The Fourth Amendment of the U.S. Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Bill of Rights, consisting of the first 10 amendments to the U.S. Constitution, guarantees our rights and personal liberties including but not limited to freedom of speech, press, religion, and assembly. Most Americans swell with pride to be a part of a culture founded on these principles and are grateful for the protections they ensure. Our government is restricted from persecuting us for our expressed ideas and opinions, oppressing us for our religious beliefs and in the case of the Fourth Amendment invading our privacy by conducting unreasonable searches or seizures.
The Fourth Amendment raises an interesting policy question in the school context. Recently the NJSBA policy department received an inquiry related to the legality of a school district employee searching a student’s cell phone. In this particular case, a student, we will call her Kathie, reported that another student, Michelle, had inappropriate photos of a sexual nature on her cell phone. Does the Fourth Amendment allow a teacher to request a student password and search a cellphone for suspected violations of board policy such as cheating, bullying and taking pictures without that student’s permission?
NJSBA critical policy 5145.12 Search and Seizure states;
A pupil’s person and possessions may be searched by a school official provided that the official has reasonable grounds to suspect that the search will turn up evidence that the pupil has violated or is violating either the law or the rules of the school. (Critical Policy Reference Manual)
The majority of the content in critical policy 5145.12 Search and Seizure covers searches of lockers which are school-owned and not the property of students; and searches related to violations of state law concerning controlled dangerous substances, alcohol, firearms and other deadly weapons. Violating a policy by using a cellphone to cheat and/or take unauthorized photographs is not specifically addressed in policy 5145.12 or in the law and seems a rather weak reason to conduct a search and seizure when compared to violations of law regarding illegal substances and weapons.
Influenced by the American passion for protecting the rights and liberty of individuals and considering the Fourth Amendment protection against unreasonable search and seizure, it seems very counterintuitive to answer that it is consistent with law and policy for a teacher to take and search a cellphone for a policy violation. Some detailed legal research was necessary.
Legal Review Pertaining to Search and Seizure A review of the Uniform Memorandum of Agreement between Education and Law Enforcement Officials (2015) and attachments indicates as a general principal, “[o]rdinarily, a search should be based on an “individualized” suspicion, that is, a suspicion based on reasonable grounds to believe that the particular individual who is to be searched has violated the law or a school rule, and that evidence of the infraction will be found in his or her possession.”
In discussing access to computers and other digital devices, the memorandum notes that “In 2003, a series of laws were passed allowing for the prosecution of new crimes, such as unauthorized computer access and the damage such access may cause. In addition, digital cameras, digital photos, digital videos, cell phones, e-mail and the internet are increasingly used to commit crimes… In addition to accessing computer systems, it has unfortunately become commonplace for juveniles to utilize electronic forms of communication to harass and threaten other students or individuals. The mere fact that the communication is in electronic form, rather than oral or written form is irrelevant. School personnel should be guided by the reporting obligations elsewhere in this agreement.” Accordingly, the district has an obligation to conduct a reasonable investigation into allegations involving the commission of a crime or a violation of school rules.
N.J. v. T.L.O. is a 1985 U.S. Supreme Court decision that originated in New Jersey. In the decision, the court set the standards for student searches that we adhere to today. In T.L.O. the issue was the propriety of the vice-principal’s search of a student’s purse in looking for evidence that she violated the school’s anti-smoking policy. In approving the search, the court indicated, “[r]ather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a determination of whether the search was justified at its inception and whether, as conducted, it was reasonably related in scope to the circumstances that justified the interference in the first place. Under ordinary circumstances, the search of a student by a school official will be justified at its inception where there are 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. And such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search, and not excessively intrusive in light of the student’s age and sex and the nature of the infraction…” Under the above standard, the search in T.L.O. was not unreasonable for Fourth Amendment purposes. First, the initial search for cigarettes was justified at its inception because smoking was prohibited on school grounds. The report to the assistant vice principal that the respondent had been smoking created a reasonable suspicion that T.L.O. had cigarettes in her purse, and thus the search was justified despite the fact that the cigarettes, if found, would constitute ’mere evidence’ of a violation of the no-smoking rule. Second, the discovery of the rolling papers then gave rise to a reasonable suspicion that respondent was carrying marijuana as well as cigarettes in her purse, and this suspicion justified the further exploration that turned up more evidence of drug-related activities.”
Applying the reasoning in T.L.O., it is difficult to distinguish the privacy concerns surrounding a student’s purse from those surrounding a student’s phone or laptop. In other words, if administrators can search a purse based only on reasonable suspicion, they should also be permitted to search a cell phone or laptop, so long as they have sufficient reasonable grounds to conduct the search, and the search is limited in scope to areas that might contain the contraband. For example, when looking for a photograph of child pornography in a student’s phone or laptop, administrators would not be able to read any documents found because it would not be reasonable to believe a document could be a photograph under today’s typical operating systems which readily distinguish documents from photographs. The critical element is the reasonableness of the belief, not the location of the evidence. If a teacher has reason to believe that a student’s personal item contains contraband, the teacher has the right to search that item in compliance with the standards set forth in T.L.O., the uniform memorandum, and board policy.
T.L.O. really speaks to a violation of law or of school rules. So where the school has an anti-chewing gum policy that prohibits chewing gum on school grounds, the administration can use T.L.O. to conduct a search of the student’s locker or book bag if they receive reliable information that a particular student has gum in a locker or book bag. However, the intrusiveness of any such search must be weighed against the nature of the infraction. In other words, gum chewing is not normally considered a serious offense, therefore under ordinary circumstances, a reasonable such for chewing gum should be fairly limited. Where administration has reason to believe that evidence of cheating or an impermissible photograph can be found in the student’s locker, that location can be searched, so long as the belief is reasonable and the search is limited to that location. For example, if the administration receives a credible report that a student has a copy of an upcoming test in his or her locker, a search of that locker would be appropriate, but a search of the student’s phone would not be appropriate unless administration also had a reason to believe that the test was also stored as a document on the phone.
Considerations for Policy and Procedure While school officials may have the authority to search and seize a backpack, handbag, cellphone, laptop or other personal property for evidence that the pupil has violated or is violating school rules, they should exercise discretion in deciding to conduct a search. Search and seizure are intrusive acts and care should be taken to evaluate whether or not the circumstances of the policy violation make it necessary. New Jersey administrative code N.J.A.C. 6A:16-7.1(c)5 concerning the requirements for schools to develop a code of student conduct states the code of student conduct shall include:
“A description of school responses to violations of behavioral expectations established by the district board of education that, at a minimum, are graded according to the severity of the offenses, and consider the developmental ages of the student offenders and their histories of inappropriate behaviors…”
Since search and seizure are intrusive they may be considered a high “grade” response in a range of responses for violations of the code of student of student conduct. Whenever possible, less intrusive steps or lower “grade” responses should be implemented to give the student the opportunity to cooperate before the student or his or her property is searched. In the chewing gum scenario above, the school official may ask the student to give up the gum before taking a handbag and searching it, and likewise with a student’s cellphone, a teacher may ask the student to show them the suspected content on the cellphone before conducting a search.
Searching a student and/or his or her cellphone has the potential of agitating the student and their parent or guardian. Personal cellphones can store a lot of private information that is unrelated to the subject of the policy violation. A cellphone search may be justifiably perceived as a threat to the security of this private information. Disputes related to a person’s right to privacy, actual or perceived, can provoke strong feelings and lead to bitter debate. Searching a student and/or his or her cellphone has the potential of inflaming the protective instincts of a parent or guardian when the search is perceived as an unnecessary violation of their child’s rights or a threat to their child’s physical or mental well-being. Again, giving the student the opportunity to cooperate and produce the contraband may help prevent conflict and provide better justification for the search if the student refuses to cooperate. Using search and seizure for suspicion of only the most serious offences like suspected harassment, intimidation and bullying or the distribution of illegal pornographic images and notifying the parent or guardian prior to conducting a search are strategies that can also help defuse potential controversy. However, it should be noted that school administrators are not required to seek parental consent prior to searching a student.
Taking or confiscating a student’s cellphone may provoke complaints and conflict as well. Cellphones and other personal technologies can be expensive. When the school policy requires the confiscation of these devices as a disciplinary measure there is a risk of inciting complaints from parents and guardians and demands that the device be returned. Also, even if the policy disclaims liability for loss, theft or damage, if any of these things happen when the device is confiscated or searched, there is the potential for trouble. Therefore in creating policy or procedures for confiscating cellphones or any personal property for that matter, it is prudent to consider how the item will be stored safely and securely, limiting the length of time an item will be held, who the item will be returned to, and measures for the safe return of the item, as well as documentation of each step in the confiscation process.
General Considerations When a search and seizure is necessary, the punitive and negative impact can be minimized by conducting these actions in a private location to limit the potential for embarrassment and protect the student’s dignity. A staff member conducting a search should do so in the presence of a witness in order to minimize the potential for misunderstanding and misinterpretation. Staff members should also be advised that strip searches are prohibited and searches should not be conducted when there is a potential for violence or other danger to the staff member, the student, another person or school property. In such cases local law enforcement should be notified.
When a student or his or her property is searched for weapons or illegal substances that violate the law and present a threat to the welfare of the school property and/or community, it may be appropriate to call law enforcement officials. Searching cellphones, backpack and handbags for other reasons is not so cut and dry and runs the risk of being perceived as an offense against the Fourth Amendment. It is the role of school leaders to oversee that the district’s code of student conduct and policies and procedures related to the use of search and seizure are clearly articulated, provide the necessary steps to preserve the dignity and rights of the students and allow school staff the flexibility to take actions necessary for the protection and welfare of all.
NJSBA Critical Policies 5131 Conduct and Discipline and 5145.12 Search and Seizure may be downloaded. For sample and model regulations covering the code of student conduct and search and seizure or for help developing policy and regulation language to suit your needs do not hesitate to contact NJSBA Policy Services at [email protected].