To Search or Not to Search?

School leaders often ask me about the legal constraints regarding searching student property such as backpacks, coats, and even (or especially) cellphones. It’s important to have an understanding of the law in this area, because searching students’ belongings has constitutional implications.

If you took an education law class—and I highly recommend you take one if you haven’t—you will recall that the law of search and seizure flows from the Fourth Amendment to the U.S. Constitution.

Let’s review the Fourth Amendment and the leading U.S. Supreme Court decision interpreting searches in schools: New Jersey v. T.L.O. Then we’ll discuss searches of student cellphones and offer best-practice recommendations.

The Fourth Amendment

It is hard to understate the important and often overlooked legal role you play as a school administrator. You ensure that students receive the education required under the law and that the students’ and teachers’ constitutional rights are protected.

The Fourth Amendment protects us from unreasonable government searches and seizures, ensuring the right to privacy. The Fourth Amendment states that this right and its protections “shall not be violated, and no Warrants shall issue, but upon probable cause.”

In the criminal context, if the police want to perform a search of your home, they must have probable cause and a warrant issued by a judge. Exceptions to the warrant requirement exist (e.g., emergencies, spoilage of evidence, safety), but the general rule is like what you’ve seen on Law & Order: Police need a warrant supported by probable cause to search your property.

The Rule for Educators

The rules change for educators. In New Jersey v. T.L.O., the Supreme Court set the test to determine if a school official’s search of a student is reasonable under the Fourth Amendment. It creates a lower standard than the one required for law enforcement.

First, the search must be justified at its inception. Was the underlying reason for the search reasonable under the factual situation? For example, if a teacher believes that a student was smoking in the bathroom and discovers students smoking in a bathroom in violation of school policy, does the principal have a reasonable suspicion to search the student’s purse for contraband even if the student denies smoking? The answer is yes.

Second, the scope of the search must be related to the objectives of the search. Returning to the smoking example, searching the purse of the student who was discovered smoking for evidence of cigarettes makes sense: Cigarettes would be kept in such a location, and the search of the purse is a minor invasion of the student’s privacy.

That’s the basic outline of making a search “reasonable” in schools. Ask yourself two questions in a potential search situation: (1) Is the search justified at its inception? and (2) Is the scope of the search related to the reason the search started in the first place?

School administrators should consider the second question carefully and avoid fishing for additional violations when conducting a search. With the smoking example, what if the principal randomly—without any allegation or evidence—demands a search of the same student’s phone, located in a backpack in the classroom, to determine if he or she violated a policy prohibiting the use of phones during class time?

That’s a separate allegation distinct from smoking. There are no indications that the student violated the technology policy, and a search of their phone based on an allegation that they were smoking would likely be unreasonable.

Cellphone Search and Seizure

Search and seizure of cellphones is straightforward and also complex. The more linear aspect is the seizure: Most schools have a rule prohibiting or regulating cellphone use (e.g., they can’t be used during instructional time or are prohibited because they interfere with instruction).

Remedying the violation of such a rule is straightforward, assuming a student openly violates the policy or you have reason to believe they did: The student violated the rule, and the school official can seize the phone.

Temporary seizure of the phone is on solid legal ground. Students do not have a constitutional right to use a phone in school, nor is there any right to have parent-​student communication via cellphone. But things get more nuanced considering the search of a phone, in large part because phones contain so much personal information.

The Supreme Court has recognized that phones are not merely communication devices. Rather, phones hold “the privacies of life” for many Americans—a lot of personal information and data. In other words, the court is urging caution in a search of a phone.

Despite the court’s pronouncements, however, a phone can be searched under certain circumstances. To begin with, the New Jersey v. T.L.O. standard applies. A school official can search a phone if the search is justified at its inception and the scope of the search makes sense under the circumstances. But the school official must believe there is information on the phone that threatens the safety of the school and its students and faculty.

Let’s look at two cases to illustrate. In J.W. v. DeSoto, a student was caught using his phone in violation of the school policy. The phone was confiscated, then searched by multiple school administrators. The searches revealed digital photos of gang-​
related accessories and clothing.

The student challenged the search. However, the appellate court upheld the constitutionality of the search and deferred—with great reluctance—to the judgment of school officials, who claimed their search was done pursuant to ensuring school safety.

Contrast the J.W. v. DeSoto decision with the case of G.C. v. Owensboro, a Sixth Circuit appellate court decision. In G.C. v. Owensboro, reading a student’s text messages was judged unreasonable even though the student had suicidal thoughts and admitted to using drugs, which school officials argued were potential threats to his safety and the school community.

In my view, J.W. v. DeSoto stretches the outer limits of reasonableness, although it is the law only within the jurisdiction of that federal district court, the Northern District of Mississippi. Decided in the Sixth Circuit Court of Appeals, the G.C. v. Owensboro case applies in Michigan, Ohio, Kentucky, and Tennessee.

Absent facts that establish or forecast a threat to school safety through the student’s phone use, searches of student phones should be used with caution and in circumstances where the phone’s use, past or present, represents a real safety risk.

Takeaways

1. Commit the New Jersey v. T.L.O. test to memory. Search of a student’s belongings must be (1) justified at the beginning of the search (e.g., you had some facts that a rule was violated), and (2) the scope must relate to the justification of the search in the first place.
2. Seizing a phone because a student violates a rule about using or possessing a cellphone in school satisfies constitutional requirements.
3. Search of a phone should be done with caution and in cases where you believe there is a real safety threat. If you feel that it is necessary to search a phone in the interests of student safety (based on some information), that should weigh heavily on your decision.
4. If you have a school resource officer (SRO) in your school, they are working as police, and different rules apply. If investigating a criminal matter, the SRO’s search standard is higher than yours: They must obtain a warrant unless there are exceptional or emergency circumstances.
5. Resist the urge to go on a fishing expedition with a search. School administrators’ risk of a constitutional violation increases, especially in the case of a phone search.
   Mark Paige is associate professor of public policy at the University of Massachusetts Dartmouth, a former school
   law attorney, and a board member of the Education
   Law Association.

Mark Paige is associate professor of public policy at the University of Massachusetts Dartmouth, a former school law attorney, and a board member of the Education Law Association.