The Chancellor of Justice gave her opinion to a provision of the internal rules of a basic school, which allows the school to confiscate the student’s smart device for the entire school day.
The right to education is the fundamental right of a person and also a constitutional duty for the students of a basic school. A school cannot allow a situation where studies cannot be carried out in a classroom, since a student interrupts the lesson by using their smart device, meaning that neither they themselves are studying nor are they letting others study. In addition, making recordings of classmates or teachers with a smartphone and publishing these without their consent may violate their constitutional rights.
The legal basis for taking custody of a smartphone arises from the Basic Schools and Upper Secondary Schools Act, which lists the sanctions a school can impose, if a student violates the internal rules of the school. According to the said act, a school can take custody of objects, including smart devices, which are used by the student in a manner not in accordance with the school’s internal rules.
Pursuant to law, a smart device can be taken custody of, if a student uses it against the internal rules of the school and voluntarily surrenders it to custody after a respective request has been made. The law does not grant school employees the right to use physical force to take away a smart device.
The right given to the schools to take temporary custody of a smart device or any other object is constitutional. Ensuring adherence to the school’s internal rules is a cogent objective; however, there is no better and at the same time less restrictive measure to the rights of the student than taking temporary custody of the smart device. It is important to bear in mind that on the basis of the Basic Schools and Upper Secondary Schools Act a school may take custody of an object only in such a manner where the students themselves transfer the object temporarily to the school.
This means that the situations, in which the students themselves do not transfer the custody of the smart device on demand of the teacher, must be solved with pedagogical measures, such as removal from a lesson along with the duty to stay in the prescribed place and achieve the required learning outcomes by the end of the lesson, discussion of the student’s behaviour with the student’s parents or the school administration.
Please see the complete text of the explanation given by the Chancellor of Justice in Estonian.