Since 2009, Trainor said, 16 states have passed laws that address “sexting,” or sending sexually suggestive pictures or messages electronically—and at least 13 other states are considering sexting legislation.
Many of these state laws are attempts to decriminalize sexting by making it a misdemeanor instead of a felony, but some states also are requiring schools to teach students about the dangers of sexting.
A New Jersey bill would put the onus for education on wireless carriers, Trainor said, by prohibiting cellular companies from selling a contract without educating the user about sexting.
If you have to discipline students for sexting, make sure you impose discipline on all students equally, Trainor said: Don’t treat girls and boys differently, and don’t distinguish between the senders and the deliberate receivers of explicit messages.
(By deliberate receivers, she was referring to students who request, forward, or save explicit messages—and not students who receive unwanted ones.)
Cell phone and laptop searches
Under the Fourth Amendment, government searches of individuals must be reasonable, Trainor said, meaning law enforcement officials need a warrant or probable cause. But school officials have slightly more latitude; a 1985 Supreme Court case established the bar for student searches.
Under this case, New Jersey v. T.L.O., the court ruled that such searches must be “justified at inception,” meaning school leaders must have a reasonable suspicion of wrongdoing, and they must be “permissible in scope.”
In other words, if you think a student smells of marijuana and you search her purse for drugs, you cannot then extend the search to include her locker, and so on. It’s this last point, the “permissible in scope,” that usually gets school leaders into trouble, Trainor said.
In Mendoza v. Klein ISD, an assistant principal who confiscated a student’s cell phone looked to see if the student had used her phone during school hours, which was a reasonable search, a Texas judge ruled.
But the administrator then scrolled through the student’s text messages and found a nude photo of the girl, which she had sent to her boyfriend, and further punished the girl for sexting. The judge ruled that examining the rest of the student’s text messages violated her Fourth Amendment rights, because it exceeded the scope of the original search.
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