Focus: School Law

Dealing With the Nightmare of ‘Sexting’


Imagine this day. Your administrative assistant is ill; the phone will not stop ringing; your computer printer will not work; the e-mail is never-ending; and a collective bargaining session is scheduled after tonight’s emergency school board meeting.

Then, your middle school principal knocks, with a male student in tow, and exclaims, “We have a problem.”

Sara BoucekSara G. Boucek

The male student, a young teen, hands you a cell phone, and you are shocked when you look down to see a photo of a nude female student. The principal informs you that the photo was forwarded to an undetermined number of students’ cell phones in the last hour. To make matters worse, you discover the same photo has been sent by a student over the school’s server to everyone. Preparing for the bargaining session and board meeting will have to wait. Investigating “sexting,” and what could be considered child pornography, becomes your first priority.

Haunting Scenario
This type of scenario — unimaginable just a few years ago — now haunts school administrators. The phenomenon of sexting, or forwarding nude or seminude photographs of other students in schools via cell phone or other electronic media, is occurring with regularity.

Administrators and boards of education struggle with disciplining students for such actions when policies and procedures have not kept pace with the rapid changes in technology. Administrators face additional challenges in investigating these incidents in compliance with state laws while avoiding personal criminal liability for actions such as failing to report the incident under a state mandatory reporting law or receiving and possessing the photograph, potentially in violation of child pornography laws.

To ensure compliance and avoid legal pitfalls, school district administrators ought to be pro-active by reviewing and revising current policies and procedures before these incidents occur, developing and creating new policies in concert with technology specialists and law enforcement agencies, and communicating such policies to administrators, staff, students and the community.

In reviewing and revising current policy, administrators first must identify applicable policies, such as technology, possession and use of cell phones, search and seizure, or student discipline policies, and determine whether the policies even contemplate sexting. Most likely, given the strides in technology in the last decade, policies are silent on this behavior.

Once the applicable policies are located, do a thorough review to determine whether the policies cover sexting. Policies must be legally reviewed to ensure they protect students’ due process rights and shield the administrators from liability in investigating incidents and possessing the evidence collected.

New Policies
If you are developing or implementing new policies on sexting, be sure to involve your technology department and proper legal authorities, such as the school board’s legal counsel, police or school resource officer, and the district attorney. The technology department will be essential to the development of procedures for investigations as its staff understand your district’s computer network and the best ways to isolate evidence of deviant behavior on your system. The proper legal authorities will assist you in developing a protocol for investigating sexting to avoid potential criminal or civil liability.

The discipline policies or handbook must be written to balance the student’s rights with the school district’s ability and right to discipline. Policies or handbook provisions prohibiting sexting must clearly define the behavior and the consequences for students engaging in the act.

The policies also must address the investigation procedures administrators will follow when collecting evidence to avoid criminal liability for possessing pornographic photographs, especially those of minors. The policies should include local law enforcement and the technology department in the collection and/or removal of evidence. The policies also may need to address the administrators’ responsibilities under current federal or state law, such as mandatory reporting requirements.

Such an extensive review may be costly and time-consuming, but is well worth it in order to be pro-active rather than reactive.

The final step is to educate the school board, administration, staff, students and community on the policies related to sexting. An in-service workshop involving school board counsel, local police and the district attorney could address the policies and different scenarios that might arise.

Students and parents also need to be educated. At the very least, students should be made aware of current or revised policies. They also should be warned as to the potential consequences and criminal liability of engaging in the act of taking nude photographs or disseminating such images. Some school districts in Illinois have used law enforcement personnel to educate students. Educators should use all channels, including blogs, Twitter and other social media, to communicate the serious consequences of aberrant behavior.

Sara Boucek is associate director and legal counsel of the Illinois Association of School Administrators in Springfield, Ill. E-mail: Stephanie E. Jones, an associate with the law firm of Hodges, Loizzi, Eisenhammer, Rodick and Kohn in Belleville, Ill., assisted in preparing this article.