A Texas teenager has taken a major step toward winning her privacy lawsuit against an assistant middle school principal who searched the contents of her cell phone, finding a nude photo of her.

Stephanie Langner

Alexis Mendoza, then an eighth-grader at Kimmel Intermediate School in Spring, Texas, admitted sending the photo to a boy because he had sent similar photos to her. She sued the  principal, assistant principal and school district in December 2009, alleging the search of her cell phone went beyond what was reasonable to determine whether she had been using it during school hours to send text messages.

In a series of recent cases, school teachers and administrators have asserted the defense of qualified immunity to claims that they violated the Fourth Amendment rights of students by searching cell phones. The defense applies if “clearly established law” did not prohibit the search.

No appeals court has so far addressed the legality of a search in a school “sexting” case. But a trial court judge broke new legal ground in a March 16 opinion by finding that Kimmel assistant principal Stephanie Langner was not immune from liability for scrolling through Mendoza's text messages.

“Langner's own testimony established that she was aware that she did not have the right under the law to an unfettered search of a student's cell phone without reasonable suspicion,” U.S. Magistrate Judge Nancy K. Johnson ruled in recommending that the case go to trial.

A Mississipi judge dismissed a similar claim in November, finding that school administrators have broad authority to search cell phones “to determine to what end the student was improperly using that phone.” A middle school student brought the case after officials found what they claimed were photos depicting “gang-related activity” stored in his cell phone. J.W. v. Desoto County Sch. Dist.

But Johnson expressed disagreement with that decision. “The court did not offer any analysis to connect the improper use of the phone by the student to the school officials' need to access photos stored on the phone,” she said.

Langner testified that based on her observations of Mendoza in a school hallway she suspected the eighth-grader was using a cell phone. When Mendoza denied doing so, she took the phone from her, turned it on, and accessed the “Sent Text” box.

“You would agree that in order to determine whether [Mendoza] had been texting that day, all you would need to do is review the last text messages that were in her 'sent' box, correct?” Langner was asked in a deposition.

“I believe that was the easiest way,” she replied.

But after seeing from the display that Mendoza had sent texts that day, Langner then searched through the “sent” box, starting with the earliest message. “And the earliest text is where I saw the [nude] picture,” she testified.

The school principal assigned Mendoza to an alternative education program for 30 school days after investigating the "sexting" incident.

Under U.S. Supreme Court precedent, a search of a student by a school official must be “justified at its inception” and is “permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” New Jersey v. T.L.O., 469 U.S. 325 (1985).

In her decision, Johnson concluded that Langner's search was justified at its inception because she had a reasonable suspicion that it “would reveal that A.M. had been using it during school hours, a violation of school policy.” But she exceeded constitutional limits when she proceeded to search the contents of the messages.

“Langner admitted that all she needed to do was to determine if texts were sent by A.M. that day and she did not have to open any text message to determine that fact,” Johnson said.

Johnson's analysis is far more sensitive toward student privacy than that of the judge in J.W. Hopefully, U.S. District Judge Sim Lake will adopt her recommendation and deny the school district's motion for summary judgment.

The “sexting” case of a Pennsylvania high-school student was settled in September for $33,000 before any ruling on its merits. In the J.W. case, the plaintiff won a settlement on his claim that he was wrongfully expelled from his middle school.

By Matthew Heller
3/20/11