For New York students, the ban on cell phones in school may feel like an infringement on their right to free expression. Well-to-do parents insist it’s an issue of physical safety and want to be able to check on their children’s whereabouts throughout the day. Leaving alone for the moment the legitimate pedagogical concerns of teachers and principals, do students have any constitutionally-guaranteed rights not to have their cell phones confiscated by school police officers? No, but they can and should have the right to express their opinions on it in the school newspaper.

The U.S. Supreme Court has given great leeway to local school board officials to set school policy on student conduct. The most recent decisions permit some infringement of student’s First and Fourth Amendment rights where justified by privacy or educational concerns.

In New Jersey v. TLO (initials stand for the name of the 14-year-old girl plaintiff), the Burger court ruled in 1985 that due to the role schools have in substituting for parents during school hours, students may be subject to searches without a court warrant, as long as there are “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.” But the scope of the search cannot exceed the nature of the violation. For example, a student cannot be strip-searched on suspicion of smoking a cigarette. Three years later, the Rehnquist court ruled in Hazelwood School District v. Kuhlmeier that the First Amendment rights of students are not “coextensive” with those of adults, because schools are not traditional public fora in the same sense as are public parks and streets.

Thus, a principal had the right to remove from a student publication two pages that mentioned another student’s divorce and pregnancy. Ironically, they quoted a 1969 decision, Tinker v. Des Moines that allowed a student to wear a black armband to protest the Vietnam War: “Students do not shed their constitutional rights at the schoolhouse gate. Prohibition of expression of one viewpoint is not constitutionally permissible without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline.”

‘WEST VIRGINIA JUSTICE’
Unfortunately, it’s easy to argue that expressing an unpopular viewpoint is disruptive to the classroom. In the fall of 2001,West Virginia high school student Katie Sierra was subjected to verbal threats and abuse from her fellow students when she wore a T-shirt to school criticizing their flag-waving support for the war in Afghanistan. However, it was Katie who was suspended from school, not those who threatened to “give her West Virginia justice.”

In her subsequent suit for violation of her First Amendment rights, the jury sympathized more with the school administrators than with her. So what about metal detectors in school? Although they tend to make school feel like jail, they are probably lawful. Since 1993, the New York Court of Appeals has used the scourge of guns in the public schools to throw out the warrant requirement for searches of students, saying students have a diminished expectation of privacy. Students may even be suspended for conduct that occurred outside of the classroom as long as there is a connection between that behavior and the school, such as where students conspired in the lunchroom to purchase illegal guns.

Chancellor Klein looks at cell phones and sees students cheating on exams, viewing pornography and using them to call their friends to help in a fight. He envisions lawsuits against the Department of Education for injuries on or off the playground and no doubt is looking out for the Department’s budget. Parents who want to have instant access to their children may well carry the day, but it’s hard to imagine anything in this debate contributing to students becoming free and responsible citizens in a democratic society.

For more, see nlgnyc.org or call 212-679-6018.