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Supreme Court to Take Up Public-Employee Speech, Cellphone Searches

The U.S. Supreme Court on Friday added two issues to its docket with potential implications for education. One involves whether government agencies may retaliate against public employees for certain testimony under oath. The other is a pair of cases about whether the police need a warrant to search the contents of a criminal suspect's cellphone.

The cellphone cases may be relevant for school discipline because there have been a growing number of cases in which school administrators searched students' phones. At least two courts have ruled against such searches even under the lower standard school officials must meet—reasonable suspicion versus probable cause—for a warrantless search of students in school.

The public-employee speech case involves Edward Lane, who administered a training program for at-risk youth run out of Central Alabama Community College in Alexander City, Ala. Lane testified under subpoena in a federal fraud prosecution against a state legislator accused of creating a no-show job for herself in the training program. The legislator was convicted of fraud.

Soon after Lane testified in the legislator's criminal trial, he was fired by the community college. The college president said the reason for the dismissal was the poor financial status of the job program, court papers say.

Lane sued under the First Amendment, alleging he was retaliated against for his testimony. Both a federal district court and the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled that Lane's speech wasn't protected because it was related to his job.

In his appeal to the Supreme Court in Lane v. Franks (Case No. 13-483), the employee argued that there was a conflict among the federal appeals courts about whether compelled testimony was speech on a matter of public concern, which is entitled to greater First Amendment protection than the ordinary work-related speech of public employees.

The case will likely be argued in April.

Cellphone Searches

The justices once again will delve into modern technology and its implications for the Fourth Amendment's protection against unreasonable searches and seizures.

The court took up two cases in which the police examined the cellphones of criminal suspects. One involved an older-style flip-phone on which the police consulted the call log to link the suspect to illegal drug sales. The other involved a more recent smartphone on which the police found photos and video identifying a suspect as a gang member intent on killing members of a rival gang.

The cases are United States v. Wurie (No. 13-212) and Riley v. California (13-132).

Cellphone searches have been an issue in schools, even through school administrators face the lesser standard of reasonable suspicion for searches of students and their belongings. That comes from the Supreme Court's landmark 1985 decision in New Jersey v. T.L.O. One of the standards under that decision is that searches of students not be "excessively intrusive" in light of the nature of the infraction.

Last year, a federal appeals court ruled that a Kentucky school administrator's search of text messages on a student's cellphone was unreasonable and violated the student's rights under the Fourth Amendment.

An assistant principal had read some of the text messages on the phone of a student who had violated the rules by using the phone in class. The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, said in its opinion that "using a cellphone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantively or temporally to the infraction."

Two federal district courts have also ruled on cellphone searches by school administrators. In one, school officials in a Mississippi district were upheld over a search of pictures on a student's cellphone. In the other, a court ruled that administrators of a Pennsylvania district went too far by accessing a student's text messages and voice mail, looking at his contact list, and calling other students, all apparently in a fishing expedition for improper activity.

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