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Court Looks at Cell Phone Ban in Public Schools


A New York Family Lawyer said that, this proceeding was commenced pursuant to article 78 of the Civil Practice Law and Rules by notice of petition dated July 13, 2006 to “strike down” those portions of the Citywide Standards of Discipline and Intervention Measures (the Standards) promulgated by the Chancellor of the New York City School District which forbid students from bringing cellular telephones (cell phones) into public schools in the New York City School District (the Cell Phone Rules) without authorization.

A New York Order of Protection Lawyer said that, the petitioners are eight parents who have children presently enrolled in public schools in the city and the Chancellor’s Parent Advisory Council. Respondents are the New York City Board of Education, doing business as New York City Department of Education, Chancellor of the New York City School District, and the Mayor of the City New York. The challenged Cell Phone Rules are a single item in the 26-page Standards adopted by the respondents to carry out its obligation to adopt a code of behavior under Education Law § 2801. The Cell Phone Rules, denoted as prohibition level 1, A04 for kindergarten through grade 5, and B05 for grades 6 through 12 under the list of infractions (collectively, the Cell Phone Rules), proscribe “bringing prohibited equipment or material to school without authorization (e.g., cell phone, beeper, or other electronic communication/entertainment devices).”

A New York Custody Lawyer said that, the Standards are structured to set forth five escalating levels of disruptive behavior. The lowest level, level 1, is insubordinate behavior, level 2 is disorderly disruptive behavior, level 3 is seriously disruptive or dangerous behavior, level 4 is dangerous or violent behavior, level 5 is severely dangerous or violent behavior. Standards level 1 lists 10 proscribed behaviors for kindergarten through grade 5 and 12 for grades 6 through 12, which include the Cell Phone Rules. For each level of infraction the code provides for level appropriate “possible disciplinary responses.” The Standards also include a five-page “Bill of Student Rights and Responsibilities, K-12.”

A Bronx Family Lawyer said that, petitioners conceded at oral argument that they do not dispute that respondents, acting under Education Law § 2801, could restrict the use of cell phones by students on school premises, recognizing that unregulated use of cell phones in schools could present a substantial probability of disruption of the learning process. Petitioners claim, however, that enforcing a ban on use, not possession, of cell phones within school buildings would be both sufficient and appropriate to address any problem of disruption of the schools, and seek review under CPLR article 78 to attack that portion of the Cell Phone Rules which bans the possession of cell phones in schools. Petitioners also claim that the ban of cell phone possession in schools violates certain rights of petitioners and their children under the Federal and State Constitutions. Respondents responded that the decision to ban possession as well as use was not subject to challenge as there was a rational basis for such decision and that the Cell Phone Rules ban on possession violates no constitutional right of petitioners or their children.

A Bronx Child Custody Lawyer said that, petitioners commenced this matter as a hybrid proceeding, joining an action for declaratory judgment with the petition under CPLR article 78. Petitioners further assert that as a result this proceeding must also be treated as a plenary action, according the petitioners all of the accouterments and procedural benefits of an ordinary action, including discovery, and have moved for leave to conduct such discovery. Respondents opposed the joinder of a special proceeding under CPLR article 78 with an action for declaratory judgment, asserting that the CPLR article 78 proceeding was the proper vehicle for the resolution of all merits of this dispute and further asserted that this court should not, in any event, in the CPLR article 78 proceeding, authorize the discovery sought. Respondents also asserted that the petition should be dismissed for the failure of the petitioners to comply with statutory notice requirements and that by reason of the nature of the questions presented, petitioners’ claims are not justiciable.

The issue in this case is whether petitioners’ plenary action for declaratory judgment should be granted on the grounds that certain of their claims may only be determined in a CPLR article 78 proceeding and the other claims, under the Due Process Clause of the New York Constitution (art I, § 6) and under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

The court in deciding the case said that, in New York, a direct constitutional attack on a statute or regulation may only be brought by an action for declaratory judgment. Although petitioners’ constitutional claims that the Cell Phone Rules violate the Federal and State Constitutions might arguably be determined under CPLR article 78 provisions allowing a challenge of a decision of a body on the ground that it was in violation of law, as both Constitutions are respectively the supreme law of the United States and State of New York effectively rules out this approach. It is also well settled that in New York, a person seeking to review a determination of a body must proceed by article 78. Courts, however, may convert an action for a declaratory judgment to an article 78 proceeding or vice versa where it appears that the wrong route has been selected.

Courts have, in several cases, recognized that it is not improper to join both an article 78 proceeding with an action for declaratory judgment to resolve an entire dispute where the issues require different procedures for their resolution. Accordingly, this court is not barred by precedent in allowing such joinder. The cases, however, do not make it clear whether such joinder is required or is optional as a matter of court discretion.

To the extent joinder is discretionary, this court, in the interests of judicial efficiency, and because all parties are represented and the court need not delay in reaching its determination, finds it is appropriate to join such claims. Accordingly, this court need not determine whether such joinder is merely permissible or is required. Respondent’s objection to such joinder is hereby overruled.

Respondents asserts that this court lacks subject matter jurisdiction over this controversy by reason of petitioners’ failure to comply with the condition precedent to commencing any action or proceeding against DOE, which DOE claims is mandated by Education Law § 3813 (1), which provides in relevant part that: “No action or special proceeding, for any cause whatever, except as hereinafter provided, relating to district property or property of schools provided for in article eighty-five of this chapter or chapter ten hundred sixty of the laws of nineteen hundred seventy-four or claim against the district or any such school, or involving the rights or interests of any district or any such school shall be prosecuted or maintained against any school district, or board of education unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.”

For this reason, courts have regularly held that actions for declaratory judgment challenging a school district’s compliance with law, but not seeking monetary damages need not comply with the condition precedent established by Education Law § 3813 (1). Further, CPLR article 78 expressly authorizes special proceedings in the nature of certiorari and prohibition against “bodies” of which respondent is one. Such proceedings may be commenced to overturn decisions of a body or prevent actions by a body, both situations where monetary claims against a school district are not in issue. The rationale of there being a need to investigate in order to defend, which prompted section 3813 (1), is also absent in such cases. As CPLR article 78 proceedings are principally overwhelmingly based on the existing records, there is rarely any need to investigate, only to certify the existing record.

Thus, as in neither their action for declaratory judgment nor in their article 78 proceeding do petitioners here seek damages, and as respondents need not make a factual investigation to defend against these claims (respondent’s own contentions in its arguments and other submissions challenging petitioners’ motion for discovery, that no discovery is needed in this matter, confirms this position), it is clear that section 3813 (1) is not applicable. Respondent’s defense on this ground is therefore rejected.

Discovery of relevant factual matters is an inherent right of a party in a plenary action. In a CPLR article 78 proceeding, discovery may also be permitted, but only at the proper discretion of the court. Because most matters under CPLR article 78 are commenced to review an existing record, discovery is not common in such proceedings.

Here, petitioners have applied to the court for leave for discovery, setting forth the matters they wish to have disclosed. Although the article 78 proceeding and the action for declaratory judgment may proceed together, the court must apply the usual rules relating to discovery to them as if they were separate matters. Thus, discovery under each must be considered solely with respect to the propriety of discovery vis-à-vis the issues and claims under such rubric. Under its “article 78 hat,” the court must determine, for such purposes, whether to allow such discovery as a matter of the proper exercise of its discretion. Under its “declaratory judgment hat,” the court must apply the usual rules applicable to ordinary actions to determine whether such discovery should proceed.

Applying such rules, this court denies petitioners’ motion for discovery. Although petitioners have an “as of right” basis for discovery in their action for declaratory judgment, such discovery must in any event be limited to those matters which are relevant to the claims made. As the claims made in such action are that the Cell Phone Rules violate petitioners’ rights under both the New York and Federal Constitutions, questions as to the process and factual basis for the adoption of the Cell Phone Rules, which are the areas of discovery sought, are irrelevant. If petitioners’ constitutional rights are violated, it hardly matters why or with what basis of support the Cell Phone Rules were adopted.

The issues in the article 78 proceeding are different from those in the action for declaratory judgment as they relate to issues of the rationality and basis of the Cell Phone Rules. Accordingly, the motion for discovery does not fail for irrelevance when reviewed in such context. In the context of article 78, however, discovery is discretionary with the court. After considering the issues in the article 78 portion of this case, this court, in its discretion, finds the issues in the dispute between the parties under article 78 may be fully and fairly determined without the need for discovery. The issue, in the article 78 portion of this dispute, as discussed below, relates to whether there is any rational basis for the Cell Phone Rules as they are written. This court does not believe discovery is necessary to enable the parties and the court to address such issues in a fair and comprehensive manner. The oral arguments presented by the parties, wherein issues of rational basis were fully argued, give retroactive support to this conclusion. Accordingly, petitioners’ requests for discovery are hereby denied.

Accordingly, the court finds that judgment should be entered for respondents in petitioners’ action for declaratory judgment and that petitioners’ petition under CPLR article 78 is hereby dismissed.

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