Virginia attorney general says searches of students’ cell phones and laptops constitutional with reasonable suspicion

According to an Associated Press report in Education Week, Virginia’s Attorney General (AG), Ken Cuccinelli, has issued an advisory opinion stating that searches and seizures of students’ cell phones and laptops by school officials are constitutionally justified if officials have reasonable grounds to suspect that a student has violated school rules or the law. “The supervision and operation of schools present ‘special needs’ beyond normal law enforcement and, therefore, a different framework is justified,” Cuccinelli wrote, citing [New Jersey v. TLO, 469 U.S. 325 (1985)]. He also said that any sexually explicit material involving a minor discovered during such searches should be shared only with law enforcement. Such material should not be shared with other school personnel.

The opinion was issued in response to state Delegate Rob Bell’s request for an  opinion after high school and middle school principals in his county voiced concerns about cyberbullying. However, John W. Whitehead, founder of the Rutherford Institute, criticized Cuccinelli’s opinion, saying it could lead to violations of students’ civil rights. “This is bad, bad thinking,” Whitehead said. “I’m appalled at this kind of stuff. It’s just appalling that people think like this in a country where we’re supposed to be teaching kids to value freedom and civil rights.” He added that teachers and school administrators do not have the expertise to judge whether they have probable cause to conduct a search. “They don’t know what reasonable suspicion is,” he said. “They have one job — teaching students. They’re not law enforcement.”

Source: Education Week, 11/29/10, By Associated Press

[Editor's Note: New Jersey v. T.L.O. established the reasonable suspicion standard when applying Fourth Amendment search and seizure protections to the school environment. This standard recognizes that school officials need flexibility in maintaining order and security in the school environment that requires relaxing the probable cause standard.  The search must, however, remain reasonable in scope, i.e., related to the suspected misconduct and not excessively intrusive.

Citing New Jersey v. TLO, the Virginia AG concluded that "searches of students' cellular phones and laptops by school officials are permitted,when based on reasonable suspicion that the particular student is violating the law or the rules of the schools and the search is 'reasonably related 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.'" The opinion is available on p. 38 of the report at the first link below.

In September 2010, the Scranton Times-Tribune reported that Tunkhannock Area School District (TASD) (through its insurer) had agreed to  pay $33,000 to settle a suit that stemmed from a ”sexting” incident. The suit was brought by the American Civil Liberties Union of Pennsylvania  on behalf of a high school student identified as N.N. The suit alleged that the school district illegally searched her cell phone, punished her for storing semi-nude pictures of herself on the device, and then referred her case to the district attorney’s office. Under the settlement, the school district denied any liability or wrongdoing but agreed to pay the student and her lawyers to resolve the dispute. A summary of the article is available at the second link below.

In August 2010, KOMO News reported that Oak Harbor School District (OHSD) was proposing a policy that would allow school officials to search students’ cell phones. OHSD believed the policy was necessary in order for the district to comply with recent state legislation requiring school districts to toughen up on cyberbullying and sexting. The policy would allow school administrators to review anything in a student’s cell phone, including text messages, pictures, and videos. A summary of the article is available at the third link below.]

Opinions of the Attorney General and Report

NSBA Legal Clips archives on TASD sexting suit

NSBA Legal Clips archives on OHSD proposed search policy



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