CHALK TALKS- Silencing Students' Cell Phones beyond the Schoolhouse Gate: Do Public Schools' Cell Phone Confiscation and Retention Policies Violate Parents' Due Process Rights?

Article excerpt

I. INTRODUCTION

Public schools' confiscation and retention of cell phones for periods beyond school time arguably violates parents' fundamental right to direct the upbringing of their children under the Fourteenth Amendment due process clause. While school officials must respond to the unique challenges presented by students' possession and use of cell phones during school, such policies exceed the bounds of legitimate school authority.

This paper will explore the expansion of cell phone use among schoolaged children, the particular issues presented by such use, and the various policies school officials have implemented to address these issues. This paper will discuss recent court decisions involving public schools' cell phone policies and develop a potential argument for striking down these policies on constitutional grounds, namely as impermissibly infringing upon parents' fundamental right to direct the upbringing of their children.

II. CELL PHONE USE AND SCHOOL REGULATION

During the span of just a few decades, cell phones have become an integral part of societal daily life, and use of this technology continues to rapidly expand among both youth and adults.1 From 1987 to 2002, the number of cell phones in the United States soared from 1 .2 million to 145 million.2 Throughout this expansion, cell phones have increasingly become commonplace among students at all educational levels. For example, 58% of students in grades 6 through 12 in 2004 possessed cell phones, and 68% of this group regularly took their cell phones to school.3 Only 5 years later, 98% of high school students reported having access to cell phones for their own use, according to 2009 Speak Up4 data obtained from 368,000 students, teachers and parents across the U.S.5 Notably, 83% of middle-school students, 46% of students in grades 3 through 5, and 32% of students in Kindergarten through grade 2 also reported having access to cell phones in 2009 .6

Not surprisingly, as cell phones have become pervasive within the school setting, school officials have become increasingly concerned about the impact cell phones may have upon students' work in the classroom.7 Perhaps the most common concern is the level of distraction from the overall learning environment caused by the use of cell phones in schools.8 School officials also note the increased potential for cheating, as students use their cell phones to store crib notes, text questions and answers to fellow classmates, and even take photos of tests and quizzes." Other concerns include the perpetuation of cyber-bullying, arranging meetings with classmates disguised as "bathroom breaks," phoning bomb threats, and jamming phone lines during emergencies.1" Finally, the evolution of cell phones containing video and camera capabilities presents additional concerns regarding privacy and sexual harassment."

These myriad challenges and difficulties presented by students' cell phone use in schools have prompted school districts to develop policies regulating the presence and use of cell phones in school settings. In 2007, 84% of principals included in a national survey indicated that their schools maintained written policies regarding the use of cell phones.12 The most common feature of these policies is prohibiting students from using these devices at school, although some schools strictly banned bringing cell phones to school altogether.13

Disciplinary actions allowed under the phone policies include 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.14 Depending upon a particular school's policy, the school may retain students' cell phones 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 students' cell phones only to parents upon the completion of the retention period. …