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Calling for Clarity on School Cell Phone Searches
For many teachers, the start of a school year brings a mix of old and new: new students, new classroom supplies, old textbooks, and probably an old mix of excitement tinged with trepidation about how to respond when kids are -- often digitally -- distracted.
With so many students, especially teens, bringing phones into schools (almost all teens have phones and most turn them on in school), and so many schools restricting or even banning phone use, how to respond can be a real challenge. Policies and practices vary widely. In New York City, there was a districtwide ban until 2015, but it was followed unevenly, with schools that had metal detectors among its most strict adherents. The district rule has been replaced by a patchwork of school-by-school policies and educator-by-educator enforcement.
What about 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). But whether they can search a device is far less clear.
There is little guidance at the state level, so typically policies are, again, set by the district or school. Right now, California is a rare exception: A student's (or educator's) phone cannot be searched by school officials without a warrant, the student's consent, or a legitimate emergency. This is thanks to CalECPA, a recent law that Common Sense and our allies supported. Unfortunately, CalECPA itself may be in jeapordy: to learn more please visit the ACLU's great resources here.
And a bill proposed in Connecticut would set its own limits on when phones can be searched, providing more protections than many schools' current policies, which purport to offer students (or teachers) no expectation of privacy in any device they bring on campus.
Elsewhere, things are pretty hazy. 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 and whether its scope was reasonably related to the circumstances that led to the search in the first place. For example, if an official thinks a student took photos of a fight that happened moments ago, that likely would not justify a search of the student's old emails, whether or not a search of photos would be warranted. But school policies and judges go in multiple directions.
Hopefully, more states will adopt guidelines that offer clarity 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.