Sep 2nd, 2009
Posted by Nusrat Choudhury, Racial Justice Program at 1:08pm	Defending Targets of Discrimination, Racial Justice

ACLU Lawsuit Challenges Expulsion of Middle School Student After Illegal Cell Phone Search

On August 15, 2008, Richard Wade, a 12-year-old honor student at Southaven Middle School, made the simple mistake of taking his cell phone with him to school. He had no idea that on that day, school officials would seize his phone, search its contents and conclude without substantiation that the private photos he had saved on the cell phone — most of which simply showed him dancing at home — were "gang-related messages." Nor did Richard foresee that the DeSoto County Board of Education would expel him from school for carrying these photos on his cell phone.

Yesterday, the ACLU and the ACLU of Mississippi filed a federal civil rights lawsuit on Richard's behalf to vindicate his federal and state constitutional rights to free speech, freedom from unreasonable searches, and due process — all of which were violated by the school officials and police officer who illegally searched his cell phone and the county school board that expelled him as a result of his photographs.

When Richard opened his cell phone during football class to read a message from his father, he thought the message might indicate an emergency. Southaven Middle School policy permits officials to confiscate a student's cell phone and to hold it for up to five days or have a parent pay a $25 fine to retrieve the phone. Instead of following this policy, several school officials opened Richard's cell phone and searched through its contents.

Like many kids and adults, Richard stored photos of himself on his cell phone for his own viewing. And, like other kids, some of the photos Richard had on his cell phone were of himself dancing at home — pictures that he had no intention of showing to others at school.

School officials nevertheless decided to open Richard's cell phone and view his private photographs. They then turned his phone over to Sergeant Nicholas Kennedy of the Southaven Police Department, who claimed that the pictures constituted "gang-related activity" and "indecent pictures," without providing anything to back up his conclusion. After a series of disciplinary hearings, the DeSoto County Board of Education subsequently expelled Richard for violating a school rule that prohibits students from displaying "messages associated with any gang."

What about Richard's cell phone photos indicated "gang"-related activity? The fact that they showed him, a young African-American boy, doing a hip-hop dance in the privacy of his own home? Without any substantiation by Sergeant Kennedy for his conclusion, Richard, his mother, and we are left to wonder.

We are also left to conclude that the decision to subject Richard to such severe discipline merely for possessing photos on his cell phone of himself dancing is symptomatic of the school-to-prison-pipeline, a disturbing national trend wherein children —  disproportionately children of color — are over-aggressively punished, needlessly criminalized, and pushed out of public schools and into the juvenile and criminal justice systems. The expulsion and criminalization of school children for minor infractions tarnishes their school records and often makes it more difficult for them to remain motivated and to succeed in school. It also dramatically increases the odds that they will be involved with the criminal justice system later on in life. Luckily for Richard, he was never charged with a crime. But increasing numbers of other kids are not as fortunate.

The Supreme Court reaffirmed in its 2007 decision in Morse v. Frederick that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Nor do students shed their rights to be free from unreasonable searches or due process when they set foot in school.

Sergeant Kennedy and school officials did nothing to curb gang activity at Southaven Middle School when they illegally searched Richard's cell phone without reasonable suspicion of any wrongdoing. Nor did the DeSoto County Board of Education address any kind of gang problem when it decided to expel Richard — an honor student with no past or present association with any gang — simply for having photos on his cell phone of himself dancing in the privacy of his own home. What they did do, however, was trample Richard's constitutional rights and make it harder for him to get the education that he sought and to which he is constitutionally entitled. They should be held accountable for doing so.

Permalink |	Defending Targets of Discrimination, Racial Justice

1. Smith Says:
   Sep 3rd, 2009 at 5:16pm

   Why did the student disobey the school policy of no phones on during class? That would be 100% of all schools. Student Guilty count 1. It had nothing to do with color it has to do with respect for your education. Oh who cares, next this student will be doing something else against school policy and yeah you'll cry foul. If you win then I will tell my children that your teacher can go to the dickens that talking on cell phones during class is the right thing to do. Do you have any other good advice for me. Like miss every other day that would be a good one.

2. Tim P Says:
   Sep 4th, 2009 at 1:54pm

   It is important that we all understand that rights are rights and that if you are a goverment offical of anytype you can not just violate someones rights. Were was the probabable cause that let these goverment officals open his phone in the first place?

3. Sensibility Says:
   Sep 4th, 2009 at 4:21pm

   The student's violation of a school regulation does not mean that the school can violate his civil rights. Checking a text message from your parent does not give a school license to do whatever they please. Due process is a law. No cell phones in class is a rule. Guess which takes precedence?

4. Lois Says:
   Sep 4th, 2009 at 7:29pm

   The student should of followed school policy!!! What a responsible way to show respect for policy and procuders,by trying to get them out of an act of irresponsibilty!! How proud the parents must be teaching their children, if you do wrong we can get you out of it.THIS REALLY ISN'T RIGHT !!

5. Geoff Says:
   Sep 4th, 2009 at 8:57pm

   The Problem is that they searched through the phone with no reason too. The Phone is his property, not the Schools. This is happening at more and more schools, including mine. My parents sometimes text me during school with a question, sometimes they want it right then and there. The schools say that a parent can just call the school and they will relay the message but does that sound good to anyone when there kid has a cell phone right on them, wasting the school officials time. Texts I don't see as a problem as long as they are not during a test or all the time or disturbing anyone in anyway.

6. John Says:
   Sep 4th, 2009 at 9:22pm

   The ACLU is not against confiscating phones when they become disruptive in class, they're against unreasonable searches, a blatant violation of rights under the fourth amendment. It's also quite close-minded to assume that it wasn't a racial issue, as accusing a black teenager of gang activity based on a few pictures taken inside his own home is ridiculous. Based on the description given above, he was only dancing, and he probably gave a "gang sign" which probably means nothing. If a white child did the same, it probably would have been assumed that he was being silly. Also, having your cell phone on during school does not mean you lack respect for your education. Virtually every student, even honors students such as Richard Wade, these days has a cell phone and leaves it on during school. If a phone is left on silent or vibrate, it's undetectable and only disruptive when used during instruction. Hell, he wasn't even texting his friends... he was reading a text message from his father! What if it was an emergency?

7. I have two ears and one mouth and I use them in that order Says:
   Sep 6th, 2009 at 2:41am

   In regards to Smith comments, wow, you cannot be serious. Some people cannot look at the big picture. It is not about using his phone during class, the fact of the matter is that they illegally search his phone and then made broad assumptions that his private photos were gang related activity. Hello did you not read the whole thing. It is amazing how much ignorance really does exist in this world.

8. GregLandingham Says:
   Sep 6th, 2009 at 10:22am

   First of all, almost ALL high and middle-school students have and use cell phones at school. Obviously, possession of one is no reason to suspect gang activity. Secondly, the suit does not take issue with the school policy of confiscating cell phones and holding them for five days, etc; what is at issue here is the unreasonable search of the phone's contents and the ridiculous overreaction of the school board. What "Smith" fails to understand is that even when students violate school policy, they do not give up ALL of their rights.

9. King Says:
   Sep 6th, 2009 at 10:33pm

   Alright, Smith...

   Next time you simply run a stop sign or something similar we'll let the cop arrest you and dump you in jail without ever having a trial.

   Point being: By breaking a rule or law, you don't automatically shed all of your rights. In fact, there are certain laws created to specifically PROTECT those who do in addition to those rights you already have.

10. CRAIG Says:
    Sep 8th, 2009 at 7:50pm

    I DO NOT GIVE A DAM ABOUT WHAT THE SPOILED KID AND PARENTS EXCUSE FOR HAVING A PHONE IN CLASS IS. IF IT DISRUPTS MY KIDS EDUCATION THAN IT SHOULD NOT BE ALLOWED. I BET AND I COULD BE OFF BASE HERE BUT WE ALL LIVED THROUGH OUR CLASSES WITHOUT CELL PHONES. WOW AMAZING

11. CRAIG Says:
    Sep 8th, 2009 at 8:00pm

    You know what I think about these spoiled brats and parents and their cell phones at school. Let them all go to class rooms that have others that want to talk on the phone during class and hell let them bring their computers, playstations and TVs and then they can study if they have time. Then the other kids who know better than to bring cell phones to class can be taught the way we were raised and learn something.

12. Philip Clock Says:
    Sep 9th, 2009 at 5:12pm

    Reminds me one time at the beach my frisbee got caught in a gust of wind, hit a women's leg, she turned to me and said, "Do that again and I'll sue."

    With ACLU backing her I would lose a gender discrimination suit, and the frisbee manufacturer would be forced to pay millions.

    Thanks ACLU for turning relationships into a lawsuit lottery.

13. Robert Man Says:
    Sep 11th, 2009 at 2:04pm

    I do agree With the fact that confinscating the phone was correct but they should not have gone through his phone that's his own privacy

14. hu Says:
    Sep 14th, 2009 at 9:47pm

    Frozen winter is coming,do you like to buy ugg to preventing cold and keeping warm.As a pursuer for the most stylish ,is there any ugg boots you have in mind?I think you have no excuse anymore if you don't have a pair of UGG Bailey Button Boots.The Bailey Button UGG can be worn as a UGG classic short Boots or UGG classic mini Boots . Hottest pop style.If you like the UGG tall boots,www.realugg.com can provide high quality of Ugg Tall Boots in low price,Are you straitened for Ugg Boots Insoles,don't worry ,we have the best Ugg Boots Insoles on sale ,many of which are hand made by craftspeople.RealUGG,Inc came up with some new-styles- Ugg Lo Pro Button , Ugg Women's Rainier, We offer a wide range of UGG Boots in different color and styles. Browse the website, we are sure you will find Real UGG to tempt you!

15. Thinking.. Says:
    Oct 9th, 2009 at 2:09am

    For the people on here that don't see the real reason this lady is standing up for her son. I applaud her because this is NOT just an isolated event. This has been going on for as long as the word "gang-activity". If you can't understand then you haven't been a victim of racial profiling because of your color. The school board feels like they make any rules as they go along and nobody needs to question it because they are the school board. Well I am sorry for the people that really don't understand because you NEVER will. We are not saying that it is ok for a student to use the cell phone. The student was wrong for violating that rule. The problem is simply this: The school board relied on the information from police department that
    the officer was "CERTIFIED" in identifying "gang activity". Look at pictures of "gang activity, language or hand gestures doe not make you "CERTIFIED". You must go with another officer in a "Well-known" "gang-infested" location and personally get training from the officer and past gang members. I have no clue what "gang-activity is and just by seeing something on paper does not make me "CERTIFIED" in it. If a teacher wants to teach...she must get officially "CERTIFIED" by the state. People every has an opinion...but please see all the facts. Rights were violated....and if you can't see that then you are ignoring the prejudice status of Southaven and the DeSoto County School Board that has been going on for years. The truth must be told!

16. Safety Says:
    Oct 23rd, 2009 at 1:37pm

    Bottom Line.... Safety comes first! You act first ask questions later when it comes to safety. Obviously, the school official felt the safety of the students was more important than that student's privacy. The same is true if you feel that a student has a weapon, bomb, etc. You have to make snap judgements sometimes. Obviously, that official made the right choice because he found gang activity on that kid's phone. Guess what... If a student passes a note in class, the teacher reads it. If it has gang signs in it, cuss words, threats, etc., what do you think is going to happen. When you choose to break the rules, you choose to lose your rights with regards to that item! Safety first! Our kids are too precious to worry about privacy rights.

17. Safety (P.S.) Says:
    Oct 23rd, 2009 at 1:39pm

    Guess who filed the suit? Guess who wrote the article you are reading? Don't you think the article is a little one-sided?

18. Anonymous Says:
    Nov 10th, 2009 at 6:10pm

    Does skin color affect a student’s education? When I first read this article I at first leaned towards Richard’s side. Then after reading more I could see where the school was coming from. The school was, or seemed like; they were trying to keep other students safe from gang related activities. But the procedure they used was wrong. They intruded into his privacy by looking into his phone and assuming that pictures in his phone were related to some kind of gang activity. It wasn’t only the school that was wrong but also Richard. He shouldn’t have had his phone with him in the first place. Again the school was right to take his phone but not to search. They had no cause to search except, it sounds like, Richard’s skin color. All in all, Both sides were wrong on some points and right on others.