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Posted at 1:30 PM ET, 12/ 2/2010

UPDATED: Rutherford Institute: Cuccinelli opinion could turn schools into 'authoritarian police states'

By Rosalind S. Helderman
Rosalind S. Helderman

The libertarian legal group the Rutherford Institute is slamming Virginia Attorney General Ken Cuccinelli (R) for issuing a Nov. 24 legal opinion advising school officials that they have the right to seize and search student cell phones or laptops whenever they suspect students have broken school rules or the law.

In a letter sent to Cuccinelli Thursday, Rutherford Institute President John W. Whitehead called the opinion an "ill-advised invitation to school officials to invade the Fourth Amendment rights of students."

Whitehead notes that the Supreme Court has ruled that students don't check their constitutional rights when they enter school. And he says searches conducted to monitor whether students have used their phones to "cyberbully"--the circumstance that motivated Del. Rob Bell (R-Charlottesville) to inquire of Cuccinelli whether teachers can search cell phones--could raise free speech concerns. Courts have held that students have a right to free speech when not at school, he said.

Cuccinelli's opinion recognized that students have a right against search and seizure of their property under the Fourth Amendment but he wrote that as long as school officials had a "reasonable suspicion" that school rules or laws had been broken, they could seize phones and read text messages or e-mails.

But Whitehead writes that Cuccinelli's opinion failed to advise school officials on how they should judge whether there are truly reasonable grounds to invade student privacy by examining their cell phones.

"Instead of encouraging school officials to carefully weigh whether the information presented justifies the severe intrusion into the privacy of students that would result from the search of cell phones and laptops, your opinion encourages school officials to search first and ask questions later," Whitehead writes.

Whitehead says he fears Cuccinelli's opinion will turn schools into "authoritarian police states" that fail to educate students of their rights.

We're expecting a response from Cuccinelli's office later this afternoon and will update this post when it arrives. Stay tuned.

UPDATED 4:35 p.m.: We've received a rather lengthy response from Brian Gottstein, a spokesman for Cuccinelli. You can read the whole statement after the jump. Essentially, Gottstein said that Cuccinelli's opinion relies on established Supreme Court rulings that have found that the school officials can search student property when they have "reasonable suspicion" of wrongdoing. He said nothing in the opinion gives officials carte blanche to search student phones nor does it undermine students' constitutional rights.

From Cuccinelli spokesman Brian Gottstein:

The attorney general is a firm believer in the privacy rights of individuals. That said, his official opinions are based a reading of existing law and prior relevant court decisions. The official opinion in this case cites and relies on Supreme Court precedent, specifically, New Jersey v. TLO, in its conclusion that school officials are permitted to conduct searches when they have reasonable suspicion to believe a student has violated the law or the rules of the school. The court's conclusion also states that teachers are not obligated to obtain a warrant to conduct searches. Just as the court has determined that school officials have the authority to search a student's locker or backpack when they have reasonable suspicion that the student is hiding illegal or dangerous articles, so that authority extends to searching cell phones and laptop computers when there is suspicion that a student is "sexting" explicit images or sending harassing messages to other students. Nothing in the official opinion suggests that students do not have constitutional rights, and nowhere in the opinion does the attorney general imply that officials have "carte blanche" to search students' property. To the contrary, the opinion acknowledges that teachers and school officials may not search on a whim, but that they must have reasonable suspicion. The opinion specifically mentions a student's constitutional "legitimate expectation of privacy and personal security." Finally, the opinion is intended to provide general guidelines and cannot possibly answer every conceivable scenario to tell school officials specifically when there is "reasonable suspicion" to justify a search. As the Supreme Court has noted, articulating precisely what the term "reasonable suspicion" means is not possible. The court has said that this standard is "not readily, or even usefully, reduced to a neat set of legal rules" (Ornelas v. United States). Whether or not one agrees with the Supreme Court's decision, it represents binding law. It is that law on which the attorney general's official opinion is based.

By Rosalind S. Helderman  | December 2, 2010; 1:30 PM ET
Categories:  Ken Cuccinelli, Rosalind Helderman  
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Don't blame me, I voted for the other guy.

Posted by: mikefromArlington | December 2, 2010 2:18 PM | Report abuse

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