Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
In an attempt to reduce electronic device distractions and to maintain an academic culture of focused and sustained instruction, our Freshman Academy teachers are brainstorming ideas to limit the access students have to their cell phones. Currently, if cell phones become a distraction to the learning environment or after several warnings, teachers can call the office to have an administrator or their designee come to the room and confiscate the phone. That phone will then be held in the administrator’s office, locked away until the end of the day when the student can pick it up. We have told staff NOT to confiscate phones themselves because of the liability they will incur if that cell phone they’ve confiscated goes missing. Essentially, we, administratively, have taken on that liability and also have a reduced student presence in our offices that significantly lessens the potential for a cell phone to go missing.
One of their proposals, which leads to my question, is they would like to have an area in their room (picture those hanging shoe bags or calculator bags) where students put their cell phones for the duration of the class. What are the potential legal pitfalls if teachers have students keep their cell phones in a designated area in the classroom? Does their liability lessen if students are given a suggestion vs. a mandate of keeping their cell phones in this location?
While my recommendation was to have students keep their phones on silent, do not disturb or even off and placed in their backpack, I told them I would look into their idea and what potential issues they may face if they have this cell phone “island” in their classroom, especially if one of the phones goes missing.
Thank you for your detailed and thoughtful letter. Your concern about the “cell phone island” is valid, but, ultimately, whether to go forward with this cockamamie scheme is a business judgment for the school district.
Legal Mailbag would like to start by reassuring you that the school district has the legal authority to regulate cell phone use. Conn. Gen. Stat. § 10-233j(b) provides:
(b) A local or regional board of education may restrict the student possession or use of cellular mobile telephones in the schools under its jurisdiction. In determining whether to restrict such possession or use, the local or regional board of education shall consider the special needs of parents and students.
This law confirms that school districts have the authority to restrict cell phone use by students.
That said, Legal Mailbag notes that this law was passed over twenty years ago. Since that time, cell phone use and related expectations of parents have increased exponentially, and it is now hard to imagine an administrator brave (or foolish) enough to try to ban cell phones from a school. Indeed, adopting any rules now regarding access to cell phones could invite parent resistance and questions as to whether “the board of education” (as opposed to the building administrators) adopted such restrictions in accordance with statute.
For the sake of further discussion, Legal Mailbag will presume that building administrators have cleared the “cell phone island” idea with the superintendent and the board of education. But there is still a concern. In your question, you anticipate that concern by referring to the situation when one of the cell phones goes missing. As noted below, separating a school full of students from their beloved cell phones is an invitation for trouble.
When administrators confiscate cell phones (or other student property), they create a “bailment,” which is defined by dictionary.law.com as “the act of placing property in the custody and control of another, usually by agreement in which the holder (bailee) is responsible for the safekeeping and return of the property.” (Emphasis added). Whenever a teacher or school administrator confiscates a cell phone, he or she assumes responsibility for the safety of the property, and if the property goes missing, the “bailee” may well be accused of being careless and subject to a claim either to find the property or reimburse the owner for its value. Those risks are unavoidable when student property must be confiscated. Your team is to be congratulated, however, by your wise decision to require that only trained administrators effect such confiscations.
By contrast, the “cell phone island” approach separates students from their cell phones without a concomitant shift of responsibility for the safety of the phones. To be sure, Legal Mailbag notes that the cell phone repository will be in plain view and, thus, it may be unlikely that a cell phone would go missing. However, if something can go wrong, it usually will, and Legal Mailbag can well imagine that the time will come when a student goes to retrieve his or her cell phone and it is not there. Now what?
Finally, you ask whether making use of the “cell phone island” a suggestion (rather than a mandate) would reduce the potential for liability. It would not. Teachers and administrators stand in loco parentis (in the place of the parent), and when our parents “suggest” that we take out the garbage or be home by midnight, it is between difficult and impossible to establish that compliance with such a suggestion was truly voluntary. Administrator or teacher “suggestions” to use the “cell phone island” will likely be considered a directive.
In sum, Legal Mailbag concludes that your less ambitious plan simply to expect that students put their cell phones on silent makes better sense. As a business judgment, your teachers can implement their “cell phone island” plan. But it’s a bad idea.