I am concerned entirely with the issue as it relates to property.

Let's say at Madeup Prep the cell phone policy allows for phones to be in pockets, but not out in class. Some teachers, however, ignore this, and have students use their phones to answer questions in real time (via something like TopHat).

Now let's say Alice has her phone out when she should not, and it is taken away by the teacher. It is returned sometime later. Then Alice's mother tells Alice's teacher that the phone is her property, not her daughter's, not the teacher's, that only Alice has permission to use it, and that if the teacher takes the phone away again, the mother considers it theft and (legal threat here).

Can the teacher/district take the phone anyway due to In Loco Parentis?

Note: For the record, the better solution for the district is to simply give detentions every time Alice violates the rule from now on, leading to eventual suspension and expulsion, but I'm far more interested in how much parenting authority a teacher/school can legally exert even when the actual parents are clearly and conspicuously opposed to such exertion.

Bonus Question: The phone is actually Alice's property, bought and paid for with money Alice earned at her job. Does this change the answer?

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    Possible duplicate of Confiscation of cellphones in public schools Commented Aug 23, 2019 at 17:06
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    The only similarity that I see is that it's about cell phones. The linked question is about contract law and being forced to sign an "agreement". This question is about the in loco parentis doctrine.
    – user6726
    Commented Aug 23, 2019 at 18:15
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    Fair enough; I suppose an important detail missing from the question is whether the parents have signed any documents agreeing to the policy. Commented Aug 23, 2019 at 18:51
  • There's an interesting question underlying yours, which is whether in loco parentis arises as a matter of law or whether it is actually delegated by parents and can thus be withdrawn or withheld at the will of the parents ("Mr. Teacher, as of noon today I am revoking your in loco parentis authority to require Ann to stay in her seat. You will allow her to wander the classroom and building according to her wishes, and even visit the coffee shop across the street if she wishes to before exams. If you don't like this you can sit on a tack. Signed, That Parent."). Commented Jul 27, 2022 at 20:59

1 Answer 1


The school can confiscate a cell phone if you violated phone usage policy, because schools have broad powers to set student conduct policies. Searching the phone is a separate matter: a search requires reasonable suspicion and the search has to be narrowly related to that suspicion. As long as there is an actual policy and a violation of the policy, there seems to be no limit on confiscating phones.

School authority over children in the US was historically justified by reference to the in loco parentis doctrine since State v. Pendergrass, 19 N.C. 365, granting school "the authority necessary for preserving discipline", which is "analogous to that which belongs to parents, and the authority of the teacher is regarded as a delegation of parental authority". More contemporary rulings on the question of school authority, again in the domain of corporal punishment, as articulated in Ingraham v. Wright, 430 U.S. 651 find that

the concept of parental delegation has been replaced by the view -- more consonant with compulsory education laws -- that the State itself may impose such corporal punishment as is reasonably necessary "for the proper education of the child and for the maintenance of group discipline".

In other words, the courts do not rely on the parental doctrine to justify school authority, instead they rely on what is reasonably necessary to achieve an end. Thus in New Jersey v. T.L.O, 469 U.S. 325, in loco parentis was rejected as a rationale for an unconstitutional search, reasoning

If school authorities are state actors for purposes of the constitutional guarantees of freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising parental rather than public authority when conducting searches of their students.

Instead, the court frames the test in terms of competing interests:

Against the child's interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds.

Since school authority to confiscate cell phones does not rest on acting according to the wishes of the parent, it is irrelevant that the parent approves of the child's actions. They may take the phone away, but it is not because of in loco parentis, it's because of necessity. It does not matter whose property it is; and it is not theft, because the confiscation was lawful.

In loco parentis is not necessarily dead, see Vernonia School Dist. 47J v. Acton, 515 U.S. 646, where compulsory drug testing was justified, finding that

the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care...

when the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake

It is not part of a school's remit to promulgate the drug-free life, so drug testing cannot be justified by appeal to necessity. Disciplinary matters are squarely within the scope of what is necessary for schools, so disciplinary questions don't need to rely on in loco parentis. In the Vernonia case, the court still finds that the state has limited reach to override the rights of children – parents still have much broader rights to restrict children than the state does. For the state, the matter has to reduce to a compelling state interest, whereas parental power isn't even subject to rational basis review.

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    It's mildly absurd that, out of the examples you give in this post, the only one for which the In loco parentis justification survives is suspicion-free random compulsion of children to provide urine samples for drug testing - something that I dearly hope no actual parent would ever do.
    – Mark Amery
    Commented Aug 24, 2019 at 11:10

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