news round up and links re the cell phone lawsuit
See below roundup of news stories on our cell phone press conference yesterday. Be sure to check out the NY 1 link at http://www.ny1.com/ny1/content/index.jsp?stid=1&aid=60969 to see a great video clip.
The legal papers are all posted here: http://www.morganlewis.com/index.cfm/nodeID/505c4640-7a67-4b10-8a41-922df4b0ab9e/fuseaction/probono.page
They make very interesting reading. The Morgan Lewis brief posted here challenges the cell phone ban on the grounds that it is arbitrary and capricious, an abuse of the Chancellor’s discretion, an unauthorized use of power, and an unconstitutional interference with parental rights and liberties.
It cites several interesting legal precedents, including a case in which the NY Commissioner of Education found a district’s ban on students wearing hats outside the classroom to be overbroad and unjustified. Another, more recent case occurred when the city tried to ban road crew workers of the Department of Education from using their cell phones, which was overturned by the Collective Bargaining Board on the grounds that this interfered with their rights.
It discusses how the Office of Homeland Security advises families to equip their members with cell phones in case of emergency, as well as NY State court decision that overturned the BOE’s condom policy (not allowing parents to opt out), in which the judges concluded that “intrusion into the relationship between parent and child requires a showing of an overriding necessity,” which the DOE did not prove in that case.
The brief also cites several US Supreme court precedents which recognize the interests of parents in controlling the education of their children, including this statement:
“It is not unforeseeable...that a school’s policies might come into conflict with the fundamental right of parents to raise and nurture their child. But when such collisions occur, the primacy of the parents’ authority must be recognized and should yield only where the school’s action is tied to a compelling interest.”
Which in this case, the DOE has not come close to showing.
Norman Siegel’s affirmation is posted here; it includes copies of heartfelt emails from NYC parents thanking him for the lawsuit, with stories of how their children’s cell phones saved them from some very threatening situations. The lead plaintiff in the case and the star of yesterday’s press conference, Camella Price, is a single mother with two daughters who go to school in the Bronx; Camella has a very compelling story to tell about how important it was that her daughter was holding a cell phone when she was attacked by a gang on her way home from school.
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Class Size Matters
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Parents Challenge School Cell Phone Ban
July 13, 2006
A group of parents filed a lawsuit in State Supreme Court Thursday against the Department of Education, saying the ban on cell phones in schools jeopardizes their children's safety by eliminating their link to their family.
In April, the DOE began carrying out random, unannounced weapon scans at several schools around the city, and those searches also turned up thousands of cell phones that would otherwise have been undetected. In all, the DOE says some 3,000 cell phones have been confiscated from students since April.
They're only returned if a parent comes to pick the phone up.
The City Council has introduced legislation that would allow students to carry cell phones to and from school if they keep them turned off.
Attorney Norman Siegel, who is representing the eight parents who filed the lawsuit, along with the Chancellor's Parent Advisory Committee, against the DOE, said Thursday that he understands that students shouldn't be on their cell phones during class time, or using them to cheat on tests, but that they do need them to stay in touch with their families.
“The ban on cell phones, very simply, needs to be lifted so that a vital communication link between parents and students before and after school hours can continue,” said Siegel.
Siegel also says the DOE should be able to develop a plan whereby schools can hold cell phones during the day and return them to students when they leave school.
Parents a P.S. 45 who spoke with NY1 said they need to be able to reach their children.
"He got into trouble," said one parent of her son. "He was beat up so bad and I said, you know, if he had the cell phone, he would tell “Mommy I’m in trouble, can I be excused at this time?’ I couldn’t get to my child."
“We need to communicate with them constantly because of different situations that happen in the school, that happen even at home, you know," added another parent. "They’re growing up key-latch [sic] kids, some of them come home and they’re by themselves, we need to address it, we definitely need to address it. I like the fact that we have the cell phones."
Siegel adds he’d like the DOE to agree to a 90-day trial period at the beginning of the next school year to see if schools can figure out way to hold cell phones, allowing students to have them while going to and from school.
The DOE would not comment on the specifics of the suit, but a spokesman said in a statement: “It is [the department’s] experience that when cell phones are brought into school they are used. There is no constitutional right to disrupt a student's education."
The department also claims there have been 2,500 disruptive incidents in schools due to cell phones in the past school year.
Mayor Michael Bloomberg also stands firmly behind the ban, saying he doesn't want the phones anywhere near the schools.
However, the measure to lift the cell phone ban has so much support in the City Council that members could easily override a veto by the mayor, and that could set up another court battle.
Parents sue over cell-phone ban
BY BRYAN VIRASAMI
Newsday Staff Writer
July 14, 2006
Parents around the city hope that a lawsuit they filed Thursday will send a clear signal to Mayor Michael Bloomberg that his cell phone ban in schools is trampling on their rights.
Although this year's stepped-up enforcement sparked a public outcry from many, Bloomberg has refused to back down from the ban, saying phones distrupt classes, foster electronic cheating and distract students.
The policy allows school safety officers and police to seize cell phones found during checks for weapons at school entrances. While the ban on phones was always part of a broader restriction on all mobile devices, the city began to seize cell phones amid a beefed-up policy of having unannounced visits with mobile scanners.
Carmen Colon , a mother of three children from Bedford-Stuyvesant and an engineer with KeySpan, said she just wants access to her children.
"I am telling the Department of Education that it is 2006, cell phones and BlackBerries are here to stay, so do your job and figure out how to deal with it; do not hide behind technicalities and loosely based interpretations of the law," Colon said.
Attorney Norman Siegel, who filed the suit with the private law firm of Morgan, Lewis & Bockius, pointed out the lawsuit doesn't argue for students to be able to use phones during school hours.
He and parents said students need phones before and after school to communicate and they've been unable to get the mayor to meet with them.
The lawsuit, filed in State Supreme Court in Manhattan , didn't make City Hall budge from its usual statement.
"As the mayor has said time and time again, cell phones, PDAs, BlackBerries and two-ways disturb classrooms and disrupt the educational process," said spokesman Stu Loeser. "Nobody has a right to disrupt someone else's education."
Since the city began to seize cell phones on April 26, safety agents have confiscated 3,317 cell phones where unannounced scanning took place, according to Keith Kalb, a Department of Education spokesman. Also seized were 270 iPods, 39 weapons and two dangerous instruments -- a screwdriver and a slab of iron.
In addition, Kalb said 2,500 cell-phone-related "distruptive incidents" were logged throughout the school system in the last school year. The incidents ranged from the use of phones during classes, harassing others, taking of illicit photographs or sending text messages during exams.
Some say all students shouldn't be blamed for a few bad apples.
"This is a safety issue," said Camella Price, a Bronx mother who is named as a plaintiff in the lawsuit.
School Cellphone Ban Violates Rights of Parents, Lawsuit Says
Published: July 14, 2006
Carmen Colon, a divorced mother raising three sons in Bedford Stuyvesant, Brooklyn , considers herself a law-abiding citizen. But New York City ’s ban on students carrying cellphones in the schools is one rule she will not abide by, she said yesterday.
Until he graduated last year, her oldest, Devin, 17, traveled more than an hour each way, taking two subway trains from their home in Brooklyn to Washington Irving High School in Manhattan near Union Square.
Her middle son, Andre, 13, also has an hourlong trip on the A and L trains to his public school, the Institute for Collaborative Education, at 15th Street and First Avenue.
Because Ms. Colon works full-time at Keyspan, the Brooklyn gas company, she relies on the older children to take care of the youngest one after school. Devin and Andre use their cellphones to coordinate who will pick up Taylor, who is going into fifth grade at Public School 261 in Brooklyn .
So her sons, she said, will keep taking their cellphones to school.
“If the Department of Education doesn’t like it, they can sue me,” Ms. Colon said.
For now, it is Ms. Colon who is doing the suing.
She is one of eight parents — along with a citywide parent association — who filed a lawsuit yesterday against Mayor Michael R. Bloomberg, Schools Chancellor Joel I. Klein and the city’s Department of Education, seeking to overturn the city’s rule banning students from carrying cellphones in schools.
The parents argue, in papers filed in State Supreme Court in Manhattan , that the ban is so broad and blunt that it violates their constitutional right as parents to keep their children safe and to raise them in the way they see fit.
The ban violates their due process right to personal liberty under both the state and federal constitutions, they said, because it interferes with the relationship between parents and their children, without a compelling education reason for doing so.
The constitutional claim echoes arguments raised more than a decade ago by parents who sought to overturn a policy by Chancellor Joseph Fernandez of providing condoms to public school students. In 1993, a state appellate court upheld the parents’ right to decide whether their children should receive condoms.
Chancellor Klein and Mayor Bloomberg declined to comment on the suit yesterday. But a spokesman for Mr. Klein, Keith Kalb, sent an e-mail message saying that the chancellor stood by the cellphone policy.
“It is our experience that when cellphones are brought into schools, they are used and disrupt the school’s learning environment,” Mr. Kalb wrote. “There is no constitutional right to disrupt a student’s education.”
From the end of April to the end of school in June, police confiscated more than 3,000 cellphones in random searches at schoolhouse doors, and principals confiscated many more on their own.
Norman Siegel, a civil liberties lawyer who has taken on the lawsuit free of charge along with David Leichtman, a partner in the law firm of Morgan, Lewis & Bockius, said yesterday that he was not arguing that children should be able to use their phones during school hours, only before and after.
At a news conference announcing the suit in Lower Manhattan yesterday, the parents came to the microphone one after the other to tell his or her own cellphone horror story, sounding like Soviet dissidents resisting an oppressive regime.
Maybe it is true, as education officials contend, that students have used cellphones to take pictures in locker rooms and cheat on exams, Ms. Colon said yesterday.
“How far would this city go if we punished the majority for the crimes of a few?” said Ms. Colon, who is also the president of the Association of New York City Education Councils.
Isaac Carmignani, who works nights as an electronic technician for the Postal Service, said his only child, Raven, was stranded outside her locked school alone last fall when he was late to pick her up.
Raven, 9, who just finished fourth grade at P.S. 122 in Astoria , Queens , had a cellphone and was able to call her father on his cellphone. Since then, he will not let her leave home without putting the phone in her backpack. “I tell her not to take it out during school, not to show it to anyone,” he said yesterday.
Carmella Price, a single mother in the Bronx, said her youngest daughter, Lashea, 12, had been threatened by a group of boys on the way home from school and was able to call her sister, Charlene, 14, for help.
PARENTS RING ALARM ON CELL-BAN 'PERIL'
By DAVID ANDREATTA Education Reporter
July 14, 2006 -- Public-school parents who filed a lawsuit against the city yesterday to overturn a ban on students' carrying cellphones in schools said safety was their motivation.
Each of the eight parents named as plaintiffs told horror stories of their children's being stalked by classmates or inadvertently locked out of their schools or mistakenly getting off at the wrong bus stop with no money in their pockets.
Without cellphones, they said, their children would have had no means to get help.
"This is a safety issue," said Camilla Price, who told of how her 12-year-old daughter, Lashey Suggs, called her sister for help on a cellphone after three teenage boys followed and threatened her on her way home from IS 174 in The Bronx.
"When [her sister] arrived, my daughter was fighting off three people," Price said. "If it wasn't for a cellphone . . . I don't know what would have happened to my children."
Isaac Carmignani said his fourth-grade daughter twice arrived at PS 122 in Queens last year only to find herself locked out. She called her father from her cellphone, who called school officials to let her inside.
"It's times like that that you need cellphones," Carmignani said.
The parents spoke outside state Supreme Court in Manhattan and were joined by members of the Chancellor's Parent Advisory Council, a citywide parent group that is also a plaintiff.
The parents reside in all five boroughs, and the schools their children attend include the elite Stuyvesant HS, La Guardia HS, Staten Island Technical HS and New Explorations Into Science, Technology and Math.
Civil-rights lawyer Norman Siegel, who is working on the case with the firm of Morgan Lewis & Bockius, charged the city has "acted illegally and unconstitutionally in enforcing the ban."
"The ban on cellphones, very simply, needs to be lifted so that a vital communication link between parents and students before and after school hours can continue," Siegel said.
Electronic communication devices have been banned in schools since 1988, but opposition to the policy emerged only this spring after the city began randomly searching students and seizing their cellphones.
As of June 20, less than two months after the sweeps began, 3,233 cellphones had been confiscated, according to the Education Department.
Department spokesman Keith Kalb declined to comment on the litigation but said "we stand by our policy."
"It is our experience that when cellphones are brought into schools, they are used and disrupt the school's learning environment," he said. "There is no constitutional right to disrupt a student's education."
A lawyer for the parents, David Leichtman, said the "one-size-fits-all" cellphone ban denies parents the right to maintain their children's safety without government interference and exceeds the chancellor's authority under state law.
Mayor Bloomberg and Chancellor Joel Klein , both of whom were named as defendants, insist the phones can be used to cheat on tests. Last month, The Post reported that six students at two Brooklyn schools were caught using cellphones to cheat on Regents exams.
Parents yesterday argued that that case was no reason to ban cellphones.
"Cheating existed when we were kids," said plaintiff Ellen Weisman. "There are other solutions" than prohibition.
July 14, 2006 Edition > Section: New York > Printer-Friendly Version
Ban on Cell Phones in Schools Is Unconstitutional, Lawsuit Says
BY DEBORAH KOLBEN - Staff Reporter of the Sun
July 14, 2006
The city's ban on cell phones in schools is unconstitutional, a lawsuit filed yesterday by a group of parents claims.
The lead lawyer representing the eight parents in the case, Norman Siegel, said the Bloomberg administration has acted "illegally and unconstitutionally" and called the issue a matter of civil rights.
The suit, filed against the city's Department of Education, Mayor Bloomberg, and the schools chancellor, Joel Klein , asks that children be allowed to carry their phones to and from school. It does not request they be able to use them during class.
"The ban on cell phones, very simply, needs to be lifted," Mr. Siegel, who is the former head of the New York Civil Liberties Union, said.
He said that the ban is unconstitutional because it interferes with a parent's right, guaranteed under the state and federal constitutions, to ensure the safety of their child.
Dozens of parents gathered across the street from the courts yesterday to plead their case to reporters.
"This is a safety issue," a Bronx mother who is a plaintiff in the case, Camella Price, said. She was joined by her daughter, Lashea Suggs, who said she recently used her cell phone to call for help when a pack of teenagers followed her home and threatened to beat her up.
The city's ban on cell phones dates to a 1988 policy that forbids students from carrying beepers and other electronic devices to school. In recent years, many schools opted not to enforce the ban as long as students turned off their phones during class and kept them out of sight. The issue flared up in April, when Mr. Bloomberg sent new portable metal detectors to schools in an effort to crack down on weapons in the classroom. The searches resulted in hundreds of cell phones being confiscated.
Mr. Bloomberg has refused to compromise on the issue, and has dismissed suggestions that schools find some way to accommodate student phones so that they can carry them to school for use outside the classroom.
While Mr. Bloomberg is now decentralizing the school system and allowing a quarter of school principals to opt out of the city's regional system and make more decisions about how to run their schools, they will not be allowed to decide if they want to allow cell phones inside their buildings. The city's teachers union also has come out against the ban and is calling on the city to let each school decide how to tackle the issue.
"We can't yet comment on specifics of the lawsuit, but we stand by our policy," a spokesman for the education department, Keith Kalb, said. "It is our experience that when cell phones are brought into schools, they are used and disrupt the school's learning environment. There is no constitutional right to disrupt a student's education."
July 14, 2006 Edition > Section: New York > Printer-Friendly Version
Class Size Matters
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