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.

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Smith

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.

Tim P

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?

Sensibility

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?

Lois

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 !!

Geoff

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.

John

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?

I have two ears...

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.

GregLandingham

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.

King

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.

CRAIG

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

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