Legal Agility

I came across two interesting cases today from different sources, both dealing with school districts in Pennsylvania and issues regarding privacy and child pornography. Read side-by-side, they present a very troubling picture of disparate enforcement of the law.

First, the 3rd Circuit heard oral argument in the famous sexting case this past Monday. The ACLU article describes the background of the case as follows:

The case goes back to 2006, when two girls aged 12 were photographed by another friend on her digital camera. The two girls were depicted from the waist up, wearing bras. In a separate situation, our third client was photographed as she emerged from the shower, with a towel wrapped around her waist and the upper body exposed. Neither of the photos depicted genitalia or any sexual activity or context. In 2008 the girls’ school district learned that these and other photos were circulating, confiscated several students’ cell phones, and turned the photos in question over to the Wyoming County district attorney, George Skumanick, Jr.

Skumanick sent a letter to the girls and their parents, offering an ultimatum. They could attend a five-week re-education program of his own design, which included topics like “what it means to be a girl in today’s society” and “non-traditional societal and job roles.” They would also be placed on probation, subjected to random drug testing, and required to write essays explaining how their actions were wrong. If the girls refused the program, the letter explained, the girls would be charged with felony child pornography, a charge that carries a possible 10-year prison sentence.

Nineteen families received these letters. Sixteen consented to re-education. Three decided their girls would benefit more from a lesson in constitutional law than from Skumanick’s views on “‘what it means to be a girl in today’s society,”‘ and called the ACLU of Pennsylvania.”

The families got a temporary restraining order against the DA’s office in the court below. The DA’s office appealed. Note that (a) the DA’s office never threatened to prosecute the boys who were passing around the photos, but only the girls (”high school boys did as high school boys will do, and traded the photos among themselves”), and (b) Skumanick lost his bid for re-election last year.

Now, take the second case I came across today – Also in PA, in the very county where my husband grew up, the school district issued laptops to students and then used the laptop webcams to spy on the students at home:

“According to the filings in Blake J Robbins v Lower Merion School District (PA) et al, the laptops issued to high-school students in the well-heeled Philly suburb have webcams that can be covertly activated by the schools’ administrators, who have used this facility to spy on students and even their families. The issue came to light when the Robbins’s child was disciplined for “improper behavior in his home” and the Vice Principal used a photo taken by the webcam as evidence. The suit is a class action, brought on behalf of all students issued with these machines.”

Now, we all know teenagers. We all know those teenagers were using their laptops to look at porn on the internet. Those teenagers were no doubt leaving their laptops open while getting dressed in the morning, not to mention while engaging in other private activities. Still, I haven’t heard any news of the DA’s office going after the Lower Merion School District for collecting child pornography.

I would absolutely not encourage prosecution, but there does seem to be a double standard here. The disparate treatment of the girls in Wyoming County as opposed to the school officials in Montgomery County is very striking. Even child pornography laws are used against 12 year old girls, while allowing school officials who really did violate students’ privacy rights to escape unscathed.