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MShore
MShore, Attorney
Category: Legal
Satisfied Customers: 25285
Experience:  Negotiate, Draft, and Review many complex commercial agreements each year.
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Issue Does a public school have the right to confiscate a

Customer Question

Issue: Does a public school have the right to confiscate a student's cell phone and if so under what circumstances and for what duration of time?

While on his lunch break in the school cafeteria, my 16 year old son had is cell phone confiscated by school's assistant principal and was advised his cell phone would remain in the custody of the school for the next two weeks.

The school policy prohibits the use of cell phones during the school day on the theory that it interfears with the schools primary mission of educating the children.

In this instance, my son was merely moving the phone from one pocket to another and was not usng the device. The incident occured in the school cafeteria during his lunch break.

For purposes of this answer, I would like you to assume two senerios;
1. My son was texting on his phone in the cafeteria (they will assert he was even if he was not)
2. My son was not "using" the phone but mearly moving it on his person from one pocket to another.(which was the case)

The school has a written policy prohibiting the use of cell phones during school hours. My son never signed or agreed to the school policy although the school requests that they do so.

My son was initially reticent to surrender the phone since when he had a similar circumstance last year, he was advised that the phone was lost when he went to reclaim it. It was a $350 cell phone for which we were never reimbursed. Further, the school does not issue any form of receipt when they confiscate the property so we could not even prove that they had the device if we wanted to. When I requested a receipt I was informed it is not "the schools policy" to issue receipts for electronic devices such as cell phones that they confiscate.

Is the school responsible to reimburse for the phone they lost?

Does the school's right to retain the phone extend beyond the school day or must the cell phone be returned to my son (or me as parent since the phone belongs to me) at the end of the school day with the provision that he may not be allowed to bring it back to school for two weeks?

What caused my son to finally surrender his phone was the administrators comment to my son that if he did not relinquish the phone they would call the police and have him arrested on the grounds that he was being a "disorderly person" in spite of the fact that my son was polite during the entire incident.

In this post-9/11 era that we live in, it is very important that I be able to contact my children via their cell phone after school hours in the event of emergency.

I believe a more sensible approach by the school was simply to contact the parent by phone or e-mail and advise them that their child is not allowed to bring their phone to school for the ensuing two weeks. If the child violates that provision, there are other disciplinary means that could address the issue such as detention, etc.

An even more reasonable approach would be to let the children use their cell phones in school during no class time such as lunch time. For many families with two working parents, the cell phone provides an important means for the child and parent to communicate and stay in touch.
Submitted: 6 years ago.
Category: Legal
Expert:  MShore replied 6 years ago.
Thank you for the post, did the school admit to losing the most recent phone? The school is liable for the prior phone that was lost.
Customer: replied 6 years ago.
They just took the recent phone yesterday for a two week period so I dont know fi they have lost it since we have not tried to get it back yet. I am assuming tis is a request for additionalinformation and not the complete answer so I have not clicked on accept answer yet. Am I correct?
Expert:  MShore replied 6 years ago.
Yes you are correct in that it was an information request. The public school's right to confiscate a cell phone brought onto the premises is limited to its published policy on cell phone use and confiscation. IF the two week period is prescribed by the policy, and the policy does not require that the phone actually be in use at the time of confiscation the school can confiscate the phone.
Customer: replied 6 years ago.

I guess the phrase "in use" is what I need to focus on. Could moving the phone from his left pocket to his right constitute "use".

 

Also, I asked does the school's right to retain the phone extend beyond the school day or must the cell phone be returned to my son (or me as parent since the phone belongs to me) at the end of the school day?

 

If you have time, can you give me any citation or legal basis which gives the school the right to retain the phone after school hours. What reading I did on the subject seems to state that this issue has not been before the courts in any significant way.

 

Expert:  MShore replied 6 years ago.
No, it would not. Use traditionally is defined as engaging the functionality of the device, whether it be placing a call or data session. The school's policy is governing here.
Customer: replied 6 years ago.

This is the first time have used this service so forgve me for not being familiar with how this works. It appears that you are answering one part of the question at a time. Am I correct? Ihave to be up early for work so Im afraid I have to go to sleep. I will check one more time in about 15 minutes but if you are busy, I can wait until Wednesday afternoon for the balance of the answers. By the way, my name isXXXXX to meet you.

 

I believe I am still waiting for the last two parts, i.e.

 

"Also, I asked does the school's right to retain the phone extend beyond the school day or must the cell phone be returned to my son (or me as parent since the phone belongs to me) at the end of the school day? "

 

"If you have time, can you give me any citation or legal basis which gives the school the right to retain the phone after school hours. What reading I did on the subject seems to state that this issue has not been before the courts in any significant way."

 

Expert:  MShore replied 6 years ago.
Hello Mark, in response to the last two parts:

1) The school's right to retain the phone extends beyond the school day per the school's policy. By publishing the policy and your son attending the school there was an established agreement to abide by that policy.

2) This is the same as Answer 1 above.