You can’t take my phone! Legal issues related to policies restricting students’ mobile devices.

By Allen Clendaniel of Sedor, Wendlandt, Evans & Filippi, LLC

Part three of a series on Technology and the Law.

When I started practicing law in the fall of 2005, I did not have a cell phone.  I didn’t need one.  Fourteen years later, I don’t think I could get through half a day without my trusty iPhone 7. 

Today’s students all have smartphones.  My kids complained that they were the last to get phones because our family had a “wait until middle school” policy.  And my kids were right.  A 2016 study from the research firm, Influence Central, found the average age for getting a first smartphone is 10.3 years old.  Students are getting phones at younger ages and they are all bringing their phones to school.

There are benefits to students’ use of cell phones.  Many teachers incorporate cell phones and educational apps into their lesson plans.  Parents appreciate the convenience of being able to communicate with their children, especially during an emergency.  There are also downsides.  Phones can be distracting, facilitate cheating, increase sexual harassment through sexting, and increase cyberbullying.  The negative effects of smartphones led Anchorage private school Lumen Christi to adopt a cell phone ban this school year.  Citing Lumen Christi’s ban, the Anchorage Daily News Editorial Board advocated for a ban on cell phones in all Alaska School Districts.

Is such a ban permissible in Alaska’s public schools?  The Alaska courts have not had the occasion to rule on whether a cell phone ban is constitutional.  In New York, parents challenged a complete ban on cell phones.  The parents claimed that the ban violated the United States and New York constitutions.  The New York state court upheld the cellphone ban. Price v. New York City Bd. of Educ., 51 A.D.3d 277 (1st Dep’t 2008).  The court remarked that “[n]othing about the cell phone policy forbids or prevents parents and their children from communicating with each other before and after school.”  The court found that because the cell phone ban “reasonably related to legitimate pedagogical concerns,” the policy was constitutional. 

Accordingly, it is likely (though not certain) that Alaska courts would find a cell phone ban in public schools to be constitutional.  What about a ban on students’ use of phones during class?  Can a school official take a student’s cell phone if a student violates the policy? A court in Arkansas rejected a student’s argument that the school policy permitting the confiscation of cell phones was illegal and unconstitutional.  In Koch v. Adams, 361 S.W.3d 817, 819 (Ark. 2010), a public-school teacher seized a student’s cell phone because the student was using the cellphone during class in violation of the school district’s student handbook. Pursuant to the school district’s disciplinary regulations, the teacher confiscated the phone. The student asked if he could remove the “SIM” card, which stores personal information, before turning over the phone. The teacher denied that request.  The students’ parents demanded the return of the phone, but it was kept in storage for two weeks pursuant to district policy.  After two weeks, the principal sent the phone to the student’s father via certified mail. 

Unfortunately for the school district, the student’s father was a lawyer.  The student sued. Guess who his lawyer was?  Dad! 

On appeal, the Arkansas Supreme Court held that confiscation policy did not violate Arkansas education statutes and did not violate the student’s constitutional due process rights.  The Alaska courts have not addressed this issue, but legal precedent would seem to support a cell phone confiscation policy. As my law partner, John Sedor explained in The iPhone 11 – Not your Father’s Flip-Phone, however, searching the contents of a confiscated phone is a different story. A school official must make sure he/she has legal grounds to search the contents (pictures, texts, social media, etc) of the phone. 

Just as my iPhone 7 has become part of my law practice, mobile devices are becoming a part of young people’s lives.  Smartphones aren’t going away.  And educators will have to figure out the best policies to deal with the pervasiveness of smartphones. The legal system is also wrestling with this pervasive new technology. The courts will continue to balance the rights of parents and students and the interest of school administrators to manage the educational setting. The law is always changing, but at this juncture, courts seem willing to enforce well-crafted cell phone policies designed to maximize student success in the classroom. 

More of the series on Technology and the Law:

“Are we on the record?” Legal Issues with Recordings in School.

The iPhone 11 – Not your Father’s Flip-Phone

More from Sedor, Wendlandt, Evans & Filippi, LLC:

Eight-part series: Interacting with the world outside of the schoolhouse gates

Five-part series: Union Issues in Schools

Four-part series: Freedom of Expression in Schools

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The views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.