Five years ago, the American Civil Liberties Union filed suit against Mississippi’s Desoto County School District, alleging that officials violated a middle school student’s constitutional rights by expelling him based on an illegal search of his cellphone.
My predecessors at Digital Education had the story back in 2009:
The ACLU claims Richard Wade's constitutional rights were violated during the 2008 incident at Southaven Middle School, when he was 12. Richard violated school policy when he took out his phone during gym class to read a text message from his father. After school officials took the phone they searched its photo files, according to the lawsuit. School leaders concluded that some photos Richard had of himself stored on the phone showed "gang-related activity." The student said they were simply photos he took of himself dancing in his bathroom. The 7th grade honors student was expelled for a year.
The suit was eventually settled out of court, but the issue hasn’t gone away, said Courtney Bowie, a senior staff attorney with the Racial Justice Program of the New York City-based civil-liberties advocacy group.
“At the time, the case law wasn’t quite as clear as it is today as to whether it is permissible for a school district to search the entire contents of a student’s cell phone,” Bowie said an in an interview. “In 2010, smartphones that could basically hold all the power and information of a computer were still a new thing, and [this issue] hadn’t really been fleshed out in the courts yet.”
Bradley Shear, a social-media and privacy lawyer based in Bethesda, Md., pointed to a number of similar suits related to the use of digital tools and social media have occurred in the years since.
In 2010, for example, the ACLU of Pennsylvania won a $33,000 settlement from the Tunkhannock Area School District, where a teacher seized a female student’s cellphone (legally) and began viewing pictures that were stored on it (illegally, according to the ACLU), including nude photos the girl had taken to share with her boyfriend.
And just last spring, the ACLU won a $70,000 settlement from Minnesota’s Minnewaska Area Schools, where school officials forced a student to provide them with access to her Facebook account.
The standard for when such searches are acceptable is becoming more clear, said Shear, who pointed to this summer’s unanimous Supreme Court decision that police may not search the cellphones of arrestees without a warrant. But it can still be difficult to know what is OK, when, for what categories of students, he said.
And the real challenge facing schools, Shear argued, is social media.
“It’s becoming more complex,” he said, “especially when you get into trying to figure out the standard for schools being able to access student accounts” on sites and apps such as Facebook, Twitter, Instagram, and Snapchat.
“I don’t think we’ve figured out as society how to go about handling these issues, and it’s going to be a bigger problem down the road,” Shear said.
A version of this news article first appeared in the Digital Education blog.