On The Front Lines
Rutherford Institute Defends Students' Rights in Wake of AG Cuccinelli's Opinion Allowing Schools to Search and Seize Student Cell Phones
CHARLOTTESVILLE, Va.--Coming to the defense of the privacy rights of public school students, John W. Whitehead, president of The Rutherford Institute, has cautioned Virginia Attorney General Kenneth T. Cuccinelli that his recent legal opinion allowing schools to seize and search students' personal electronic devices undermines the Fourth Amendment rights of students.
In a blistering letter to Cuccinelli, Whitehead asserts that the attorney general's opinion "improperly implies that school officials have carte blanche to seize and search the property and effects of students upon any report of misconduct." Moreover, notes Whitehead, Cuccinelli's opinion fails to give any weight to the Fourth Amendment rights of students to be free from unreasonable searches and seizures or to advise school officials on the fundamental questions they must ask before searching the cell phones or laptop computers of students.
A copy of Whitehead's letter to Attorney General Cuccinelli is available is available here.
"What the attorney general seems to have forgotten is that students do not shed their constitutional rights at the schoolhouse gate," stated Whitehead. "While we all want our schools to be safe, nurturing environments for our children, this opinion does nothing to further that aim. Instead, I fear its only accomplishment will be to transform our schools into authoritarian police states and our school officials into cyberpolice."
Attorney General Cuccinelli's legal opinion was issued in response to a question posed by Delegate Robert W. Bell (R-Va.), which asked under what circumstances middle and high school officials may seize and search students' cellular phones and laptops to combat "cyber bullying." In offering up an example, Bell posed the hypothetical of a student who reports to a teacher that he has received a bullying text message from another student.
In issuing his advisory opinion on November 24, 2010, Cuccinelli wrote that "it is my general opinion that a search of a cellular phone by a school principal or teacher under these circumstances would be reasonable under the Fourth Amendment[.]" The opinion also addressed the question of how an official should respond if a subsequent search revealed evidence of "sexting" or sexually explicit material, advising that a teacher confronted with material that appears to violate the law should refer the matter to local law enforcement.
Denouncing the attorney general's opinion as an ill-advised invitation to school officials to search first and ask questions later, Whitehead points out that the opinion fails to advise school officials on how to determine whether there is "reasonable suspicion" justifying the search. Noting that students often have ulterior motives for accusing classmates of wrongdoing, Whitehead's letter points out that officials should first corroborate the accuser's claim, primarily through examination of the allegedly bullying message, before seizing and searching a student's private electronic device.
Additionally, a search need not involve an extensive examination of the information on the student's device because responsibility can be confirmed simply by matching the cell phone number of the offending text to the device of the suspected student. Finally, pointing out that there is no clear definition of "cyber bullying" and "sexting," Whitehead cautions school officials that attempting to police this area presents significant risks to First Amendment freedoms.
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