A Mississippi judge has chilled the privacy rights of students by ruling that school officials were justified in viewing photos on a student's cell phone after he was caught using it on campus in violation of school rules.

In one of the first decisions of its kind, Chief U.S. District Judge Michael P. Mills summarily dismissed the Fourth Amendment claims of a Southaven, Miss., middle-school student identified only as R.W., giving school administrators broad authority to “search” cell phones “to determine to what end the student was improperly using that phone.”

The Desoto County School District prohibits the “[p]ossession of electronic equipment/device (beepers, telephone, etc.) without prior approval of the administration.” R.W. was expelled after school officials found what they claimed were photos depicting “gang-related activity” stored in his cell phone.

“In the court’s view, a student’s decision to violate school rules by bringing contraband on campus and using that contraband within view of teachers appropriately results in a diminished privacy expectation in that contraband,” Mills wrote in his opinion.

Under U.S. Supreme Court precedent, a search of a student by a school official must be “justified at its inception” and is “permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” New Jersey v. T.L.O., 469 U.S. 325 (1985).

Mills said R.W. may well have been “engag[ing] in some form of cheating, such as by viewing information improperly stored in the cell phone.” But he did not address whether officials at Southaven Middle School went too far by looking at the photos in the phone rather than simply confiscating it.

What cheating R.W. could possibly have been doing is unclear — according to his complaint, “he was caught using his cell phone to review a text message sent to him by his father during football period.”

The Desoto district sought summary dismissal of R.W.'s illegal search claims against a P.E. teacher at Southaven Middle and the 7th-grade principal, arguing they were entitled to “qualified immunity” because “clearly established law” did not prohibit them from viewing photos that “automatically appeared upon the opening of [R.W.'s] cell phone.”

Mills could hardly been more receptive to the district's arguments, finding that even if the phone was "closed at the time it was searched by various defendants ... the search in this case was justified at its inception.”

He said R.W.'s claims were not supported by a Pennsylvania case in which a judge denied qualified immunity to school officials who used a confiscated phone to call other students to see whether those students were violating the school’s cell phone policy. Klump v. Nazareth Area Sch. Dist., 425 F.Supp.2d 622 (2006).

Klump is distinguishable, Mills concluded, because the school in that case allowed students to carry, but not use or display, cell phones during school hours and the decision of the Southaven Middle officials “to merely look at  to merely look at the photos on R.W.’s cell phone was far more limited, and far more justified than that taken by the school officials in Klump.”

R.W.'s lawyers have indicated they will appeal the ruling. No appeals court has so far reviewed the reasonableness of a search of a student's cell phone.

A school district in Texas has filed a motion for summary dismissal of a similar case in which a female student alleges a teacher illegally viewed nude photos of her that she had stored in her cell phone. Another school “sexting” case was settled earlier this year for $33,000.

Mills did allow R.W. to proceed to trial on his claim that he was illegally expelled from Southaven Middle. “At this juncture, it at least seems arguable that R.W. was expelled based not upon anything he did, but rather based upon what the school district subjectively believed he was,” he explained.

By Matthew Heller
12/10/10