In March 2017, high school students in Chicago exchanged more than 700 nude or seminude photos of classmates, many of whom were minors, using a Google Doc accessible to anyone with a shared link. This is one of many recent incidents involving student “sexting”—often defined as the transfer of self-taken nude or sexually explicit photos or videos, usually through text messaging or over the internet. One school lawyer said about sexting, “It’s not that big a deal until it happens to your school. … Then it’s a nightmare.”
According to data collected by the Cyberbullying Research Center in 2016, nearly 20 percent of 17-year-olds reported having sent at least one explicit image of themselves to someone else, and nearly 6 percent of 12-year-olds reported sending an explicit image. Boys are more likely to both send and receive sexts than girls.
Knowing exactly how to proceed while staying on the right side of the law when a sexting incident arises is challenging. Often, administrators are faced with balancing students’ First Amendment free speech rights and Fourth Amendment protections from unlawful search and seizure. Issues related to Title IX of the Education Amendments of 1972, state and federal child pornography statutes, state reporting, or state bullying and harassment statutes might also be applicable. We’ll consider several questions and concerns school leaders might have when addressing student sexting in their schools and end with several recommendations.
Is Sexting as a Minor a Crime?
Minors who have sent or received sexts have been charged with violating felony obscenity or child pornography statutes in several states, often having to register as sex offenders, even in cases where the sexting had been consensual and never shared with or distributed to other parties. While the approach taken by law enforcement and state prosecutors has varied widely depending on the state or county, charges are far more likely to be brought in cases that also involve cyberbullying or harassment, or the nonconsensual recording or sharing of sexually explicit content (including “revenge pornography”). Using child pornography statutes against minors in cases of consensual sexting, particularly when these statutes are being used against the very population they were enacted to protect, is a practice that has faced considerable criticism in recent years.
This has prompted roughly half of the states to revise child pornography and obscenity laws to specifically address student sexting cases. In one case involving student sexting, the prosecutor gave the students involved a choice—either face felony child pornography charges or attend his mandatory education program. A parent challenged the prosecutor’s approach, and the 3rd Circuit Court of Appeals affirmed the district court’s decision granting the parent’s motion for injunctive relief.
Are There Constitutional Concerns About Discipline?
Yes. Public school students have a right to free speech until it causes a disruption at the school. Also, although a student’s expectation of privacy in a school setting is reduced, students should be free from unreasonable searches. In one lawsuit, the student’s lawyer argued that when school officials looked at photos on her phone, it was akin to opening her mail at home. School officials need reasonable suspicion before conducting a search. For example, if a student violates school policy involving cellphone use during school hours, a phone might be confiscated. School officials would not be able to search the phone unless they had reasonable suspicion that a student sent an inappropriate message while at school.
Can Sexting Be Considered Cyberbullying?
Many states have now enacted cyberbullying laws to protect students against bullying or harassment carried out through electronic means. While consensual sexting itself may not be considered cyberbullying, recipients of sexts often forward the content received without the consent of the subject.
The act of forwarding sexually explicit pictures or videos of other students could itself be considered cyberbullying. Moreover, sext forwarding has often inspired additional acts of cyberbullying such as the posting of hateful or degrading insults on social media. When cyberbullying occurs, school leaders may need to search the content accessible through a student’s cellphone, which, as noted above, has Fourth Amendment implications.
How Has Title IX Come Into Play?
Sexting has inspired Title IX claims when there are allegations that school officials knew of and deliberately ignored severe and pervasive harassment. In an incident receiving national media attention, parents filed a Title IX claim against school officials after their daughter committed suicide in response to suffering from severe harassment relating to a sexting incident. The parents claimed that the trouble began when their daughter’s ex-boyfriend passed along private sexts she had sent him while they were a couple to several classmates.
She sought help from a school guidance counselor, who referred her to the school resource officer (SRO). The SRO allegedly told her that he could ask the other students to delete the nude photos from their cellphones, but could not do anything else. The federal district court denied the school district’s motion for summary judgment because there were questions about whether school officials could have done more to address the severe harassment that student experienced while at school, prompting an out-of-court settlement.
Have There Been Other Lawsuits Involving Suicide?
Yes, there have been other suits regarding suicide and sexting. Recently, parents brought a wrongful death suit against a school district, alleging that school officials, including an SRO, scared their 16-year-old son into committing suicide when they suggested he was in possession of child pornography and could be forced to register as a sex offender. This student recorded a video on his phone of him and a fellow student having consensual sex in his car. The phone was hidden and captured only audio, but the recording was done without the female student’s knowledge or consent. After he shared the audio with classmates, the female student lodged a complaint with the school. His parents are now seeking more than $5 million in damages in their wrongful death claim.
Richard LaFosse, JD, MEd, is an associate instructor of education law at Indiana University and a licensed attorney in Indiana. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University who has published widely on school legal matters, including Principals Avoiding Lawsuits.
Recommendations for Principals
- School officials should be sure to update their acceptable use policies to discuss sexting-related issues on school networks for both staff and students. School officials should review other policies related to cellphones, student discipline, student searches, and any other matters pertaining to sexting.
- School officials might consider holding a professional development session that relates to sexting policies.
- School officials should be aware of state and federal laws, as well as constitutional requirements that relate to sexting.
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