Schools and Decoy Phones

As students across the country end school and think about starting a new one, many are carefully reading the new school’s policy manuals and asking, “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 forbid students from having a cell phone at school at all. Yet others only forbid its use during class time.

How Does Halacha Weigh In?

The question is, however, how does halacha weigh in here? May a school confiscate a phone that is taken away from a student? May the school dump the phone in the dreaded “fish tank” as some urban legends claim schools are beginning to do? May a principal look at the phone and determine who 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 gneivas daas – practicing deceit? Legend has it that one enterprising young lady had as many as 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?

Parameters of Corporal Punishment

The Shulchan Aruch (YD 245:10) discusses the exact parameters of corporal punishment, that a teacher may not use a rod to discipline a student but may only use a small retzuah, 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, he may invoke disciplinary measures without resorting to a Bais Din. This idea is first found in the Trumas HaDeshen (#218).

Confiscating Items

It would thus follow from the above that a teacher or school would certainly be permitted to confiscate an item that is disruptive to the student’s education, particularly when it may affect others. However, just as there are certain limitations on the conduct of the teacher in terms of the degree of punishment that may be meted out, it would follow that there would also be limitations on what may or may not be taken away or destroyed.

Modern Poskim have ruled that a school may not permanently take away an item from a student, and that their responsibilities vis-à-vis the item in question are equivalent to that of a Shomer Chinam – an unpaid watchman (See Kisaos l’Bais Dovid Siman 90). Thus the fish tank policy (if, in fact, it is not an urban legend) may have some serious halachic [and legal issues too].

Searching Through the Phone

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, searching a student’s phone is probably a violation of the Fourth Amendment [See New Jersey v. T.L.O., 469 U.S. 325, 333 (1985)]. Halachically, it may be a serious problem as well.

Two Further Restrictions on Schools

Many people might point to the Cherem Rabbeinu Gershom (Rabbeinu Gershom Ben Yehudah 960-1040) – the ban upon reading people’s private letters to each other as the source for a halachic prohibition. There is actually another source, however, as well.

The Ramah 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 Rabbeinu Gershom on reading the letters of others, there is a right to privacy in halacha as well.

Why a Further Need for Rabbeinu Gershom’s Ban?

Why then was the Cherem Rabbeinu Gershom banning the reading of personal letters necessary? The Avneh Yashpeh (7:124) suggests that the ruling of the Ramah 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.

That Decoy Phone

And now the final question of the decoy phone. Since this issue involves actual deception rather than lying, it is viewed by Poskim differently. Gneivas daas 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 gneivas daas. Rav Yechezkel Abramsky (Chazon Yechezkel Bava Kamma 7:3), in his commentary to the Tosefta, rules that, even mipnei hashalom for the purposes of maintaining peace, it is forbidden to violate gneivas daas. The likely reason for all this is that, given the opportunity, one is liable to use improper means to achieve personal benefit.

Gneivas Daas: Biblical or Rabbinic?

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. Rabbeinu Yonah (Shaarei Teshuvah 3:181) also indicates that sheker (lying) and gneivas daas (misleading) are not synonymous. He cites the oft-quoted section of the Talmud that for purposes of peace, mipnei hashalom, it is permitted to lie, and adds that there is no such leniency for gneivas daas.

Conclusion

In conclusion, we must realize that even though schools kind of stand in the place of parents in regard to educating our children, from a halachic point of view it is not so simple that “anything can be done.” The school certainly has the right to take away the phone and to punish the student by not giving it back for a while, but it seems pretty 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. The student should not violate the rules of the school, nor should a decoy phone be used.

The author can be reached at [email protected]