059, (N.D. Miss. 2013).)
The middle school barred possessing or using a cell phone on school grounds. A teacher took the student’s phone after he opened a text message from his father during class.
After taking the student’s phone, school officials – despite not having any suspicions of further wrongdoing by the student – viewed photographs stored on the cell phone suggestive to them that the student was involved in gang-related activities. The student was eventually expelled for violating the school’s disciplinary rule prohibiting any display of gang-related activity or clothing.
The judge, in upholding the expulsion, observed that it was reasonable for the school teachers to open and search the phone to determine if the student’s use of it in class was for an improper purpose, such as cheating or communicating with another student.
In an earlier federal court case, a Pennsylvania teacher confiscated a student’s cell phone when it fell out of his pocket. The school prohibited any display of a cell phone during school hours, which justified taking the phone away from the student. (Klump v. Nazareth Area School District, 425 F. Supp. 2d 622 (E.D. Pa. 2006).)
However, the judge determined that the teacher and an assistant principal should not have used the student’s cell phone to call other students in search of any wrongdoing by them. They had no reason to suspect at the outset that such a search would reveal that the student himself was violating another school policy or rule, the court found.
Even though school officials suspected the student was using and dealing drugs, searching text messages on his phone would be justified, the court said, only if school officials reasonably suspected imminent drug activity.
While these rulings are not necessarily the final word, school officials in Rhode Island and Massachusetts likely have discretion to take cell phones from students who violate school rules that ban cell phone use during school hours.
However, teachers and administrators should examine data on a student’s cell phone only if they suspect specific wrongdoing by the student at the time the phone is confiscated, or if they have a reasonable concern about injury to the student or other students.
Steve is administrative partner in the Providence office of Barton Gilman LLP, where he focuses his practice on advising education institutions and handling a wide range of civil litigation matters.