When an Arizona student was critical of school administration on social media, an administrator asked the district’s legal counsel if they could punish the student and search the student’s cell phone.

These questions, discussed during the recent Arizona School Boards Association Law Conference in Scottsdale, have become more frequent because of the widespread use of social media, cell phones and technology, according to a Law Street Media article “Teens and social media: How do schools fit in?”

This issue came to the forefront earlier this week as threats on social media targeted nearly 24 high schools in Phoenix and Glendale. On Tuesday, two teenage boys and a teenage girl who live and go to school in Phoenix were arrested in connection with the threats and could face felony charges, Phoenix Police said.

The debate over cell phones in schools continue. Smartphones in K-12 brings controversy – disruptive or necessary for learning and safety? Photo by Intel Free Press

Before responding to the administrator’s questions, Jessica Sanchez, legal counsel for Tempe Elementary, Kyrene Elementary and Tempe Union High School districts, said “I know you don’t like being criticized on social media, but is it actually creating a disruption?”

When the administrator said there was no disruption at the moment, Sanchez said there was no legal basis to discipline the student. After asking about what wrongdoing the student was suspected of and the school’s cell phone policy, Sanchez advised the administrator not to search the student’s phone.

To make her decision, Sanchez used guidelines from Tinker v. Des Moines Independent Community School District, a key case that defined students’ First Amendment right to free speech nearly 50 years ago.

History of the First Amendment in schools

Several legal cases have clarified students’ constitutional rights to free speech in and out of school, starting with Tinker v. Des Moines.

Mary Beth Tinker talks about students’ speech rights and the Tinker v. Des Moines Independent Community School District that went to the U.S. Supreme Court during the 2016 Law Conference in Scottsdale organized by Arizona School Boards Association. Photo courtesy Mike Barcia/AZEdNews

In 1965, a group of students including Mary Beth Tinker, who spoke at the law conference, her brother John Tinker and their friend Christopher Eckhardt wore black armbands to school to object to the hostilities in Vietnam and support a truce. School administrators responded by suspending three of the students, which led to a legal battle that continued to the U.S. Supreme Court in 1969.

The U.S. Supreme Court ruled 7-2 in Tinker v. Des Moines that the First Amendment applied to public schools, and that speech should only be suppressed if there was evidence of substantial disruption to schooling or if it would impinge on the rights of others.

“Kids really need to stand up for themselves, because, yes, we can advocate for children, but they are their best advocates,” Tinker said during the conference.

The ruling fundamentally changed the relationship between students and schools, said Jim Walsh, an attorney who specializes in education law, co-founded Walsh, Gallegos, Trevino, Russo & Kyle P.C. in Austin, Texas and gave a presentation on students and social media at the law conference.

Attorney Jim Walsh talks about how students’ speech rights have evolved over time during the 2016 Law Conference in Scottsdale organized by Arizona School Boards Association. Photo courtesy Mike Barcia/AZEdNews

“This was the beginning of a legalization of a relationship that was previously not really subject to much legal influence,” Walsh said. “And Tinker was just the start.”

Later exceptions made to the Tinker ruling by the Supreme Court, allowed schools to prohibit vulgar speech in 1986 (Bethel School District No. 403 v. Fraser), certain speech in school-sponsored publications in 1988 (Hazelwood School District v. Kuhlmeier), and speech encouraging illegal drug use in 2007 (Morse v. Frederick).

However, there has not been a Supreme Court ruling about speech on social media in relation to schools, resulting in what Walsh describes as “applying old legal principles to new technologies.”

One thing to keep in mind is that school administrators should not attempt to prohibit students’ speech on social media and in person, including to the media, because doing so can infringe on students’ rights and make matters worse for the district, Sanchez said.

“Just like you have the right to criticize our government, … students have the right to criticize you,” Sanchez said. “So unless people are being threatening in their conduct, if people are really unhappy about something, they need to be allowed to express that.”

Sanchez has advised administrators to allow students to air their grievances in public and private forums as well as adopt district policies that attempt to address student concerns.

“It is okay for them exercise their First Amendment rights. Let’s show them how to do it appropriately,” Sanchez said.

Infographic by David Marino Jr./AZEdNews
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Students’ rights and unlawful Searches

The Fourth Amendment protects Americans against unreasonable search and seizure, and the actions that can legally be taken by school administrators and law enforcement officers differ.

The Supreme Court has ruled that in maintaining security and order in school restrictions usually applied to public authorities must be eased, said David Garner, an education law attorney with Lewis, Roca, Rothgerber and Christie in Phoenix.

Before searching a student, school administrators need to ask themselves two questions, Garner said.

1. Is there reasonable suspicion to believe the search will reveal evidence that the student is violating school policy or the law?

2. And if so, is the search related in scope to the circumstances that brought about the search?

“Always ask, ‘Is it reasonable? Can I defend it?’” Garner said.

If school policy says there is no reasonable expectation of privacy on school property, then this policy is clear on searching backpacks, pocketbooks, the interior of cars, or lockers, Garner said.

But cell phones are different, because they can contain vast amounts of personal information, Garner said.

The courts’ general consensus is that a school administrator can seize a student’s cell phone if school policy prohibits display of cell phones, but if you want to search the cell phone, the school administrator has to have reasonable suspicion that a search will show wrongdoing, Garner said.

“Just because they violate the school rule, does not give you the right to jump into their phone and search its contents,” Garner said.

Chart courtesy attorney David Garner, an education law attorney with Lewis, Roca, Rothgerber and Christie in Phoenix

Garner said the highest court ruling involving seizure of cell phones in schools, was G.C. v. Owensboro Public Schools, a 2013 Sixth Circuit Court ruling that involved two searches of the same student’s cell phone.

After an Owensboro High School administrator became concerned that the student who had a history of behavioral issues and depression might be at risk for suicide, she searched his cell phone to check for evidence that he was contemplating suicide. The Sixth Circuit Court upheld that search, as there was reasonable suspicion that the student was at risk for suicide.

However, the court did not uphold a second search that occurred the next year. After being spotted texting in class, the same student’s cell phone was confiscated and searched by a different assistant principal, who knew of the student’s past thoughts of suicide. The court ruled that, unlike the previous instance, there was no evidence to support any unlawful activity by the student.

Garner said cell phones are like “digital underwear” and that searching them is inherently intrusive, differs from other searches because of the vast amount of personal information cell phones often contain and so must meet more stringent requirements than other searches of other belongings or effects.