Appeal of A.F., on behalf of his son A.F., from action of the Board of Education of the Kings Park Central School District regarding student discipline.

Appeal of T.P., on behalf of his son K.P., from action of the Board of Education of the Kings Park Central School District regarding student discipline.

Decision No. 16,997

(November 10, 2016)

Robert N. Isseks, and Alex Smith, Esqs., attorneys for petitioners

Ingerman Smith LLP, attorneys for respondent, Cheryl R. Monticciolo, Esq., of counsel

ELIA, Commissioner.--In two separate appeals, petitioners challenge the determination of the Board of Education of the Kings Park Central School District (”respondent” or “board”) to suspend their sons, A.F. and K.P. (“the students”), from school.  Because the appeals arise out of the same facts and circumstances and present similar issues of fact and law, they are consolidated for decision.  The appeals must be sustained.

During the 2015-2016 school year, the students were tenth graders at respondent’s high school.  On November 5, 2015, the high school principal (“principal”) was notified by the superintendent that a video was circulating among students at the high school which depicted two fourteen-year-old students, one from a neighboring school district and one from respondent’s district, engaging in sexual conduct.  On November 6, 2015, the father of the district student depicted in the video contacted the principal, asserting that the conduct in the video was not consensual, and that he was going to the police department to press charges.

That same day, one of respondent’s assistant principals saw a ninth-grade student displaying the video on her cell phone (“phone”) and showing it to other students at the lunch table.  According to respondent, this led to numerous student interviews to determine the origin of the video and the scope of its dissemination.  During the interviews, students who had received the video were asked who they received the video from, if they had watched it, and if the video remained on their phones.  Those students who admitted to continued possession of the video on their phones had their phones temporarily confiscated.   

The investigation implicated A.F. and K.P., and an assistant principal subsequently met with each student.  A.F. admitted to receiving the video via group text message on the evening of November 4, 2015, and K.P. admitted to receiving the video on November 5, 2015 while he was at home.  Both students identified the individual who had sent the video to them and denied forwarding it to anyone else.

According to the assistant principal, A.F. and K.P. admitted to watching the video and retaining it on their phones.[1]  Based on these alleged admissions, the assistant principal temporarily confiscated the phones until A.F. and K.P.’s parents could retrieve them after school. 

After meeting with the Suffolk County police, the principal scheduled meetings between parents and school administrators.  In total, twenty-eight students were suspended.  Students who received, watched and retained the video received a one-day suspension, while students who sent the video to others received a five-day suspension.

The assistant principal met with A.F.’s mother and, separately, spoke with petitioner A.F. by telephone on November 6, 2015.  Petitioner T.P. and his son met with the assistant principal on November 6, 2015.  At these meetings, the assistant principal explained the nature of the charges against A.F. and K.P. and his recommendation of a one-day suspension.

On November 9, 2015, the principal and three assistant principals met again with A.F. and K.P.’s parents to discuss the students’ suspensions.  By letters dated November 9, 2015 and November 10, 2015, the principal notified petitioners that A.F. and K.P. would be suspended for one school day, November 10, 2015, for ”inappropriate use of an electronic device.”[2]  Both students served their suspensions on November 10, 2015.

By letter dated November 18, 2015, the superintendent wrote to petitioner T.P., stating that he had reviewed K.P.’s recent suspension and that petitioner T.P. could, at the end of K.P.’s junior year, submit a letter to the superintendent requesting a review of K.P.’s disciplinary record.  If the review revealed no disciplinary incidents similar in nature to the events at issue in this appeal, K.P.’s November 10, 2015 suspension would be expunged from his record. 

According to the record, petitioner A.F. did not receive such a letter; however, in an affidavit, the executive assistant to the superintendent (“executive assistant”) asserts that she contacted petitioner A.F. by telephone on November 18, 2015, read the text of the aforementioned letter to him, and asked if he wanted to meet with the superintendent about A.F.’s suspension.  According to the executive assistant, petitioner A.F. told her that he had been advised by his attorney not to speak to anyone and then hung up the phone.[3]  Neither petitioner in this matter availed himself of the opportunity to request a review of A.F. or K.P.’s disciplinary records.

Petitioners appealed their suspensions to respondent in separate letters dated December 9, 2015.  Respondent upheld the principal’s decision to suspend the students on December 16, 2015.  These appeals ensued.

Petitioners contend that the suspensions are arbitrary and capricious and must be expunged from the students’ records for three reasons.  First, petitioners argue that they were deprived of their right to due process because the district’s code of conduct and list of infractions do not prohibit the “inappropriate use of an electronic device,” the charged misconduct in this case.  Second, petitioners argue that A.F. and K.P. cannot be punished for possession of the video because they received it at home outside of the school day.  Third, petitioners assert that respondent offered to expunge A.F and K.P.’s records only if “they agreed not to engage in [similar] conduct ...” and that this violated the students’ rights to freedom of speech and association.  Petitioners request that A.F. and K.P.’s suspensions be expunged. 

Respondent argues that the petitions should be dismissed for failure to state a claim upon which relief can be granted.  Respondent argues that the written charges were sufficient to apprise petitioners of the alleged misconduct.  Respondent further contends that the one-day suspensions were lawful, reasonable and supported by the evidence.  Respondent additionally argues that, even if A.F. and K.P. received the video while at home, they brought their cell phones to school, and the video caused substantial disruption during the school day.  Respondent further argues that, specific to A.F., its offer to review his record and potentially expunge the suspension was a “reasonable exercise” of its authority and was a “discretionary, favorable act” without legal significance.   

In their replies, petitioners respond to arguments respondent characterized as affirmative defenses, contending that they are without merit.  With respect to the district’s offer to review and potentially expunge A.F.’s suspension, petitioner A.F. contends that the offer was “unreasonable and unconstitutional.”

Turning to the permissibility of the students’ suspensions, petitioners contend that A.F. and K.P. received the video at home after school hours, and that neither student viewed or sent the video during school hours or while on school property.  Respondent argues that by receiving, watching, and retaining the video, A.F. and K.P. “impacted the morals of other students, most notably [the] fellow student who was non-consensually in the video.”  Respondent also contends that A.F. and K.P.’s retention of a video depicting “illegal [and] depraved” conduct on their cell phones endangered others.  Respondent further asserts that the video substantially interfered with the school day, as it led to police visiting the high school; imposed a substantial administrative burden on school staff, who investigated and interviewed numerous students; and caused the district student featured in the video to be absent from school.

Prior Commissioner’s decisions have upheld the suspension of students for off-campus conduct (Appeal of W.T., 46 Ed Dept Rep 363, Decision No. 15,534; Appeal of C.R., 45 id. 303, Decision No. 15,330).  Case law has also recognized that students may be disciplined for conduct that occurred outside of the school that may endanger the health or safety or pupils within the educational system or adversely affect the educative process (Matter of Coghlan v. Bd. of Educ. of Liverpool Cent. School Dist., 262 AD2d 949, citing Pollnow v. Glennon, 594 F.Supp. 220, 224, affd 757 F.2d 496; Appeal of W.T., 46 Ed Dept Rep 363, Decision No. 15,534; Appeal of C.R., 45 id. 303, Decision No. 15,330).

However, upon review of the record, I am constrained to that it was improper to suspend A.F. and K.P because they did not solicit or request the video or engage in any other conduct with respect to the video at school or otherwise or in a way that endangered the health or safety of students or adversely affected the educative process.  The record shows that A.F. and K.P. received unsolicited text messages containing the video while they were at home during non-school hours.[4]  While the parties dispute whether the students viewed and/or retained the video, the record further shows that A.F and K.P. did not send the video to anyone else.   While it is undisputed that school administrators’ discovery of the video and the ensuing investigation caused substantial disruption during the school day, respondent offers no evidence linking any conduct by A.F. and K.P. to the subsequent disruption.  Therefore, respondent’s argument that A.F. and K.P.’s reviewing, viewing and/or retention of the video resulted in “moral” harm is unavailing because there is no evidence in the record that A.F. and K.P., for example, viewed the video at school or sent or showed the video to anyone else.  I note that, although the district’s code of conduct does prohibit possession of obscene material, the students were charged only with inappropriate use of an electronic device, which charge is unsupported by the record herein.

Respondent argues that Appeal of A.R. and S.R. (40 Ed Dept Rep 262, Decision No. 14,477) is analogous to the instant case and supports its position.  Appeal of A.R. and S.R. upheld the suspension of a student who sent a threatening email from his home computer to other students’ home computers outside of the school day and off school grounds which substantially interrupted school operations.  However, Appeal of A.R. and S.R. is distinguishable because, in that case, petitioners’ son and another student sent the threatening email.  Here, A.F. and K.P. merely received an unsolicited text message containing the video.  Thus, respondent’s reliance on Appeal of A.R. and S.R. is unavailing.

While nothing herein should be interpreted as minimizing the gravity of the situation presented in this appeal, respondent’s suspension of A.F. and K.P. for receiving a video, unsolicited, which they did not show or send to anyone else, and which bore no nexus to an ensuing school disruption, was arbitrary and capricious.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEALS ARE SUSTAINED.

IT IS ORDERED that respondent’s suspension of A.F. and K.P. on November 10, 2015 be annulled and expunged from their records.

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