ACLU asks Colorado’s Boulder Valley School District to end cell phone searches
The American Civil Liberties Union (ACLU) has sent a letter to Colorado’s Boulder Valley School District asking it to stop administrators from conducting cell phone searches. The ACLU says school officials at Monarch High School engaged in a "runaway investigation." "They told parents that their children have no rights of privacy at school and that they can search any cell phones and read any text messages they want," said ACLU legal director Mark Silverstein. "The administrators are wrong about the law and they are wrong about student rights." The district, however, issued a statement saying it supports the actions taken during an "investigation of possible student misconduct." School officials consulted the district's legal counsel before seizing the cell phones and transcribing the text messages and were told the actions were legal, said school district spokesman Briggs Gamblin. The district "takes very seriously the civil liberties of each of its more than 28,000 students and weighs those rights carefully against its responsibility to guarantee the safety of all students," the statement said. The district said it is willing to review the incident with the ACLU, but declined to comment further.
The ACLU’s letter gives this version of events, which Mr. Silverstein said is based on interviews with students and parents: After a student accused of smoking was taken to the principal's office, Assistant Principal Drew Adams had him empty his pockets and backpack, looking for cigarettes. No cigarettes were found. "At that point, the search should have ended," ACLU staff attorney Taylor Pendergrass said. But Mr. Adams demanded that the student turn over his cell phone, took it, and left the office. When he returned, he said he had found some "incriminating" text messages that mentioned marijuana. By the time the student's mother arrived, the assistant principal had made transcripts of the messages. Mr. Adams refused initially to return the cell phone. When it was returned several days later, it contained a draft of a text message in which someone had posed as a student while attempting to engage another student in conversation. "Monarch High School authorities followed up with a cascade of additional interrogations accompanied by seizures and searches of additional students' cell phones," Mr. Pendergrass said.
The ACLU cites a Colorado statute that makes it a felony to read, copy, or record a telephone or electronic communication without the consent of the sender or receiver. The practice also violates state and federal constitutional protection against unreasonable searches and seizures, the ACLU said. "Administrators think they are doing something they have a right to do," Mr. Silverstein said. "How widespread it is, we don't know. It's not like school administrators don't have leeway. They can do searches the police couldn't do without probable cause." If a student is accused of smoking, for example, they have a right to see what's in the student's pockets or backpack, he said. "But once they found nothing in the pockets or backpack, the administrators should have stopped."
Rocky Mountain News By Sue Lindsay
[Editor’s Note: The ACLU’s letter to the Boulder Valley Board of Education and the district’s statement can be accessed at the first two links below. For more about cell phone searches in other school districts, see the excerpt of a recent Denver Post story at the third link. The fourth link is to a U.S. district court ruling on a motion to dismiss a lawsuit against a Pennsylvania school district in which it was alleged that school officials confiscated a student’s cell phone, searched the call record to determine whether other students also had violated rules against using cell phones during school hours, and sent instant messages to the student’s brother posing as the student. Claims were asserted not only under the U.S. and state constitutions as to search and seizure but also under a Pennsylvania wire tapping law. A legal analysis of this question by COSA board member A. Dean Pickett, with a sample policy, is available for download from the COSA eDocs Store at the final link.]
ACLU press release
Boulder Valley School District statement
NSBA School Law pages on searches of student cell phones
Klump v. Nazareth Area Sch. Dist., 425 F.Supp.2d 622 (E.D. Pa. 2006)
Searching Portable Electronic Devices By A. Dean Pickett