Administrators at Monarch High School are committing felonies under Colorado law and violating students’ privacy by seizing students’ cell phones, reading their text messages, and making transcriptions to place in students’ permanent files, according to a letter sent today by the ACLU of Colorado to the Boulder Valley School District Board of Education.

The ACLU’s letter calls on the Board of Education to put a stop to the practice at Monarch High School. 

“The educators at Monarch High School need some education themselves about the law and students’ rights,” said Mark Silverstein, ACLU Legal Director. “They have reportedly told parents that their children have no rights of privacy at school, and they have declared that they can search any cell phones and read any text messages they please.”

“Monarch administrators are wrong,” Silverstein continued. “Students have legally- protected rights of privacy, and the actions of Monarch administrators are violating those rights.”

According to the ACLU’s letter, the searching and transcribing of students’ text messages violates a Colorado statute that was enacted to protect the privacy of telephone and electronic communications. That statute makes it a felony to read, copy, or record a telephone or electronic communication without the consent of the sender or receiver. The letter also explains that searches of cell phones at Monarch High School also violate state and federal constitutional provisions that forbid unreasonable searches and seizures.

The ACLU said it learned of the actions of Monarch administrators in interviews with numerous parents and students who complained about a series of cell phone searches at the end of the last school year. According to the letter, the searches began when a student accused of smoking cigarettes was sent to an administrator’s office. After a search of the student’s pockets and backpack turned up nothing, the administrator searched the student’s cell phone. He then interrogated the student about text messages the administrator characterized as “incriminating.” With names of other students obtained from the student’s text messages, administrators called in additional students, questioned them, and also searched their cell phones. With names obtained in this second wave of questioning administrators then called in a third round of students and questioned them. Transcripts of cell phone messages were placed in the disciplinary files of multiple students, the letter says.

“The law provides a lot of leeway for administrators to investigate suspected violations of school rules,” Silverstein said. “When administrators have reasonable grounds to suspect that a search will turn up evidence, school principals can search a student’s backpack and can even insist that a student empty his or her pockets. But seizing a student’s cell phone and searching text messages is a much greater intrusion on privacy. Colorado statutes appropriately forbid the text message searches carried out by Monarch administrators, and they are also unreasonable searches under the standards of the state and federal constitutions.”

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The American Civil Liberties Union Foundation of Colorado (ACLU) announced today that as a result of an agreement with Alamosa city officials, an Alamosa business owner may resume displaying an American flag upside-down in his store window to express his views on the war in Iraq.

John Fleming, owner of The Roost, a store which sells books and music on State Street in Alamosa, prompted controversy last month when he displayed the American flag upside down in his store window. According to Fleming, the Boy Scout Manual says that an upside-down flag communicates distress. Fleming believes that the war in Iraq is a sign that our country is in distress.

“Mr. Fleming’s flag display is peaceful symbolic expression that is fully protected by the First Amendment,” said Mark Silverstein, ACLU Legal Director.

Shortly after Fleming set up his flag display, however, he received a visit from Alamosa’s Chief of Police, who told Fleming that the display violated a Colorado statute. He threatened to charge Fleming with a crime unless he took down the display.

“Our client was threatened with prosecution under an old Colorado statute that states that “contempt of flag” is a crime,” Silverstein said. “The statute makes it unlawful to ‘mutilate, deface, defile, trample upon, burn, cut or tear any flag in public.’ Mr. Fleming did none of those things.”

“Even if that old statute applied to Mr. Fleming’s flag display,” Silverstein continued, “the statute violates the Constitution. The Supreme Court has recognized on numerous occasions that the First Amendment protects the right of individuals to use the symbolism of the American flag in a manner intended to communicate ideas and opinions. That is exactly what Mr. Fleming did in this case.”

According to the ACLU, the threat of prosecution silenced Mr. Fleming. “To avoid having to defend himself on a baseless criminal charge, Mr. Fleming took his flag display out of the window,” Silverstein said. Mr. Fleming then contacted the ACLU, which was prepared to file a lawsuit to protect Mr. Fleming’s right of expression. The need for litigation was avoided, however, when Alamosa officials agreed to resolve the dispute. “The Alamosa City Manager and City Attorney deserve credit for acting promptly to resolve this matter without litigation,” Silverstein said. “The City Attorney assures me that he has discussed this matter with the Chief of Police, who now understands that Mr. Fleming’s flag display is constitutionally-protected expression. Mr. Fleming will now be able to move his display back to his store window without interference from the police.” 

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Littleton High School junior Bryan Lopez, who was suspended from Littleton High School for posting satirical commentary about the school on the internet, is now back in school after ACLU attorneys reached an agreement with school district officials on Monday evening. The agreement averted a federal court First Amendment lawsuit that ACLU attorneys were prepared to file on Lopez’s behalf on Tuesday morning.

“I am pleased that Littleton school officials were willing to resolve this dispute without a lawsuit,” said Hugh Gottschalk, an ACLU cooperating attorney whose firm worked over the 3-day weekend on Mr. Lopez’s case. “A student’s right of expression is protected by the First Amendment. School authorities have some ability to regulate students’ expressive activities on school grounds and at school-related functions. But school authorities do not have the right to impose discipline for statements that students make off campus, especially when, as in this case, those statements do not cause any material disruption of the educational process.”

“Mr. Lopez used his home computer to post his commentary on the web site MySpace.com on February 7,” explained Mark Silverstein, ACLU Legal Director. The message contained satirical commentary about the poor physical condition of Littleton High School, the behavior and demographics of students and staff, the perceived racial biases of teachers and administrators, and the poor quality of the resources available to students.”

Once posted, the commentary was not accessible to students from any school computers, because the school’s internet filters block access to MySpace.com. Nor was the commentary accessible to the general public; it was available only to specific persons to whom Mr. Lopez had provided a password. “Apparently one of Mr. Lopez’s classmates accessed the website, copied the commentary, and then re-posted it on his own website,” Silverstein said.

A couple days later, Littleton High School administrators obtained a copy of Mr. Lopez’s satirical commentary. On February 10, they suspended him for five days on the basis of a school policy that forbids students from engaging in conduct, either on campus or off-campus, “that is detrimental to the welfare or safety of other students or district employees.” The school superintendent then added an additional 10 days to the suspension, to give administrators additional time to decide whether to begin proceedings to expel Mr. Lopez from school. He missed six days of school before the ACLU and the school district resolved the controversy.

“The school district deserves credit for agreeing to resolve this issue promptly, allow Mr. Lopez back in school, and remove all mention of the suspension from our client’s school record,” Silverstein said. “Although the ACLU had a lawsuit prepared to file on Tuesday morning, our client risked missing even more days of classes while we waited for the court to rule.”

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