Part One: Confiscation and searches of student property – is there a right way to do this?
This is the first article in a two-part series on the myriad issues associated with managing inappropriate student materials. In this series, Craig D’cruz, National Education Consultant at CompliSpace, explores managing the confiscation of student materials and the legal, regulatory and guidance to consider when dealing with this matter. In Part One of this series, Craig will examine state and territory guidance and the confiscation of property generally.
The confiscation and searching of student property has been a part of school life for as long as there have been schools and children who insist on bringing inappropriate materials to school.
During my time in school as a teacher, deputy principal and as a principal I have seen an incredible assortment of items confiscated from students by staff. Apart from innumerable mobile phones in recent years, items have included contraband such as cigarettes, lighters, knives, a BB-gun, a chromed World War II anti-tank projectile, those horribly noisy vuvuzela’s and probably enough jewellery to fill a sizeable vault.
However, one question often asked by schools, and debated ad-nauseum by the students, are these confiscations legal? The answer basically, is that it depends on how it is done. The reasons behind the confiscation and the period of time that the property is likely to be held by the school are also relevant considerations.
There are a number of websites and web resources that schools could refer to when looking at this ongoing issue. Nearly each state or territory, such as these examples from New South Wales, Victoria and Queensland have their own policy for government schools. In addition to this, changes in other laws, such as cyber-bullying in Queensland may increase teachers powers to confiscate student property. Of course, sometimes, these changes can be taken to extremes too.
In Western Australia, confiscation of student property at government schools is taken one step further and with School Education Regulations 2000 (WA). Regulation 71 of the Schools Education Regulations 2001 (WA) allows a member of the teaching staff at a government school to take an item away from a student that is likely to disrupt the order of the school’s premises, adversely affect the safety and welfare of the persons on school premises or cause damage to school property.
However, students are not left out in the plethora of information available regarding confiscations. These matters are addressed in a student friendly website known as LawStuff. The issue of confiscation of student property is dealt with in a very matter of fact manner and advice has been offered according to the relevant jurisdiction. FindLaw is another website that is written with students in mind – giving advice regarding the confiscation of their property by teachers at their schools. Schools that are unaware of these online student resources should note that students often seek advice online for issues such as confiscation of personal property and some students may challenge the school for what they perceive as a breach of their rights.
Nonetheless, regardless of the state or territory, there is one common action that can be concluded from this research: It is acceptable, under certain conditions, for a teacher (school) to ask to confiscate from a student, inappropriate property or property being ‘inappropriately used.’ The NSW policy defines “Inappropriate use” as being used in a way that is:
- Contrary to any applicable school rules;
- Disruptive to the school’s learning environment;
- A risk to the safety or wellbeing of students, staff or other people;
- Contrary to any reasonable direction given by school staff about the use of the item; and
- Illegal or otherwise of a nature that causes significant concern for staff.
It is important to note that a student does not necessarily have to comply with such a request. However, if the request is reasonable and falls within the scope of a school’s discipline policy, the student could receive a sanction for failing to follow the request.
Confiscation of property
There are a number of matters that schools should address if they currently do or intend to confiscate student property.
Schools should have a confiscation policy that sets out student and staff expectations regarding what can be confiscated, how long for and to whom it can be returned. Parents need to be made aware of and should agree to this policy. With regard to the length of time for a confiscation, there are no hard and fast rules regarding this but, schools should determine what is considered to be an ‘appropriate’ or ‘reasonable’ amount time. For example, confiscated mobile phones would generally be returned to students at the end of the school day (parents would argue that this is a student safety issue). Contraband items such as tobacco products or alcohol would be given to a parent (as most school children are under 18) and weapons and illicit substances would usually be passed immediately on to the police. It is up to the police as to whether or not the items are to be returned or if charges will be laid against the student.
The school should have a discipline policy with a statement that clearly outlines items that are contraband at school. Clearly it is not possible for all contraband items to be listed but, the list as a minimum should contain items such as illicit drugs, alcohol, weapons and tobacco products. Uniform infringement items such as excessive or inappropriate jewellery could also be listed as being able to be confiscated within the school rules and policies. The same applies to mobile phones, depending upon the school rules associated with student use of mobile phones and other IT products such as MP3 players and so forth. Note that schools do not have the right to open and inspect the contents of mobile phones or MP3 players even if they suspect they may contain illegal or inappropriate material. That is a matter for the parents or the police.
Teachers (and schools) are liable for student property once it has been confiscated. If it has been removed from a child and then lost, the school (or the teacher) could be held liable to replace the item or even compensate the student for the loss. Schools should also be prepared to update their documentation and keep students, staff and parents informed as there are ‘trending fads’ such as the current trend of ‘fidget spinners’ that may also make it to a confiscation list.
It is essential that staff are aware that they may ask students to hand over items but, they should never take them by force or remove them directly from the student’s possession. Actions such as this could result in charges being brought against the teacher. As noted earlier, students who fail to follow the reasonable request of a teacher, in line with school policy, could be punished for failing to follow the request. However, they should still not be forced to hand over their property.
Finally, schools should remind students, parents, and staff that confiscation of student property is a disciplinary reaction to a prohibited item.
About the author
Craig D’cruz is the National Education Consultant at CompliSpace. He can be contacted here.