2016 Winning Essay

Preserving Evidence: The Limits of Privacy in Social Media in Schools
by Claire Dozier
McLean High School

Like adults, students are entitled to freedom from unreasonable searches and seizures under the Fourth Amendment. The standard for determining whether the government can conduct a reasonable search and seizure is based on “probable cause.” In the school setting, however, the Supreme Court ruled in New Jersey v. T.L.O., 469 U.S. 325 (1985) that school administrators can conduct searches and seizures based on reasonable suspicion, rather than the higher standard of probable cause. Mrs. Smith’s search of Britney’s social media account and her later search and seizure of Dave’s private text messages are reasonable.

In T.L.O., the Court stated that, when a child has a reasonable expectation of privacy while at school, a two-pronged test should be used to determine whether a search is reasonable under the Fourth Amendment. The first test is a “determination of whether the search was justified at its inception.” For a search to be justified at its inception, there must be “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating the law or the rules of the school.” However, “the requirement of reasonable suspicion is not a requirement of absolute certainty.” The second test is that “such a search will be 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 nature of the infraction.”

When the courts have held that students have a reasonable expectation of privacy in social media content, it is usually because the content has been kept private and is not available to the general public. In particular, emails and text messages are treated as very private because no one else has access to them. Although Britney’s social media account gave her access to a “private” group discussion which was not open to the public, it was not private to her alone. Therefore, while Britney may have expected some privacy in her list of friends in the “secret group,” it was not a reasonable expectation of complete privacy because many other students in the class also had access to the online postings and could have disclosed the cheating to the school.

However, to the extent Britney had a reasonable expectation of privacy in her social media account, Mrs. Smith’s search of the site for the stolen test would still have been permitted because it satisfied the two-part test in T.L.O. When Mrs. Smith called Britney into her office, she had a reasonable suspicion that Britney had been involved in the cheating incident because she was in the AP History class and had been in trouble before. In light of the nature of the search, it was not possible for Mrs. Smith to issue a broad request for voluntary information because, had she done so, students would have become aware of the investigation and would have had the opportunity to erase their accounts and the evidence that consisted of the social media postings. Accordingly, upon hearing of the cheating, it was appropriate for Mrs. Smith to act with expediency, call Britney into her office, and threaten her with suspension so that evidence from the social media group could be preserved through screen shots.

Mrs. Smith’s investigation and search of Britney’s social media account was tailored specifically to find the stolen test questions and discover which other students had access to the group, as is evidenced by the fact that she did not demand Britney disclose her password. The scope of the search did not extend beyond what was necessary to find the information regarding the students involved in the cheating. Therefore, using the balancing test established by the Supreme Court in T.L.O., the school’s interests in addressing the cheating and preserving the evidence outweigh Britney’s expectations of privacy in the secret social media group.

Former Attorney General Kenneth T. Cuccinelli II concluded that, “searches of students’ cellular phones...by school officials are permitted when based on reasonable suspicion that the particular student is violating the law or the rules of the school...” Opinion No. 10-105, 2010 WL 4909931 (Va.A.G.). Dave Osborne had a reasonable expectation of privacy regarding the contents of his cell phone and his private text messages. Based on the evidence seized from Britney, Mrs. Smith had a reasonable, individualized suspicion that Dave had been involved in texting the contents of the test to other students in the AP History class. Therefore, Mrs. Smith acted properly by demanding that Dave surrender his cell phone and then conducting a reasonable search limited to his private text messages.

This result would not change even if the text messaging occurred outside of school or school hours as long as the contents of the messages foreseeably affected the school environment. In Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th CIR. 2011), it was established that communications outside of school that create “substantial disorder and disruption in the school” constitute speech that may result in student discipline. In this hypothetical, despite the fact that the cheating through the social media group and private text messaging may have occurred outside of the school environment, the incident caused “substantial disorder” and disrupted and violated school policies.

If the violation of school policy had involved physical evidence such as drugs or weapons, Mrs. Smith possibly could have announced and conducted a search through voluntary cooperation with the students. However, because the evidence in this case consisted of online postings to a shared social media account, it was necessary for Mrs. Smith to act immediately to obtain access to the account and record and preserve the evidence. Had she made the search public, it would have been possible for the students to delete the evidence and thereby obstruct the investigation. Therefore, Mrs. Smith acted appropriately while conducting the search of the secret social media group and Dave’s text messages.

Updated: May 31, 2016