(2009/5770)

Do educators enjoy a Halachic right to confiscate items from students if those items are interfering with the learning in the classroom? The prohibition of theft is quite serious as Chazal teach (Sanhedrin 108a, cited in Rashi to Breishit 6:13 s.v. Ki Malah) that the judgment of the generation of the flood was sealed due to its stealing. Thus, we must carefully investigate as to whether Halacha grants this right to educators.

Burning Clothes on Har HaBayit

Rambam (Hilchot Geneivah 1:2) and the Shulchan Aruch (Choshen Mishpat 348:1) state: “One is forbidden to steal even the smallest amount. It is even forbidden to steal merely as a joke or with the intention to return the item or even on condition to pay later. This is all forbidden lest one become habituated to stealing.”

Rav Yehudah Henkin (Techumin 8:186-199 and Teshuvot Bnei Banim 2:47) in a responsum where he advocates ending the practice of educators confiscating most items from students, asserts “In my humble opinion there is not one opinion in the Rishonim which permits punishing a student by taking his property.” Rav Henkin concludes his responsum that confiscation of student’s items “was unheard of in prior generations and is not mentioned by Poskim” (Halachic authorities).

Most Halachic authorities (such as Rav Asher Bush, Teshuvot Shoel Bishlomo number 57, Rav Zvi Yehudah ben Yaakov, Techumin 19:52-53 and Rav Uri Dasberg Rav Yehudah Shaviv in their critique of Rav Henkin, Techumin 199-201), however, strongly disagree and discover sources and to formulate arguments justifying educators taking items from students when appropriate.

One potential source is the Mishnah (Middot 1:2) which relates the following about those guarding the gates leading to Har HaBayit (the Temple Mount) at night:

The person in charge of Har HaBayit (Ish Har HaBayit) would inspect each guard and would have torches lit before him. Any guard who did not rise would be greeted with a “Shalom Alecha” (may peace be upon you). If it was apparent he was sleeping, the Ish Har HaBayit would hit the guard with his walking stick. In addition, permission was granted to burn his clothes. Rabi Eliezer ben Yaakov states that once the brother of his mother was found sleeping and they burned his clothes.

One may ask by what right does the Ish Har HaBayit burn the guard’s clothing. The Gemara (Tamid 27b) explains that the rule “Hefkeir Beit Din Hefkeir” (the rabbinic court is authorized to render the property of those who fall within its jurisdiction as ownerless) empowers him to do so. One may deduce from this Mishnah that Halacha grants those supervising others to punish them by taking away property. Moreover, the Tiferet Yisrael (to Middot ad. loc.) explains that the clothes were what warmed the guard and facilitated his sleep. Thus, by burning his clothes (probably an outer garment, such as a coat) the Ish HaBayit eliminated the distraction that prevented the guard from properly executing his responsibilities. Similarly, one could argue that an educator is permitted to take away an item that distracts a student from executing his responsibilities. However, Rav Henkin responds that specific permission needs to be granted by Beit Din for such actions but no blanket permission is given to those in a position of authority to take the property of those in their charge.

 Educators Permission to Hit Children

The Gemara (Makkot 8b) teaches that a teacher as well as a parent is authorized to hit a child to discipline him. The Gemara even states that there is a Mitzvah to hit even a good student to further discipline him. Rav Henkin infers that Chazal permit only hitting a student but not confiscating his property. Rav Asher Bush, Rav Uri Dasberg and Rav Yehuda Shaviv note that it is implausible to distinguish between hitting a student and confiscating his property. These authorities believe that if Chazal permit hitting a child then it is obvious that Halacha permits confiscating a child’s property.

While it seems to be forbidden for an educator to strike a child nowadays due to, among other possible factors, civil laws prohibiting such behavior (and the fact that in the current environment it is, as noted by Rav Henkin, counterproductive to do so), nonetheless temporarily taking away items from students that distract them remains permissible. Rav Bush explains the absence of a statement by Chazal and later Poskim permitting confiscating items as either due to its obvious inference from the permission to hit a child or because in previous generations people in general owned a tiny fraction of what people owned today. While today many students bring their basketballs, sports cards, cell phones, iPods, and portable game systems to school, this was entirely irrelevant in previous generations. Chazal may not have spoken about confiscating items that distract students, simply because no such items existed!

Rav Dasberg marshals a proof to his assertion from Ramban’s statement (cited by Ritva to Ketubot 86a and Ketzot 39:1) “If Halacha authorizes coercing the individual by harming his body, then may coerce him by taking his property.” Rav Henkin in his response to Rav Dasberg (Techumin 8:201) argues that this statement is taken out of context and not relevant to the question of confiscating items from students.

Group Sanctions

The Shulchan Aruch (C.M. 231:28 based on Bava Batra 8b) presents an important rule which has a wide variety of applications: “Members of a trade union are permitted to make rules regarding their work such as an agreement that each worker does not sell his wares on the day his colleague is selling those wares, and impose sanctions on any member who fails to abide by these rules.”

Rama clarifies that this applies only if all the members of the group agreed upon these rules. Rav Henkin rejects applying this rule to our question because he argues that this matter requires the agreement of both parents and students. However, one may respond that if the school has a rulebook that all students sign at the beginning of the school year which states that teachers and administration may confiscate items, then there is no question that items may be taken in accordance with the student’s agreement. In regards to students who are minors, if the school rule book sets forth the policies for taking items, parents send their children to the school with the understanding that the rules will be enforced and thus have consented to the rule permitting confiscating when appropriate.

Moreover, even if this rule is not set forth explicitly in a student rule book, the Halacha often defers to the common practices of the local community (Minhag HaMedinah; Shulchan Aruch C.M. 201:2, 215:8 and 331:1). Thus, Rav Ben Yaakov notes, since the common practice in elementary and high schools is to confiscate items, consent to attend a school constitutes an implicit agreement to allow educators to take away items that detract from creating a constructive learning environment. It seems that if students and/or parents object to this practice they must specify this objection in advance in order for their opinions to have Halachic significance. Otherwise common practice constitutes accepted policy by default.

Rav Ben Yaakov adds that the items a youngster brings to school may not actually belong to them but rather to their parents who have allowed them to make use of their property. He argues: “Since parents send their children to school in order to learn and become educated, it is obvious that their intention is that if their child will use that item in a manner that will disturb their study, the educator is permitted to take the item and return it at a later date.”

Rav Ben Yaakov makes this assumption even in the absence of a school rule book which sets forth a rule regarding confiscation. One might respond that in an age where some parents overindulge their children this assumption is not necessarily valid, making it preferable to clarify this issue in advance with explicit written guidelines as to the consequences of using items that disturb the educational environment.

Forbidden Items

Even Rav Henkin concedes that it is a Mitzvah to confiscate those items that are forbidden and/or dangerous such as firearms or drugs. However, he argues that it is forbidden to take items that are not intrinsically prohibited but simply distract the student from learning. On this basis, he castigates those Yeshivot where the administrators take the students’ radios and throw them in the garbage. Rav Henkin notes that radios are not prohibited as he noted that his grandfather, the eminent Rav Yosef Eliyahu Henkin, listened to the news on the radio.

One may respond that it truly depends on what Yeshiva the student attends. If the Yeshiva rule book forbids students from having a radio in their possession and sets forth the consequences for those who violate this rule, then it is entirely permissible for its staff to take the item. Moreover, if this is the common practice at certain types of Yeshivot then this is assumed to be the expectation and practice to which the students have implicitly agreed to simply by attending the Yeshiva.

Conclusion

Mainstream Halachic opinion, which is reflected in practice in most Orthodox Jewish educational settings both in Israel and North America (as noted by Rav Ben Yaakov and Rav Bush), permits confiscating items from students if the educator believes that it distracts the students from learning. More important, however, is that all committed Jews should aspire to creating communities where teachers and students are fully invested in their partnership of learning. In such an environment, the question of confiscating items that detract learning becomes a moot issue since everyone is learning to the best of their ability, as prophesied by Yeshayahu (54:13) “And all of your children will be students of Hashem and your children will have peace.” We pray that we soon attain that lofty goal.

Next week, we shall discuss (iy”H and b”n) the responsibilities of educators to properly guard the items confiscated and ramifications if the items are lost.