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ACLU Wins Challenge To District's "Gang Policy"

 SOUTHAVEN, MS – The DeSoto County School District will make publicly available at school offices and on its website a list of prohibited gang signs as part of an agreement to settle an American Civil Liberties Union lawsuit filed last year. The lawsuit, filed in September 2009 by the ACLU and the ACLU of Mississippi, charged that a middle school student was wrongfully expelled from school after authorities illegally searched his cell phone and found what they claimed were photos depicting “gang-related activity” – when in reality the photos mainly depicted the student dancing in the bathroom of his own home.

“It is imperative that schools discourage gang activity, but overbroad gang policies that don’t provide any notice of the kind of conduct that is prohibited are subjective, violate the due process rights of students and can be used to unjustly push students of color out of school and into the criminal justice system,” said Courtney Bowie, staff attorney with the ACLU Racial Justice Program. “Unnecessarily pushing kids out into the streets not only violates their rights but also serves to exacerbate any problems with gangs communities might be experiencing; expulsion makes innocent children vulnerable to gangs.”

As part of the settlement agreement, religious symbols like the Star of David and the Star and Crescent will no longer be considered prohibited gang symbols. 

Richard Wade was a 12-year-old honor student at Southaven Middle School when he had his phone confiscated and searched in 2008 by several of his football coaches, his class principal and a Southaven Police Department sergeant after he read a text message during football class in violation of school rules.

After receiving a text message in August 2008 from his father in South Carolina which he thought might indicate an emergency, Richard flipped open his phone to read the message. But rather than simply confiscating the phone and turning it in to the school office as required by Southaven Middle School policy, several school officials, including football coach John Stevenson and the school’s principal Kenneth Walker, searched through the private and personal pictures Richard had stored on the phone, despite not having any reason to believe that Richard had done anything wrong other than possessing the cell phone. The phone was subsequently turned over to Sergeant Nicholas Kennedy of the Southaven Police Department, who claimed that the pictures constituted “gang-related activity” and “indecent pictures.” Richard was initially suspended for three days and ordered to attend a disciplinary hearing the next week.

During the disciplinary hearing, which Richard attended with his mother Jennifer and a family friend, Walker argued without substantiation that Richard posed a threat to school safety and Kennedy asserted, also without providing any factual basis supporting his claim, that he recognized gang signs in the photos Richard had stored in his phone. As a result, Richard was expelled from school by the county school board.

“This was a case where an honor student was expelled from school because a police officer and school officials decided without any basis that innocent pictures of a kid dancing conveyed 'gang-related' messages,” said Nsombi Lambright, Executive Director of the ACLU of Mississippi. “By putting a policy in place that gives students clear notice of what conduct and signs are prohibited, and which only prohibits deliberate conduct, school officials can focus on keeping students safe while at the same time protecting their constitutional rights.”

The ACLU lawsuit was filed in the U.S. District Court for the Northern District of Mississippi and charged that the searches and expulsion violated Richard's rights under the First, Fourth and Fourteenth Amendments to the U.S. Constitution, as well as his rights under the Mississippi Constitution.


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