Student in Hallway on Cell Phone

Concerned about “sexting” and “cyberbullying” in schools, Virginia’s attorney general says teachers have the legal authority to seize and search through students’ cell phones and laptops – without consent, warrant or parental permission.

In an advisory opinion addressed to State Delegate Robert Bell, Virginia Attorney General Kenneth T. Cuccinelli II says teachers with “reasonable suspicion” of wrongdoing can confiscate students’ electronic devices to search stored messages for evidence.

“It is my opinion,” Cuccinelli writes, “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.”

The opinion states that though the U.S. Constitution’s Fourth Amendment normally preserves the right of the people “to be secure in their persons, house, papers and effects against unreasonable search and seizure,” nonetheless, “The supervision and operation of schools present ‘special needs’ beyond normal law enforcement and, therefore, a different framework is justified.”

John W. Whitehead, founder of the civil liberties group Rutherford Institute, however, warned Cuccinelli’s opinion could lead to violations of students’ civil rights.

“This is bad, bad thinking,” Whitehead told the Charlottesville, Va., Daily Progress. “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.”

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

State Delegate Bell, a Republican who sits in Virginia’s “Thomas Jefferson seat” – since Jefferson represented the region in the state’s General Assembly from 1769 to 1774 – had originally asked Cuccinelli for the opinion so he could answer questions from school principals in his district.

The administrators were asking how far they could go to counter “sexting” – the practice of students sending explicit or nude photos to one another via cell phone – and cruel and demeaning messages via email and social networks commonly called “cyberbullying.”

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

In his opinion, Cuccinelli cites the 1985 U.S. Supreme Court case New Jersey v. T.L.O, which ruled that “the substantial need of teachers and administrators for freedom to maintain order in the schools does not require the strict adherence to the requirement that searches be based on probable cause.”

Therefore, Cuccinelli concludes, should a student report to a teacher a bullying or “sexting” text message from another student, for example, the teacher should have the authority to seize the alleged bully’s cell phone to investigate the claim.

“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 and the standard established in New Jersey v. T.L.O.,” Cuccinelli writes. “Moreover, under T.L.O., once a reasonable suspicion of wrongdoing exists, a search of a student’s personal belongings does not require the student’s consent or the consent of his parents.”

The only caveat Cuccinelli includes concerns discovery of nude or explicit photos of a minor. Should a teacher discover such photos, the attorney general advises, the phone needs to be turned into the police rather than the school administration, or the teacher could face charges of distributing child pornography.

Whitehead, however, worries that teachers and administrators don’t have the expertise to judge probable cause for such searches and could abuse the power Cuccinelli is conceding them.

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

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