While investigating a tip that a student had a picture of another, partially nude, female student on his cell phone, Ting-Yei Oei, assistant principal at Freedom High School in Loudoun County, Va., asked the student to e-mail the picture to his own cell phone. This seemingly tech-savvy way to preserve physical evidence had devastating consequences for Oei. The incident led to angry accusations from a parent, an investigation by police, and Oei's being charged with "failure to report child abuse" and felony possession of child pornography. Oei was fully exonerated, but only after incredible stress and expense to clear his name.
Oei's story, reported in the January/February 2010 issue of NEA Today, should serve as a cautionary tale for administrators who get caught between the need to keep an orderly campus and an expectation from some quarters to police what students say on their cell phones. The law is unclear on how schools can act regarding sexual content transmitted by cell phones or other electronic media at school, at school-sponsored activities, or outside of school. In many cases, laws are contradictory and issues still have to be played out in the courts for clarity to emerge. When students send nude pictures of their friends to each other, it opens up many troubling questions. Is this merely kids having fun but misinterpreting boundaries? Is it sexting? If friendships end and feelings get hurt, can this behavior be considered cyberbullying? Child pornography?
Any administrator at the secondary level with a pulse on the life of his or her campus will recognize the important role played by technology in the lives of students. Technology is a part of student life in ways hard to understand for those had sent them nude pictures or videos of themselves. Ten of the Internet. If you allow cell phones on campus, you will have students in possession of cell phones with sexually oriented messages, pictures, videos and applications. Your students are sending these messages during class, at lunch, during sports events and school sponsored activities, and after school.
Sexting: How Common Is it?
Sexting is commonly defined as the sharing of sexually explicit photos, videos, email, text and chat by cell phone or online. The Associated Press reported in December 2009 that more than one-in-four teenagers have "sexted" in some form. According to the Associated Press-MTV poll, 30 percent of all respondents said they had been involved in sexting. Seventeen percent of respondents 14 to 24 years old said that somebody had sent them nude pictures or videos of themselves. Ten percent said they had sent nude pictures of themselves by phone or online.
Another poll, conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy and Cosmogirl in 2008 found that 21 percent of teen girls and 18 percent of teen boys have sent or posted nude or semi-nude images of themselves. The poll found that suggestive text (e-mail, text message, instant message) is more prevalent among teens and young people than suggestive images, with 39 percent of respondents saying they had sent it and 48 percent saying they had received it.
It is important to take these survey results with a pinch of salt, as The Wall Street Journal advised in April 2009 ("Which Is Epidemic—Sexting or Worrying about It?"). In sampling online users, pollsters may be tapping into the very tech-cowboys and cowgirls who are most likely to engage in risky online behavior. Conversely, traditional telephone surveys may miss the teens most likely to avoid phone surveys in favor of online questionnaires. Regardless of the fuzzy math and poll numbers, common sense would lead one to believe that sexting is a problem even if we can't accurately quantify it yet.
What Can Administrators Do?
Cell phones are ubiquitous on campus, and the anytime anywhere nature of teenage communications means that students see no separation between life inside and outside of school, at least when it comes to activities such as texting. Conversations begun off campus continue at school, and again after school, and so on. It is often difficult for school administrators to see what exactly falls within the scope of their responsibilities.
In fact, administrators often must balance conflicting mandates. On the one hand, schools must be safe and orderly. On the other, they must foster core American ideals including free speech and freedom of expression. Recent court cases have upheld the right of students to be nasty in their online speech, although this freedom of expression does not extend to obscenity, according to some judges. Most administrators would prefer not to get involved in setting legal precedents at their schools.
In addition, school administrators are often faced with conflicting demands from parents, some of whom may demand action from the school, while others may claim that their child's behavior is protected free speech exempt from school discipline.
Key Questions To Consider
Sexting can appear in many forms, and school officials must examine the details of each specific incident before deciding upon a course of action. To that end, there are a few key questions to ask:
- Was the behavior committed on campus? It is more prudent to take action if the sexting was generated on campus than if it originated off campus.
- Were school computers used to generate or receive the offensive text? Common acceptable use policies would seem to provide guidance for taking action in this situation.
Things now get trickier:
- Was the sexting done off campus and viewed by students on a personal laptop at school? If the laptop used the school network to access the message, you may have latitude to act. If the message was received on a cell phone that didn't use the school network, you are in murkier territory.
- What does "at school" mean? Did the incident happen during class, before and/or after school, or at a school-related event? Or did the behavior occur on a field trip or on an extended overnight field trip? Once you get past the transmission and reception of the message, you have to examine the impact of the message:
- Is there a threat or a bullying situation?
- Did the behavior substantially disrupt school operations?
Aligning Policies and Procedures
In deciding how to act once a sexting situation arises on your campus, it is important to note that the content of the message is less helpful to the administrator than determining what school rule was violated. Look beyond the offensive message to the bigger picture of school operations. Updating your acceptable use policy for both staff and student use of technology to cover sexting-type issues on school computers and networks is essential.
It is better to administer disciplinary action for a clear violation of school policy than for more problematic legal free speech issues outside the scope of school regulation. For example, students should be using class time on academic issues instead of texting, so you would do better to assign consequences based on inappropriate use of class time should a student send a text in class, regardless of the content. If you have a school policy against texting during class time and have explained it to students, a violation of the policy can also be viewed as defiance of authority, a concept more typically within the scope of school discipline.
Districts should review and update policies on cell phone use at school. Yes, despite various state laws implemented post-Columbine, cell phone use can be regulated at school, even if possession of a phone at school is allowed by law. You should also have a clear policy on how and when school staff can confiscate cell phones or electronic devices. Board policies should address the scope of electronic signaling to include a broad range of devices, including cell phones, cameras and game-playing devices. Policies about harassment should address cyberbullying. Policies that address classroom disruption should include disruptive cell phone use.
Many states have enacted legislation that may help administrators determine Code 48900 (r) states that a student may be suspended or expelled if the student "engaged in an act of bullying, including, but not limited to, bullying committed by means of an electronic act, as defined in subdivisions (f) and (g) of Section 32261, directed specifically toward a pupil or school personnel." The scope of such new statutes is broad, and school districts should carefully and thoroughly review their state's policies to guide their administrators. A legal review of revised policies would be a prudent step.
Don't Overstep Boundaries
As state laws come to address the Internet age and to provide more latitude, school administrators should be careful not to apply them too broadly. Free speech and First Amendment watchdogs are monitoring this new area of the law very carefully. School districts will be challenged for overstepping boundaries in this still developing field of student discipline. In December 2009, a video posted on You- Tube that was hurtful to a student in a Beverly Hills school was brought to the attention of school officials. Citing cyberbullying concerns, school administrators decided to suspend the student who posted the video. e case was taken to court, where a judge agreed with the student that her free speech rights had been violated. The plaintiff 's attorney believed that the school had applied discipline too broadly and was quoted in the article as saying, "Yeah, sure, they can fall back on cyberbullying, but when you actually ask [school officials] questions and dig down deep into their understanding, they think it's OK for them to be a super-parent."
As case law in this area of school discipline continues to evolve, it is important to keep two defi nitive legal precedents in mind. First, the classic free speech case from the Vietnam War era, Tinker v. Des Moines, states that student expression is protected speech and that school officials must demonstrate that substantial disruption to school activities is imminent or actual. Second, a search of a student's cell phone must comply with the principles underlying all student searches as outlined in New Jersey v. T.L.O. e nexus between the problematic electronic behavior and school safety/operations must be clearly established. Other Options Discipline is not the only option for electronic misbehavior. Students can be referred to school counselors to develop a better understanding of the issues of cyberspace, privacy and personal safety. Administrators can enlist support from the parents of students. In many cases, parents are probably paying for the devices that students misuse, and they should bear some of the burden of helping their teens become ethical as well as savvy tech users. Most will be more than willing to help.
Perhaps the best approach is to educate the school community about the dangers of sexting and related electronic misbehavior. Focused community programs can educate students, parents and staff about the prevalence of sexting, the dangers associated with it, and provide practical steps for developing an ethical approach to electronic communication. Of course, this would also be a good opportunity to share more general school expectations for appropriate technology use.
In the meantime, administrators would be wise to pay attention to the plight of Assistant Principal Ting-Yei Oei, and protect themselves from unfair or misdirected personal attacks on their own integrity. Do not transfer inappropriate pictures from student devices to your school computer or personal cell phone. If you find out that an inappropriate image of a student or somebody else is making the rounds at school, consider contacting the police so that they can confiscate images lawfully. It is important to keep an orderly school and protect students, but administrators do not need to be martyrs for the cause.
Eamonn O'Donovan is assistant superintendent of human resources in Los Alamitos Unified School District in California.