Investigating Student Sexting

Sexting – electronically sending sexually explicit photos or messages – has increased among teenagers. A school investigation into sexting implicates many legal concerns: free speech, search and seizure, Title IX, mandatory child abuse reporting, and child pornography. While policymakers debate whether to modify laws to address teen sexting, school administrators must proceed carefully with student sexting investigations.

Free Speech

While students do not shed their First Amendment rights to free speech at the schoolhouse gate, those rights are not absolute. Under the Tinker standard, school administrators may discipline students for engaging in speech that causes a material and substantial disruption to the school environment. School administrators may also discipline students for engaging in vulgar or lewd speech.

By its nature, sexting involves vulgar or lewd speech, which can also be disruptive at school if the sext is created or viewed at school or a school-related event, causes bullying or harassment, or otherwise interferes with the educational environment. Students may be disciplined for sexting when there is a nexus to the school, and the sexting violates a school rule, or either causes or is reasonably likely to cause a substantial disruption.

Search and Seizure

Confiscating the device that contains the sexually explicit photos implicates the Fourth Amendment, which prohibits “unreasonable” searches and seizures. Determining the reasonableness of a school-based search and seizure requires a two-step inquiry: (1) was the search justified at its inception, and (2) was the search reasonable in scope?

For a search to be justified at its inception, the administrator must have reasonable grounds to suspect that the search and seizure will produce evidence that the student violated the law or school rules. For example, the administrator may have received a tip from a reliable source that the student sent or received a sexually explicit photo. For a search to be reasonable in scope, the technique used must be reasonably related to the search objectives and not be excessively intrusive in light of the student’s age and sex as well as the nature of the infraction.

Title IX

Sexting may also constitute sexual harassment under Title IX. Peer sexual harassment may arise when a student circulates a sexually explicit photo. The administrator conducting the sexting investigation should work with the school’s Title IX Coordinator throughout the investigation to comply with all Title IX complaint and grievance procedures.

Mandatory Reporting of Child Abuse

Under Michigan’s Child Protection Law, producing sexually explicit images of a minor is “sexual exploitation” (a subset of child abuse) if it is caused by a teacher, teacher’s aide, parent, or other person responsible for the child’s welfare. Included within the definition of “sexual exploitation” is allowing, permitting, encouraging, or engaging in the photo­graphing of a child engaged in a sex act.

As a mandatory reporter of child abuse, a school administrator must make an immediate report of any suspected abuse to the Department of Human Services and follow up with a written report to DHS within 72 hours.

Child Pornography

If a student depicted in a photo is under 18, the photo may constitute child pornography, depending on the “sexually explicit” nature of the photo. A photo is “sexually explicit” if the student is shown engaging in a sex act or erotically exhibiting the genital, pubic, or rectal area. Child pornography is not a protected form of free speech.

Possessing, distributing, and producing child pornography are felonies under Michigan and federal law. Criminal possession occurs when a person knowingly possesses or seeks to access child pornography and is punishable by up to 4 years in prison. Production or distribution of child porno­graphy is punishable by up to 20 years in prison. Any evidence of child pornography should be immediately turned over to law enforcement authorities.

To avoid possessing or distributing child pornography during an investigation, school administrators should not print, copy, or transfer any sexually explicit photos onto school or personal devices.

Best Practices

Administrators should determine where the various actions took place and differentiate between those actions that occurred off-campus (e.g., the production of images) and those that occurred on-campus (e.g., possessing or distributing the images). Other relevant investigatory inquiries include the sexually explicit nature of a photo, the age of the student(s), the effect on the school environment, and the involvement of adults.