Cuccinelli’s opinion on phone search and seizure: right on

Colin Hannifin

Columnist

Just a day before Thanksgiving, Attorney General Ken Cuccinelli responded to a question posed by Del. Robert Bell asking the circumstances in which it is lawful for a teacher or school official to seize and search through a student’s laptop or cell phone. Cuccinelli’s opinion was that an official may seize and search a cell phone or laptop when the official has “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” Cuccinelli’s opinion is sound in this case, and criticism against it reflects a lack of understanding on modern culture.

The real issue at hand is cyber-bullying and “sexting” (the sending of illicit photos and texts via messaging). Bullying is not what it once was and has moved into the digital world, making it that much harder to detect. This opinion allows a teacher to search the phone of a student who has been accused of sending threatening text messages.

The question is whether or not this violates the Fourth Amendment, which states “The right of the people to be secure in their persons, house, papers, and effects, against unreasonable search and seizure, shall not be violated.” This right applies when teachers search through student possessions.

Usually, any search has to be backed by a warrant borne of probable cause. However, according to Cuccinelli, due to the unique nature of schools, “a different framework is justified.” That is, there is no need for a warrant, but only a reason to believe there may be breaking of school laws. Because of the clause concerning reasonable grounds, it seems that this opinion would not breach the Fourth Amendment.

There has been some backlash against this ruling. Some have said that it’s a clear violation of the Fourth Amendment, while others assert that a teacher’s job is to teach, nothing more. Such retaliations fail to understand modern culture.

Bullying occurs more now online and through text messages than it does on the playground, and is subtler than it ever has been. Bullying is one of the leading causes of adolescent suicide, a fact that has led to recent support for campaigns to stop bullying. These consternations with Cuccinelli’s opinion also belittle the work a teacher does in his or her classroom. They do not only teach at all levels, but also play “judge and jury” and have to care for the kids in a way non-teachers often fail to understand.

While Cuccinelli’s opinion is sound, schools will now have to be careful of making sure it is not abused. In most public schools, texting in class is not allowed. A student texting gives the teacher cause to confiscate the phone, but not to search through it. This distinction is important, and schools will have to guard against any possibility of teacher’s abusing their newfound power.

It’s also important to note that this opinion pertains primarily to middle and high school teachers and students. It is unlikely that your professor will be confiscating and going through your phone due to a report of cyber-bullying. Regardless, it is important to note Cuccinelli’s opinion as a fine example of government trying to find a balance between constitutionality and overstepping bounds in this ever-advancing age of technology.