Sexting in Schools: Handling Student Discipline in Light of Technology Changes

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1 Sexting in Schools: Handling Student Discipline in Light of Technology Changes Stephanie E. Jones Hodges, Loizzi, Eisenhammer, Rodick & Kohn, LLP Belleville, Illinois Sara Boucek General Counsel Illinois Association of School Administrators Springfield, Illinois April 8-10, 2010 Hyatt Regency McCormick Place, Chicago, Illinois Abstract: School districts face complex legal issues in dealing with student discipline in light of technology changes. Specifically, this paper addresses the problem of sexting and examines strategies and practical considerations that school administrators should consider.

2 SEXTING IN SCHOOLS: HANDLING STUDENT DISCIPLINE IN LIGHT OF TECHNOLOGY CHANGES INTRODUCTION Stephanie E. Jones Hodges, Loizzi, Eisenhammer, Rodick & Kohn, LLP Belleville, Illinois Sara Boucek General Counsel Illinois Association of School Administrators Springfield, Illinois The scenarios are becoming more and more common. A student takes a nude picture of him or herself and sends it via text message to a boyfriend or girlfriend. Inevitably, the couple breaks up and the student who received the picture forwards it to his or her friends. Soon, the picture is circulating around school. Students are talking, pointing fingers, and making fun of the student who took the picture. The disruption at school is palpable. The student whose picture is circulated is devastated. And administrators are faced with the conundrum of how to investigate a student discipline issue without violating any laws themselves. This is the dilemma we call sexting, or the act of sending sexually explicit photos, images, or messages electronically, primarily by cell phone and/or the Internet. The statistics are frightening. According to a survey done by The National Campaign to Prevent Teen and Unplanned Pregnancy and Cosmo Girl, 33% of young adults have sent nude or semi-nude pictures of themselves 1. The same survey reports that 39% of teens have sent sexually suggestive messages. The statistics also show that teens and young adults are sending these messages, even though they know that the messages may be forwarded to unintended recipients. Sexting is not the only student discipline issue that schools must deal with as the result of a technologically savvy student population. From social networking to cyber bullying, student use of technology causes problems at school. And cyber discipline issues are not isolated amongst teens and young adults. Schools are seeing student misuse of technology at younger and younger ages. School districts face a variety of complex legal issues in dealing with these disruptions. First, many state laws have not caught up to the technology and, thus, do not address the activity at hand. Second, students rarely misuse technology on school grounds, posing additional problems in dealing with the effects of their behavior in the school environment. Third, the investigation of sexting and other cyber discipline issues are a troublesome endeavor as at least one administrator in the Washington, D.C. area was The National Campaign to Prevent Teen and Unplanned Pregnancy, Sex and Tech: Results from a Survey of Teens and Young Adults, (last visited Apr. 20, 2010). Copyright 2010 National School Boards Association. All Rights Reserved. 1

3 prosecuted for possession of child pornography after investigating a student disciplinary incident of sexting and isolating the images on his computer. This article addresses these issues and examines the legal and practical issues in handling discipline as the result of student misuse of technology. DISCIPLINING FOR THE MISUSE OF TECHNOLOGY At a pep rally in the fall, a school district introduced all of the fall sports participants. During introductions for one of the girl s teams, a freshman was introduced and the football team gave her a standing ovation. The superintendent knew something had to be up and he knew he was treading in rough waters. He began interviewing football players and one of them volunteered his phone. On the phone, the superintendent saw sexually explicit pictures of the girl in question. Had the student not shown the superintendent his phone, he would have had to deal with various legal issues. Could he search student phones for pictures? Could he search student s and Internet use? What kind of investigation can occur absent concrete evidence of a violation of school rules or an actual disruption? Searches of Student Owned Technological Devices The question as to whether a school district has the authority to search a student owned device for evidence of a violation of school rules is a complicated one. The question may arise in sexting situations or in more routine disciplinary infractions, such as using a cell phone to cheat on a test or simply possessing a cell phone during the school day against school policy. In any instance, a school district s authority to search without violating the Fourth Amendment is going to depend upon the particular facts of the case. Fortunately, the question as to whether or not a search of a student or their belongings in schools violates the Fourth Amendment has been examined by the Supreme Court. In New Jersey v. TLO 2, the Supreme Court held that students in schools have legitimate expectations of privacy and, therefore, school officials must adhere to a reasonableness standard in searching students. In applying such standard, the Court determined that school officials must balance the students legitimate privacy interests against the school s interest in maintaining order and discipline in the schools. 3 To determine whether a search is reasonable, the Court applied a two part test. First, was the search justified at its inception. Second, was the search reasonably related in scope to the circumstances which justified the interference in the first place. 4 Ultimately, as related to the school setting, the Court set out the following standard to determine whether or not a search is reasonable. 469 U.S. 325, 341 (1985). Id. at 339. Id. at 340. Copyright 2010 National School Boards Association. All Rights Reserved. 2

4 Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. 5 In Klump v. Nazareth Area School District, 6 the Eastern District of Pennsylvania applied the standard in T.L.O. to the search of a student s cell phone. In this case, Christopher Klump, the student in question, was caught displaying his cell phone against school rules. Christopher s phone was confiscated by a teacher, who, along with an assistant principal, called several students in Christopher s contact list to see if they also were violating school rules. Later, the assistant principal and teacher accessed Christopher s text messages and voice mail. Finally, the assistant principal and teacher used an instant messenger program on Christopher s phone to converse with Christopher s brother without identifying themselves as anyone other than Christopher. Christopher asserted, among other things, that these actions violated his Fourth Amendment rights. The Court held that the seizure of the phone was reasonable because Christopher was violating school rules by displaying the phone. The search of the phone, however, violated Christopher s Fourth Amendment rights against unlawful searched. Because the school employees had no reason to suspect at the outset of the search that Christopher was violating any other school rules with the phone and instead used the search of Christopher s phone to determine if other students had violated school rules, the Court held that the search of the phone was unreasonable. In addition to the Fourth Amendment issues raised in Klump, the Court examined issues related to the federal Stored Communications Act 7 and its Pennsylvania counterpart. These laws prohibit the examination of communication stored in an electronic storage system. In Klump, the court determined that the text messages and contact list were not communications stored in an electronic storage system, but because Christopher s voic was likely stored by his service provider, the court refused to dismiss the claim. While Klump reviewed some of the issues related to stored communication, the Stored Communication Act and its state law counterparts create additional obstacles to searching student phones. The Stored Communications Act is a complex and confusing statute and its full application to the investigation of sexting by schools is unknown. To avoid the potential pitfalls, administrators can ask Id. at F. Supp. 2d 622 (E.D. Pa. 2006). 18 U.S.C Copyright 2010 National School Boards Association. All Rights Reserved. 3

5 student or parent permission before searching a phone. In the alternative, the Stored Communications Act allows the government to compel the release of these records with a subpoena or warrant. Christopher s case is not unique. In enforcing school rules, school administrators confiscate and search student belongings every day. In order to avoid potential issues, however, administrators must take special care in investigating instances of sexting to avoid a powder keg of potential liability. Isolating the Evidence In most case of student discipline, it is common for administrators to confiscate or isolate the evidence involved. However, when the evidence involved is stored on an electronic device and may or may not constitute child pornography, 8 confiscating and isolating the evidence becomes a much more complicated issue. The complications that can arise in these instances were highlighted when a Virginia assistant principal was charged with the possession of child pornography and the failure to report suspected child abuse after he stored a semi-nude picture of a student on his work computer. The assistant principal obtained the picture from another student during an investigation of sexting. The Virginia case garnered a lot of publicity. As a result, many administrators are hesitant of fully investigating sexting allegations for fear of similar consequences. There are steps that administrators can take to avoid the problems that occurred in Virginia. Administrators should develop a protocol for investigating sexting incidents ahead of time so that they understand clearly what to do when allegations arise. In developing a protocol for these investigations, administrators should consult with their school attorney, the local prosecutor, and the police so that they understand their legal rights and limitations. Regardless, the protocols must contain provisions that prohibit administrators from isolating potentially pornographic materials on their school or personal electronic devices. In addition, the protocols must require the immediate involvement of law enforcement in these issues. Discipline for Off-Campus Conduct It was the week of the high school wrestling tournament and the wrestlers were weighing in at school. A girl with a crush on one of the wrestlers gave a male friend her cell phone and sent him into the locker room to take pictures of the wrestler in his underwear during the weigh-in. Then the girl circulated the picture all over school. This kind of on-campus misuse of technology is clearly an issue subject to a school s discipline code. Unfortunately, such misuse of technology rarely happens in school. More often than not, the pictures were taken off school grounds and schools are left to deal only with the disruption. Student discipline for conduct that happens off school grounds is typically limited to incidents of misconduct that have a nexus to school or that create a substantial disruption in school. 9 Whether or not the disruption is going to be substantial enough to institute discipline must be decided on a case by case Whether or not these pictures constitute pornography varies by jurisdiction. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). Copyright 2010 National School Boards Association. All Rights Reserved. 4

6 basis. If the disruption in school is not sufficient, schools may retain the ability to discipline under an extracurricular code of conduct. PRACTICAL CONSIDERATIONS Adopt Board Policies Boards of Education can aid in addressing sexting by adopting board policies or amending their current discipline policies to include a definition of sexting. The definition of sexting should delineate between the actions of the person taking the pictures and the actions of the student(s) forwarding the picture and causing the disruption at school. Further, student handbooks should include definitions of sexting and make clear to students that schools will impose discipline for sexting when the act takes place off school grounds, but causes a disruption at school. Schools also should review their acceptable use policies to ensure other misuses of technology are addressed at school. Institute Procedures for Investigating Sexting Because of the nature of the photographs and material shared through sexting, school districts must be very careful when conducting investigations of student conduct related to such actions. Schools must preserve evidence, but also must be careful of the manner in which they save photographs or images that may be considered pornographic. To avoid problems when an incident arises, schools should have procedures in place for investigating these incidents. To develop these procedures, schools should meet with their school attorneys, local law enforcement and prosecutors to determine best practices and procedures for investigating these incidents and preserving evidence in sexting cases. These procedures should direct administrators how to isolate electronic content without saving the content on school or personal electronic devices. Educate students, Staff and Parents Schools must inform students, parents and staff of the perils of the misuse of technology and the potential consequences for such conduct in the school environment. School districts may consider adding information to sex education curriculum about the negative consequences of sexting. Further, parents should be aware of the perils of sexting and the potential implications when their children s actions impact the school environment. Finally, staff should be instructed on procedures for investigating incidents of sexting and dealing with the fallout from an incident, including the social consequences the students involved might suffer. Consider the Social and Emotional State of Students When evaluating student disciplinary issues that result from the misuse of technology, the victims are often overlooked. The students who forward nude pictures of themselves to one another expecting the pictures to remain private often suffer from social stigma, bullying, harassment, and severe embarrassment. When investigating sexting or other misuses of technology where a student is a victim, Copyright 2010 National School Boards Association. All Rights Reserved. 5

7 schools should consider involving a social worker or guidance counselor in the process to assist the victim with the fall out from the incident. CONCLUSION Sexting, social networking and other technology issues are leading us into unchartered legal territory. Until state and federal law catches up with all of the technology issues posed, schools should be proactive in developing protocol for disciplining students so that they may avoid the pitfalls. Stephanie E. Jones is an attorney in the Belleville, Illinois office of Hodges, Loizzi, Eisenhammer, Rodick and Kohn where she concentrates her practice in the areas of school law, including labor relations, litigation and student issues. She received her law degree from St. Louis University School of Law. Sara Groom Boucek is the Associate Director/Legal Counsel with the Illinois Association of School Administrators, Springfield, Illinois. Previously, Ms. Boucek was with the law firm of Hodges, Loizzi, Eisenhammer, Rodick & Kohn where she concentrated her practice in all areas of school law. She received her law degree from Chicago-Kent College of Law. Copyright 2010 National School Boards Association. All Rights Reserved. 6