Sexting Student Sues School

The ACLU filed a federal lawsuit today against Pennsylvania school district for searching a student’s confiscated cell phone without probable cause and punishing her for storing semi-nude pictures of herself on the device. The school subsequently turned her phone over to George Skumanick Jr., at the time the Wyoming County district attorney, who threatened to file felony child pornography charges against the girl unless she took a class on sexual violence.

The Third Circuit recently threw out the prosecutor’s case.

“Students do not lose their privacy rights at the schoolhouse door,” said Witold Walczak, the ACLU of Pennsylvania’s Legal Director and one the student’s lawyers. “School administrators have no more right to look through personal photographs stored on a student’s cell phone then they have the right to rummage through her purse, read her diary and mail, or view her family photo album.”

In January 2009, a teacher confiscated the cell phone of N.N., a 17-year-old senior, for using a cell phone on school grounds in violation of school policy. Later that morning, Principal Gregory Ellsworth informed N.N. that he had found “explicit” photos stored on her cell phone, which he turned over to law enforcement. He then gave her a three day out-of-school suspension, which she served. According to the student handbook, the first offense for misuse of a cell phone is a ninety-minute Saturday detention and the confiscation of the phone for the rest of the day.

The photographs, which were not visible on the screen and required multiple steps to locate, were taken on the device’s built-in camera and were never circulated to other students. N.N. appeared fully covered in most of the photographs, although several showed her naked breasts and one indistinct image showed her standing upright while fully naked. The photographs were intended to be seen only by N.N.’s long-time boyfriend and herself.

“I was absolutely horrified and humiliated to learn that school officials, men in DA’s office and police had seen naked pictures of me,” said N.N., who graduated in 2009. “Those pictures were extremely private and not meant for anyone else’s eyes. What they did is the equivalent of spying on me through my bedroom window.”

A few days later, N.N. and her mother received a letter from then-District Attorney George Skumanick threatening felony child pornography charges if she did not complete a five-week re-education course on violence and victimization offered by the DA’s office and the Victim’s Resource Center. According to the suit, N.N. reluctantly agreed to take the course rather than face prosecution.

“Ironically N.N. was forced to take a class about victimization by the very people who were victimizing her,” said Jacob C. Cohn of Cozen O’Connor, one of N.N.’s lawyers.

The lawsuit, filed in the U.S. District Court for the Middle District of Pennsylvania, charges that the search of the cell phone and the punishment for the content of the photographs violated N.N.’s rights under the First and Fourth Amendments to the U.S. Constitution and the Pennsylvania constitution. It seeks to have all electronic and hard copies of the photographs destroyed.

4 Replies to "Sexting Student Sues School"

  • Stephen Osborn
    May 21, 2010 (8:33 pm)

    I am interested in opinion from you, if you can.

    The dilemma is that we need to have rules that protect children, sometimes even from their own indiscretion…yet I feel for N.N. and her sense of violation at the authorities leering at her.

    However…if she hadn’t put the photos there…

    What do you say, Dr Marsh?

  • astroloji
    June 11, 2010 (3:09 am)

    However…if she hadn’t put the photos there…

  • James R. Marsh
    June 22, 2010 (8:25 pm)

    I predict that this case won’t be about child pornography at all. It will be about student privacy which is a much easier issue for the court. Of interest is a recent Supreme Court decision on a very similar issue which was recently decided in favor of the government. Do schools have a similar right to invade student privacy by inspecting their cell phones in search of contraband child pornography? This is one case to watch.

  • Sean P. Rice
    November 10, 2010 (1:17 pm)

    My first instinct was to say “fruit of the poison tree” but the fact is that the actions were taken by a municipality (the school) and not the police or the courts. That said, the courts HAVE said that the privacy rights of children in a school are more limited than an adult in the streets.

    The “sexting” and child porn laws are a mess and contrived to pit the biological instincts of KIDS against puritanical and arbitrary age rules against, in turn, predatory adults, schools that have to protect kids and/or their rights, etc.

    Common sense says a 15 year old girl sexting a photo of nudity to a bf is NOT child porn. The LAW says it it, but the law didn’t anticipate the actions of a sexual child because it could not recognize that children ARE sexual; that they DO sexual things.

    We WRITE laws saying that anyone under 18 is not able to give consent, and then are surprised when 14 year olds do just that. Since the “law” was constructed to protect the child, we assume that the law does just that.

    Of the case at hand, good for the girl to file suit: It was an overreach of the school to confiscate the cell and it was an invasion of privacy to pass it on. The DA should have declined to look: It was AGAINST THE LAW to look.