By Courtney Bowie, Staff Attorney, ACLU Racial Justice Program
It's back to school this week, and students across the country will not only be catching up with friends and doing homework, but suffering the humiliation of having their cell phones illegally confiscated and searched.
That's right: it's an unfortunate fact that many school districts wrongly believe that if a student is in trouble for a minor offense, they have the right to conduct a fishing expedition in order to find evidence of other wrongdoing. Regardless of whether or not a student is permitted to have a phone on campus, if the Fourth Amendment is to have any meaning, the contents of that phone cannot be searched without reasonable, individualized suspicion that the search of the student's phone will lead to evidence of wrongdoing with the phone. This usually means that a warrant is required before the government can search our private information. At school, school administrators are required to have a reason for the search, prior to invading a student's privacy.
The ACLU is fighting two school districts to ensure that students do not give up their privacy rights at school. In DeSoto County Mississippi, the ACLU filed a lawsuit representing a former honor student who looked at a text message during football class. Cell phones were prohibited at his school, and because of this minor infraction, the student's phone was confiscated and thoroughly searched. Nongraphic pictures on his phone taken outside of school were found, and he was subsequently expelled for pictures of him dancing because the school believed the pictures were of him making gang signs. While the school's policy calls for the confiscation of phones used during schools hours, parents and students were not told that the entire contents of confiscated phones would be searched, including every photo and a wealth of other personal information.
In the same vein, the Oak Harbor school district in Washington state recently proposed a policy allowing the search of the contents of a student's cell phone for evidence of sexting or "cyberbullying." The policy states that "by bringing a cell phone and other electronic devices to school or school sponsored events, the student and parents consent to the search of the device when school officials have a reasonable suspicion that such a search will reveal a violation of school rules." The school district believes that their "bullying" problem is important, and cell phones, like school lockers, are subject to search at school. The ACLU of Washington sent a letter to the Oak Harbor school district (PDF) advising it that this search policy may violate students' privacy rights, and advised it to change the policy to one that respects students' privacy rights while still addressing concerns about sexting and cyberbullying.
Both of these cases represent public schools' assault on the Fourth Amendment privacy rights of their students. While the Fourth Amendment right to be free from unreasonable searches is not absolute, courts have always required the government to have probable cause or reasonable suspicion (in the case of school officials), prior to the government's search.
Furthermore, the extent of the intrusion depends upon the reason for the intrusion in the first place. For instance, if you are arrested in your driveway, your entire house cannot be searched (absent a warrant) because of the arrest. In the words of the Supreme Court, searches conducted without warrants — which require a heightened level of suspicion and cause — "are per se unreasonable, subject to certain 'jealously and carefully drawn exceptions.'"
Schools are already given more latitude to invade the privacy of students than police officers are given in patrolling the streets. Specifically, a police officer cannot lawfully stop you on the street for jaywalking and then search the contents of your phone without probable cause for that search. Some individualized suspicion that a search of a student's cell phone will yield evidence of wrongdoing must be present in order for the search to be constitutional and fair.
Finally, most students' phones are actually owned and paid for by their parents. That means a complete search of the phone, in some cases, could include access to the parents' account number and their financial information. Surely, if the Fourth Amendment's right to be free from unreasonable search and seizure is to mean anything at all, it should prevent a school administrator or teacher from scrolling through the information in a child's cell phone because he committed a minor infraction or the school fears that someone — unknown to them — is engaged in sexting or cyberbullying.
Confiscation of phones at school is fair and a reasonable alternative to searching them. Absent suspicion of wrongdoing with the phone, beyond just possession of it, the privacy rights of students and parents should be respected by schools. The Supreme Court has recognized that students do no give up their constitutional rights at the school house door. We hope that school districts and federal courts will keep that in mind with respect to cell phone searches at school.