Protection or Privacy? Troy Schools Draw a Line on Sexting

Sexting, the sending and receiving of sexually explicit pictures or texts, has become something of a rallying point for parents, educators, and others who feel responsible for children’s safety.  To that end, the Troy School District has adopted a new policy for the upcoming school year to fight against the phenomenon.  But did Troy go to far in the balance of protection over privacy?

The new policy

[P]uts students on notice that their cellphones, laptops and other electronic devices may be searched starting in September if there’s “reasonable suspicion” of sexting, and local authorities may be contacted.

This means that students at Troy schools will no longer be able to refuse a search of their cell phones or other electronic devices.  More importantly, anything that is found in that search can be handed over to local police and prosecutors.
This is especially important in sexting cases.  Because sexting involves the transmission of sexually explicit material it is considered pornography.  If the person pictured is under 18 years old, then the student who created or sent it could be charged under child pornography laws with a maximum penalty of up to 20 years in prison.  Even the recipient can be charged with possession of sexually explicit material, a 4 year penalty. A conviction would also result in the student being placed on the state Sex Offender Registry.
There is no argument that the sexual exploitation of children is a serious crime deserving of serious penalties.  The statutes were designed that way to protect children.  But when applied to children, as the Troy policy proposes to do, they turn that protection on its head.
This is especially true because, unlike a person who is investigated for sexting by the police, these students will have been denied their 4th Amendment right to be free from unlawful searches and seizures.  While the United States Supreme Court has held that a student’s rights in school are not the same as a person’s rights in a public place, it has also held that students do not leave their rights at the schoolhouse gates.  Under Troy’s policy, even an anonymous tip could provide the necessary grounds to go through the student’s phone and begin what would amount to a full criminal investigation.
The Troy policy pushes the bounds of school discipline for another reason as well.  Traditionally, schools have been permitted to punish students only for behavior that occurred on school time.  While more recent cases have expanded that to include incidents where out-of-school activity caused an in-school disruption, other courts have said that such discipline oversteps the line.  Troy’s policy does not limit its investigations to sexting occurring in school.  Administrators could discipline students for images or texts sent anytime, anywhere.
With as broad as Troy’s policy is, as little protection as it gives to students’ 4th Amendment rights, and the ability it grants administrators to overreach their bounds, it is unlikely that the policy will stand up to judicial scrutiny.  While some steps should certainly be taken to educate children about the risks involved in sexting, this policy is simply not the answer.
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