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Cuccinelli opinion: Teachers can seize, search students' cell phones

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Posted: Wednesday, November 24, 2010 8:59 pm | Updated: 12:56 pm, Mon Oct 28, 2013.

Attorney General Ken Cuccinelli issued an official opinion Wednesday that says public school officials have the authority to seize and search the contents of students’ cell phones and laptops.

“It is my opinion that searches and seizures of students’ cellular phones and laptops are permitted when there is a reasonable suspicion that the student is violating the law or the rules of the school,” Cuccinelli, a Republican from Fairfax County, wrote in his advisory opinion.

Cuccinelli’s opinion had been requested by Del. Rob Bell, R-Albemarle, after a number of high school and middle school principals from Albemarle County voiced their concerns about the growing prevalence of “cyber bullying.”

“They inquired what exactly their legal authority is,” Bell said. “They all said [cyber bullying] is an increasing problem.”

With the rise of social networking sites such as Facebook and YouTube and the prevalence of mobile phones, bullying behavior can spread through a school’s student body almost instantly.

“School administrators don’t want to violate anybody’s rights,” Bell said. “And they don’t want to break the law. But they do want to be able to intervene if they can.”

John W. Whitehead, founder of the Albemarle County-based civil liberties organization the Rutherford Institute, said Cuccinelli’s opinion could lead to gross 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.”

Teachers and school administrators, Whitehead pointed out, are not trained law enforcement officers and lack the expertise to judge whether they have probable cause to search the contents of a student’s cell phone or laptop computer.

“They don’t know what reasonable suspicion is,” he said. “They have one job — teaching students. They’re not law enforcement.”

Moreover, Whitehead said, the idea that teachers and administrators have the authority to search their phones or computers teaches students the wrong sort of lesson.

“This teaches a really bad political science lesson, and that’s that the government can do whatever it wants with you,” he said.

While students do give up some rights while at school, they do not give them all up, Whitehead said, citing the 1969 U.S. Supreme Court decision in Tinker v. Des Moines Independent Community School District in which the majority wrote: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Part of Cuccinelli’s new advisory opinion addresses the question of what school officials should do if they suspect “sexting,” or the sending of sexually explicit photos or text messages, in this case by students who are likely underage.

If a school official confiscates a student’s phone or laptop and discovers evidence of explicit materials depicting minors, Cuccinelli wrote, those officials should not share the materials with other school officials but should instead bring the materials to the attention of law enforcement.

If a school official finds a student in possession of sexually explicit materials depicting adults, the school official may show that material to a principal or another teacher for disciplinary purposes, Cuccinelli wrote.

Bell introduced a bill in the 2010 General Assembly session that would have treated text messaging like a phone call under Virginia’s obscene phone call statute. He plans to re-introduce the measure once the legislature convenes again in January.

Efforts to reach area school educators late Wednesday were unsuccessful.

To read Attorney General Ken Cuccinelli’s full advisory opinion, go to: http://www.oag.state.va.us/OPINIONS/2010opns/10-105-Bell.pdf

 

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