In 2012, studies of student cell phone ownership and use revealed that approximately 78% of all Americans aged 12–17 years had a mobile phone and 37% had a smart phone. These numbers have no doubt risen in the 5 years since this particular study was conducted. Considering this almost universal usage, information contained on a student’s cell phone is often sought in investigations of student misconduct. In fact, the California Legislature is currently considering Assembly Bill 165 which, if approved, would significantly broaden a local educational agencies ability to access a student’s cell phone if suspected of a suspendable or expellable offense. However, school administrators should carefully consider the potential privacy implications before searching a student’s cell phone.
- Cell phones now contain so much more than simple communication information.
Not only are cell phones used to communicate via text, voice or video with others, but most contain a plethora of additional information. Most cell phones contain, among other things, web browser history, access to personal photos and videos, and access to social media sites. Searching a cell phone thus may reveal private information that is not necessarily germane to the purpose of the search.
- Governing boards have the authority to regulate cell phone possession and use. Know your policy.
California Education Code section 48901.5 provides school governing boards with the authority to “regulate the possession or use of any electronic signaling device.” Most, if not all, school governing boards have policies and procedures regarding a student’s possession, use, and possible search of a cell phone. Therefore, it is imperative prior to determining whether a search is necessary that all school personnel know and understand their school’s policies related to cell phones.
- All searches of student property must be 1) justified from the beginning and 2) “reasonably related [in scope] to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
In New Jersey v. T.L.O, the United States Supreme Court provided the above standards which can be used to determine whether a search of a student’s cell phone is legally defensible. (New Jersey v. T.L.O , (1985) 469 U.S. 325.) The Court went on to state that a search is “justified from the beginning” when a school official has “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” (Id.) The official must be able to put this suspicion into words as “curiosity, rumor or hunch” is insufficient to justify a search. Simply being disruptive, (In re William G., (1985) 40 Cal. 3d 550), invocating privacy rights or attempting to hide private information are also insufficient. (In re Lisa G., (2004) 125 Cal. App. 4th 801.)
Whether or not a search is “reasonably related [in scope] to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction” is largely dependent on the context of the search. For example, searching a student’s social media history for using a cell phone during class may not be necessary in light of the violation. However, searching a student’s text messages maybe be justified if the student is accused of selling drugs on campus to other students. Moreover, the search’s scope must be similarly limited based on the context and objectives of the search. Taking the drug sale example, a search of text messages to arrange the sale may be justified, but searching the phone’s photo album may not be.
Therefore, before determining whether a cell phone search is justified, it is recommended that:
- School governing boards update and revise relevant policies;
- School officials are knowledgeable regarding those policies and their application;
- The school officials considering a search have a “reasonable suspicion” that a law or school policy has been violated and the cell phone is an essential element of the commission of that violation;
- The school official should be able to articulate the “reasonable suspicion” and that it is based on more than a rumor or a hunch;
- The school official determine whether or not the alleged violation involves the student’s cell phone;
- The search is limited in scope to the focus of the violation to reduce the risk of liability for invasion of a student’s privacy; and
- Any search should be done with more than one official present so to corroborate that the search was appropriately limited and done so in accordance with school policy.