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17 Duke L. & Tech. Rev. 1 (2018-2019)

handle is hein.journals/dltr17 and id is 1 raw text is: 






   DIALING IT BACK: WHY COURTS SHOULD
 RETHINK STUDENTS' PRIVACY AND SPEECH
 RIGHTS AS CELL PHONE COMMUNICATIONS
        ERODE THE 'SCHOOLHOUSE GATE'


                      NICHOLAS J. MCGUIRET
                           ABSTRACT
       The ubiquity of cell phones in today's society has forced
    courts to change or dismiss established, but inapplicable
    analyticalframeworks. Two suchframeworks in the school setting
    are regulations of student speech and of student searches. This
    Article traces the constitutional jurisprudence of both First
    Amendment off-campus speech protection and Fourth Amendment
    search standards as applied to the school setting. It then analyzes
    how the Supreme Court's ruling in Riley v. California complicates
    both areas. Finally, it proposes a pragmatic solution: by
    recognizing a categorical First Amendment exception for
    substantial threats  against the school community, courts could
    accommodate students' constitutional rights while upholding
    school administrators' ability to maintain a safe environment.

                         INTRODUCTION
       Cell phone technology has changed almost every aspect of the
modern age. Cell phones provide a means to access and store vast amounts
of information and to communicate with people around the world. They
are also popular across age groups, including among children and teens
who use them as a primary mode of communication and entertainment.
Because cell phone users keep their phones on their person, this poses
several problems in the school setting, where traditionally school
administrators can regulate certain student speech and conduct some
searches of student belongings. Courts have failed to adopt a consistent
standard for school administrators' scope of authority over off-campus
speech. Although the Supreme Court has developed a test for assessing the
reasonableness of a search in school, it has not clarified how cell phones
fit within that test. This Article traces the constitutional contours both of
student speech and student searches, identifies the nuanced issues posed
by cell phones, and proposes a solution that honors the underlying
concerns on all sides: abolish the inconsistent standards of authority for


t Duke University School of Law, J.D. expected May, 2019; B.A. Political
Science and Media Studies, Davidson College, May, 2014.

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