04/16/2014 05:54 pm ET Updated Jun 14, 2014

High School Student Allegedly Punished for Recording Bullies: Why It's Wrong

Last week, Priscilla Jones reported the story of a high school sophomore that recorded being bullied on his iPad and was then threatened with felony wiretapping after he took the recording to school administrators.

The incident, according to Jones, occurred on February 11th at South Fayette High School in McDonald, Pennsylvania. The 15-year-old student had sought to demonstrate to his mother that he wasn't exaggerating claims of being bullied. The recording he made allegedly captured a student shouting out to another student to "pull his pants down." The other student replied "No, man. Imagine how bad that cunt smells!" The incident took place while the teacher was helping the student with a math problem. The teacher responded to the occurrence by instructing students not to talk unless it pertained to math. After which there was supposedly a loud bang, the teacher then yelled, and a student responded, "I was just trying to scare him!" The abused student reported that the loud bang was a book being slammed on his desk.

But there's a problem with the above account: the evidence for it was destroyed. The school's principal, Scott Milburn, allegedly ordered the student to erase the recording after threatening him with felony wiretapping because it occurred in a place where a "reasonable expectation of privacy" existed. The principal then called local police; the officer that arrived agreed with Milburn that felony wiretapping had occurred. On March 19th, local magistrate Maureen McGraw-Desmet found the student guilty of disorderly conduct because the recording served "no legitimate purpose." Presumably, the recording had not been entered as evidence because it was destroyed.

Whether or not illegal wiretapping had occurred, Principal Milburn is wrong to have ordered the student to erase the recording -- if he did indeed do so. If illegal wiretapping had occurred then Milburn effectively tampered with evidence by ordering a subordinate student to erase it. But it's far from clear that a classroom in a public school enjoys a reasonable expectation of privacy and such an expectation is required for wiretapping to be illegal in Pennsylvania. Wiretapping aside, Principal Milburn may have ordered the destruction of valid evidence proving intimidation and an inadequate response by the school towards it.

Indeed, the response of the school's administration from Jones' account appears more like an attempt to thwart accountability. And it seems that neither the police officer that arrived at the school to confront the student nor the trial judge were impartial but rather biased towards Principal Milburn's position.

Ultimately, schools are accountable to both the public and to parents and for this reason it seems that an expectation of privacy would be limited in the classrooms of public schools. When class is not in session then a teacher would probably have a reasonable expectation of privacy in his or her classroom. However, it's hard to conceive that a teacher would have that same right when engaged with students because the teacher is then in a position of public trust. It's also hard to imagine that a student has an expectation of privacy for his or her actions while participating in a class of twenty.

Fortunately, the student that claimed to have been bullied wasn't found guilty of wiretapping. However, the trial judge surely erred when she found the student guilty of "disorderly conduct" on the claim that he had "no legitimate purpose" for making the recording, if he was indeed motivated to show abuse.

According to Jones, the student is appealing his conviction and is scheduled for a court appearance April 29th.