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SEE YOU IN COURT! - April 2010

April 1, 2010

The teachers in Nutmeg are generally a docile and cooperative bunch. However, the epidemic of texting and other inappropriate cell phone use was driving them to distraction, and a delegation arrived at the Board meeting to demand action.

“Every single day, I have students in class surreptitiously texting each other. It is a wonder that anyone learns anything,” bemoaned Ms. Chlorophyll, the biology teacher at Nutmeg Memorial High. Teacher after teacher told the Board about their students texting in class, often followed by an urgent but suspicious need to go to the bathroom. Their message was clear – ban cell phones in school.

“For once, our teachers have a good point,” interjected Bob Bombast. “I move that we ban cell phones from the Nutmeg Public Schools. We didn’t have cell phones when I was in school, and there is no need for them now!”

The other Board members were not so sure. Penny Pincher said that she did not want to be liable if a parent couldn’t reach a child in an emergency, and Mal Content expressed concern that parents and students would storm the Board meetings protesting such a ban. Even Bob realized that he had gotten carried away, as usual, and he amended his motion as follows:

MOVED: That teachers at the High School shall confiscate and hold cell phones used in class without permission as follows: first offense: one day; second offense: one month; third offense: the rest of the year.

To the cheers of the assembled teachers, the Board unanimously approved this measure.

It did not take long before teachers were exercising their new rights. Ms. Chlorophyll confiscated two cell phones the first day, and by the end of the week, she had twelve cell phones in her desk drawer. One went missing, and she told the student that while she was sorry, the student had assumed the risk of loss when he violated the rules on cell phone use. After losing the one phone, however, Ms. Chlorophyll was more careful, and brought the cell phones to the office for safekeeping.

Able Assistant, the AP in charge of discipline, took possession of the confiscated cell phones, and she was surprised when one of them buzzed with a text message, “I have the stuff.” Intrigued by this cryptic message, Ms. Assistant scrolled through the other text messages on the phone. She was amused by some of the adolescent tripe, but she grew concerned when she found emails that appeared to show that the student was dealing drugs. Ms. Assistant reported her suspicion to the police and recommended to the Superintendent that the student be expelled.

The expulsion hearing had barely commenced, when the student’s lawyer, Bill Alot moved to suppress the evidence and to dismiss the case against his client. “The Administration has trampled on the constitutional rights of my client, by expropriating personal property and by conducting an illegal search. In addition, given that criminal charges are now pending, further proceedings here violate my client’s rights against double jeopardy and self-incrimination. Dismiss now or answer in federal court!”

Should the Board grant Bill’s motion?

*        *        *

The Nutmeg Board of Education has a problem, because the actions of its staff members do raise serious legal issues. However, Bill’s point about double jeopardy and self-incrimination is without merit.

Cell phone use in our schools is indeed a serious problem. State law addresses this issue in two ways. In 1995, the General Assembly passed Conn. Gen. Stat. § 10-233j, which prohibits possession of a “remotely activated paging device” without the written permission of the principal, a provision that now appears quaint. The next year, this statute was amended to provide further that school districts may “restrict” possession and use of cell phones, after considering “the special needs of parents and students.” This statute has not been challenged legally, and thus we do not know whether by implication this statute would prohibit an outright ban, an unlikely event.

In adopting rules concerning cell phone use, school districts must recognize the property rights of parents. School teachers and administrators can certainly confiscate cell phones, but retaining them for extended periods of time interferes with those property rights. Accordingly, cell phones must be returned to parents upon request. However, repeated violations of cell phone rules may result in other discipline, including suspension or even expulsion.

When a cell phone (or other property) is confiscated, a “bailment” is created, a legal term referring to possession on behalf of the owner of property. When that occurs, the “bailee” (don’t you love these legal terms?) must return the property upon demand, and the bailee also has a duty of due care. If a bailee/teacher loses a student cell phone or other property, he/she (and the school district) is liable for the loss.

The actions of Able Assistant do raise constitutional questions. School officials have the right to search students and their property when they have reasonable cause to do so, and when the scope of the search is reasonably related to the purpose of the search and not excessively intrusive. However, it is not proper to scroll through confiscated cell phones if there is no reasonable belief that the search would yield evidence that school rules or the law was violated.

Here, Ms. Assistant searched the student’s cell phone on the basis of a cryptic text message, “I have the stuff.” It is not clear that this comment refers to any improper activity, and thus her “search” of the cell phone was improper unless there were additional information to create reasonable suspicion. However, the exclusionary rule (excluding from consideration evidence that was obtained through an illegal search) is a concept of criminal law, and the Board would not be required to exclude such evidence from its deliberations. Whether and how to handle such situations, however, is a matter of fairness and constitutional law that must be decided on a case-by-case basis.

More generally, some conduct that would warrant expulsion may also be cause for criminal prosecution, and contemporaneous criminal proceedings are not uncommon. However, the two proceedings are separate, and boards of education must act promptly in the interest of student safety and consistency of discipline. The student may choose not to testify when there are ongoing criminal proceedings. However, that is the student’s choice, and boards of education have every right to proceed with expulsion hearings irrespective of pending criminal charges.

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