A school district in Colorado is being asked to rein in administrators because they have been confiscating and searching student cell phones, transcribing the text messages they find.

The warning is being delivered to the
Boulder, Colo., Valley School Board because of actions by administrators at Monarch High School in Louisville.

Such transcriptions have been finding their way into students’ disciplinary files, but the ACLU has written the district to warn that such seizures are a felony under a Colorado statute enacted to protect the privacy of telephone and electronic communications.

“The text messages at issue here constitute telephone or electronic communications. It is clear that Monarch administrators read, copied, and recorded those communications without consent. In the absence of a warrant – which administrators did not and could not have obtained – the inescapable conclusion is that these searches of students’ text messages are felonies under Colorado law,” this week’s letter from the ACLU to the district said.

School officials brushed off the concerns.

“Prior to confiscating the students’ cellular phones and transcribing text messages found on them, Monarch administrators contacted the BVSD legal counsel’s office and were told it was indeed legal for them to take the actions that they were considering,” district spokesman Briggs Gamblin told the Boulder Daily Camera.

The situation developed at the end of the 2006-2007 school year and since it apparently is continuing, the ACLU is addressing concerns raised by parents and students.

“Monarch High School administrators have violated Colorado criminal statutes that are designed to protect the privacy of telephonic and electronic communications, as well as state and federal constitutional provisions that prohibit unreasonable searches and seizures,” said the letter signed this week by Mark Silverstein, legal director for Colorado’s ACLU chapter.

“They have declared that Monarch students have no rights of privacy that administrators are bound to respect. Without intervention by the Boulder Valley School District Board of Education, there is every indication that Monarch administrators will continue this flagrant disregard for the rights of students and the rule of law.

“It is imperative that the Board of Education intervene forcefully,” the letter said. That’s because, the letter said, the school position is out of step legally and constitutionally.

“Monarch administrators could not be more wrong. Students do have rights of privacy, and those rights are protected not only by the state and federal constitutions, but also by Colorado statutes that carry serious criminal penalties,” it said.

The ACLU said the situation came to light on May 24 when a security officer “detained a student who was accused of violating two school rules: one that prohibited him from being in a particular parking lot, and another that forbids smoking cigarettes.”

The guard delivered the student to Drew Adams, assistant principal, who ordered the student to empty his pockets and backpack, “presumably to look for cigarettes.”

No cigarettes were found.

Then Adams asked the student to turn over his cell phone. Adams told him the phone was a distraction and he didn’t want the student sending text messages from the principal’s office.

“The student reluctantly surrendered it. Adams took the phone and left the office. When Adams returned some time later, it became immediately clear that he had not been truthful about the reason he wanted the student’s cell phone. Adams declared that he had read the phone’s text messages and had found some that mentioned marijuana that he characterized as ‘incriminating,'” the letter said.

When the student’s mother arrived, Adams produced a copy of the transcribed messages, and refused even then to return the phone, insisting on keeping it over the weekend, the letter said.

“When the student’s mother finally recovered it the following Tuesday, she discovered that Adams had apparently drafted a text message and had attempted to send it from her son’s phone to one of her son’s friends. The text message appeared in the phone’s outbox with an unambiguous time and date stamp showing that it was drafted while Adams had possession of the phone. The text message itself appeared to be Adams’ attempt to engage the receiving student in a conversation while Adams was falsely representing himself as a student,” the letter said.

A “cascade” of followup interrogations and telephone seizures followed, the letter said.

“In addition to violating Colorado criminal statutes, Monarch High School administrators also violated students’ constitutional rights,” the letter said. “The Fourth Amendment protects students’ right of privacy by prohibiting unreasonable searches and seizures.”

The U.S. Supreme Court has found that searches of students are reasonable only if it is “justified at its inception” and “reasonable.”

“A student who is legitimately suspected of smoking cigarettes might reasonably be subjected to a search of his backpack and his pockets … But the search of the Monarch student … went too far after administrators found nothing in the student’s pockets or backpack. No reasonable person would have believed that extending the search to the cell phone and its text messages would turn up evidence related to alleged cigarette smoking.”

On a forum at the Boulder Daily Camera on the issue, readers agreed that the school was out of line.

“Sounds to me like BVSD is proto-fascist. I should think they would need a search warrant or proof of probable cause to search students’ cell phones,” wrote “derecho64.”

“Thank goodness for over-reaching school administrators. Their frequent mistakes always provide excellent lessons in civil liberties for students and their parents. … The principal who allegedly sent fake text messages from the students’ cell phone has watched too much CSI and NCIS for his or her own good,” added “jrsteven.”

The Boulder district has had a series of encounters with criticism in just the last year. Several weeks ago, it came under fire when students walked out of class to protest the daily recitation of the Pledge of Allegiance.

And earlier in the year, several officials were given a “wrist slap” for setting up and requiring students to attend a seminar where they were told to “have sex” and “take drugs.”

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