גריי מאטר ד, בית דין, החרמת חפצים מתלמידים א׳Gray Matter IV, Beit Din, Confiscating Items from Students 1
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1Do 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 Halachah grants this right to educators.
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2Burning Clothes on Har Habayit
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3The Rambam (Hilchot Geneivah 1:2) and the Shulchan Aruch (C.M. 348:1) state: “One is forbidden to steal even the smallest amount. It is forbidden to steal even merely as a joke or with the intention to return the item, or even on condition to repay the item 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 in which he advocates ending the practice of educators’ confiscating items from students, adds, “In my humble opinion, there is not one opinion in the Rishonim which permits afflicting a student by taking his property.” Rav Henkin concludes his responsum by noting that confiscation of students’ items “was unheard of in prior generations and is not mentioned by Poskim.”145It is important to note that even Rav Henkin concedes that it is a mitzvah to confiscate those items that are forbidden and/or dangerous, such as firearms or drugs.
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4Most halachic authorities (such as Rav Asher Bush, Teshuvot Shoel Bishlomo no. 57; Rav Zvi Yehudah Ben Yaakov, Techumin 19:52-53; and Rav Uri Dasberg and Rav Yehudah Shaviv in their critique of Rav Henkin, Techumin 199-201), however, strongly disagree. They discover sources and formulate arguments justifying educators’ taking items from students when appropriate.
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5One potential source is the Mishnah (Middot 1:2) which relates the following about those guarding at night the gates leading to Har Habayit (the Temple Mount):
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6The person in charge of Har Habayit (Ish Har Habayit) would inspect each guard and would have lit torches before him. Any guard who did not rise would be greeted, ‘Shalom Alecha’ (may peace be upon you). If it was apparent that the guard was sleeping, the Ish Har Habayit would hit the guard with his walking stick. In addition, the Ish Har Habayit had permission to burn his clothes… Rabi Eliezer ben Yaakov states that the brother of his mother was once found sleeping, and they burned his clothes.
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7One may deduce from this Mishnah that Halachah grants those supervising others the right to punish them by taking away property. Moreover, the Tiferet Yisrael (to Middot ad. loc.) explains that the clothes were responsible for warming the guard and facilitating his sleep. Thus, by burning his clothes (according to Tiferet Yisrael, only his outer garment, presumably a type of coat), the Ish Har 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 the item that distracts the student from executing his responsibilities. However, Rav Henkin responds that specific permission needs to be granted by beit din for such actions; no blanket permission is given to those in a position of authority to take the property of those in their charge.
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8Educators’ Permission to Hit Children
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9The Gemara (Makkot 8b) teaches that a teacher, as well as a parent, has the right to hit a child to discipline him. The Gemara 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 taking away 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 they permit confiscating a child’s property as well.
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10While 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), temporarily taking away distracting items from students nonetheless remains permissible. Rav Bush explains that the absence of a statement by Chazal or later poskim permitting confiscating items is either due to its obvious inference from the permission to hit a child or because, in previous generations, people generally owned a tiny fraction of what people own today. Although many students today bring their basketballs, sports cards, cell phones, iPods and DS’s to school, students of previous generations owned none of these items. Chazal may not have spoken about confiscating distracing items simply because no such items existed!
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11Rav Dasberg marshals a proof to his assertion from the Ramban’s statement (cited by Ritva to Ketubot 86a and Ketzot 39:1) that if Halachah authorizes coercing an individual by harming his body, then beit din may coerce him by taking his property. Rav Henkin, in his response to Rav Dasberg (Techumin 8:201), argues that Rav Dasberg takes this statement out of context, and it is not relevant to the question of confiscating items from students.
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12Group Sanctions
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13The Shulchan Aruch (C.M. 231:28 based on Bava Batra 9a) presents a
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14 fundamentally 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 they may impose sanctions on any member who fails to abide by these rules.” Thus, one can argue that confiscation should be allowed as a sanction upon the students for not following classroom or school rules.
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15Rama clarifies, however, that this Halachah applies only if all the members of the group agree to these rules. Rav Henkin rejects applying this rule to our question because he argues that imposing sanctions would require the agreement of both parents and students. However, if the school has a rulebook which states that teachers and administration may confiscate items, and all students sign this rulebook at the beginning of the school year, then there is no question that items may be taken in accordance with the student’s agreement. Although parental consent is necessary to allow confiscation from students who are minors, if the school rulebook 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 confiscation when appropriate.
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16Moreover, even if this rule is not set forth explicitly in a rulebook, the Halachah defers to the common practices of a locale (Shulchan Aruch C.M. 215:8 and 331:1-2). 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 disturb 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, the rules follow the common practice.146In some cases, common practice may be different at different types of yeshivot. For example, a radio may be perfectly acceptable to bring to occasionally use in a dormitory of a certain type of yeshiva yet it is totally unacceptable in a different type of yeshiva.
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17Rav Ben Yaakov adds that the items that youngsters bring to school may actually belong to their parents, who have allowed their children to make use of their property. Rav Ben Yaakov argues,
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18Since parents send their children to school in order to learn and become educated, it is obvious that the parents’ intention is that if their children will use those items in a manner that will disturb their study, the educator is permitted to take the items and return them at a later date.
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19Rav Ben Yaakov makes this assumption even in the absence of a school rulebook which sets forth a rule regarding confiscation. One might respond that in today’s age, when some parents overindulge their children, this assumption is not necessarily valid. Thus, it is preferable for a school to clarify this issue in advance with explicit written guidelines as to the consequences of using items that disrupt the educational environment.
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20Conclusion
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21Mainstream 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. However, all committed Jews 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 from 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 much peace.” We pray to speedily attain that situation.