ACLU Lawsuit Challenges Expulsion Of Middle School Student After Illegal Cell Phone Search

(Updated 9/1/2009)

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

SOUTHAVEN, MS – The American Civil Liberties Union and the ACLU of Mississippi today filed a federal civil rights lawsuit on behalf of a middle school student wrongfully expelled from school after authorities illegally searched his cell phone and found what they claimed were photos depicting "gang-related activity" – when in reality the photos mainly depicted the student dancing in the bathroom of his own home.

Richard Wade was a 12-year-old honor student at Southaven Middle School when he had his phone confiscated and searched last fall by several of his football coaches, his class principal and a Southaven Police Department sergeant after he read a text message during football class in violation of school rules.

"The rights of students to be free from unreasonable search and seizure and to due process are not suspended when they walk through the schoolhouse door," said Kristy Bennett, staff attorney with the ACLU of Mississippi. "There was absolutely no basis for school and police officials to search through Richard's phone after it was confiscated, and there was absolutely nothing to substantiate the baseless accusations that pictures on the phone showed that Richard was involved in gang-related activity. The entire incident was a gross violation of Richard's constitutional rights, including his right to freedom of speech. Like most of us, Richard carries personal and private data on his cell phone, including photos that are for his own viewing."

The lawsuit, filed in the U.S. District Court for the Northern District of Mississippi and which names as defendants the DeSoto County School District, coach John Stevenson, principal Kenneth Walker, the city of Southaven and Southaven Police Sergeant Nicholas Kennedy, charges that the searches and expulsion violated Richard's rights under the First, Fourth and Fourteenth Amendments to the U.S. Constitution, as well as his rights under the Mississippi Constitution.

After receiving a text message in August 2008 from his father in South Carolina which he thought might indicate an emergency, Richard flipped open his phone to read the message. But rather than simply confiscating the phone and turning it in to the school office as required by Southaven Middle School policy, several school officials, including Stevenson and Walker, searched through the private and personal pictures Richard had stored on the phone, despite not having any reason to believe that Richard had done anything wrong other than possessing the cell phone. The phone was subsequently turned over to Sergeant Kennedy, who claimed that the pictures constituted "gang-related activity" and "indecent pictures." Richard was suspended for three days and ordered to attend a disciplinary hearing the next week.

During the disciplinary hearing, which Richard attended with his mother Jennifer and a family friend, Walker argued without substantiation that Richard posed a threat to school safety and Kennedy asserted, also without providing any factual basis supporting his claim, that he recognized gang signs in the photos Richard had stored in his phone. As a result, Richard was expelled from school by the county school board.

"This is a case where an honor student was expelled from school because a police officer and school officials decided without any basis that innocent pictures of a kid dancing conveyed 'gang-related' messages," said Reginald T. Shuford, senior staff attorney with the ACLU Racial Justice Program. "School officials and the police officer involved never pointed to anything that would suggest that pictures of Richard dancing were linked to a gang in any way. From the day he had his phone confiscated until the day the county school board expelled him, school and police officials showed a callous disregard for Richard's rights."

As a result of his expulsion, Richard was forced to enroll at Oakhaven Middle School in Memphis, Tennessee, a school plagued by serious gang problems and which posed a constant threat of harm to Richard. At the end of last school year, in an effort to escape that harm, Richard and his mother moved to Savannah, Georgia, where he has enrolled for the 2009-2010 school year.

Among other things, the lawsuit seeks to have the charges related to this incident expunged from Richard's law enforcement, academic and disciplinary records.

Lawyers in the lawsuit include Bennett, Shuford and Nusrat Choudhury of the ACLU Racial Justice Program.

A copy of today's lawsuit is available online at:
www.aclu.org/racialjustice/edu/40884lgl20090901.html

Additional information about the ACLU of Mississippi is available online at: www.aclu-ms.org

Additional information about the ACLU Racial Justice Program is available online at: www.aclu.org/racialjustice

Additional information about the school-to-prison-pipeline is available online at: www.aclu.org/stpp