Schools throughout the country have adopted policiesrestricting the use of cellphones during the school day, including some thatban possession of the phones entirely. While a school has leeway to decide howand when phones may be used, the Fourth Amendment to the Constitution restrictsthe ability of any government agency – including a public school – to seize aperson’s property or search the contents of that property, including a phone.Journalists who use their phones for recording news may have some additionalprotection under federal law as well.
Protecting your legal rights starts with understanding whatthe law does and does not protect, and learning how to intelligently assertyour rights without crossing the line into defiance or disruption.
Dos & Don’ts
Before a Search
- Do make sure you understand your school’s policy regardingsearches. Taking the time to read andthink over your school’s policy ahead of time allows you to think about whetherthe policy is consistent with your constitutional rights.
- Do advocate for a policy change if you believe yourschool’s policy infringes on your rights. The Fourth Amendment provides that, while at a public school (which includescharter schools), students must be free from searches and seizures unlessschool administrators can show that they had a “reasonable suspicion” that thesearch would turn up evidence of a violation of a specific state law, or of aschool rule or policy. In other words, a school cannot simply “go fishing” intopeople’s phone messages in hopes that a rule violation might turn up.
- Do work with the news media – both on-campus and in thecommunity – to publicize parts of the policy that you feel violate yourrights. Research and write about howthese policies affect you and your fellow students.
If you are searched
- Do understand that you may refuse to consent to a searchof yourself and/or your possessions at any time. Consider asking for an opportunity to consulta parent or an attorney, or to have a parent present. Understand, however, that even if youwithhold consent, school officials may still conduct a search if they are awareof facts that would provide reasonable grounds to do so. Importantly, your refusal cannot be used asevidence that you have something to hide or as evidence that there arereasonable grounds to search you.
- Don’t attempt to interfere with the search while it isbeing conducted. Even if you haverefused consent, you may not interfere with an ongoing search.
- Do maintain a calm and polite tone at all times.
- Don’t lie. Furnishing false information will only hurtyour ability to defend yourself. Even ifyou have broken the law or school rules, evidence from the search probablycannot be used against you if the search is found to be illegal.
After the search
- Do write down the details of the search as soon as youcan, including everything that was said and who was present or who witnessedit. If other people have been searched,have them document everything they can remember as well.
- Do ensure that school authorities complied with anywritten policies your school has, and do make note of instances where thesearch or seizure strayed from the school’s written policy.
- Do complain to higher authorities within the school if youfeel that you were searched in violation of your constitutional rights. Write to your school board or contact yoursuperintendent to complain.
- Do consult with an attorney if you believe that yourrights were violated and the school is unresponsive to your complaints.
Student journalists and cellphone searches
A federal law, the Privacy Protection Act, forbids thepolice from searching for a journalist’s confidentialmaterials without a court order. If you are a studentjournalist whose cellphone contains recordings of interviews, or text messagesbetween you and a confidential news source, then you probably are covered bythe PPA if the police demand your phone (though it’s unclear whether the lawwill help if the demand comes from a teacher or principal). If your phone istaken away, mention the Privacy Protection Act and your rights as a journalistto put the police on notice.
A 2014 U.S. Supreme Court ruling, Riley v. California, clarified that the Fourth Amendment prohibits police “fishing expeditions” into cellphones without a warrant. The justices agreed 9-0 that the information in a cellphone is so vast that searching it is a serious intrusion into the owner’s personal life. (The Riley case didn’t take place in a school and the Fourth Amendment does not apply with full strength on school premises, but it is still a caution flag for any government agency that unlimited searches into everything stored on a phone are difficult to justify.) If you are carrying a cellphone that’s owned by a parent in an account in the parent’s name, the parent may have some constitutional privacy interests in the phone as well.
If your school has a strict cellphone policy, be mindfulthat being a journalist gives you no special rights to break rules. If you arekeeping confidential newsgathering material on a phone that you know is“contraband” on campus, you are living dangerously. Consider using somethingsafer.
The Student Press Law Center’s attorney hotline,(202) 785-5450, can help match you with an attorney volunteer in your area if youbelieve that your rights have been violated.
- Many students are understandably upset when schools searchtheir possessions. They feel that theirprivacy has been invaded, and they want to protest. Nevertheless, it is critical to remain calmat all times during a search, no matter how much you believe the school isbreaking the law. At no point during the search should you resist or try tointerfere with or obstruct the search.
- Although you may not obstruct the search, you may refuseto consent to it, and you may also question the reasons for the search. Keep in mind that if you are searched outsideof school by law enforcement, the police must show “probable cause” before youor your possessions may be searched. Ifyou are in school, however, a lower standard applies: school officials needonly “reasonable suspicion” that a search of your belongings will lead them to evidencethat you have violated a relevant law or school rule.
- The authority to take away a phone is not the same as theauthority to search what is recorded on it. Even if the school is within itslegal authority to confiscate a phone, searching the contents of the phone isnot allowed unless there is reason to believe the phone contains evidence ofillegal or prohibited behavior.
- School rules and policies do not trump the Constitution.If the school insists that it need not follow the Constitution because it isbound by school policy, then the school is wrong. A policy that is inconsistentwith the Constitution is legally void.
- The Constitution does not give you any special rights toinsist on having or using a cellphone on campus. It protects you only againstunreasonable seizures and searches.