The New York City Department of Education’s ban on cell phones in all public schools has been upheld in a decision of the state Supreme Court.

Regulations on discipline in schools, established by the chancellor of the New York City Department of Education, forbid students to bring a variety of dangerous objects such as knives, guns, and box cutters into any school building; among the prohibited articles: cell phones.

Despite opposition efforts to limit the ban to the use of cell phones in schools rather than mere possession, an acting justice upheld the total ban as well as the department’s power to impose punishment including confiscation of phones. Students who attend schools the department considers particularly dangerous go through metal detectors that can find the phones. But all students, even those in schools with a rather low incidence of discipline problems, are subject to search by magnetometers and roving metal detectors that go to different schools every day.

FAMILY RIGHTS, CHANCELLOR’S PEROGATIVE

The Chancellor’s Parents Advisory Council and eight parents contend in a lawsuit known as Price against New York City Department of Education, Mayor Michael Bloomberg et al, that their children’s safety is threatened by not being able to carry phones, which the parents characterize as a "lifeline" to call for assistance while traveling to and from school, at after-school activities or athletic events. or in case of a public emergency or disaster. The parents agreed that the use of phones in schools is undesirable, but argued that banning their use, rather than their possession, would adequately meet the chancellor’s objectives.

The petitioners had argued that the rule eroded the constitutional rights of parents and children to make family decisions. Because of that, they said, the rule’s purpose must be examined with heightened scrutiny.

David Leichtman, a partner at the law firm of Morgan Lewis, along with civil rights attorney Norman Siegal, is representing the petitioners pro bono, says, "This is not a case about cell phones. It is about who is responsible for the safety of our children before 9 and after 3. The chancellor’s authority ends at the school door," Leichtman argued. "The mayor’s policy that we are challenging deprives the 1.1 million most vulnerable kids of New York City of their safety."

Siegal, describes the rule as "an intrusion into the relationship between parents and their children," and argues that government must show that it has an essential interest, if they are going to be permitted to interfere with that relationship. The lawsuit contends that there has been no such showing to support infringing on "the care, custody, and control of petitioners’ children."

For its part, the Department of Education contented that that anything education-based is beyond the court’s powers of review. The court rejected that argument as “frivolous.”

But then when Judge Lewis Bart Stone went on to consider the challenges to the cell phone rule, he found that, contrary to the parents’ claims, the ban was neither arbitrary nor unconstitutional. The court concluded that its function was to determine whether the promulgated rule was rational, and found that it was.

CELL PHONE AS ‘LIFELINE’

The petitioners all have children in middle school or high school and live in various parts of the city. The students travel by subway and bus to distant schools, often in other boroughs. Court documents detail allegations of risks to children who do not have cell phone "lifelines," and problems averted when they did have phones.

Raven, the 9 year old daughter of Isaac Carmignagni of Queens, was locked out of school before her adult escort arrived to pick her up, but was able to call her father on her cell phone.

Named petitioner, Camella Price, a single mother who is chief of staff for a New York state senator, knows that her two young daughters are subject to school searches by roving metal detectors. Still, she has instructed them to continue to carry their cell phones to school, turning them off during class. Prior to enforcement of the ban, her younger daughter at 11 was beaten up on her way home from school and was able to use her cell phone to call for help.

Beth Berenbaum described in a letter to Chancellor Joel Klein, that her son, a high school freshman travels from Staten Island to Manhattan’s LaGuardia High School by ferry and train, calling his mother at work in New Jersey when he reaches his destination. Responding to her letter, the chancellor’s office said, "It is the experience of many of our principals and teachers that if phones are allowed into school buildings, they will be used inappropriately. ... Aside from simple disruption, students have used cell phones for far more serious offenses. In the past, for example, students have used cell phones to rally support during fights, to cheat on exams, and to take illicit photos of school work or people. ...All of these situations negatively impact the learning environment and cannot be tolerated."

Other examples of the usefulness of the phone include:

--a description of September 11, 2001, when cell phones provided the only means of communication.

--a 12 year old calling her mother from a cell phone because a man was following her from her bus stop.

--a student using a cell phone to find out how to get home after the youngster’s regular train station was evacuated due to fire.

Carmen Colon detailed her 10 year old son’s commute of one and a half hours each way from his Brooklyn home and the need for him to coordinate his travel arrangements with his two older brothers.

WHAT THE JUDGE FOUND

While the court did not take any position on the issue itself, other than his deciding that the Department of Education’s action is rational, the judge issued a lengthy decision containing expositions on procedural technicalities and personal philosophy along with a section labeled, "What is a cell phone?" Judge Stone, who normally hears criminal cases, made numerous references to infractions, discipline, security, magnetometers and cited his own experiences, commenting, "the Court has regularly observed that a ban on use does not always assure that cell phones do not ring in the courtroom at inappropriate times and cause disturbances. However, when they do, the Court, unlike a teacher in a classroom, has the benefit of armed court officers to enforce the use ban and to assure the restoration of order."

The decision rejected two amicus curiae briefs. These are offered to a court by interested groups or individual "friends of the court," who are not actual parties to the lawsuit, but seek to impress an expert point of view, or an argument not presented in the main litigation. But, the judge wrote, "Some of those claiming to be amici are really enemies posing in friend’s (sic) clothing. ... Each ill-considered amicus application puts an unnecessary and unwarranted burden on the Court, as such application must be read and addressed, if only to be rejected."

One of the rejected amicus briefs was offered by the United Federation of Teachers on behalf of classroom teachers, who said that, from their unique perspective, the phones are not disruptive.

In discussing the teachers’ role, the judge, who did eventually accept an affidavit from teachers union president Randi Weingarten, decided contrary to the teachers’ position. "Any enforcement system focusing on use, rather than possession, requires teachers, rather than only security personnel at the school door, to observe and enforce the ban and become involved in confronting students and punishment decision, in detriment of their pedagogical mission,” he said.

ROOM FOR COMPROMISE?

The petitioners have informed the education department that they would agree to have the phones parked in lockers. It appears, though, that most schools in this city do not have lockers for coats or sneakers, let alone cell phones. However, the city has issued a request for proposals from the private sector to install, commercially and off school premises, special lockers in which to place cell phones on a daily, paid basis.

In the meantime, lawyer Leichtman said , "We don’t see what the big deal is. Mayor Bloomberg is making a mountain out of a molehill." He said his clients "have a firm belief in the way they need to raise their children, and that it is not the schools’ business."

The petitioners and the lawyers are "seriously looking at an appeal," according to Siegel. Efforts to reach the attorneys who appeared on behalf of the city’s Corporation Counsel were unsuccessful.

Emily Jane Goodman is a New York State Supreme Court Justice