More Signs of Return of Common Sense (and Integrity) to the First Department

Court Panel Questions School Ban on Phones
The New York Times By ANEMONA HARTOCOLLIS - February 7, 2008

Most of the judges on a state appellate court panel seemed to be sympathetic on Wednesday to arguments by parents that a ban on cellphones in New York City schools trampled on their right to make decisions about the safety of their children.

During a hearing in Manhattan on the constitutionality of the ban, the five judges indicated that they were looking for a compromise policy.

They asked lawyers for the city and the parents whether it would make sense for children to be able to bring phones into a school building as long as the phones were turned off, and they wondered aloud whether the schools chancellor was being insensitive to the wishes of parents.

One justice, David B. Saxe, remarked that if the chancellor, Joel I. Klein, had been more directly accountable to parents — instead of the mayor — he would probably be out of a job by now.

“I suspect that in a smaller school district, if the school superintendent tried such a ban, they’d probably fire the whole school board,” Justice Saxe said. But, he added, parents “can’t easily fire the chancellor.”

Even the judge who seemed most inclined to support the ban, Richard T. Andrias, asked why the school system had rejected a suggestion by the teachers’ union to allow the principal of each school to make the decision about cellphones.

In that way, Justice Andrias said, a principal could decide, “my school’s a nice quiet school,” and permit cellphones.

The city’s lawyer, Alan G. Krams, objected that allowing principals to decide would be unfair to law-abiding students at troubled schools.

The city has argued that cellphones in schools are disruptive, because students use them to talk, send text messages and take pictures during school hours. Parents say their children should be able to phone home immediately in an emergency.

A lower-court judge, Lewis Bart Stone of State Supreme Court in Manhattan, upheld the cellphone ban in May, saying that it was “rational” and that neither the federal nor state Constitution guaranteed a “right to bear cellphones.” The parents then appealed to the Appellate Division of State Supreme Court.

Norman Siegel, a lawyer for the parents, told the appellate judges on Wednesday that the issue was not the “right to bear cellphones,” but the constitutional right of parents to make decisions about the well-being of their children.

He cited a court ruling in the 1990s striking down a plan to distribute condoms in New York City schools without parental permission. In that decision, Mr. Siegel said, the court ruled that parents had a right to make decisions concerning the “custody, care and control” of their children.

Justice Saxe said the parental interest in teaching children about sex “sounds like it’s far more intimate,” and therefore, perhaps, more compelling.

Justice Andrias said that when his children were in school, they did not have cellphones, and he was not able to communicate with them all day. Nonetheless, he said, he was never investigated for child neglect.

David Leichtman, another lawyer for the parents, responded that the situation had changed after 9/11.

Mr. Leichtman said the cellphone ban was overly broad. He compared it to a 1969 case on Long Island, in which the Hicksville school district wanted to stop girls from wearing hot pants and bell-bottoms to school, and so barred them from wearing any style of pants. The ban was struck down in court.

Justice Andrias asked whether permitting cellphones would lead to children’s being allowed to carry hand-held computers in schools.

“Do I have a right to check my computer device between classes?” he asked.

Mr. Siegel replied: “Good question. I think that’s where we’re going.”

The New York Times Company