In a recent decision, the first federal appellate court to address the rights of school officials to search student cell phones held that a student’s violation of a school rule regarding technology did not justify a general search of the student’s cell phone by Kentucky school district employees. The case is an important reminder to school leaders that they can search student technology in certain circumstances, but they must respect the fine line between a justifiable search and a search that violates a student’s constitutional rights.
The case, G.C. v. Owensboro Public Schools, dealt with a student, G.C., who was involved in a string of disciplinary incidents and had communicated to school officials that he was suicidal. During his freshman year, school officials searched G.C.’s phone after an incident where he walked out of a meeting with a prevention coordinator, left the school building without permission, made a phone call to his father in the parking lot and was found in the parking lot with tobacco products in plain view. The school official who searched the phone cited concerns that the student was going to harm himself as a basis for conducting the search.
That fall, at the beginning of his sophomore year, G.C. violated the school cell phone policy by using his phone to send text messages during class. His teacher confiscated the phone and delivered it to another administrator. The administrator read four text messages on the phone in an effort to see if there was evidence that he was going to harm himself. Although no evidence of misconduct was found on the phone, G.C., who was attending the school as an out-of-district student, was told that he had lost his privileges to attend Owensboro High School because of his behavior.
The Sixth Circuit Court of Appeals, addressed a number of issues in its decision, including whether the school district was required to provide G.C. a hearing before telling him he could not attend the high school (it was) and whether the school discriminated against him based on Section 504 of the Rehabilitation Act (it did not). But the most interesting element of the decision dealt with whether the school officials were justified in searching the student’s cell phone.
As The New York Times recently reported, a Colorado school district is facing a civil rights complaint after refusing to allow a six-year-old transgender student to use the girls’ bathroom in a local elementary school. The case highlights the challenges that school administrators face when addressing requests by transgender students to use single-sex facilities in school.
On the one hand, families of transgender students, such as the Colorado student, argue that requiring a student to use a gender-neutral, separate facilities creates a stigma. If the facilities are difficult or time-consuming to access, families may see the request as unduly burdensome on the student. On the other hand, schools may have to balance the rights of the transgender students with other factors, such as the rights of other students and the need to maintain discipline.
The Colorado case provides an example of a situation in which the school believed the balance tipped against allowing the transgender student to use the girls’ restroom. The school allowed the student to wear female clothing to school and to be referred to as a female. The school also allowed the student to use a “gender neutral” bathroom in the school health room. In denying the student access to the girls’ bathroom, the school cited concerns about what would occur as the student, who was born a male, grew older and developed male physical characteristics. The school indicated that parents of students who were born female might have legitimate concerns with the transgender student using the same single-sex facilities as their daughters even if the student identifies and presents as female.
Such a decision is not without precedent. In Doe v. Clenchy, a court in Maine held that a school district could deny a transgender student’s request to use the female restrooms at school. The school allowed the student to use the restroom through the fifth grade, but that year a male student walked into the girls’ restroom while the transgender student and some of her friends were washing their hands. When confronted by administration the student said that his grandfather and guardian said if the transgender student could use the girls’ restroom, so could he. The court recognized that the school was placed in a difficult situation because of the desire of a student’s grandfather and guardian “to make a social statement.” The court also noted that it appeared inevitable that a controversy might arise since the parents of the transgender student had agreed to reevaluate the request if the parents of female students complained. The court found that the transgender student’s rights were not violated by the decision to require her to use a gender-neutral restroom in light of the facts of the case.