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According to this question and the corresponding answer, schools are legally allowed to confiscate items from students. This is not considered theft, as the intent is not to permanently take the item away from the student.

My question now is, how long is a school allowed to confiscate items from a student? "Common Sense" would indicate something like until the end of the class, or the end of the school day - or more formally, until the student leaves the school building.

However, I recall teachers confiscating phones until the end of the week, and even refusing to hand them back upon the parent's request, citing that "the student would just play on their phone again anyways". I can't imagine that this is legal, or that a teacher has the authority to confiscate an item for longer than necessary.


I am mostly interested in answers regarding Austria, but answers regarding other jurisdictions are accepted as well. Furthermore, I am talking about "general" items in a student's rightful possession. This excludes things like cigarettes, alcohol, weapons, etc., which may by themselves warrant different procedures.

  • This is highly dependant on the jurisdiction and context. It can range from "till the end of the lesson" (for example a phone to discipline the pupil not to use it in class) over "Till the end of the school day" (for stuff that disturbs the classes a lot) to "Until the parents come to retrieve the item" (for example a knife or lighter). In some jurisdictions, it is also possible for school to confiscate items and hand them over to law enforcement if they happen to find them (for example drugs). Germany will differ from the UK from France from Poland or Estonia. – Trish Aug 20 '19 at 12:01
  • @Trish Are schools required to hand over items to parents, if they request it? – MechMK1 Aug 22 '19 at 8:04
  • That depends on the jurisdiction and item in question. It is different in different countries. WHERE are you wanting to ask about? The EU has VASTLY differing laws, in the US it is entirely different again. – Trish Aug 23 '19 at 4:30
  • @Trish Let's say Austria, since it's my home country. I'll edit the question to reflect that. – MechMK1 Aug 23 '19 at 8:22
  • So you did. Mea culpa. – Michael Seifert Aug 23 '19 at 17:23
3

According to regulation 373/1974 § 4(4) (which I presume is still in force due being amended in 2020), confiscated items must be returned by the end of Unterricht (unsure of exact translation, either end of class or school day):

Gegenstände, die die Sicherheit gefährden oder den Schulbetrieb stören, dürfen vom Schüler nicht mitgebracht werden. Derartige Gegenstände sind dem Lehrer auf Verlangen zu übergeben. Abgenommene Gegenstände sind nach Beendigung des Unterrichtes bzw. der Schulveranstaltung oder der schulbezogenen Veranstaltung dem Schüler zurückzugeben, sofern es sich nicht um sicherheitsgefährdende Gegenstände handelt. Sicherheitsgefährdende Gegenstände dürfen nur dem Erziehungsberechtigten – sofern der Schüler volljährig ist, diesem – ausgefolgt werden, wenn deren Besitz nicht sonstigen Rechtsvorschriften widerspricht.

This translates to (translation by @MechMK1):

Objects, which are a threat to safety or disturb the school proceedings, may not be brought along by the student. Such objects have to be handed over to the teacher upon request. Such taken objects have to be returned after the end of the end of the lesson or the course, or the school-related event, as long as the object is not a threat to safety. Objects which are a threat to safety must only be handed over to the parents or legal guardians - or, if the student is of age, the student - if the ownership of said object is not unlawful.

Thanks to Vienna lawyer Dr. Johannes Öhlböck who wrote an article pointing me to the regulation.

I'm not fluent in German and I can't find an explicit definition of Unterricht in the associated laws. Google currently translates it as lesson, but Duden has a broader definition close to "scheduled, regular instruction by a teacher" and the Vienna city website claims cell phones can kept until end of day.

Interestingly during research I found a Deutsche Telekom (T-Mobile) article stating that in 2017, a Berlin administrative court allowed confiscation of a cell phone through a weekend.

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  • Unterricht in this case refers to either the end of this class (so usually an hour or two later) or the end of this class day - german is ambiguous there. But it gives a good enough timeframe. – MechMK1 Oct 8 at 9:06
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    Good catch. As to the translation: "Unterrichtsende" could, taken literally, refer to both the end of lesson and the end of the school day. However, in this context it seems to refer to "end of the school day". For example, section (5) says that pupils must leave the school without delay "nach Beendigung des Unterrichts" ("after conclusion of the Unterricht") - so "Unterricht" here seems to refer to the school day as a whole, since it does not make sense to require pupils to leave school after every single lesson. – sleske Oct 8 at 10:05
  • Unterricht can be translated as either - Unterricht can be "school day", but it can also mean parts of it, especially in case there are breaks. In Germany, the common interpretation is, that Unterricht means the lesson (regarding confiscation) for minor infractions, but it is often interpreted as school day in case the interruption is larger. – Trish Oct 8 at 16:49
1

In the EU, education is the responsibility of individual Member States, there is no EU-wide law that I can find on the matter. However, Article 165 of the Treaty on the Functioning of the European Union states:

The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.

I am unable to locate any specific Austrian law on the subject of schools being able to confiscate personal items from students and arbitrarily withhold them for undefined periods of time, partly because I don't read, write, or speak German and the English-translated database of Austrian law doesn't include anything specifically pertaining to education.

However, in the UK such matters are handled by Section 94 of the Education and Inspections Act 2006:

(1) This section applies where, as a disciplinary penalty—

(a) an item which a pupil has with him or in his possessions is seized, and

(b) the item is retained for any period or is disposed of.

(2) A person who seizes, retains or disposes of the item is not liable in any proceedings in respect of—

(a) the seizure, retention or disposal (as the case may be), or

(b) any damage or loss which arises in consequence of it,

if he proves that the seizure, retention or disposal (as the case may be) was lawful (whether or not by virtue of section 91).

so effectively they can keep the property for as long as they want and dispose of it too as long as the penalty complies with Section 91 of the same Act.

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1

In Germany, the exact rules depend on the Land (state), as education is regulated by them. However, the rules mostly seem to boil down to: "Confiscation is allowed to enforce discipline, but things must be returned as soon as practical."


For example, In North Rhine-Westphalia the relevant law says:

(2) Zu den erzieherischen Einwirkungen gehören insbesondere [...] die zeitweise Wegnahme von Gegenständen [...]

Schulgesetz NRW, §53

Translation (mine, no guarantee):

(2) Among the disciplinary measures there are [...] the temporary confiscation of objects [...]

So confiscation of objects by teachers is explicitly authorized, however the confiscation must be "temporary". The law does not say what exactly "temporary" means, but it does say that measures must in general be "proportionate".

There is some clarification on the web site of the ministry of education:

Darf eine Lehrkraft einer Schülerin oder einem Schüler das Handy wegnehmen?

Auch die Wegnahme von Gegenständen ist als erzieherische Maßnahme ausdrücklich zulässig, wenn sie zur Aufrechterhaltung eines ordnungsgemäßen Schulbetriebs erforderlich ist (§ 53 Abs. 2 SchulG). Eine prophylaktische Wegnahme von Gegenständen ist nicht zulässig. Die Störung muss entweder bereits eingetreten sein oder unmittelbar bevorstehen und auf andere Weise nicht zu beseitigen sein (Grundsatz der Verhältnismäßigkeit).

Schulrecht - Ordnungsmaßnahmen; Erzieherische Maßnahmen

Translation:

Is a teacher allowed to confiscate a pupil's mobile phone?

The confiscation of objects is explicitly permitted, if it is necessary to maintain school discipline (§ 53 Abs. 2 SchulG). A preventive confiscation is not permitted. The disturbance [of discipline] must already have happened or be imminent, and must not be avoidable in a different way (principle of proportionality).

So while a teacher may confiscate objects, they must be returned as soon as the disruption of discipline has been resolved, which presumably means at the end of the school day at the latest.

Note that confiscation is explicitly not mentioned as a punishment, so this is not permissible. If, for example, a student repeatedly brings along an object that disrupts the lessons, then the school may not confiscate the items for a longer time or permanently. Instead, it must take other measures (also detailed in the law), such as temporary exclusion from school, or even expulsion.

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Since it's been a month without any answers at all, I'll go ahead and give this a shot for the USA.

This lovely answer to a question I asked about in loco parentis details the exact authority by which schools confiscate items. I recommend reading it, user6726 does a great job, but it basically boils down to this: Schools can confiscate items to further the purpose of the school.

In other words, if the phone is distracting the student from the lesson, the teacher may take it away, so the student may learn. It's conceivable that a teacher may decide to hold onto it for the entire day, since it would likely prove to be a distraction in other lessons as well.

User6726's answer does not go into when it is appropriate to return the item, which I shall now try to touch on.

A failure to return the item to the parent could be seen as theft, provided that the parent is the actual owner of the phone and they do not intend to simply return it to the child for them to use during the lesson.

It gets stickier if the teacher sends the student home without the phone, arguing that a parent must come to pick it up. It isn't theft (intent to return), but they could incur some liability in the event something happens to the child and they were deprived of their ability to call 911 in a timely manner. (Since the child was not in school, the school retaining the phone could be argued to not be in furtherance of it's purpose).

Again, this is for the US, and mileage of these things likely vary in Austria.

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The answer above is nails it pretty well. However, if the school states in a written agreement or clearly notifies that an item can be confiscated and/or disposed of, all of the responsibility is on the student.

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    Hi, welcome to the site. Just so you know, we are not a forum and we expect each answer to stand on its own. It's ok to refer to other answers but your answer should be complete even if that answer gets deleted, edited or otherwise broken. It should also refer to the answer by the poster's name not by your relative location - the order in which answers are displayed changes based on things like votes and the user settings of the person who is reading it. – Dale M Sep 7 at 23:47
  • I strongly doubt that this is true. In most jurisdictions, schools cannot unilaterally impose arbitrary rules - they are usually limited by various laws, and possibly by the contract between parents and school (in the case of privately run schools). – sleske Oct 8 at 11:41

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