Legal Ease/School Law Notes: School boards need policies on managing cell phones
By A. Dean Pickett
01/08 -- Thirty years ago, educators had the challenge of tape players and transistor radios as electronic distractions in the classroom.
Now, in many schools, nearly every student carries a cell phone (many with cameras and nearly all with text messaging capability), personal digital assistants, smartphones, MP-3 player, or other electronic communications device (ECD).
Ringing phones and other ECD distractions not only disrupt the learning process, they can be used for cheating and cyberbullying, and there is a potential that phones with cameras can be used for improper, and even criminal, purposes.
According to a survey published by the Education Commission of the States in 2004, 10 states prohibit ECDs, and 16 states have laws granting policymaking authority to local school boards. Several states have antibullying or antiharassment legislation that covers the improper use of ECDs.
In states with no laws governing ECDs in schools, boards have the discretion, within constitutional bounds, to regulate the presence of ECDs on campus, just as they can restrict other property of students, employees, and visitors.
The courts also have allowed schools to ban or limit the possession or use of ECDs on campus.
One recent decision on this issue, Price v. New York City Board of Education (2007), supports a full policy ban on possession of a cell phone and says school boards should be able to determine whatever policy approach is right for their schools.
The case involves a lawsuit by eight parents, who challenged a New York City Board of Education policy banning cell phones and pagers on campus without authorization. The parents agreed that schools could prohibit students from using cell phones at school but charged that a complete ban on possession infringes on state law and constitutional rights.
The court rejected the parents’ claims that banning possession of cell phones interfered with parents’ fundamental rights to make decisions concerning the upbringing of their children.
The parents offered a variety of solutions, including having school officials collect and store students’ phones at the school’s entrance; requiring students to keep the phones in their lockers; and banning phones that vibrate (to ensure they were turned off) and that have cameras, memory and instant message, e-mail, Bluetooth, and Internet capability.
The court rejected this idea because it would require school officials to inspect every student’s phone every day. The court also declined to limit only the use of cell phones in school, noting that having educators enforce such a rule would distract them from teaching and would make the school environment more adversarial.
Another recent court decision (Laney v. Farley) involved the argument that students have a constitutional right to have phones in school.
A middle school student in Tennessee was given a one-day, in-school suspension after her phone rang in class. According to the district’s policy, the student would be required to complete her schoolwork during her suspension, and school officials also confiscated the phone for 30 days and would return it at the end of that period only to a parent.
Twelve days after the phone was confiscated, the student’s father sued the principal, assistant principal, and district in federal court, seeking $800,000 in damages.
The trial court ruled that the retention of the cell phone for 30 days did not violate the rights of the father, who was the owner of the phone. The court noted that the student had no constitutional right to possess a cell phone in the classroom setting and, if her father did not want his phone confiscated, he should not have allowed his daughter to bring it to school in violation of school policy.
The 6th U.S. Circuit Court of Appeals upheld the school board’s policy, stating that it did not deprive the student of a property interest in educational benefits or a liberty interest in reputation.
Case law on banning cell phones and other ECDs in schools is still sparse, but these two cases indicate that future courts will likely support school districts’ attempts to eliminate this distraction.
If a school board hopes to prevail in the courts, it should ensure that the policy it adopts is reasonable and states that its intent is more about enhancing learning than punishing students.
A. Dean Pickett, of the Mangum, Wall, Stoops & Warden law firm in Flagstaff, Ariz., is vice chair of NSBA’s Council of School Attorneys.
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