According to Pew Research Center:
One-third of public K-12 teachers say students being distracted by cell phones is a major problem in their classroom, and another 20% say it’s a minor problem. High school teachers are especially likely to see cell phones as problematic. About seven-in-ten (72%) say that students being distracted by cell phones is a major problem in their classroom, compared with 33% of middle school teachers and 6% of elementary school teachers.
Student cell phone possession and use in the classroom can impact a student’s overall educational experience. In addition, it can have legal implications for school districts. This Legal Update will review the current law governing how schools may regulate and restrict student cell phone use and possession, as well as when school officials may confiscate and search a student’s cell phone.
Current Wisconsin Law
Wis. Stat. § 118.258 provides as follows:
Electronic communication devices prohibited.
(1) Each school board may adopt rules prohibiting a pupil from using or possessing an electronic communication device while on premises owned or rented by or under the control of a public school.
(2) Annually, if the school board adopts rules under sub. (1), it shall provide each pupil enrolled in the school district with a copy of the rules.
Pursuant to this statute, Wisconsin school districts have the legal authority to adopt board policies and student code of conduct provisions regulating students’ use and possession of cell phones on school district property and/or during curricular and extracurricular activities.
The content and scope of school district policies varies significantly. Some school districts ban student possession and use of cell phones in the classroom completely, while other school districts allow students to possess and use cell phones in the classroom provided the students are not violating other school district polices or otherwise interfering with the classroom objectives. Finally, some school districts allow teachers to establish appropriate rules for their individual classrooms.
New Proposed Legislation: 2025 Assembly Bill 2
On February 3, 2025, Wisconsin Representative Joel Kitchens of Sturgeon Bay introduced 2025 ASSEMBLY BILL 2, which, if enacted, would create Wis. Stat. § 120.12(29), and require all school boards to adopt a policy, prohibiting the use of wireless communication devices, including cell phones, during instructional time, except in cases of emergencies and perceived threats; when needed to manage a student’s health care or to comply with a student’s individualized education program (IEP) or 504 plan; or when authorized by a teacher for educational purposes. This bill is different from Wis. Stat. § 118.258 which allows, but does not require, school boards to adopt policies around cell phone usage.
On February 11, 2025, the Assembly Committee on Science, Technology, and Artificial Intelligence held a public hearing on AB 2. At the hearing, Representative Kitchens argued that the law would protect school districts when challenged by parents and provide enforcement mechanisms needed to implement the law. Additionally, Representative Kitchens noted that similar laws across the country have increased classroom engagement and reduced bullying. At the hearing, Democrats challenged the proposed bill arguing that the law would challenge the authority of elected school boards and create confusion for school districts that already have policies in place.
According to the Wisconsin Department of Public Instruction, approximately 90% of Wisconsin public school districts already have some policy restricting the use of cell phones in school.
On February 12, 2025, Representative Kitchens offered an amendment to AB 2 to clarify that the bill would not apply to school district issued devices and to add the following language to Wis. Stat. § 120.12(29):
(d)
-
- By no later than October 1, 2026, submit a copy of the policy under par. (a), or if applicable, a policy that is more restrictive than what is required under this subsection, to the office of school safety in the department of justice.
- By no later than October 1, 2027, and each October 1 thereafter, notify the office of school safety in the department of justice of whether changes were made to the policy submitted under this paragraph in the previous school year, and if changes were made, submit the updated policy to the office of school safety in the department of justice.
(e) Nothing in this subsection prohibits a school board from adopting a policy relating to the use or possession of wireless communication devices by pupils that is more restrictive than what is required under this subsection.”
A similar bill 2025 SENATE BILL 29 is pending in the Wisconsin State Senate. Both bills seem to have bipartisan support, but, even if they are approved by the Senate and the Assembly, it is not clear whether Governor Evers will sign such a bill into law.
Search and Seizure of Student Cell Phones
The search and seizure of student’s property including cell phones, by public school officials is governed by the Fourth Amendment of the United States Constitution, which declares:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In 1985, in New Jersey v. T.L.O., 469 U.S. 325 (1985), the United States Supreme Court established the legal standard governing searches of students and their property by school officials. According to the Court, in order to search of a student or the student’s property, the search must be reasonable at its inception and reasonably related in scope to the circumstances justifying the interference in the first place. For a search to be reasonable 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 either the law or district policy, or that the student is in imminent danger of injury on district premises. Further, a search is reasonably related in scope if the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive. For example, if a school official suspects a student of possessing a controlled substance in their pockets, ordering the student to empty their pockets is reasonable. State v. Chase A. T. (In the Interest of Chase A. T.), 2014 WI App 110, 357 Wis. 2d 722, 855 N.W.2d 904. Although not controlling authority, the Sixth Circuit has addressed this issue specifically in the context of cell phone searches, holding that a school official does not have the right to “search any content stored on the phone that is not related either substantively or temporally to the infraction” which justified the search. G.C. v. Owensboro, 711 F.3d 623 (6th Cir. 2013).
In 1997, in State v. Angelia D.B., 211 Wis.2d 140 (1997), the Wisconsin Supreme Court clarified the standard for searches conducted by law enforcement officers acting upon the request of school officials. Law enforcement officers are generally required to have probable cause or a warrant prior to performing a search of a person or their property. However, in Angelia, the Court ruled that if an officer is performing a search of a student at the request of, or in conjunction with, school officials, the lower burden of reasonable suspicion applies. Searches initiated by law enforcement officers without the involvement of school officials – even of students on school grounds – are still governed by the regular standards that apply to police searches.
If a student consents to the search, the school official need not meet the reasonable suspicion standard. However, the student’s consent must be voluntary, clear, and unequivocal, and it must generally come from the student, rather than from their parent. In evaluating whether the consent is voluntary, courts consider the totality of the circumstances, including the student’s age, intelligence, and education, whether the student was informed of the right to refuse consent, and the context in which the student is asked for consent. School district policy may impose other requirements regarding such consent.
School officials may confiscate a student’s cell phone if that student is violating the school rules regarding cell phone usage or possession. However, school officials who confiscate a student’s cell phone must be mindful of how long they retain that cell phone. Keeping a student’s cell phone for an unreasonable amount of time may give rise to theft claims. While there is not a standard timeframe for which it is reasonable to retain a student’s property, school officials must adhere to district policies and return the student’s cell phone within a reasonable amount of time. School district policy may impose other requirements regarding the seizure of student cell phones.
Furthermore, when a school official is investigating allegations of sexting (sharing sexually explicit images via text message or other technology), the Wisconsin Department of Justice recommends the school official immediately contact law enforcement for assistance. Sexting investigations pose additional threats to both students and school officials, as any student engaged in sexting may be convicted of a felony under Wisconsin law, as may any school official who shares or downloads sexually explicit images as part of an investigation.
Conclusion
School officials should review current district policies, student handbooks, and other written guidance, as well as district practice and procedure to ensure that the rules governing student cell phone use and possession in the school district are clear, understandable, and consistent. In addition, any changes to the rules should be communicated immediately to staff, students, and families. Finally, because of the complex legal issues involved, school officials should consult with legal counsel when seizing a student’s cell phone with or without consent and with or without the assistance of law enforcement.
The attorneys at Renning Lewis & Lacy, s.c., will continue to monitor the developments in the court system and at the Wisconsin Legislature impacting this important topic.
