Category Student/Enrollment Issues
Title Q&A: Student Cell Phone Problem
Preview A question-answer document form that discusses some legal issues surrounding cell phone policies.

Student Cell Phone Problem
John L. Cooley, Attorney

Question: Our school has a policy that prohibits students from using cell phones during classes and from taking photos or videos on campus. Recently, a faculty member confiscated a student's cell phone because the student had taken a photo while on campus. The faculty member turned the cell phone over to me, the school administrator. I then accessed the picture file and found several provocative or lewd pictures. I suspended the student. As a result, the parents have now threatened to go to the police, alleging that the school violated their child's rights with an illegal search and also violated their child's privacy rights. What can we legally do in a situation like this one?

Answer: Your question is very timely. Over the last few years schools have had to deal with increased cell phone use on campus. A number of these situations have dealt with possible illegal drug use or other criminal activity. Some public schools have received national news coverage as a result of their confiscating students' cell phones. However, the scenario presented here does not necessarily raise questions about criminal activity.

In light of this, two issues are presented in the situation you described. You have mentioned that the school has a policy regarding cell phone use. In overcoming any claims of a violation of students' common law privacy rights, notice becomes a major consideration. Thus, if the school has a written policy covering acceptable and unacceptable student usage of cell phones, the school may safely confiscate the phones. The school must publish the policy to students and parents, usually in the parentstudent handbook. Once the policy is published, both the students and their families are on notice. The policy needs to advise students of the consequences of a violation, including the confiscation and the examination of their cell phones. Such notice eliminates any expectation of privacy, and since the students have been notified of the policy, they should not be able to claim violation of privacy rights.

Secondly, the examination of the picture file in this specific case is not an illegal search and seizure. The school is not a governmental actor. Therefore, Fourth Amendment constitutional requirements do not apply to it. The school has not violated any constitutional rights applicable to the student. The school may use the accessed pictures to determine an appropriate disciplinary measure for the student. 

Notice: These articles are designed to provide accurate and authoritative information in regard to the subject matter covered. They have been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Laws vary by jurisdiction and the specific application of laws to particular facts requires the advice of an attorney.

LLU 18.2

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