Saturday, June 7, 2008


In having my students read and study the 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), this week as part of a mini-unit on the law, I discovered that the decision was appealed to the Appellate Division (New York's intermediate appellate court; the highest court in the state is the Court of Appeals) which just recently handed down its decision.

As discussed in CELL PhONES 4 JESUS, infra, the New York County Supreme Court upheld the Schools Chancellor's regulation banning from public schools the possession of cellular phones and other communication devices by students. The petitioners in that case, a group of parents and an advocacy group, had claimed that a ban on use rather than possession would be sufficient to address the schools' interest in avoiding the distractions, disruptions and sundry nefarious behaviors associated with having cell phones in school, but the court disagreed. The court found that the possession ban was reasonable, and that a ban on use would be too complicated, too costly, too difficult to enforce, consume substantial resources which are very limited to begin with (including pedagogical, budgetary, staffing, equipment, facilities, &c.), and could not be applied universally and uniformly to every school in the city.

It's important to note that the petitioners in this case were not arguing that students should be permitted to carry and/or use their cell phones while they are in school. Students often insist that it is necessary to have their cell phones in class "in case of an emergency," but the petitioners in Price did not argue that. Their concern was for their children to have their phones on the way to and from school, but the court found the distinction unpersuasive. The court also rejected the various hypothetical emergency scenarios proposed by the petitioners, finding none of them compelling enough to overcome the schools' substantial interest in avoiding cell phone-related problems.

The court also held that neither the parents nor the students had a specific constitutional right to carry or use cell phones, whether in school or before/after school. The petitioners claimed that the right fell within the ambit of "parental liberty interests," but the court disagreed. The interest was simply not important enough to implicate "strict scrutiny" under the 14th Amendment, nor to outweigh the value and legitimacy of the rule.

The Appellate Division has now upheld the lower court's ruling. The full opinion can be read here. Some relevant excerpts from the decision:

...the cell phone activity identified by the Department as threatening discipline in the schools goes far beyond the occasional errant ring. The very nature of cell phones, especially with regard to their text messaging capability, permits much of that activity to be performed surreptitiously, which the Chancellor rationally concluded presents significant challenges to enforcing a use ban. Certainly the Department has a rational interest in having its teachers and staff devote their time to educating students and not waging a "war" against cell phones.


The Parents describe cell phones which have no other capabilities than making and receiving calls and assert that certain phones permit parents to restrict the numbers children can call and from which they can receive calls. They claim that these phones can be programmed to be operative only during certain times of the day. The Parents fail, however, to demonstrate that such telephones are widely available and owned by students. Furthermore, the Parents offer no way of assuring that the phones would uniformly be used in the manner necessary to guarantee that school decorum will not be compromised.


By implementing the cell phone ban policy, the State is not depriving parents of the ability to raise their children in the manner in which they see fit. The ban by necessity will prevent children from calling their parents or receiving calls from them while commuting to and from school. However, scrutiny of the individual Parents' affidavits does not reveal that any fundamental child-rearing function is being taken from them. ... The Parents characterize the need for cell phones when the children are outside of school as a safety issue. However, the due process clause of the Fourteenth Amendment "is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security" (citation omitted) ... To the extent that the Parents argue that if children have cell phones they will be safer should an emergency arise in the school, we note that the Parents appear to be amenable to the Department installing lockers in which the children could store their phones during the day. This solution would obviously limit the students' ability to use their phones in that type of an emergency.


The cell phone ban does not directly and substantially interfere with any of the rights alleged by the Parents. Nothing about the cell phone policy forbids or prevents parents and their children from communicating with each other before and after school. Accordingly, the only analysis that need be applied is the rational basis test. That is, the policy will stand if it is rationally related to a legitimate goal of government (citation omitted). Here, the Chancellor reasonably determined that a ban on cell phone possession was necessary to maintain order in the schools. The goal of discipline is unquestionably a legitimate one. Accordingly, the policy withstands rational basis review and is not constitutionally infirm.


I don't know if this has been appealed to the Court of Appeals or not. What I do know is that students and parents who complain about cell phone confiscation, or put forth specious and frivolous "what-if-there's-an-emergency" arguments to justify their ignorance or defiance of the rule, no longer have a leg to stand on. It's time we started enforcing the ban.


f.x. said...

while the legal process has been invoked; it is not so much a question of constitutionality but rather another example of the " you can't tell me what to do" mentality so prevalent in our society and by extension, our educational system...the specious argument of "what if an emergency..." is neither logical nor is saddening that the voting public/parents hire administrators and teachers whose area of expertise is education; and then proceed to "second guess" and micromanage their decisions...perhaps the system has done its job too well...the products of that system are now far more enlightened than the system itself.

Jay Braiman said...

Oh, I don't think they're more enlightened. Far from it. Whatever "micromanagement" and "second-guessing" goes on is more indicative of narcissism than enlightenment.

My principal complaint with parents and kids in this context, particularly with respect to cell phones, is that they tend to demand outcomes which favor them individually in one specific instance, but which if the same reasoning and result were to be applied collectively in every like situation would be completely absurd and counter-intuitive.

Whether the excuse is "What if there's an emergency?" or "Not everyone does it, so why should I have to suffer?" or "Everyone else has a phone, so why should I let you confiscate mine?" or whatever, the thinking is hardly enlightened. It is purely selfish. Nothing more.

In discussions last week I had to constantly remind students that rules are made collectively, not individually; they are made in response to collective, not individual, behavior, and must be applied collectively and universally if they are to have any meaning.

Traffic violations are usually a good analogy. Not everyone speeds, but we still have speed limits. Not everyone who speeds gets a ticket, but those who do still have to pay it. Try telling a traffic court judge that "everyone else was speeding." He'll double your fine.

Selfish, narcissistic adults raise selfish, narcissistic kids.