Back-to-school season also means the return of the ongoing debate over cellphones in schools. Many teachers, school leaders, and state legislators have been pushing for tighter restrictions, saying phones are disruptive in the classroom. But some concerned parents argue phones could be a potential lifeline for their kids.
The 2021 Common Sense Census showed 43% of kids 8-12 years old own a smartphone. That figure jumps to 88% for 13-18 year olds.
But more phones lead to more questions — especially about privacy and how schools should handle cellphones at school. For example, can teachers and administrators confiscate them or read your child’s text messages?
We brought that question to Jolina Cuaresmawho gave us a refresher on Law 101. She’s the senior counsel for privacy and tech policy at Common Sense Media and an adjunct professor at the University of California Berkeley Law School.
The biggest takeaway: In most places, school leaders rely on the school district to come up with a cellphone policy. State legislators can weigh in, but few states have. So Cuaresma recommends you start with requesting your school’s cellphone policy.
Note: These answers refer to public schools. (Keep reading to see why).
What rights does my child have when it comes to their phone at school?
Cue: the Fourth Amendment. It protects people (including kids) from “unreasonable” searches and seizures by the government (FYI: In public schools, teachers and administrators represent the government).
In the 1985 case New Jersey v. TLO, the The Supreme Court said the Fourth Amendment applies to students in schools. But the Court added: “The school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” Translation: School officials do not need probable cause or a warrant to search students — or their property, phone included.
“You’re really relying on people using good judgment and being reasonable,” said Cuaresma. “How that Fourth Amendment is going to get interpreted is going to depend on what state you’re in. It’s very case specific.”
Can schools confiscate my child’s phone?
Yes, but there has to be a reason.
“It would have to fall into categories that are outlined in the school’s policy. You can’t just go up to a kid and demand their phone,” said Cuaresma.
A 2020 study found 96% of the high schools and middle schools in the survey had some kind of cellphone policy, with 78% prohibiting using phones during class time.
In Florida’s Broward-County Public Schools (one of the largest school districts in the country), the student code of conduct says phones are never allowed if they’re disrupting “the educational process” or during school hours (except before and after school and during lunch for middle and high school kids).
Can schools read my kid’s text messages?
Yes. But only if it falls under one of the reasons allowed by school board policy or state law.
In 2015, California passed a specific law on privacy and cellphones that added protections for students. The California Electronic Communications Privacy Act says a school can search a phone “If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.” Or if they have a search warrant issued by a judge that shows there’s “probable cause” that your phone has “information relevant to an active investigation.”
Reminder: Just because there’s a warrant and your child hands over the phone, it doesn’t mean they get free access to everything. A judge will specify what can be searched on the phone.
What happens if a teacher asks to look through my kid’s phone?
Your kid can say no.
“Students should know that they always have a right to say, ‘I wanna talk to my parent. I’m not doing anything until I talk to my parents,’” said Cuaresma.
What can I do if I think my child’s privacy rights are being violated?
Start by reading the student handbook and understand what the cellphone policy is. If you think a teacher did something wrong, bring it up to school leaders. But if it’s a district-wide issue, you should get legal help.
“If there was something in a handbook that didn’t jive with the law, then they should reach out to a lawyer or someone from the ACLU and say, ‘Look, there’s an issue here.'” said Cuaresma.
What about phone rights in private schools?
Private schools have a lot more leeway since the Fourth Amendment doesn’t apply.
“The Constitution only applies to the government. The Constitution does not apply to private actors or private companies. For private actors, you’re relying on congressional statues or your state laws,” said Cuaresma.
Public school students have privacy protections under the Fourth Amendment that could extend to their cell phone. But public school teachers could also have the legal power to confiscate and search through it. Experts recommend you study up on the school’s handbook, especially amid the ongoing debate over the pros and cons of cellphones in schools.