AG Cuccinelli’s go-ahead to search student cell-phones raises Fourth Amendment questions

In the understandable haste to spare kids from the brutal impact of bullying, some school systems are pushing against constitutional boundaries to assert authority not only to seize students’ cellphones but to read the messages stored on them.

Virginia Attorney General Ken Cuccinelli waded into this controversy in a November 24 opinion issued at the request of a Virginia legislator, Robert Bell. Bell asked for an advisory ruling on the legality of a teacher confiscating and searching a student’s phone if a classmate complains that the student sent a harassing text message. In response, Cuccinelli advised that the hypothetical teacher’s actions would not violate the Fourth Amendment prohibition against unreasonable seizures and searches.

Cuccinelli’s opinion correctly states the general legal principle that Fourth Amendment rights are diminished in the school setting. School officials need not abide strictly by real-world Fourth Amendment standards, which generally require police to obtain a warrant supported by a showing of probable cause before they can search a private area. Rather, school officials need show only a “reasonable suspicion” that the area to be searched contains evidence of a violation of the law or of school rules. The amount of suspicion that is reasonable, the Supreme Court clarified in last term’s Redding strip-search case, varies with (1) the dangerousness of the suspected offense and (2) the certainty of the information.

Quoting from the U.S. Supreme Court’s 1984 school-search case, New Jersey v. T.L.O., the Attorney General concluded:

[I]t is my opinion that searches of students’ cellular phones and laptops by school officials are permitted when based on reasonable suspicion that the particular student is violating the law or the rules of the school and the search is ‘reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.’

The constitutionality of examining the contents of confiscated cellphones has been litigated only a handful of times. The drift of the early cases is that schools may conduct limited — but not wide-open — searches of students’ messages once a phone has been lawfully seized.

In Klump v. Nazareth Area School District, a federal district court in Pennsylvania ruled that administrators could not use a student’s violation of the school’s no-cellphones rule as a justification to read the contents of the phone, dial numbers contained in the phone, and exchange texts with students in the phone’s address book to fish for evidence of other disciplinary infractions.

But in a November 2010 ruling, R.W. v. DeSoto County School District, a Mississippi federal court distinguished the Klump case and found no Fourth Amendment violation in a school’s search of messages and photos saved on a student’s phone. In that case, a seventh-grader brought a cellphone on campus in violation of a school ban, and opened it during school to retrieve a text message from his father. A coach impounded the phone and school officials reviewed the phone’s contents, including text messages and photos.

U.S. District Judge Michael P. Mills found the search reasonable in scope, because — unlike in the Klump case — the content of the student’s communications were actually an element of the investigation (for instance, whether the student was using the phone to text with other students, who would also be in violation of school rules).

But the judge was disturbed by the school’s ensuing over-the-top reaction: expelling the seventh-grader for an entire year, after the search turned up photos of the student and a classmate goofing around at home, flashing hand signals and waving a BB gun. (Although there was no evidence that the student was in fact a gang member, the school attempted to justify the expulsion under a rule against displaying gang insignias on campus. As the judge discerned, possession of a cellphone photo is far from a “display.”) In his Nov. 1 ruling, the judge admonished that the school district was “severely testing” the deference with which courts normally review school disciplinary sanctions:

In the court’s view, it is one thing for a school to seek to prevent gang violence from erupting in its hallways by prohibiting the wearing of gang apparel or the making of gang signs at school. It is another for a principal to, in effect, call in a student on a Monday morning and ask him to explain, under penalty of expulsion, why he was observed wearing a particular piece of clothing or seen running around with a ‘bad crowd’ over the weekend.

Accordingly, the judge declined to dismiss the student’s claim that the expulsion violated his due process rights. The claim is scheduled for a jury trial at a yet-to-be-determined date.

A comparable case, G.C. v. Owensboro Public Schools, is pending in federal court in the Western District of Kentucky. In that case — which appears to resemble the situation found unconstitutional in Klump — a Kentucky high-school student and his family are suing the Owensboro school district over his 2009 expulsion. They allege that, after confiscating the student’s phone when it accidentally fell from his pocket, school officials reviewed the student’s stored text messages without reasonable suspicion, and expelled him based on the (unspecified) content of the messages.

The Cuccinelli interpretation, and many of the policies that school systems are enacting, would benefit from cautionary language to discourage overreaching (and some districts are in fact tailoring their search policies to discourage the proverbial fishing expedition by overzealous enforcers).

Regulations should emphasize that an alleged disciplinary infraction does not confer a wide-open license to troll through everything on a student’s phone. It is a foundational Fourth Amendment principle that a search must be limited to the place that could actually contain the evidence being sought. For instance, if a motorist is suspected of smuggling undocumented aliens into the country, police may look inside the trunk but not the glove compartment. If the objective of the search is to turn up threatening text messages sent to a classmate, then the search should be confined to those messages; texts exchanged with parents, siblings or teachers should be off-limits.

Additionally, schools must use special care when seizing and searching the phones belonging to student journalists. Cell-phones are rapidly becoming the Swiss Army knife of news-gathering. Journalists, including the youngest, use their phones to capture news photos and videos, to exchange messages with sources, and to memorialize notes. Searching a journalist’s cell-phone is comparable to rifling her desk or browsing her computer’s hard drive.

Of course, being a journalist confers no immunity from obeying the criminal laws that apply to us all. If a journalist is herself the subject of a criminal investigation, she is subject to having her person or her property searched on the same terms as anyone else. But any search must be reasonably limited in its scope — and if it is not, then any evidence discovered in the search may be legally inadmissible.

If a student journalist believes that her phone is being taken without reasonable suspicion of wrongdoing, and if the phone contains confidential news-gathering material, there’s an app for that. The student should invoke the Privacy Protection Act — a federal law enacted specifically to protect journalists (including students) against unjustified searches — and put the school on notice that a warrant normally is required before authorities may search a place where unpublished journalistic work is stored.