By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

We are finally back to in-person instruction in my school, and we are delighted to see the students and each other. But being back in school has brought with it some of the problems that we didn’t have when students were learning remotely. That includes taking appropriate care of student property.

The “problem du jour” arose as follows. One of the less experienced teachers in my building grew increasingly frustrated with a fifth grader who, despite numerous warnings, kept playing with his cell phone. Finally, in exasperation the teacher grabbed the cell phone from the student, telling him that he would get the cell phone back when he came back to school at the end of the school day with his mother or father.

The student apparently borrowed someone else’s cell phone to call his father and complain, because I heard about the situation from his irate dad before the teacher even told me what was going on. The father told me in no uncertain terms (something about “pluperfect hell”) that he was not going to come to school to retrieve his son’s property. I told the father that I would look into it, and I did.

I went down to the teacher’s classroom, and he explained that this student just wouldn’t listen and that he took the phone as a last resort, thinking that his actions would have a greater impact on the student if his parents had to retrieve the cell phone in person. I gently explained to the teacher that the parent had already adamantly refused to come in, and that it would be best simply to return the cell phone to the student. Begrudgingly, the teacher went to his top desk drawer to retrieve the student’s cell phone. But the cell phone was not there! The teacher searched high and low, and eventually admitted sheepishly that the cell phone had gone missing.

Be honest, Legal Mailbag, just how bad is this? Can we tell the father that his son brought this problem on himself through his own misbehavior? My school budget is tight, and we certainly can’t afford to buy the student a new cell phone.

Signed,
Wrong Number
 

Dear Wrong:

Blaming the student for the teacher’s carelessness is a bad idea. Moreover, if this family pushes the issue, the school district will be responsible for reimbursing the family for the cost of the cell phone.

That responsibility comes with the legal duty that the teacher unwittingly assumed when he took the cell phone. Teachers, in their in loco parentis role, have the right for educational reasons to confiscate objects from their students. But we live in America, and school officials do not have the right to expropriate property. Accordingly, ownership of the cell phone remains with the family, even when the teacher confiscates it for a limited period of time subject to the parent’s reclaiming possession of the property.

We describe the legal relationship that the teacher created as a “bailment,” i.e., holding property for another. In a bailment, the owner of the property is the “bailor,” and the holder of the property is the “bailee.” Significantly, ownership of the property does not change, and the bailee holds the property on behalf of the owner until it is reclaimed. Moreover, the Connecticut courts follow the common law in this regard, and the bailee owes the bailor a fiduciary duty of care to keep the property safe.

Here, it appears that the teacher breached that duty and will be liable for damages to the family. The teacher could argue that it was not his fault that the student’s cell phone went missing. However, that is a tough argument to make here, because the teacher owes the student and his family the duty to keep the cell phone safe until they reclaim possession. Accordingly, it will be best to fess up and work out an amicable resolution with the family, which most probably will involve reimbursement for the purchase of a new cell phone.

Finally, you may be wondering what to do with the teacher. There is a law (and strong public policy) to protect teachers and others from liability from claims made against them for actions they take in the course of their employment, even when the teacher (or other school employee) makes a mistake. See Conn. Gen. Stat. § 10-235. If the parent brought a claim, the district would likely be liable for the damages (here, the cost of the cell phone) as well as the attorney’s fees in defending the case. It is, therefore, better to work this out informally. However, the teacher remains subject to disciplinary action if his actions were careless or otherwise inappropriate. After a full and fair review, feel free to write the teacher up for his poor judgment.