Page 34 - THE Journal, May/June 2018

LEGAL REVIEW
By Ariel Fox Johnson
When Can You Search a Student’s Phone?
OST TEENS HAVE PHONES or mobile devices, and most
bring them to schools. And while younger children lag behind, evidence indicates that they are catching up. Schools are struggling to respond to these devices, which can be viewed as everything from a learning require-
ment to a distraction or worse — such as an invitation to cyberbullying. Some districts have recently moved to ban personal devices, but
policies and practices vary widely. In New York City, a previous district-wide ban was lifted in 2015. The district rule has been replaced by a patchwork of school-by-school policies and educator-by-educator enforcement.
And what happens after an educator confiscates a device? In general, teachers and administrators can seize a disruptive device (though for many this is not the first choice), and district policies can provide explicitly for that. But whether educators can search a device is far less clear, and dependent on the situation and, in some cases, the state.
While the Supreme Court held in 2014 that police need a warrant to search a cell phone, schools have historically had a little more leeway with searches, be they bags, lockers or, these days, devices. Typically, if a student, parent or teacher challenges a search, courts will consider whether the search was justified at its inception — it was reasonable to think the search would turn up evidence the student was violating rules or laws — and whether the search’s scope was reasonably related to the circumstances that led to the search in the first place. In other words, if an official thinks a student took photos of a fight that happened mo- ments ago, that likely would not justify a search of the student’s old emails, while a search of photos may be warranted.
Some states, like Virginia, have offered specific guidance confirming they believe that searches are permitted “when based on the reasonable suspicion that the particular student
is violating the law or the rules of the school.” However, the guidance cautions that even if
a student is violating a school rule by having a cellphone, a search of the phone simply
for that violation is not OK. School officials have to “reasonably believe the student has engaged in additional wrongdoing” (emphasis added). While some other states and school policies appear to reflect Virginia’s, other poli- cies purport to offer students (or teachers) no expectation of privacy with any device they bring on campus. (It is unclear whether or not a court would agree.)
Finally, a few state legislatures have taken the matter into their own hands. A bill consid- ered in Connecticut last year and again this year (H.B. 5170) would set firmer limits on when and how phones can be searched.
And, in California, students and teachers have just as much privacy as people on the street: A phone cannot be searched by school officials without a warrant, the student’s consent or a legitimate emergency. This is because of CalECPA, a law supported by privacy advocates (including Common Sense) that provides clear protections for citizens throughout the state.
As devices and disagreements surrounding them become increasingly common, we hope that more states will consider seriously when device searches are warranted, and adopt guidelines that offer clarity to school officials and students while protecting privacy. Until then, administrators, teachers, students,
and parents should all learn their schools’ policies — and, if needed, update them for the digital age.
Ariel Fox Johnson is senior counsel for Policy and Privacy at Common Sense, where she advocates for smart practices, policies and rules to help all kids thrive in today’s wired world.
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