School officials’ search of student’s confiscated cell phone did not violate Fourth Amendment

J.W. v. DeSoto County Sch. Dist., No 09-00155 (N.D. Miss. Nov. 11, 2010)

Abstract: A federal district court in Mississippi has ruled that school officials did not violate a student’s Fourth Amendment search and seizure rights when they searched the contents of the student’s cell phone after confiscating it pursuant to school district policy prohibiting the possession and use of cell phones at school. It concluded that the individual officials were entitled to qualified immunity from the student’s Fourth Amendment claim. The district court ruled, however, that the student had stated a valid due process claim against the school for the disciplinary measures against him based on what was found on the phone during the search.

Facts/Issues: R.W., who attends Southaven Middle School (SMS), had his cell phone confiscated after being observed by a school employee reading a text message from his father during class. The school has a policy banning cell phone use and allows for teachers and coaches to confiscate a student’s cell phone. A number of school officials and a local law enforcement official viewed photos stored on the phone. SMS’s seventh grade principal concluded the photos were “gang pictures” and suspended R.W., with a recommendation that he be expelled from school. A hearing officer agreed with the recommendation of the principal and ordered R.W.’s suspension for the remainder of the school year. The DeSoto County Board of Education upheld the suspension.

R.W. then filed suit against DeSoto County School District (DSCSD), the individual SMS officials who viewed the photos, the City of Southaven and the police officer who viewed the photos. He claimed that the search of the contents of his cell phone violated his Fourth Amendment right to be free from unreasonable searches and seizures. He also claimed that his suspension for violating DSCSD’s gang activity policy based on the photos found on his cell phone violated his Fourteenth Amendment substantive due process rights.

Ruling/Rationale: The district court held that R.W. had failed to raise a valid claim against the city based on the theory of municipal liability because he had failed to show that the search of the cell phone’s contents was pursuant to a city policy or custom. It likewise found there was no DSCSD policy or custom that mandated the search, but declined to rule on the issue because DSCSD had not filed a motion to dismiss the Fourth Amendment claim based on the failure to show municipal liability as to the school district. Regarding the SMS officials’ liability in their individual capacities, the court stated that they had the defense of qualified immunity available to them unless R.W. could show that they had committed a constitutional violation and that the constitutional right at issue was clearly established at the time the violation occurred.

The district court found that the school officials’ actions were reviewable under the reasonable suspicion standard established by the U.S. Supreme Court in New Jersey v. T.L.O., 469 U.S. 325 (1985). Based on that standard, it concluded that “not only was the search in this case not contrary to ‘clearly established’ law; that law is actually quite favorable to the individual defendants in this case.” Crucial to the court’s finding of “reasonableness” under T.L.O. was the fact that R.W. was caught using the phone in school. The staff person’s observance of R.W. in open defiance of the policy gave rise to a reasonable suspicion that he might have violated other school rules, such as using the phone to cheat on a test or to contact another student. Emphasizing that the court itself was unable to discover authority that the search was unlawful, it concluded that “a school teacher lacking legal training should not be forced to defend himself at trial for his split-second decision in this regard.”

The district court also rejected R.W.’s reliance on Klump v. Nazareth Area School Dist., 425 F. Supp. 2d 622 (E.D. Pa. 2006), finding that the search of his cell phone was “far more limited, and far more justified, than that taken by the school officials in Klump.” As a result, the court concluded “that the search of R.W.’s phone itself was not contrary to clearly established law, and the individual defendants are entitled to a dismissal of the Fourth Amendment claims against them.”  Similarly, the “City of Southaven is likewise entitled to dismissal of any Fourth Amendment claims against it, since its sole role in this case was as the employer of Officer Kennedy.”

In regard to the Fourteenth Amendment substantive due process claims, the district court determined that the claims against the individual school officials, the city and the police officer, based on the theory that they had provided misleading testimony to the hearing officer, were without merit. It found, however, that his claim against DSCSD that the expulsion was arbitrary warranted further proceedings. While acknowledging that DSCSD’s gang activity policy served the legitimate purposes of student safety and school security, it found that facts as developed to date in the case did not appear to support a long term suspension/expulsion of R.W. under that policy because the photos were taken at home and DSCSD had not alleged R.W.  had made gang signs “on school property or at school-sponsored events.” The court stated:  “This case thus presents two compelling interests competing with one another: a school district’s desire to make its schools safer and a student’s due process right to be safe from arbitrary governmental action.” Because it was unclear which interest would ultimately prevail, the court decided that a jury should resolve these issues.

J.W. v. DeSoto County Sch. Dist., No 09-00155 (N.D. Miss. Nov. 11, 2010)

[Editor's Note: Background on this suit is available at the first link below.

This case implicates two separate, but often related issues:   Under what conditions is it constitutionally permissible for school officials to search the contents of cell phones confiscated under a school district policy that bans the possession/display/use of cell phones at school? and Under what conditions is it constitutionally permissible for school officials to take disciplinary action against a student for online activity/expression that occurs off-campus?

In November 2010, Associated Press reported in Education Week that Virginia’s Attorney General (AG), Ken Cuccinelli, had 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. A summary of the article is available at the second link below.

The U.S. Court of Appeals for the Third Circuit is currently considering two cases involving online, off-campus student expression, J.S. v. Blue Mountain School District and Layshock v. Hermitage School District. Both cases involve students who were disciplined for using social networking sites to create offensive parody profiles of a school official on an off-campus computer. In J.S., a three-judge panel split 2-1, ruling that a Pennsylvania school district did not violate the student’s free speech rights when it disciplined her for creating, off campus, a parody online profile of her principal. In Layshock, on the other hand, a separate three-judge panel unanimously ruled that a Pennsylvania school district violated the free speech rights of a high school student who was disciplined for creating, off-campus, a parody online profile of the school’s principal. A summary of the Third Circuit orders granting rehearing en banc is available the third link below.]

NSBA School Law Issues pages on DSCSD cell phone suit

NSBA Legal Clips archives on Virginia AG opinion

NSBA School Law Issues pages on Third Circuit en banc orders

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