Friday, September 28, 2007


I thought I'd take the first post of the new school year to discuss the recent Supreme Court decision in Morse v. Frederick (the "BONG HiTS 4 JESUS" case), but I'm actually more interested for the moment in the New York Supreme Court's decision in Price v. N.Y. City Bd. of Educ., 2007 N.Y. Slip. Op. 27214, 16 Misc. 3d 543; 837 N.Y.S.2d 507 (Sup. Ct. N.Y. Cty. 2007). In the decision, which went largely unnoticed in the local press, Supreme Court Justice Lewis Bart Stone upheld the city's ban on students possessing cellular phones in public school buildings.

The plaintiffs in the case, a group of eight parents, sought a declaratory judgment to strike down the ban, arguing that a ban on use, rather than possession, would be sufficient to address any disruption problem which cell phones might present in school. They felt that cell phones provided a vital and indispensable communication link between themselves and their children, and that to ban them from public schools was a denial of their constitutional right to raise their children as they saw fit.

Judge Stone, wisely and with no small measure of contempt for these self-indulgent claims, dismissed the petition. He essentially found that the ban on cell phone possession, which is subject to exceptions under specific authorization (a fact entirely lost on the plaintiffs), had a rational basis and was not therefore faulty as a matter of law. Specifically, the judge emphasized the following points:

1. Any ban on use rather than possession would impose substantial logistical and financial burdens upon the already-overburdened school system, individual schools, and teachers. Between establishing procedures for internal regulation in each school, purchasing and installing screening and storage systems and equipment in every school building, the additional personnel resources needed for enforcement, not to mention placing teachers in the position of having to sacrifice instructional time to monitor and enforce any cell phone use regulations, it was clear to the court that a wholesale possession ban was not only reasonable but markedly preferable to a use ban. The court also noted that the Department of Education and the Chancellor considered these factors in choosing a possession ban over a use ban, hence the rule was not arbitrary or capricious; the plaintiffs clearly had not considered these or any other factors in insisting on the latter over the former. Ultimately, the petitioners could advance no "practically viable universal alternative."

2. As the cell phone rules provide for "authorization," the DOE did contemplate special circumstances under which a cell phone would be needed in school as an everyday matter. (Note that the DOE has amended the regulations this year, providing a procedure for a student to apply for permission to carry a cell phone in school for medical reasons.) The anecdotal "examples" provided by the petitioners, fancifully imagining certain dire emergencies in which a student might need to have a cell phone in school, were wholly insufficient to invalidate a carefully-considered administrative rule (i.e., such a rule should not be invalidated because some esoteric hypothetical terrible thing might happen someday; the potential for such an event does not outweigh the need for, and value of, the rule).

3. Most importantly, the court found that there was simply no Constitutional right to carry cell phones in school. Unlike the condom-distribution program that was struck down in Alfonso v. Fernandez, 195 A.D.2d 46 (2d Dept. 1993), the cell phone ban was not within the province of parenting rights (i.e., children's health) and fell squarely within the school's statutory authority to regulate disruptions to the learning process and to its educational mission. Neither the right of students to carry cell phones in school, nor the right of parents to see to it that they do so or to call them directly on those phones during school hours, constitutes a fundamental liberty interest under the Fourteenth Amendment.

Interestingly, in rejecting petitioners' constitutional claims, the court wrote that "the doctrine of substantive due process no longer exists as a matter of federal constitutional law."

(For readers with a non-legal background, "substantive due process" refers to the "liberty" portion of the Fifth and Fourteenth Amendments, essentially: "No person shall be deprived of life, liberty or property without due process of law." The legal doctrine of substantive due process attempts to define what "liberty" means by identifying precisely what a person's rights are; what a person is constitutionally entitled to do if (s)he pleases. In other words, certain rights are so fundamental to ordered liberty that we cannot have a free society without them. The government may not proscribe those rights without procedural due process, which refers to the lawmaking process itself, and the system of redress, used to enforce and protect those rights. Where fundamental rights are at stake, the government action is subject to strict scrutiny, requiring a compelling state interest and a law narrowly-tailored to serve that interest; otherwise, the government needs only a rational basis for the law or regulation.

Generally, any right which is explicitly granted by the Constitution and its Amendments is a fundamental right. The Supreme Court has been reluctant, however, to find any other unenumerated rights, although the most well-known and controversial is the right to privacy established in Griswold v. Connecticut and famously put to use in Roe v. Wade. The Court has also found that marriage is a fundamental right, in striking down a state law which forbade interracial marriage in Loving v. Virginia. The Court tends to construe unenumerated rights very narrowly; in Michael H. v. Gerald D., the Court held that while parents have a fundamental right to raise their children as they see fit, that right did not extend to a non-custodial biological father of a child raised by the mother's husband, whose name was on the child's birth certificate, as his own.)

While Judge Stone's statement seems severe, the point is that the court, particularly in the era of the conservative Rehnquist and Roberts courts, has essentially gone out of the business of carving out particularized rights under the Fourteenth Amendment which are not specified in the Constitution. In fact they have not done so since Roe, which itself was not strictly a Fourteenth Amendment case. Where the state has a rational basis for regulating a particular behavior, generally the state may do so. The Price case essentially held that not only do the schools have a rational basis, a compelling interest, and a very strong justification for banning cell phones, but that students and parents do not have a "right" to violate that rule or have it thrown out just because it may inconvenience them.

There are rights we need to have as a matter of liberty, which are indispensible to the concept of a free society, and then there are things which are simply a matter of convenience. A cell phone is a convenience, not a necessity. They come in handy in emergencies and can alleviate some of the anxiety of being incommunicado, but they are not inherently necessary to anyone's life or freedom. It is insulting to suggest that any child's need to have a cell phone on him while he's in class, let alone place or take a call during class, every day of the year is so vitally important to him and to our society that it should outweigh the distraction, disruption and other undesirable effects that the presence of cell phones in classrooms inevitably cause.

I have stated repeatedly that there would be no need to ban cell phones from the schools if the students could demonstrate either the capacity or the inclination to keep their phones silent and out of sight during school, but they can't. They can't, they don't, and they won't. What troubles me is that their (and their parents') solution to this problem is to complain, stage protests and file lawsuits in an effort to change the rule by force of narcissistic petulance, instead of doing the right thing in the first place and eliminating the rule by rendering it unnecessary.

The larger point which Judge Stone implies but does not specify, in declaring substantive due process essentially "dead," is that schoolchildren (and their parents) need to stop running to the courts claiming a violation of a "right" every time they find themselves subject to an inconvenient school rule, or the unpleasant consequences of violating that rule. A school is not in itself a democracy, in the sense that the student-school relationship is not analagous to that of the citizen-government relationship in society at large. It cannot be if the schools are to function properly. Are we to give children a vote in determining what school rules are? Who their teachers and principals are? What classes they take? What the school curriculum and grading standards are? And if we do that, will we also impose upon children the real consequences, such as incarceration and money damages, that adults in a democratic society face when they violate the law?

As everyone knows, adolescents tend to act on their momentary feelings and whims, and tend not to appreciate the risks that their behavior poses, nor make the sorts of careful risk-benefit analyses that temper (we hope) adults' behavior. As I've discussed in previous posts, adults tend to excuse young people's behavior and poor choices, and un-do the results, because "they're just kids" and can't be expected to appreciate risks. Yet these same adults insist that these children have "rights" just like everyone else. As a result, when their actions lead to unpleasant consequences, children tend to view those consequences as the violation of a right rather than the natural result of having taken a calculated risk.

Is it any wonder our children are not learning?