Update: School district reaches settlement in lawsuit over search of teen’s cell phone in sexting case

By Dean I Weitzman, Esq. on September 15th, 2010

Student’s case against the district attorney still being pursued

Remember that teen texting incident in the Tunkhannock Area School District in Pennsylvania’s Wyoming County last year, where several teens became embroiled in a legal controversy over some naked and semi-naked photos taken with a cell phone camera?

In a statement today, the American Civil Liberties Union of Pennsylvania, which represented one of the teens in a lawsuit against the school district and the district attorney’s office in the case, announced that a $33,000 settlement would be paid to the student and her family by the school district to “resolve the dispute.”

The settlement now puts to rest one part of the girl’s claims – that her privacy was violated when school officials confiscated her phone and looked through its contents after she allegedly violated a school rule and used her phone after her class homeroom began.

The phone was turned over to local police by school officials after the photos were found, and the girl was suspended from school for three days, according to the lawsuit.

No admission of any wrong-doing is included in the settlement, according to the ACLU.

The girl’s lawsuit against the school district and county officials was filed in May.

Now the lawsuit will continue against the county district attorney’s office in connection with the incident, according to the ACLU. The district attorney had earlier considered filing felony child abuse charges against the girl in connection with the photos, since she was a minor when they were taken.

Witold Walczak, the ACLU lawyer who represents the girl in the case, said he was happy that this part of the case has been resolved, but added that “much work remains to educate school officials across the country about the importance of respecting students’ significant privacy interests in the contents of their cell phones.”

The girl’s name has been withheld throughout the legal procedures to protect her privacy in the case.

“Sexting” is the term given to sending nude or semi-nude photos of oneself to others via cell phones. The phenomenon took hold especially among teens due to the widespread use of cell phones that include built-in cameras.

The school district, in northeastern Pennsylvania near Scranton and Wilkes-Barre, learned of the photos in October 2008 after confiscating cell phones from several students. The pictures were found on the phones and then-district attorney, George Skumanick Jr., was called in.  Skumanick, who labeled the photos “provocative,” began a criminal investigation and later told the parents of about 19 school district students that he would prosecute the students on felony charges due to their conduct if they didn’t agree to probation and undergoing a counseling program.  The counseling program was to include lessons to help the girls learn how their actions were wrong, what it means to be a girl in today’s society and about non-traditional societal and job roles.  The parents of 16 of the teens allowed their children to go through the counseling program to avoid criminal charges, while the parents of three of the girls decided to fight the case on the grounds that the prosecutor was simply wrong in his handling of the matter.

One problem with Skumanick’s approach, according to the ACLU, was that it was aimed only at the parents of the students whose cell phones contained the photos and of the girls in the pictures.  The former boyfriend of one of the girls, the one whose breasts were visible in a photo, was the person who transmitted that photo, but his parents were not sent one of Skumanick’s letters, according to the ACLU.  Skumanick lost a re-election campaign last November and was replaced earlier this year by a newly-elected district attorney, Jeffrey Mitchell, who is continuing to prosecute the case.

In a related case in March, a state appeals court ruled – correctly, we believe – that the girl whose phone contained the photographs could not be charged with felony child abuse charges in the case.

From the beginning, this case has featured overreactions from the district attorney and the school district.

Instead of being seen for what it was – silly, stupid pranks among a small group of teen friends – local officials and school district leaders prematurely raised it to the status of a high crime.

We will be watching the progress of the girl’s continuing legal claims against the county district attorney.

In the meantime, this case is a good reminder that we all must be vigilant about our constitutional rights, and about those of our children, when others seek to infringe upon those rights.

If you are ever in need of legal advice in such a situation, feel free to contact us here at MyPhillyLawyer.