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

Nusrat Choudhury,
Former Legal Director, ACLU of Illinois
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September 2, 2009

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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