Do students have an expectation of privacy on their cell phones while at school? The short answer to this is a qualified yes. Whether educators have the authority to search the contents of student cell phones depends on a lot of factors. The key issue in this analysis (that we have raised before on this blog) is the standard of reasonableness. According to New Jersey v. T.L.O (1985) students are protected by the Fourth Amendment to the U.S. Constitution which protects citizens against unreasonable searches and seizures. In T.L.O., the Supreme Court goes on to say that the standard that law enforcement officers must reach to conduct a search (probable cause that a crime has been committed), is not required of educators. In general, the standard applied to school officials is whether the search is “justified at its inception and reasonable in scope.” Of course there is a bit of subjectivity to this standard and what appears to be reasonable for one person may not be for another. In T.L.O., the Court ruled that for a search of student property to be justified, there must exist: “reasonable grounds for believing that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” This seems to be the standard by which schools should determine whether a search of a student cell phone is allowable.
Caselaw on Educator Searches of Cell Phones
There are a couple of cases which have been decided that shed some light on how this particular standard would apply to the search of student cell phones. The case most often cited is Klump v. Nazareth Area School District (2006). In this case, a teacher confiscated a student’s cell phone because it was visible during class – which was in violation of school policy (it accidentally fell out of the student’s pocket). The teacher and assistant principal then searched through the cell phone’s number directory and attempted to call nine other Nazareth students to determine if they too were in violation of the policy. They also accessed text and voice mail messages and communicated with the student’s brother without indicating to him that they were school staff.
The Court agreed that the school was justified in seizing the phone, but should not have used the phone to “catch other students’ violations.” In summary, the U.S. District Court in Klump concluded: “Although the meaning of ‘unreasonable searches and seizures’ is different in the school context than elsewhere, it is nonetheless evident that there must be some basis for initiating a search. A reasonable person could not believe otherwise.”
In November 2010, a Mississippi federal court identified no Fourth Amendment violation when a teacher seized, and administrators reviewed, photos and text messages in a cell phone confiscated from a boy who used it in violation of a schoolwide ban (J.W. v. Desoto County School District, 2010). Of course, the seizure was allowed because the school had a policy prohibiting the possession or use of cell phones at school. The issue in this case was the legitimacy of the search of the phone’s contents, which included incriminating pictures of the student wearing what appeared to be gang clothing.
The court ruled that the school was justified in searching the cell phone: “Upon witnessing a student improperly using a cell phone at school, it strikes this court as being reasonable for a school official to seek to determine to what end the student was improperly using that phone. For example, it may well be the case that the student was engaged in some form of cheating, such as by viewing information improperly stored in the cell phone. It is also true that a student using his cell phone at school may reasonably be suspected of communicating with another student who would also be subject to disciplinary action for improper cell phone usage” (J.W. v. Desoto County School District, 2010).
I personally believe that the Mississippi court got this case wrong. Searching the student’s phone will not yield any additional evidence that he is in violation of the school’s policy prohibiting possession of the phone at school. Seeing the phone in school already sufficiently established that point. The court argues that “…a student’s decision to violate school rules by bringing contraband on campus and using that contraband within view of teachers appropriately results in a diminished privacy expectation in that contraband.” Clearly the court in Klump did not agree with this reasoning as the court sided with the student. And while New Jersey v. T.L.O. established a different search and seizure standard for educators, the Supreme Court did not in this case suggest that any policy violation whatsoever negated any expectation of privacy a student previously held. The court in J.W. seems to suggest that if a student chooses to deliberately violate a school policy, that student should also be willing to shed any other constitutional protections with respect to the contraband. It should be noted, though, that the Mississippi court did attempt to distinguish the facts of J.W. from Klump by saying J.W. intentionally violated school policy whereas Klump accidentally violated the policy. I’m unconvinced that this should be a salient factor. Does it really matter that much if a policy is accidentally or intentionally violated? Given the many apparent contradictions between Klump and J.W. (and other student cell phone search cases), I would love to see the U.S. Supreme Court review this issue to provide much needed clarity to educators and school law enforcement officers.
What is Reasonable?
At both ends of the continuum of circumstances, the law is fairly clear. For example, if a reputable student advises a staff member that another student has the answers to the math exam on his mobile device, this would almost certainly allow for a search by an administrator. At the other extreme, conducting a search of a cell phone that was confiscated because it was ringing in a student’s backpack would likely not be allowed. Of course, there is quite a bit of gray ground in between to cover.
With all of this said, schools would be wise to include a specific statement in their policies that regulate student-owned devices brought to school. The policy should advise everyone that students who bring their own devices to school are subject to a reasonable search if suspicion arises that the device contains evidence of a violation of school policy or the law. Students, staff, parents, and law enforcement officers working in the schools need to be aware of this policy so that no one is surprised if/when certain actions are taken.
What do you think? Given your knowledge of current law, are educators allowed to search student cell phones simply when they are possessed (with the possession being the sole school policy violation)? Or, should they be allowed to search student cell phones only if they can articulate that they reasonably believe that evidence on the phone will reveal another policy violation? Do you believe the laws need to be changed in this area? Increasing numbers of schools are opening their doors and classrooms to cell phones and other mobile devices. As such, it is imperative that clarity is established in this area of case law and policy.
Excellent post, Justin,
Every time this issue is raised, it only serves to underscore that it is not one single issue, but many. Here are some initial thoughts:
1. Cell phones as contraband: Unfortunately, there are many who seem to equate the two where school is concerned. In reality, cell phones have become as ubiquitous as pens, pencils, lipstick or gum. From the informal surveys I have taken, the numbers of secondary school students carrying some sort of cell phone to school approaches 95~100%. Contraband suggests something which is snuck in, hidden and secret. Walk the halls of just about any school and you will see young people on the phone. We have to do a better job of realizing that this is normal and is not going away.
2. Presumption of Guilt: Since most young people are carrying cell phnnes, should we assume that most of them are "guilty" of something — after all they have contraband. No, of course not. Most kids are doing fine most of the time. Probably much better than we give them credit for!
3. Reasonableness: I love the example of the high-performing student who reports that another student has the answers to the test on his/her phone. If I, as an administrator, never see or hear that phone, is it reasonable for me to assume that the student has one, that he has the answers, and that I have to intervene. I suspect that the answer is no.
If a student uses a phone in class, and that's against the rules, do I have the right to confiscate it. Sure. But search it? Not so much. If a girl opens her purse during class to search for her lipstick, do I have the right to confiscate it? Maybe. Use it? No. Search her bag? No. (Unless I see or have reason to believe that she is pulling out a gun, perhaps.)
Lots more, but bottom line, as you so well describe, there is no bright line, no absolute answer. And we, as educators, need to bring our policies, procedures, expectations, preventative measures and our interventions into the 21st century. Rather than try to stop the flood which has already hit, let's co-opt it. Let's turn it to our advantage and use it as another tool in our educational tool kit.
Nobody expects that the notes that students pass should be given privacy. I have trouble seeing the difference between notes and a cell phone, which is used for much the same things – communicating via words and pictures. I guess I see the legal niceities, but I really think this gives kids too much leeway.
Yes but…if that note were tucked into a student's wallet or folded inside a purse or even left in the student's jacket pocket and the jacket was in a locker, would you automatically have the right to search the wallet, the purse or the jacket in the locker?
the school has the right to search the locker as it is their property. they do not have the right to search the jacket in the locker.
Good question, Mike. If I take a note that a student is passing, it doesn't seem any different from a cell phone that falls out of a pocket. I'm not out looking for notes, but when students write or pass them in front of me, I confiscate and read them.
If something is in a locker, though, I think it depends on the school policy, whether the school has told students their lockers are subject to search.
A high school teacher generally will not search a student. We are untrained. We may fear the student who simply walks out of the classroom with the evidence so will try to hold the student until back up arrives. If asking if an item is not in plain view, would a teacher search? How it generally plays out is that an administrator or someone from the school staff will ask the student to clear up everything by opening the backpack or locker, sharing the "contraband" like a cell phone and if what they look for is not on it, then suggest they may return to class. Many students, not knowing their rights, will submit to searches, not realizing the multitudes of ways they then are potentially inviting questions into other areas.
Parents of high school students generally would not sign a paper that their children could be searched at school, in my opinion and for what that is worth. At schools such as mine, maybe a mile from the administrators office, to think that administrators would actually conduct all searches with what they have happening seems rather unrealistic. Just thinking this through as I reach comments from all. Thank you.
See this report from the National School Board Association: http://legalclips.nsba.org/?p=4715. Evidently the court ruled that the school was justified in searching the contents of the phone (which, from my post you can see that I disagree with), but that the way the school used the information found was a violation of the student's due process. Very interesting. This isn't the last we have heard about this case…
Great post, Justin, and you clearly lay out the issues – will share. Thank you.
Nobody expects that the notes that students pass should be given privacy. I have trouble seeing the difference between notes and a cell phone, which is used for much the same things.
Frances, phones differ from notes in the fact that most students do not use their phones in school. Is the school allowed to search student mail? No.
How about this scenario? 5 15 year old boys at a sleep over record themselves hazing 1 of the boys by having 1 boy place his scrotum on the unsuspecting sleeping boys forehead. The following week at school, the school administrators here about a video going around school showing these acts. The 5 boys are questioned individually with a peace officer present (parental consent or notification had not been given at this time) and each kids cell phone is confiscated and searched. The 1st phone is searched and when nothing is found, is returned to the student and student returns to class. The 3rd phone is searched and it has a video of the 1student recording the act with his phone. The 1st student is called back to the office and the phone is confiscated and turned over to the school police to run through computer to see if the student ever had the video but just deleted it to pursue charges of child pornagraphy. All 5 students were asked to write a statement, again with no parental notification, and 3 of the 5 students wer suspended for violating school rules. The student who had no videos on his phone was pending charges with the local police on whether or not he had child pornagraphy on his phone. No parental notification or chain of custody rscipt was ever provided for confiscation of personal property at any time was ever given. My question is, if nothing was found on student 1 phone but another phone has him recorded, do they really need to run the phone through a computer program to try to retrieve evidence? Isn't the phone with the recording of student 1 recording with his phone evidence enough? What about the lack of parental notification throughout the whole process? Do The parents have any legal recourse?
So I have an important question…please share your knowledge and thoughts. I own my sons phone – it is not his – he is a Middle School student and a minor who cannot own a phone. it would make sense that school officials could confiscate the phone if it is out of his locker during school hours. However, should school officials be permitted to have the student unlock his phone so they can go through the all the pictures and delete any photos. Wouldn't my permission, as the property owner, be required to do so?
Children can give permission for a teacher to search a device they normally use. But I would advise your child not to do so under any circumstance. You as the parent should be involved in any decision about whether someone should search his/your phone.
School and the mobile phone is a big problem. There are many different opinions and every thinks that he is right. The most important is parental controls. While the child is underage parents should monitor its behavior. Mobile phones may not remove from school altogether, we want that the children were always in touch.
We use laptops or iPads in class as an education tool. I quickly texted friends on a group chat on my iPad and got caught by the teacher. The teacher then took my iPad and made me put in my passcode and read through the whole conversation, mostly consisting of conversations from home. What we were saying was inappropriate and we said some rude things about a teacher so we are getting suspended. Is this violation of our privacy? (The conversation consisted of one of the kids sexuality and many more private things).
In answer to that question, I think that the school officials would have the right to confiscate the phone. However, I do not think that they would have the right to make your son unlock your phone so they could look in it, especially so they can go through and look at and delete pictures like you said; especially if they are yours. The permission as the property owner (yourself) would (and should) be required to search the phone.
My daughter and a friend were accused of bad behaviour by another student.. Who has done exactly what she accused these girls of…. The principal accused my girls and told then he didn't believe them and took the friends phone and went thru all her conversations… I disagree with this.. I think the parents should be involved in these situations.. What are the kids rights in this case…? The situation did not happen at school….
Something similar to one of these scenarios happened to us . Our son brings his phone to school each day , which is not against school policy . Was is against policy is to take the phone out during class time in which case it may be confiscated by the school until the end of the day . A student in the school had suggested to the principal that my son had posted on instagram , some inappropriate pictures of "some girls " . The principal called him to the office and took his phone and began to search it . ( he did not post anything of any sort anywhere on any site ) as the principal took time to search through his phone she discovered nothing ! So , my belief is that if a student makes this kind of accusatory statement about another student the administrators better be sure to explain to that student that their accusations are serous business because if the school decides to posses that phone to start looking through it only to find nothing , the school could find themselves in a bit of a pickle … taking a students phone , going through their personal stuff is a violation of privacy . An option : have the parent of that student check the phone themselves . ( I do realize there are some parents that may find something and not fess up ) so in some cases this may not be a reasonable option . I do think however when your talking about a student that is not typically in trouble at school then he or she probably has decent parents that would do the right thing .
It is hard for me to believe educators should have the right to search a phone anytime it is confiscated in school. I agree that a phone should only be searched when there is reasonable thought that there is a safety issue or school rule possibly being broken. When we treat students as if they are always doing something wrong I believe that goes a long way towards breaking the trust that we are trying to build with them. However, I 100% agree that if the educator has reason to believe that a phone needs to be searched for a legitimate reason then the student has forfeited their right to privacy of their phone.
I agree with Justin though, he made a good point that the staff of schools can confiscate the cell phone, but not review it. This post has helped me with an argumentative essay I'm writing myself in class. And guest, same at my school we use Ipads as an educational tool.
Also guest, it kind or isa violation to your privacy, and the other person you were conversating with.
I agree with you, Justin.
I will let a teacher confiscate my phone if it falls because it is not against school policy to own one. My motto has always been you can take it, but if you go through it we have problems. If there was, let's say, a fight. I may or may not have the video can they go through and check because someone telling them I have it is not reliable or reasonable evidence. What do you think?
Yes. The teacher almost always has the right to confiscate, but would need a justifiable and reasonable reason to search your phone. They would need exigent circumstances to search it without your permission (or that of a parent) – such as a fight. But policies vary by school and laws vary by state (and you never know how the prosecutor or judge will feel about all of this).
(New Mexico)Does the school officer have the right to search a students phone without legal evidence that the student did something wrong? for example my phone got left behind in a classroom does the school officer have any right to go through my cellphone pictures? please I need answers
An officer probably has the right to attempt to determine the owner of the phone. The scope of their search for information to ID would be limited, however. Also, make sure you have a screen lock on your phone if you don't want people going through it when you leave it somewhere.
***Say a teacher confiscated a cell phone during class because it was being used against the school policy. While the phone was on the teachers desk however, the screen lit up and showed some texts being received from another student telling the student he/she should com out into the hall. Then, after seeing it, the teacher turns on the phone again and takes a picture with his phone of the text messages being received on the students phone, and later uses the evidence to get the student in trouble for misconduct. Is this legal? Is it considered searching? Was it OK for the teacher to take a picture of it? Is there anything wrong with what he did?
My opinion would be that it is fine for a teacher to take a picture of something that pops up on the screen. My advice would be to power down your phone if it is taken away.
I actually have a question. My son just recently reported a bomb threat that he saw written in the bathroom to the school office during school hours. He was questioned by city police and FBI and also had his phone confiscated and searched. All of this was done on school grounds and his Dad and I weren't notified until after the fact. My son is 17 years old. Was all of this legal?
If there was concern about a bomb at school, then it likely justifies the intrusion. The school/police definitely should have contacted you as soon as possible however.
Thanks for this blog, It is very helpful. My 10 year old daughter was involved in a off-campus phone prank incident with several other girls. The incident was reported to school as a HIB event even though it did not meet the criteria of a HIB event. The school stated they are obligated to investigate all reported incidents. The incident was later classified as a non-substantiated HIB incident. The incident involved no threats and did not interfere with the operation of the school. The school asked several of the girls to unlock their phones so they could search them and did not seek or obtain parental consent. The school said they have every right to do this. I am assuming this is one of those gray areas that the school can argue they did have the right because they were doing a HIB investigation. From what I understand, a search warrant is needed to search an adult's phone so why is a child's phone different? We can't expect a child to understand what their consent means when they unlock the their phone and give it to a school administrator to search. It seems to me we are giving schools an open window to view a child's personal messages. How do we know ensure the school is only looking at the messages pertinent to their investigation? Can we tell our children if they are asked to unlock their phones, they have the right to say "no" and advise the school they must call their parents?
So this just happened at our school today. It seems two families have been in a little bit of a spat with each other. One mother shows up at the school and the next thing the student knows is that they are called to the office and asked to give the administrator their phone and then demanded that they also give the password in order for the administrator to search the phone. Now this seems pretty circumstantial to have one parent come in and then action happens. Does the administrator have the right to hear from a parent and then just pull a search and seizure? And looking through a students phone? We are allowed to have phones in the school during lunch. I am not sure we have a cell phone policy in place….yet.
I don’t know all of the facts, and likely you don’t either, but I would say the school stepped over the line unless their policy (and I know you said you may not have a policy) makes it so that everyone gives the school this permission (which would be crazy). Any update on the situation?