By Rabbi Yair Hoffman
The conversation has probably come up in every household in America. What is the school’s policy regarding cell phones? Some schools require that a student’s cell phone be deposited with the school at the beginning of the day. Others completely forbid cell phones at school. Yet others forbid their use only during class time. Within the New York City public-school system, Chancellor’s Regulation A-412 Â§V prohibits all electronic devices in school. It is also a violation of the Citywide Standards of Discipline and Intervention Measures (discipline code B05).
How does halachah weigh in here? May a school confiscate a phone from a student? May the school dump the phone in the dreaded “fish tank”? May a principal look at the phone and determine whom the student has been texting in class and act upon this information? May a student possess and use a “decoy phone,” and when caught with a phone in hand after a text, deftly switch the real phone with the decoy phone, or is this a further violation of geneivas da’as–practicing deceit? (Legend has it that one enterprising young lady had six decoy phones taken away, only to have been ultimately caught when the bus driver texted her that he was planning on picking up the entire busload of students early–and she forwarded the information to her fellow students.) Also, what happens if the school principal or teacher confiscates the phone and loses it? Is there financial responsibility on the school’s part?
The Shulchan Aruch (Y.D. 245:10) discusses the exact parameters of corporal punishment, saying that a teacher may not use a rod to discipline a student but may only use a small retzuah (strap), so that it not be cruel or excessive. The same idea is cited in Choshen Mishpat (421:13), that if a child is placed under the guidance or supervision of another, that person may invoke disciplinary measures without resorting to a beis din. This idea is first found in the Terumas HaDeshen (#218). It would thus follow that a teacher or school would certainly be permitted to confiscate an item that is disruptive to the student’s education, and particularly when it may affect others.
However, just as there are limitations on the conduct of the teacher in terms of the degree of punishment that may be meted out, it would follow that there are also limitations on what may or may not be taken away (permanently) or destroyed. Modern poskim have ruled that a school may not permanently take away an item from a student, and that their responsibilities vis-Ã -vis the item in question are equivalent to that of a shomer chinam–an unpaid watchman (see Kisaos l’Beis Dovid, siman 90). Thus a “fish tank” policy may have some serious halachic (and legal) issues.
There may also be limitations on whether the school may search the violator’s phone as well, from both a legal and halachic point of view. Legally, for a public school to search a student’s phone is probably a violation of the Fourth Amendment (see New Jersey v. T.L.O., 469 U.S. 325, 1985). Halachically, it may be a serious problem as well.
Many people might point to the cherem d’Rabbeinu Gershom (Rabbeinu Gershom ben Yehudah, 960—1040) that banned the reading of people’s private letters as the source for a halachic prohibition. There is actually another source as well. The Rama in Shulchan Aruch Choshen Mishpat (154:7) rules that it is forbidden to look through a window inside someone else’s courtyard on account of the damage that one can do to him. It is clear from this ruling that even without the issue of the cherem d’Rabbeinu Gershom on reading the letters of others, there is a right to privacy in halachah as well.
Why, then, was the cherem d’Rabbeinu Gershom banning the reading of personal letters necessary? The Avneh Yashpeh (7:124) suggests that the ruling of the Rama would be insufficient in forbidding more obscure items if one had permission to enter the courtyard. Thus the ban of Rabbeinu Gershom forbade looking at items that are more private even when one had permission to enter a courtyard or home.
And now the final question, of the decoy phone. Since this issue involves actual deception rather than lying, it is viewed by poskim differently. Geneivas da’as is different from lying. The Gemara in Yevamos (65b) allows one to lie when it is unavoidable in order to maintain shalom. We do not find this leniency, however, in regard to geneivas da’as. Rav Yechezkel Abramsky (Chazon Yechezkel Bava Kamma 7:3) rules in his commentary to the Tosefta that, even mipnei ha’shalom, it is forbidden to do geneivas da’as. Rabbeinu Yonah (Shaarei Teshuvah 3:181) says the same. The likely reason is that, given the opportunity, one is liable to use improper means to achieve personal benefit.
Another issue is whether the prohibition of deceiving another is of biblical or rabbinic origin. The Sefer Yereim (in Mitzvah #124 of Lo Signov) rules that it is a biblical prohibition.
In conclusion, we must realize that even though schools practically stand in the place of parents in regard to educating our children, from a halachic point of view it is not so simple that the school has unlimited authority. The school certainly has the right to confiscate the phone and to punish the student by not giving it back for a while, but it seems clear that the phone must ultimately be returned. Looking at the contents of the phone is also quite problematic from a halachic point of view. Of course, the student should not violate the rules of the school, nor should a decoy phone be used. v