A spokesperson for the ACLU of Colorado announced today that it welcomes a decision of the Boulder Valley School District (“BVSD”) to limit searches of students’ cell phone text messages, an issue the ACLU raised in a letter made public in October, 2007. In that letter, the ACLU asserted that non-consensual searches of text messages violate a Colorado criminal statute designed to protect the privacy of telephone and electronic communications.

New guidelines state that before searching text messages, BVSD administrators must not only satisfy the minimum federal constitutional standard for conducting a search, but must also obtain the consent of the student or parent. The only exception is an emergency in which there is an imminent threat to public safety.

“I commend the Boulder Valley School District for making a decision that protects students’ privacy and addresses the concerns raised in the ACLU’s letter,” said Mark Silverstein, ACLU Legal Director. “Meetings with the school district’s attorneys and ACLU representatives have been cordial and very productive.”

The Colorado statute makes it a crime to read, copy, or record a telephone or electronic communication without the consent of the sender or receiver. The ACLU’s October letter asserted that administrators at Monarch High School in Louisville had been violating the statute by seizing students cell phones; reading the text messages; transcribing messages administrators regarded as incriminating; and placing some transcriptions in students’ permanent files.

Silverstein noted that the BVSD attorneys do not agree that the Colorado statute applies to the cell phone searches criticized in the ACLU’s letter. Nevertheless, he said, by ensuring that administrators will now obtain consent before conducting a search, the potential conflict with the statute is largely resolved.

Silverstein said that BVSD also will add a sentence to its “Student Rights and Responsibilities Guide” that says: “Except in cases of emergency, a cell phone or other electronic communication device will not be searched without the consent of either the student or parent.”

In addition, administrators will fill out a one-page pre-printed checklist when a cell phone is searched. “The checklist functions as a written reminder to administrators of the minimum standards that must be met before searching a student’s cell phone,” Silverstein said. “It also reminds administrators that they can consult with the BVSD’s legal counsel in close cases.”

“Students’ use of newer electronic devices pose a potential challenge for school administrators who must enforce school rules and ensure students’ safety while also respecting their right of privacy,” Silverstein said. “The new guidelines BVSD has adopted represent a substantial step toward reaching an appropriate balance. I have nothing but praise for BVSD’s willingness to discuss the ACLU’s concerns and to make these changes.”

In addition to Silverstein, ACLU attorneys who met with BVSD attorneys included Taylor Pendergrass, ACLU Staff Attorney, and ACLU Cooperating Attorney Michael Rollin. 

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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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