Student Speech & the First Amendment: Student Use of Technology

This past September, Kirk Strang presented on the topic of Student Speech & the First Amendment at the WASDA fall conference.

In this series, we’ve been sharing all of the key points of the presentation, and so far we’ve covered:

• Part 1: How to Be Prepared in a Polarized Political Landscape
• Part 2: Student Speech & Expression
• Part 3: Oral or Written Speech
• Part 4: Clothing, as well as Speech Schools Might be Able to Regulate (Sometimes)
• Part 5: Student Handbooks & Codes of Conduct

In Part 6, we continue the conversation regarding student speech and the First Amendment with a focus on student use of technology — specifically cellular phones and school devices.

CELLULAR PHONES

1. Schools may institute cell phone-use policies, including prohibiting use during class time.
2. School cell phone policies have to balance culture, security, politics and parent relations, education, disruption, and other important variables. Even if the perfect policy can be written, your constituent groups won’t accept it.

3. School cell phone policies used to be written to capture misconduct generally. Increasingly, specific types of conduct are making it into cell phone policies (e.g., “cell phones may not be used on school premises to … bully or further the bullying of another student …”). The trend requires careful written work, but isn’t necessarily problematic.

   Accordingly, you can still take double-secret probation seriously.

4. Confiscation of cell phones: in general.
   1. Confiscation generally should be limited to one day, namely, the day of the offense. Do not use escalating periods of confiscation as penalties for cell phone violations (unfortunately, that leaves more traditional penalties as the primary disciplinary tools). There can be safety and other liability exposure that follows from doing so.
   2. If confiscation is done to investigate other misconduct, any search of the phone must have “reasonable suspicion” and be “narrowly tailored” to seek specific information. Looking at other areas while searching is not permitted unless the course of the investigation creates reasonable suspicion.
   3. If legitimate evidence of other misconduct is found incident to a lawful search, that evidence can be used to support other action.
   4. If there is any evidence of trauma, abuse, or any other serious student welfare issue, act immediately.
   5. After confiscating a cell phone, make sure it is secure. 
   6. Preserve the chain of custody.
   7. Do not make copies of content or have images sent to you (especially when pornographic; other procedures apply then).
   8. Pornographic images should be immediately reported to law enforcement. In almost all circumstances, the phone should be physically handed over to law enforcement as soon as possible.
5. Searching through a cell phone’s content:
   1. It is a search. Therefore, all the rules regarding the conduct of searches apply.
   2. Searches of cell phones must be narrowly tailored. A cell phone will almost always contain information in which the student has a legitimate expectation of privacy (and whether that can be yielded through a conditional waiver is unclear). 
   3. The search has to be mindful of the way cell phone technology works to make sure no legal boundaries are crossed. The district can’t say “oops.” The district must tailor the search with due regard for how proposed search protocols will reveal information and whether less intrusive alternatives are available.
   4. Searches that are properly tailored can result in discovery of information regarding other misconduct. If the search was lawful, the fruits of the search are generally usable.

SCHOOL DEVICES

1. Handheld devices, such as tablets, are generally subject to the same rules as school computers under an AUP.
2. These devices are the property of the school, not the student. The school has the right to search the devices and revoke a student’s access.

3. Students should sign an Acceptable Use policy before devices are issued.

   Tip: Make sure your policy covers all personal tech devices used on school premises, during school hours and for established school purposes (e.g., an online class), at school activities, etc. A fair number of more severe tech crimes against other kids are committed on students’ personal devices, not school devices, but a school district retains jurisdiction over such misconduct if it occurs on school grounds or under the supervision of school authorities.

Next up, in the final installment in our series on student speech and the First Amendment, we wrap things up by diving into religious speech and expression.

Until then, you may find these articles of interest:

• Addressing Practitioner HR Issues, Part 5: Employees & Technology
• School District Governance, Part 5: Employee Handbooks