An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

It is important to note that a lesser standard has been applied with respect to searches of student cell phones. In general, student searches conducted by school officials in a public school environment are governed by New Jersey v. T.L.O. , which requires that the search be justified at the inception and reasonable in scope. While the Fourth Amendment protections against illegal searches and seizures does not apply to students in independent schools, in California, students are protected by California’s Constitutional right to privacy. Thus, we recommend that independent schools follow the standards set forth in New Jersey v. T.L.O. as guidance for when conducting student searches. An independent school must show that a search was “justified at its inception and reasonable in scope.” However, based on the reasoning in the Riley case, a court will likely find that searches of a cell phones are not like searches of a backpack or other property due to the extensive amount of information one can obtain from a cell phone. Thus, educators must be very careful in determining when a cell phone search is justified, and what is reasonable in executing that search. A school should attempt to obtain consent from the student or the student’s parents to search the phone. Alternatively, the educator should determine if it is reasonable to believe a school policy violation has occurred and that evidence of the violation is stored in the cell phone. If so, the search must be limited to the location where that data may be stored. For example, when a student is seen using a phone during a test, a search of the phone should be limited to the open area of the phone during the test, such as a text message or calculator. The search must not go beyond what is reasonable at the inception of the search. The best course in cases of potential emergencies involving safety concerns, for example if a student reports receiving a text message from another student offering to sell drugs or threatening use of a weapon, is for the school to cease the phone and turn over to police.

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An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 395