Cyber Law, the Fourth Amendment, and Recommendations for School Administrators: Facing the Challenge of the Schoolosphere
Written over 200 years ago, when a cell phone or computer were not part of one's imagination, the Founding Fathers crafted the Fourth Amendment for the then new United States of America. In an attempt to prevent the anytime, anywhere searches and seizures that had once been prevalent in the British Colonies in North America, they wrote,
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.
Little did they know how important their words and use of the general references "effects" and "things" would be in helping the courts decide the constitutionality of the search, seizure, and use of cyber tools by school administrators today.
The telecommunications revolution has brought with it endless benefits to the students of this country, but along with those benefits, situations have arisen ranging from the cyberbullying to cheating in schools. Leaders at all levels face challenges as they search for ways to tackle cyber issues. Recent conflicts in schools pertaining to search and seizure of technological devices have brought attention to these issues. For school administrators, this struggle exists on a daily basis and continues to expand as the capability and availability of technological devices grow.
The schoolosphere cyber issue struggle is also apparent in the courts as judges sort through the boundaries of search and seizure set forth by our founding fathers. Two recent lawsuits on courthouse steps with Fourth Amendment implications include Robbins v. Lower Merion County School District and G.C. III v. Owensboro Public Schools. In the first suit, the Robbins family alleges that the Pennsylvania school district, Lower Merion County, misused laptops with webcams to remotely peer at students while they were at home. Additionally, the family alleges employees of the district took photographs and violated the students' privacy. Officials of the school district deny any violation of privacy, stating that the cameras were used only when a laptop was lost or stolen. The school district, the board of directors, and the school superintendent are named as defendants in this yet to be decided class action suit.
Also, a yet to be decided cyber case is the Kentucky suit of G. C. III v. Owensboro Public Schools. In this suit, G. C. alleges that after his phone fell from his pocket in class and was taken by his teacher, the school conducted a "warrantless and illegal search" of the phone when his teacher, the principal, and assistant principals read his text messages. Following the reading of the messages by school officials, G.C. was expelled. The suit claims it is unconstitutional for administrators to read text messages because it gives them "unlimited discretion" with "no limits" pertaining to searching private property. The superintendent, the school principal, and assistant principals are named in the suit.
One schoolosphere cyber issue that ended with the court ruling against the school is Klump v. Nazareth Area School District in 2006. In this Pennsylvania case, a boy's cell phone rang in class. The phone was confiscated and school officials started looking through the phone and also listened to voice messages. They called several numbers in the phone to see if other students would answer, violating the cell phone policy. Officials also read through text messages. The Plaintiff was awarded a nominal amount with the courts citing school officials search of the phone was unconstitutional and act of listening to voice messages violated Pennsylvania's wire tapping law.
Though cyber issues relating to search and seizure are recent, a landmark decision was made in 1985 in which the court used the Fourth Amendment as a guide to set principles for public school officials when conducting searches. New Jersey v. T.L.O., the courts stated "school officials act as representatives of the State not merely as surrogates for the parents." This means they cannot claim parents' immunity. The court also ruled that school officials are not as restricted as public authorities in that they are not held to the same restrictions. Neither the warrant requirement nor the probable cause standard is fitting for school officials. What they did rule is that school officials' search must be sound at its inception and have "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." In addition to "reasonable grounds," the court held that school searches must be related in scope to the situation. The principles set forth by the court in New Jersey v. T.L.O. continue to provide guidance to courts on cases relating to search and seizure AND search and seizure on cyber issues.
What does this mean for school administrators concerning search and seizure related to cyber tools? It is important for administrators to remember the courts assumption in Tinker v. Des Moines Independent Community School District, 1969, in that "students do not shed their rights at the schoolhouse gates." They have rights, and administrators are wise to be cognizant of those rights in regards to cyber tools. They should acknowledge legal risks in today's technologically advanced schoolosphere and keep a close watch on the decisions of the courts on cyber cases. Precautions to minimize risks include making sure that searches and seizures follow the standards set forth in New Jersey v. T.L.O., establishing reporting protocols for students and teachers, communicating expectations and boundaries, teaching digital citizenship and ethics to faculty and students, and making sure the school's Acceptable Use Policy is up to date with today's ever changing technology tools and capabilities.
Finally, when in doubt, ask for help; you do not want to be in front of or behind the v.!
-Julie Matte and Robert Hancock