ACLU charges Washington middle school administrator with illegal Facebook search

The Student Press Law Center (SPLC) reports that the American Civil Liberties Union of Washington (ACLU-WA) has sent a letter to Everett School District’s (ESD) superintendent, charging that Samantha Negrete, a student at North Middle School, was forced to log onto her Facebook account so Vice Principal Bryan Toutant could view it.  The ACLU-WA letter contends Toutant’s actions amounted to an illegal search that has resulted in other students harassing Negrete.  ACLU-WA is seeking an apology and reassignment of Toutant.

Negrete was sent to Toutant’s office and instructed to “come around to his desk, kneel by his chair and log onto her Facebook account,” according to the ACLU’s letter.  He told her he was seeking evidence that a fellow student was bullying. After searching, Toutant found and saved a photo and then told Negrete, “If you keep this secret, I will too,” the letter states.  That student who posted the photo was later disciplined, but it is unclear why.  The ACLU letter contends the student was suspended from school for using a cell phone during school hours but not for bullying.

ESD spokeswoman Mary Waggoner declined to discuss the discipline but said in an email that Toutant investigated “what he understood to be cyberbullying done via a cell phone on school grounds during the school day.” Toutant searched Negrete’s Facebook account as part of his investigation, Waggoner said. Waggoner said that she could not discuss whether the information gleaned from Negrete’s Facebook account was a factor in the other student’s discipline.

The ACLU letter claims when Toutant later called down the student accused of cyberbullying, that student saw Negrete’s Facebook page open on the computer. Negrete now faces hostility from her peers and has received threatening emails for being a “snitch” and “tattletale,” after classmates learned of her involvement.

Sarah Dunne, ACLU-WA’s legal director, emphasized that Negrete was not being investigated for cyberbullying in any way and said the girl was “used” by Toutant.  Dunne referred most questions about the incident to the group’s letter.  “We believe that it may be precisely because Samantha is a good student who follows rules and respects authority that Toutant thought he might be able to gain access to other students’ Facebook account(s) through her,” the letter reads.

Washington Schools Risk Management Pool, a contracted insurance and risk management firm, conducted interviews this week with all parties involved in the incident, Waggoner said.  Attorneys with the firm will write up a report that will be the basis of any change in the district’s policy or discipline of staff.

Waggoner said that social media privacy is a “new and evolving territory for schools,” and that the district would “welcome the clarity that may come” from the investigation.  “Our staff respond swiftly to all issues of threatened student safety,” Waggoner wrote.  “In this case, the technicalities of cyber space and social media are evolving and changing.  It is vital that we protect students’ safety and their rights.”

SPLC noted that Negrete’s case mirrors a previous lawsuit filed by the ACLU against a Minnesota district.  In that case, Teresa Nelson, the ACLU attorney representing the student, said she thought her case was “the tip of the iceberg.” “With the advent of electronic media, I think you have a lot of schools wondering what they can do and overstepping their bounds,” Nelson said.

ACLU-WA is asking the school to issue a formal public apology to Negrete, a letter of explanation to the student body that her Facebook account was improperly searched, and a draft policy on social media searches.  It also asks that Toutant be removed from the school for the rest of the school year.  The letter promises to seek financial damages if the district does not comply with its demands.

Source:  Student Press Law Center, 3/19/13, By Daniel Moore

[Editor's Note: In September 2012, Legal Clips summarized the Minnesota federal district court's decision in R.S. v. Minnewaska Area Sch. Dist. denying the defendants’ motion to dismiss, ruling that a middle school student had stated a valid claim for violation of her First Amendment free speech rights based on school officials disciplining the students for off-campus postings made on her Facebook page. The court also denied the school officials' assertion that they were entitled to qualified immunity from the First Amendment claim at this early stage of the litigation.  R.S. alleged that the officials demanded she provide them with her email and Facebook usernames and passwords under threat of detention. The school officials viewed her public Facebook postings and her private messages.]

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