Smartphones are an ongoing bone of contention in schools. Despite rules about using phones in class, students—just like adults—can’t seem to resist texting or checking the responses to their latest social media post. When kids break the rules, teachers have a right to take away their phones, at least for the duration of class. But what if teachers get into the phones and access students’ texts, contacts, photos, and other data? Depending on the circumstances, the Fourth Amendment protection against unreasonable searches might apply.
The Basic Rules for School Searches
Under standards set out by the U.S. Supreme Court, public schools may search students and their personal belongings if:
- the school had a “reasonable suspicion” that the search would turn up evidence of misconduct, and
- the extent of the search was related to its purpose and wasn’t “excessively intrusive.”
(New Jersey v. T.L.O., 469 U.S. 325 (1984).)
Applying the Rules to Cell Phones
Although the T.L.O. decision came before the average high school student had access to any cell phone—let alone a smartphone that can store gigabytes of data—judges still use the Supreme Court’s guidelines and reasoning when they’re deciding whether a school had the right to search a student’s electronic device. For example:
- In a case where school officials took away a student’s cell phone after seeing him text during class, the Sixth Circuit Court of Appeals held that they violated the boy’s Fourth Amendment rights by proceeding to read all the text messages on his phone. The administrator claimed she was concerned because of the student’s history of suicidal thoughts and drug use. But the court found that the school didn’t have to search the phone’s contents in order to find evidence that the student had broken the no-texting rule, and the school had no information to suspect that he was guilty of other misconduct. (G.C. v. Owensboro Public Schools, 711 F.3d 623 (6th Cir. 2013).)
- After receiving a report that a student may have been smoking marijuana on the school bus, school officials violated the boy’s privacy rights by going through his phone. As the judge saw it, the phone wasn’t related to the search for marijuana because it couldn’t contain drugs. (Gallimore v. Henrico County School Bd., 38 F.Supp.3d 721 (E.D. Virginia 2014).)
- In another case where school officials confiscated a student’s phone for violation of school policy on cell phone use—then searched the phone, found seminude pictures of the girl, and sent the phone to police—a federal judge ruled that she could pursue a lawsuit against the school. (N.N. v. Tunkhannock Area School Dist., 801 F.Supp.2d 312 (M.D. Pa. 2011).)
When the Supreme Court applied looser restrictions to searches by schools than by police, it explained that student’s “expectation of privacy” must be balanced against the schools’ special need to maintain a safe learning environment. In a time when teenagers spread every detail about themselves on social media, some might wonder if kids expect anything to be private. And as schools struggle to combat cyberbullying, they’re more interested in finding out what bullies are up to online.
At the same time, students routinely carry around a trove of highly personal, sensitive information—about their family and friends, as well as themselves—on their mobile phones. How does this change the balance between privacy rights and schools’ needs?
A 2014 decision by the U.S. Supreme Court may provide some guidance. In holding that the police officers usually need a warrant before searching the phone of someone they arrest, the Court pointed out that searches of smartphones involve privacy concerns “far beyond” searches of other personal belongings like wallets or purses. Riley v. California, 134 S.Ct. 2473 (2014).) Even though the Court didn’t directly address schools, its reasoning about privacy and smartphones might apply to searches by schools as well as police.
Talking to a Lawyer
The question of when schools can search electronic devices is an evolving area of the law. If a teacher or principal has managed to get into your (or your child’s) phone—or has read incoming texts visible on a locked screen—consider consulting with an attorney. In a situation where the school has turned pictures or data from the phone over to the police, a criminal defense attorney should be able to help determine whether the search was legal (under federal standards as well as the laws in your state), and whether you can get the evidence excluded. If the school is using evidence from the phone for a suspension or other punishment, an education lawyer can explain students’ rights in disciplinary proceedings. And if you believe the search was illegal, you might want to discuss the possibility of suing the school with an attorney experienced in civil rights or personal injury law.Go to the main FAQ page on students’ Fourth Amendment rights.