More and more schools are being challenged to deal with “sexting” by their students. “Sexting” is the sending of sexually suggestive photos and messages by a cell phone. Some schools have depended on the legal system to manage these issues.
In the fall of 2008, the Tunkhannock Area School District in Pennsylvania discovered the (nude and seminude) images of 8 female students on the phones of several male students who were exchanging the images. School officials confiscated the phones, and turned them over to the district attorney to investigate.
The district attorney wrote to parents of at least 16 students–those who owned the confiscated phones and those who appeared in the photos, and threatened to prosecute the students on child pornography charges. If the students enrolled in an education program covering sexual harassment, sexual violence and related issues, he said, they would not be charged.
The parents of three girls refused to enroll their daughters. The parents of one girl, who was photographed speaking on a phone in a white bra, said she was simply being a “goof ball.” Another girl was seen in a towel, looking like she had gotten out of the shower.
The parents sought a temporary restraining order to block the district attorney from bringing criminal charges against their daughters, and the court granted the order. The cases against two of the girls were dropped, and the US Court of Appeals for the Third Circuit, Philadelphia, has upheld the lower court. The third student’s constitutional claims are anticipated to succeeed.
The girls’ parents asserted their constitutional right to parental autonomy and their child’s First Amendment right against compelled speech (since the students in the antitexting program were required to write about how their actions were wrong). The appeals court ruled that the prosecutor’s threat to bring charges would be retaliation for the exercise of constitutional rights.
It is important that schools work to maintain an appropriate learning environment, but we need to help school officials identify ways to work with the youth that attend their schools, without resorting so quickly to criminalizing misbehavior.