Students’ rights debated at United
By MATTHEW SCHOMERHANOVERTON — An administrator reading students’ text messages at United High School has riled some students and made one young woman accuse the school district of violating her constitutional rights.
Lindsay Buckley, 18, a senior at the school, has accused the school’s vice principal, Frank Baker, of seizing her cell phone as well as the cell phones of her younger sister and some of her friends and classmates, then reading through the text messages stored on those phones.
School rules prohibit having cell phones turned on during the school day, Superintendent Tom Davis noted, and if school officials catch students violating those rules, school rules dictate that officials are supposed to confiscate the cell phones until students’ parents can claim the phones.
“Each year, there’s some students that violate school policy,” Davis said, but it’s not a major problem. Many of the students whose phones are seized are either caught sending text messages during the school day or have their phones ring while they are in class.
Buckley said she agrees with the school’s written policy.
“If you’re using your phone in school, it should get taken,” she concurred.
But she claimed Baker has taken cell phones that are turned off or digitally locked, forcing students to turn on or unlock the phones so that he can read the text messages contained therein. When she tried to complain about having the phone seized, she said school officials told her she does not have the same rights on the school grounds that she has outside the school.
“When they told me I didn’t have my rights, I thought they were right,” she admitted.
Then she and her parents began researching student rights to privacy, and she came across two important legal matters she feels are applicable.
The first, which mirrors the situation at United in some ways, is the American Civil Liberties Union of Colorado’s objection to a high school assistant principal at Monarch High School in Louisville, Colo., seizing students’ cell phones, reading the text messages, transcribing them into reports to be placed into students’ permanent records and, in one case, attempting to pose as a student and send a text message from one student’s seized cell phone to another student’s cell phone, which the organization claims occurred in spring 2007.
According to a letter to the Boulder Valley School District Board of Education from the ACLU of Colorado, the Monarch High School’s assistant principal, dealing with a student accused of smoking and being in a restricted parking lot, required the boy to empty his backpack and pockets. When the assistant principal found no cigarettes there, he demanded the boy hand over his cell phone, saying he did not want the boy sending text messages while being detained in the office.
The letter states the assistant principal left the room with the phone, returned and told the student he had searched the phone for text messages, found some that were incriminating and transcribed them into the student’s permanent record. The assistant principal then called in other students who had received text messages sent from the first student’s phone and the assistant principal took similar actions with those students’ phones and permanent records.
The ACLU of Colorado has threatened legal action if the school’s administration does not cease those actions, stating that the actions violate students’ Fourth Amendment rights.
The Fourth Amendment states, in its entirety, “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 that case, the ACLU of Colorado cited a 1985 Supreme Court ruling that school officials may search a student without a warrant or probable cause to believe the student has broken the law, but any such search must be “justified at its inception where 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,” under ordinary circumstances.
While separate from the ACLU of Colorado, ACLU of Ohio Executive Director Christine Link said she also believes that school administrators reading text messages on cell phones seized from students violates the Fourth Amendment.
“They don’t have carte blanche; they don’t have the blanket freedom to look through your journal, your backpack and certainly your cell phone,” she remarked, adding, “That’s closer to a wire tap.”
In addition to Fourth Amendment rights, opposition to Monarch High School administration’s actions has included claims that the actions are felonies under Colorado state statues. In that vein, a case against administrators reading text messages might be easier to win in Colorado than Ohio.
Link noted that Ohio’s laws are broad and general concerning cell phone privacy and that courts across the state have been lax when it comes to protecting residents’ privacy rights.
“Ohio is not a great state for privacy,” she remarked. “In fact, it’s a horrible state for privacy laws.”
The other legal case Buckley cited was the 1969 U.S. Supreme Court decision in the case of Tinker v. Des Moines Independent Community School District, which has never been overturned and is often cited by judges when determining students’ rights to free speech. That case dealt with a school board of an Iowa school district suspending students for wearing black armbands to school in protest of the Vietnam War.
While that case deals more with First Amendment rights than Fourth Amendment rights, the court ruled that students have a constitutional right to express themselves in school as long as that expression does not disrupt the education of students.
The majority opinion of the court in that decision stated, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and Buckley said she believes students’ other constitutional rights should be protected in school as well.
Buckley’s parents have spoken with Davis, who she said calmly told them he would be looking into the laws concerning students’ rights to keep text messages private. They had previously spoken with Baker as well as high school Principal Bill Young about the situation, and in both cases, she claimed the administrators aggressively held that once a student steps on school grounds, he or she does not have the same rights as he or she possesses outside school property.
Davis said he was unable to speak about individual student matters because of their confidentiality rights, nor could he confirm whether administrators were checking only recently sent text messages or if they were going through every message stored in phones’ histories. He said he has never personally checked a student’s text messages and did not clear Baker to speak publicly on the issue because of the sensitive topic matter.
But he said if a United student is caught sending or receiving a text message, a principal may check to see what is in the message to make sure students aren’t violating other rules.
“When students use their cell phones during the school day, sometimes they’re used to cheat,” he pointed out. For example, a student who has a test in a morning class may send the questions or answers on the test to another student who has the same test scheduled later in the day.
Students also may use text messages to harass or bully other students, which are issues against which he wants to protect students, and he said if a message mentions weapons or drugs, the school administration would take it very seriously.
However, he said administrators have caught only a few students violating the cell phone policy, and he does not see it as a major problem.
“We’ve got much more busier things to be doing than to be chasing after students that have their cell phones out in school,” he remarked.
School officials regularly attend informational seminars that address student issues, he said, and he plans to send Young to a mid-May “Technology and the Law” workshop sponsored by the Ohio School Board Association, which will offer updates on the topics of cell phones, free speech, cyber bullying and off-campus conduct.
“Things dealing with cell phones and the law is a gray area, and it gets clarified every year,” he noted.
Link, who said she has been hearing several similar complaints from students across Ohio and called text message privacy “the flavor of the month in schools,” doesn’t think there is gray area concerning constitutional rights.
“Schools can argue that this is our computer or this is our locker,” she noted, but school officials should not unjustifiably search students’ personal property.
She said the incident in Colorado is probably the most well-known case about the topic, and she will be watching it with interest to see how it turns out.
mschomer@mojonews.com.
