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July 15. 2014 9:46PM

Nashua officials seek advice on issue of student cellphone searches vs. privacy

NASHUA — School officials want their attorney to weigh in on whether students have the same constitutional protection against cellphone searches as adults in New Hampshire.

The question was raised in the wake of the unanimous U.S. Supreme Court decision last month banning cellphone searches by police without a warrant. According to the decision, scrolling through a cellphone, which is often loaded with personal information, is a violation of the Fourth Amendment that prohibits unreasonable searches and seizures.

In New Hampshire, state lawmakers have also passed HB1533, which goes a couple steps further and forbids warrantless searches of electronic devices in civil cases, and paves the way for lawsuits if devices are searched improperly.

Superintendent Mark Conrad told the Board of Education this week that he has asked city attorney Stephen Bennett for an opinion on how the laws on cellphone searches affect schools and students.

“The New Hampshire School Board Association has recently warned that we not search cellphones,” Conrad told the board. He said he didn’t feel the district was compelled to immediately follow that warning.

“It wasn’t a legal opinion,” said Conrad, who added it was more a warning to be cautious while legal experts sort through the issues.

In Manchester, school Superintendent Debra Livingston said she consulted with the school district’s lawyer, and he does not believe the Supreme Court decision, which sets a standard for criminal law, applies to students. Livingston said principals search student cellphones and other property when they believe a student or the school could be in danger. That would include sexting, or sending explicit photos and messages, she said.

Laws have given schools their own legal standard — “individualized suspicion,” or “a reason to believe” — to allow a search, Livingston said. In most cases, school officials notify parents if they search a student’s personal property such as a phone or backpack, Livingston said.

In Nashua, Conrad added that cellphone searches are part of the school administration’s offense against 21st century problems such as cyberbullying. Student sexting has triggered searches of student phones and devices in schools throughout the country.

“I don’t think it is used a lot, but when it is it is crucial to an investigation,” Conrad said.

“Attorney Bennett will offer a legal opinion, and I suspect you will see other opinions,” said Conrad, who mentioned the issue was also being researched by an expert on school law at the University of New Hampshire.

“If the board thinks it needs to go further to the Policy Committee, we’ll look at that,” he said.

District 2 state Rep. Neal Kurk of Weare, who introduced HB1533, said the laws are already clear. Although obtaining a warrant prior to a cellphone search has been the common practice throughout much of the state for several years, Kurk said the bill establishes a clear and common set of rules.

“As for schools, a school is a public entity and just as much subject to this law as other public entities,” said Kurk.

But there is, according to Kurk, one major difference.

“When it comes to children, different laws apply,” he said.

Kurk said his bill protects school employees and adults from warrantless cellphone searches, but would not apply to students.

“The concept is a school has the right to do whatever is reasonable to provide a safe, educational environment,” he said.

Kurk also said schools operate under the legal doctrine, “in loco parentis,” which gives them the right to take on some of the roles and responsibilities of parents during the school day.

“It is not illegal for a parent to search a child’s cellphone,” said Kurk.

Nashua Board of Education member David Murotake, who originally raised the question about students and cellphone searches, said he was pleased the district was reaching out for some legal help.

“I think by the time school starts, we will have a plethora of interesting opinions on this,” he said.

btaormina@newstote.com; Union Leader reporter Mark Hayward contributed to this article.


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