Appeal of P.M. and E.M., on behalf of their child, from action of the Board of Education of the Mount Pleasant Central School District regarding student discipline.

Decision No. 18,549

(February 11, 2025)

Law Office of Stanley J. Silverstone, attorneys for petitioners, Stanley J. Silverstone, Esq. of counsel

Ingerman Smith LLP, attorneys for respondent, Alessandra P. Pulit, Esq., of counsel

ROSA., Commissioner.--Petitioners challenge a determination of the Board of Education of the Mount Pleasant Central School District (“respondent”) imposing discipline on their child (the “student”).  The appeal must be sustained.

The student attended ninth grade in respondent’s high school at the time of the events giving rise to this appeal.  On February 14, 2024, the district received reports that certain “male students had used an artificial intelligence application to create nude images of [several] female classmates and ... shared them with other students.”  Respondent’s investigation implicated the student.  On February 15, 2024, the district met with petitioner P.M. and the student.  The student admitted that he created three images but stated that he did not show, or share them with, anyone else.  The student also admitted that he told several classmates about a website where such images could be created.  The student additionally indicated that he had deleted the three images.

In a notice of charges dated February 16, 2023, respondent informed the student that it would convene a long-term suspension hearing on February 29, 2024.  Respondent alleged that the student violated the district’s code of conduct by:  (1) “contributing to the disruption of the educational environment at the high school”; and (2) “creating and/or distributing artificially generated pornographic images, which convincingly resembled multiple female students, resulting in harassment, bullying, and the creation of a hostile environment for said female students.” 

At the hearing, the district withdrew the portion of charge two alleging that the student “distribut[ed]” the images in question.  Thereafter, the student pled “no contest” to the charges, admitting that he had created three images that he later deleted.

Following the hearing, the assigned hearing officer recommended that the student be found guilty and suspended from the school and all school activities until the first day of the 2024-25 school year.  In a decision dated March 5, 2024, the superintendent adopted the hearing officer’s findings and the recommended penalty.  Respondent denied petitioners’ appeal on April 11, 2024; this appeal ensued.  Petitioners’ request for interim relief was granted on July 17, 2024.[1]

Petitioners argue that the length of the student’s suspension is shocking to the conscience.  Petitioners seek the student’s readmission to school and expungement of the suspension from his record.

Respondent asserts that the discipline imposed was proportionate to the severity of the offense involved.

I must initially address three procedural matters.  First, as the student’s suspension has ended, only petitioners’ request for expungement remains (Appeal of E.F., 62 Ed Dept Rep, Decision No. 18,206). 

Second, respondent has submitted affidavits from the superintendent and principal with its answer.  “Parties may not augment the hearing record with additional information that they could have introduced, but did not introduce, at the hearing” (Appeal of J.R., 61 Ed Dept Rep, Decision No. 18,091).  Moreover, “[r]espondent had an opportunity to elicit testimony” from the principal at the hearing “and the superintendent was free to explain his reasoning in his written decision” (Appeal of D.S., 61 Ed Dept Rep, Decision No. 18,072).  Therefore, I have not considered these affidavits in assessing the student’s long-term suspension.[2]

Third, petitioners received insufficient notice that the student was charged with informing other students about the website where the images were created.  The student was only charged with creating the images[3] and “contributing to the disruption of the educational environment at the high school.”  “The Commissioner has held that a district must be held to the language of the charges it chooses to pursue against a student” (Appeal of T.F., 60 Ed Dept Rep, Decision No. 17,916 [citing other appeals]; see e.g. Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,600 [board of education could not find a student guilty of possession of a vape pen where it charged him, at the hearing, with “use of an illegal controlled substance”]).  Here, I find that the student could not reasonably have understood either charge to encompass the specific allegation that he informed others about the website or that such action contributed to the disruption of the educational environment.

Turning to the merits, the decision to suspend a student from school pursuant to Education Law § 3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 140-141 [1997]; Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 293 AD2d 37, 39 [3d Dept 2002]; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916).

Students may only be disciplined for conduct that occurred outside of school if such conduct endangered the health or safety of pupils within the educational system or adversely affected the educational process (Matter of Coghlan v Board of Educ. of Liverpool Cent. School Dist., 262 AD2d 949, 949 [4th Dept 1999], citing Pollnow v Glennon, 594 F Supp 220, 224 [SDNY 1984], affd 757 F2d 496 [2d Cir 1985]; Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,834; Appeals of A.F. and T.P., 56 id., Decision No. 16,997; Appeal of W.T., 46 id. 363, Decision No. 15,534).  In particular, the Second Circuit has held that a student may be disciplined for off-campus speech where such speech posed a reasonably foreseeable risk that it would come to the attention of school authorities and materially and substantially disrupt the work and discipline of the school (Wisniewski v Board of Educ. of Weedsport Cent. School Dist., 494 F3d 34, 38-39 [2d Cir 2007], cert denied 552 US 1296 [2008]; see also Doninger v Niehoff, 642 F3d 334, 347 [2d Cir 2011]; Leroy v Livingston Manor Cent. Sch. Dist., US Dist Ct, ND NY, No. 21 civ 6008, Román, J., 2024 [when speech occurs off campus, “the leeway the First Amendment grants to schools in light of their special characteristics is diminished”], citing Mahanoy Area Sch. Dist. v B.L., 594 US 180, 189-90 [2021]).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Initially, I note that the student pled “no contest” to the charges against him.  This concept, imported from criminal law, amounts to “an admission of the facts as charged” (Appeal of N.C., 57 Ed Dept Rep, Decision No. 17,417, quoting Kufs v State of New York Liquor Authority, 224 AD2d 974 [4th Dept 1996]; see generally North Carolina v Alford, 400 US 25, 35-37 [1970]; People v Francabandera, 33 NY2d 429, 434-35 [1974]).  Therefore, the student is precluded from challenging the facts underlying the charges against him.

Nevertheless, respondent has failed to establish that the student’s conduct “endangered the safety, morals, health or welfare of others” (Education Law § 3214 [3] [a]).  The student created the images at home and deleted them thereafter.  There is no evidence that the student distributed the images or intended for their distribution.  Indeed, respondent only learned of the student’s conduct through its investigation of other students who had, in fact, distributed such images.

Contrary to respondent’s argument, the student could not be disciplined solely for “creati[ng]” the images at home.[4]  The Commissioner has consistently held that school districts lack authority to punish student misconduct that “would not foreseeably cause any disruption to school operations or activities” (Appeal of N.R., 60 Ed Dept Rep, Decision No. 17,913; see also Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,560; Appeals of A.F. and T.P., 56 id., Decision No. 16,997).  For example, in Appeal of N.R., the Commissioner expunged a suspension based upon searches conducted on a student’s school-issued laptop because they were “only discovered after [the school district] decided to examine the student’s [laptop] for reasons unrelated to student discipline” (id.).  The Commissioner reasoned that “there [was] no evidence that the student informed anyone of his internet searches or that anyone at the school would have been aware of the student’s search history if not for the district’s review” thereof (id.).  

Similarly, in Appeal of a Student with a Disability, the Commissioner held that a school district could not discipline a student for “affix[ing] a picture of a student’s face to a punching bag and ... punch[ing] it ‘50 or 60’ times” because “the punching bag was only discovered during the police search of petitioner’s home which, in turn, only occurred because of ... allegations made by ... [other] student[s]” (58 Ed Dept Rep, Decision No. 17,560).  The Commissioner further noted that “[t]here [was] no evidence in the record that the student informed anyone about the punching bag or that anyone at the school knew about its existence” (id.). 

Finally, in Appeals of A.F. and T.P., the Commissioner held that two students did not commit misconduct when they received an unsolicited video on their cell phones depicting two students having sex (56 Ed Dept Rep, Decision No. 16,997).  The students did not send the video to anyone else and received it outside of school hours.  The Commissioner held that the students had not engaged in misconduct as there was “no evidence linking any conduct by [the students] to the subsequent disruption.”  The Commissioner further rejected the district’s argument that the “viewing and/or retention of the video resulted in ‘moral’ harm” as there was “no evidence in the record that [the students], for example, viewed the video at school or sent or showed the video to anyone else.”

The reasoning of these appeals supports a similar outcome here.  Respondent has produced no evidence linking the student’s off-campus conduct to the distribution of fake nude images by others.  While respondent argues in its memorandum of law that “the nature of the internet makes it unclear what happens to those images and the information [the student] ... put into the application in order to generate the image[s] in the first place,” the district did not introduce any evidence as to how the images were generated or stored at the hearing.  Without it, there is no basis in the record to make the requested inference (Appeal of D.S., 61 Ed Dept Rep, Decision No. 18,072; Appeal of S.G., 59 id., Decision No. 17,830 [“the absence of evidence to disprove causation does not constitute proof of causation”]).

I share respondent’s concern that “AI fake nudes have become a massive problem for the wellbeing of students across the country.”  However, that does not mean that students may be suspended based merely on their proximity to such conduct (Appeal of R.W. and C.W., 64 Ed Dept Rep, Decision No. 18,529).  Respondent was required to prove the foreseeability that three images, created at home and since deleted, would come to the attention of school authorities—which it did not (compare Wisniewski v Board of Educ. of Weedsport Cent. School Dist., 494 F3d 34, 39-40 [2d Cir 2007] [“extensive distribution” of threatening message to “15 recipients” made it “at least foreseeable to a reasonable person, if not inevitable” that the message would reach school authorities]).

Additionally, the record contains other mitigating evidence that renders respondent’s penalty excessive (Appeal of E.R., 63 Ed Dept Rep, Decision No. 18,309).  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of D.B., 63 Ed Dept Rep, Decision No. 18,383).  The test to be applied in reviewing a penalty is whether it is so shocking to the conscience as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of K.P., 61 Ed Dept Rep, Decision No. 18,055; Appeal of C.N. and C.N., 60 id., Decision No. 17,954).  This analysis generally considers the nature of a student’s offense, their age and developmental level, prior disciplinary history (if any), the extent to which suspension is necessary to ensure the safety of the school community, the extent to which the district has attempted to help the student learn to assume and accept responsibility for their behavior, and other equitable factors (see e.g. Appeal of B.A., 62 Ed Dept Rep, Decision No. 18,209;Appeal of K.P., 61 id., Decision No. 18,055; Appeal of N.V.D., 60 id., Decision No. 17,985).

During the hearing, respondent acknowledged that the student was “very forthcoming from the beginning” in conversations with administrators, encouraged his classmates who created and/or shared images “to tell their parents about everything that was going on,” and voluntarily “texted apologies to at least one of the” victims.  Moreover, respondent acknowledged at the hearing that the student had no prior disciplinary history and that he was not responsible for sharing any of the offending images among the student body.  With the exception of the student’s lack of discipline, the determinations of the hearing officer, superintendent, and respondent did not make any reference to this evidence. 

For all of the above reasons, I find the suspension imposed by respondent to be shocking to the conscience (see Appeal of E.R., 63 Ed Dept Rep, Decision No. 18,309; Appeal of B.A., 62 id., Decision No. 18,209; Appeal of K.P., 61 id., Decision No. 18,055).  Therefore, the long-term suspension must be expunged from the student’s record.[5]

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent expunge any reference to the long-term suspension from the student’s record.

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