Memorandum of Law
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TO: Donna Dunson, Principal, Lake Wales High School
FROM: Robin Gibson, General Counsel, Lake Wales Charter Schools, Inc.
SUBJECT: May a School Regulate Cell Phone Usage by Students without Violating Due Process Rights of Parents
DATE: September 4, 2014
The legal issues raised by this Memorandum, and the decided case law have been thoroughly discussed in the article Silencing Students’ Cell Phones beyond the Schoolhouse Gate: Do Public Schools’ Cell Phone Confiscation and Retention Policies Violate Parents’ Due Process Rights? 41 Journal of Law & Education, (January, 2012). The court cases reviewed in the article have considered today’s pervasive use of cell phones by school age children. In so doing, the courts have considered both the harmful effects and the beneficial effects of cell phone usage.
The harmful effects include distraction from the learning environment, increased potential for cheating, (photographing and storing of notes, test questions and answers for classmates) cyber-bullying, texting in class, phoned bomb threats, pornography, and video and camera intrusion on the privacy of others in bathrooms and locker rooms.
The beneficial effects include parental communication with their children to insure safety before and after the school day.
The U. S. Supreme Court has long recognized that maintaining order and discipline is a goal of compulsory public education. Thus, courts grant school authorities wide discretion in school regulation and discipline matters, as long as such decisions do not infringe upon constitutional safeguards. One such constitutional safeguard protected by the Fourteenth Amendment due process clause is the fundamental right of parents to direct the care, custody and control of their children.
Courts have held that, when the custody, care and responsibility for the student passes from the home environment to the school environment, there is a legitimate government interest in maintaining order and discipline within the school. Disciplinary action for violation of school policy concerning cell phone use that has been allowed by the courts includes a broad range of consequences. The most common consequence is immediate confiscation of the phone and retention of it by school officials for a specified period of time. Depending on the school’s policy, the school may retain the students’ cell phone until the end of the class period, for one day, until the following Monday, for 30 days, or even through the end of the semester. Often schools will return a students’ cell phone only to parents upon the completion of the retention period. Additionally, schools frequently institute progressive disciplinary policies for cell phone violations, including progressively longer phone retention periods for multiple offenses. The ability of schools to confiscate and retain cell phones for a period of time enables schools to effectuate a primary goal of maintaining order and discipline within the school.
To enable the school to maintain order and discipline while at the same time not infringing upon fundamental rights protected by the Constitution, the courts have consistently acknowledged the legal right of the school to enforce its existing policy by confiscating and retaining cell phones during school hours. Whether the confiscation and retention of students’ cell phones beyond school hours impermissibly and substantially interferes with the parents’ rights to direct the care, custody and control of their children, has not been consistently resolved by the courts.
Conclusion
The conservative approach is for the school to confine the enforcement of its policy for confiscating and retaining cell phones to school hours and school property. Repeat offenders may lose their cell phones for an increasing number of school days. By restricting the discipline to school hours and school property, parents retain the ability to communicate with their children to insure safety and control after school hours and off school property.