All a Twitter about Sexting: Sexual Content in Text Messages Raises Legal Questions for Schools
Perry A. Zirkel · Phi Delta Kappan · 2009
In October 2008, officials in the Tunkhannock School District in northeastern Pennsylvania discovered photographs of semi-nude and nude teenage girls on cell phones that had been confiscated. Many of these girls were students in the district. It was obvious that male students had been trading these images over their phones. Administrators turned the phones over to George Skumanick, the county's district attorney. In a November 2008 assembly at the district's high school, Skumanick warned that students who possess inappropriate images of minors are subject to prosecution under a Pennsylvania child pornography law. He explained that these were felonies subject to long prison terms and, even for juveniles, a permanent criminal record. In early February 2009, Skumanick sent letters to the parents of about 20 Tunkhannock students who either owned the confiscated phones or were the girls in the photos. The letter informed the parents that their child had been identified in a police investigation involving the possession and/or dissemination of child pornography. Skumanick promised in the letter that he would drop the if the child successfully completed a six- to nine-month education and counseling Warning that charges will be filed against those that do not participate or ... successfully complete the program, he ended the letter with an invitation to a February 12 meeting at the county courthouse. At the scheduled meeting, Skumanick reiterated his threat of prosecution, explaining that the required counseling program would cost each student $100. A parent asked whether his daughter, who was wearing a bathing suit in one of the photos, was subject to child pornography charges. Skumanick answered that it was child pornography because she had posed provocatively. When another parent asked him to explain his determination of provocative, Skumanick refused to argue the question and reminded the crowd that he could charge all the minors that night. Instead, he asserted that his offer was for a plea deal and proclaimed: These are the rules. If you don't like them, too bad. Skumanick told the parents to sign an agreement assigning their child to probation. Only one parent signed the form. Skumanick initially gave the other parents a 48-hour deadline but, after objections, agreed to extend it to one week. He agreed to show the parents their child's photo at the end of the meeting. The parents characterized the counseling program as a re-education program. The girls' version included gain[ing] an understanding of what it means to be a girl in today's society, both advantages and disadvantages. The homework included an assignment on What you did and Why it was wrong. The duration of the program was eventually reduced to 10 hours over five weeks, and the probationary period included drug testing. On February 23, Skumanick sent a letter to the parents who hadn't submitted a signed agreement, notifying them of a scheduled appointment at the county courthouse to finalize the matter. At the scheduled appointments, all of the remaining parents except those of three girls signed the agreement. In March 2009, the parents of the three girls filed a civil rights suit in federal court, including a motion for a temporary restraining order, or TRO. Their claims were based on the students' First Amendment freedom of expression and the parents' Fourteenth Amendment liberty of child rearing. One girl's photo showed her in a white, opaque towel wrapped around her body, just below her breasts. It appeared that she had just emerged from the shower. The other photograph showed the second and third girls from the waist up, each wearing a white, opaque bra. One was speaking on the phone, and the other gesturing a peace sign. …