By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The "Legal Question of the Week" is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbag@casciac.org.
_____________________________________________________________________________

Dear Legal Mailbag:

At my school, we have a strict rule against students’ using cell phones during class time. Some teachers overlook violations because it can be a never-ending battle with students, but one “old school” teacher is vigilant about enforcing this prohibition. However, last week her enthusiasm for enforcing the prohibition caused a problem on which I need help. After one student had continued to use his cell phone in class to text his friends despite two separate warnings from the teacher, she grabbed it out of his hand and told him that he would get it back only after his mother or father came to school to retrieve it. The mother, however, simply sent a note in the next day, which directed the teacher to give the cell phone back to the student. The teacher got her back up, and she refused the parent’s request, telling the student that he would never see his cell phone again unless a parent came to retrieve it. However, before I could intervene to resolve this standoff, the teacher reported with some chagrin that the cell phone had gone missing. When I informed the parent, she hit the roof, and she is now demanding that the teacher reimburse her for the cost of the cell phone. We don’t have to do that, right?

Signed,
Sorting it out



Dear Sorting:

While I applaud the teacher’s desire to enforce the rules, you must help her understand the limits of school authority. Confiscating the cell phone in the first instance was fine. But there is a big difference between confiscation and expropriation. When the teacher took the cell phone, she was acting in loco parentis to maintain order in the classroom. However, that means that the teacher is acting in place of the parent, so when the parent instructed the teacher to return the cell phone to the student, the teacher had no right to continue to hold the cell phone (at least until the student again violated the rules and justified another confiscation). At that point, however, the issue should be one of insubordination and school discipline, not control over the cell phone.

Whenever school officials confiscate property from a student, they assume a responsibility for the safekeeping of that property (a “bailment” if you want to know the legal term). That responsibility includes liability for negligence, should the property be lost or damaged. Here, depending on the circumstances, the teacher may be liable to the family for the loss of the cell phone. However, while any carelessness would properly be the subject for discipline of the teacher, it would likely be more appropriate for the school district to make the actual payment. Theoretically, the family could sue the teacher for the loss, and the school district would be responsible for any damages awarded along with attorney’s fees in the related litigation. Rather than going through a legal process, the district would be well advised simply to reimburse the parents and deal with the teacher’s actions separately.