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Can I Confiscate a Student’s Cell Phone?


Dear VEA Attorney: I heard that Attorney General Kenneth Cuccinelli offered an opinion that teachers can confiscate and search student cell phones. Cell phones are a big distraction in my school. Can I take the phones away from students?

The opinion offered by Attorney General Cuccinelli reviews and applies the decision by the United States Supreme Court in New Jersey v. TLO that school officials are not required to obtain a warrant to search a student. Reasonable suspicion of a violation of school rules justifies search of a student’s belongings. You can read a copy of the November 24, 2010 official advisory opinion here.


For another perspective, read these editorials published in the Virginian PilotRoanoke Times, and Daily Press.


The Attorney General (AG) did not provide teachers or school administrators with detailed instructions on when, where, and how to confiscate cell phones or search the contents of phones and computers. The AG’s Opinion highlights the complexity of decisions about reasonable suspicion and reasonable search. The AG also notes the prudence needed if school personnel discover sexually explicit visual material. Laws prohibiting possession or distribution of child pornography do not have exceptions to protect a school employee who takes such material from a student during school duties. 

Teacher authority to search rests on suspicion that a student is violating law or school rules. So you must understand your school rules. Enforcement should fit the rule. You might enforce a rule against using phones in class by instructing a student to put the phone away rather than trying to take it. In contrast, suspected bullying or sexting relates to material on the phone. The AG opinion offers that school personnel can search a cell phone or computer, and it directs school personnel who discover sexually explicit material to notify law enforcement agents. School personnel may prefer to avoid handling sensitive content and contact law enforcement to conduct the search.
 
Teachers need clear direction from school officials, and VEA members can work together to get the needed guidance. Work with Association colleagues and school administrators to educate your School Board on changing conditions and review school policies and rules. Identify the responsible administrators or security personnel. Establish procedures for calling administration or sending the student out of class. Define the circumstances in which a teacher should ask for or take a phone away. Spell out “chain of custody procedures” to record who handled the phone, when, and how, because a student could face criminal prosecution or school discipline. Finally, make sure to follow school rules to secure and deliver anything taken from a student in case of loss or damage. 

The AG’s opinion provides valuable support for school personnel who work to maintain school discipline and enforce rules regarding students’ possession and use of cell phones. Still, actions taken to enforce school rules and maintain order can put you at risk. So work with your colleagues, administrators, and school board to establish the rules and procedures that will help keep your schools safe places for learning.


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