Deb Lewis,0,6643381.story?coll

From The Morning Call

Backlash over cell phone sting
Parents allege rights violation by Nazareth teacher and a principal.

By Nancy Averett
Of The Morning Call

May 2, 2004

Legal and education experts say a Nazareth Area High School student has a
strong case that his right to privacy was violated last month when an
assistant principal confiscated his cell phone and used it to check and
send messages.

And, they say, if the student and the district take their arguments to
the courtroom — legal motions may be filed in state and federal court
this week — it could be the first lawsuit of its kind in the nation.

''It's the kind of case that could go all the way to the U.S. Supreme
Court,'' said Robert DeKoven, a professor at California Western Law
School who studies student privacy issues and tracks such lawsuits.

At issue is an incident March 17 when Nazareth technology teacher Shawn
Kimberly Kocher and Assistant Vice Principal Marge Grube confiscated
17-year-old Christopher Klump's cell phone.

Grube, with Kocher's help, searched his text messages and voice mail.
Pretending to be Christopher, Grube also used his phone list to call
other students and sent a text message to Christopher's 10-year-old

Christopher's parents, Toby and Leigh Klump, went before the school board
last month, asking for a public accounting of whether the staff members
would be disciplined. Board Chairman Donald Keller said the Personnel
Committee was discussing the matter but would say nothing more. School
law and union rules prohibit districts from disclosing staff discipline.

Grube and Kocher declined to comment, but district officials do not deny
that the actions took place. They have offered to reimburse phone calls
''to anyone who incurred costs because of the incident'' and send written
apologies to the parents of any student called.

But they stopped short of saying Grube's and Kocher's actions were wrong.
District Superintendent Victor Lesky said Grube had reason to believe,
based on a text message on Christopher's phone, that the teenager might
have been using his phone to deal drugs, and so their search was

''Anytime our administrators are facing a situation that's maybe drug-
and alcohol-related, they're going to do what they can, within the law,
to make sure our kids are safe,'' Lesky said.

The text message came from Christopher's girlfriend, a college student,
and was sent while she was driving in her car to pick up Christopher
after school let out. It read: ''I need a tampon!''

School officials say it is common knowledge that tampon is slang for a
large marijuana cigarette.

But Toby and Leigh Klump say that even if Grube and Kocher had the right
to search their son's cell phone, and they don't believe they did, there
was no message that indicated Christopher was dealing drugs. The Klumps
said the request was innocent, and Christopher did indeed find a tampon
for his girlfriend from another girl at school.

They also say Christopher never has been caught at school or anywhere
else using or selling drugs.

School policy forbids cell phones on school grounds during school hours.
But Nazareth and other districts in the Lehigh Valley area allow students
to have phones as long as they remain off and out of sight during the
school day. Lesky said this unwritten rule came about after the Columbine
High School shootings in Colorado and the Sept. 11, 2001, terrorist
attacks so students have a way to contact someone in case of an

Because of the written policy, the Klumps say, the district had a right
to take their son's phone but nothing more.

Jamin Raskin, an American University law professor and author of ''We the
Students: Supreme Court Cases for and About Students,'' agrees.

''If there was independent evidence that there was reasonable suspicion
of drug dealing going on, perhaps the violation of the student's strong
privacy interests in his phone could be justified,'' Raskin said in an
e-mail. ''But this seems like a real stretch.''

Steve Edwards, a former principal in Hartford, Conn., now vice president
of the National Crime Prevention Council, had a similar feeling on the

''I would think that would be crossing the line,'' he said. ''If there's
reasonable cause, you can search a locker, but that's school property. On
occasion as a principal, I would ask a student to empty their pockets or
purse. But to take someone's cell phone and start looking at messages? I
don't know. Where does it stop?''

Cell phone sting or drug sting?

March 17 was not the first time that Christopher Klump's cell phone ended
up in Marge Grube's office.

Leigh and Toby Klump say their son had his cell phone taken away six or
seven times previously. The Klumps, who live in Bushkill Township, said
they told their son to keep it in his car, but he did not always listen.

So when Christopher initially complained that Kocher had spied the phone
resting on his knee in class and taken it, the Klumps said they hoped it
would teach him a lesson. But their son had a new twist on the story this
time. He ran into a friend in the hallway outside Grube's office. The
friend grumbled that Grube had used Christopher's phone to call him. When
he answered, the friend said, Grube told him to come to her office and
turn in his phone.

When the Klumps first spoke to Grube, they say, she acknowledged that she
conducted a cell phone sting of sorts, calling nine students whose
numbers Christopher stored in his phone. Later that night, though, when
Leigh Klump looked at the online records for her son's cell phone
account, she learned Grube had done much more.

The records showed the calls Grube made. They also showed Grube tapped
into Christopher's voice mail and text messages — and had even sent a
message, pretending to be Christopher, to their younger son.

The Klumps later confronted Grube and the following is their version of
what she said: Grube now said that it was not a cell phone sting but a
drug sting that she had conducted with Christopher's cell phone. She said
when Kocher took Christopher's phone away, he told her, ''I was not text

Based on that statement, Grube said she felt justified to check his
messages to see if he had been. While doing so, she said, she discovered
the tampon message that she felt it indicated Christopher might be
dealing drugs.

''I can't remember when a girlfriend ever called me for a tampon,''
Superintendent Lesky said.

Thought she was helping

School officials also said Grube and the Klumps had earlier conversations
about Christopher, and it was these discussions that motivated Grube.

''She actually thought she was taking actions to help them,'' wrote
district solicitor Preston Moritz in a letter to Timothy Prendergast, the
Klumps' attorney.

The Klumps said they told Grube earlier in the year that they were
concerned because Christopher's grades were dropping and he skipped
school a few times. They also mentioned that they were concerned about
some of the friends he was hanging out with and that they periodically
test Christopher for drug use. Christopher has never tested positive, and
the Klumps do not believe he uses drugs, but they said they want to be as
proactive as they can to keep him from doing so.

Finally, Leigh Klump said Grube probably also was aware that they once
asked a high school counselor to do a drug and alcohol evaluation of

''The counselor said, 'You're crazy. He's perfectly normal,''' Leigh
Klump recalled with a laugh.

While the school district may argue that this background information
justified Grube's search of the cell phone, the Klumps don't see it that

''If she had seen my kid in the hallway in some secret exchange that
would be one thing,'' Leigh Klump said. ''But the circumstances just
didn't warrant the search.''

She and her husband also said the logical step if Grube suspected
Christopher was selling drugs would have been to alert them and the

Furthermore, they said, there is another problem with Grube's claim that
the tampon message justified her search. The Klumps said Grube claimed
the message came in while she was in possession of the phone. The phone
records, however, told a different story: The message was sent the day
before the phone was taken.

''Their story has shifted so much,'' said Prendergast. First ''it was the
cell phone sting, then it was the whole thing about the tampon. They
scrambled to find a reason for why they did what they did.''

Courts strict on privacy issues

Prendergast plans to file motions in state and federal court this week,
claiming that his client's right to privacy under the state and federal
constitutions was violated.

Pennsylvania is the only state with a constitution that protects privacy
rights. DeKoven, the law school professor in California, said that should
be a key factor.

The federal Constitution protects privacy rights, but the U.S. Supreme
Court ruled in 1985 that school administrators can search students if
they have reasonable evidence to suggest the student might have violated
school policy or broken the law. The court said administrators have to be
able to protect students from other students.

Pennsylvania courts, however, have given administrators less leeway.

''Normally, school districts just have to say, 'We're concerned about
drugs and alcohol,''' DeKoven said. ''In Pennsylvania, the courts have
said, 'You've got to actually show the reason why you're doing this.'
It's a much higher standard.''

Prendergast said state case law indicates that the courts will consider
several factors when it comes to determining whether a student's privacy
has been violated, including whether the district provided notice that it
might conduct searches of cell phone voice and text messages.

''Our position is simple,'' Prendergast wrote in a letter to Moritz, the
district solicitor. ''There is no notice provided because these actions
were not anticipated by the authors of the student conduct code and have
far exceeded any authority of the administration to carry out their
mandate to protect the health and welfare of the student population.''

District officials said they plan to revise their cell phone policy in
light of this incident.

A tough job

Cell phones, laptops and other technology present a real challenge to
schools, experts said.

Administrators have caught students using text messages to cheat on tests
and camera phones to send revealing photos of unsuspecting peers.
Students who bring their personal laptops to schools have also been
caught surfing pornography sites.

Having to police this technology, which is getting smaller and thus
easier to conceal, can be frustrating to administrators, said Michael
Carr, spokesman for the National Association of Secondary School

Edwards, the former principal, agreed.

''It's one of the toughest jobs in America,'' he said of being a
principal. ''Think of the things these people have constantly placed upon
them: Keeping schools violence- and drug-free, keeping test scores up.''

Little wonder then, he said, that he has some administrators snap, such
as performing a strip search.

Several years ago, a high school principal in San Diego was demoted after
she made female students show their underwear before heading into a
school dance. The administrator said she was looking to see if the girls
were wearing thong underwear, which was against school policy.

Locally, there have been several incidents where school officials
appeared to infringe upon student privacy rights. In 2001, a former
Emmaus High School swimming coach settled a lawsuit after a student
claimed he violated her privacy when he tried to force her to take a
pregnancy test.

Two years earlier, Catasauqua cheerleaders complained that their privacy
rights were trampled when two administrators searched their luggage
before they left on a road trip to a competition. In that case, one of
the administrators said he did not have a ''specific'' suspicion about
the cheerleaders.

Apology sought

The Klumps' attorney, Prendergast, said the couple decided to file the
lawsuits because district officials haven't apologized for Grube's and
Kocher's actions and have not, to their knowledge, disciplined them.

''We hold students to a certain standard,'' Prendergast said. ''It is
hypocritical for us not to hold educators to the same standard.…If
Christopher or any other student had broken the law and school policy,
they would have been disciplined.''

School officials said school code and union policy forbids public
discussion of staff discipline.

Still, in a letter to Prendergast, Moritz wrote that the request for
punishment would ''be taken under advisement and at the very least,
required attendance at a student rights workshop will be forthcoming.''

The district also promised that the Klumps' younger son will not be
assigned to Grube when he goes to the high school.

It seems unlikely that the Klumps will be satisfied with those actions.

''Their argument from the start was, 'We have the right to do this,'''
Leigh Klump said. ''Well, they don't. I want a new policy that says, 'You
guys have to step back here and give these kids room to breathe.'''


Copyright © 2004, The Morning Call