Commissioner rules on discipline of students over lewd photos

On Board Online • December 19, 2016

By Jay Worona
Deputy Executive Director and General Counsel

If students use the Internet at home to share photos or videos depicting nudity or sexual activity among their peers, is this enough to warrant discipline in school? The answer depends on whether the students took actions that disrupted the school learning environment. In two cases recently decided by the commissioner of education, the parameters of a school district authority to discipline students for such off-campus conduct was given greater clarity.

In Appeal of A.F., an assistant principal witnessed a ninth-grade student displaying the video on her cell phone and showing it to other students during a lunch period. It turned out to show two 14-year-olds, one of whom was a district student, engaging in sexual conduct. This led to the administrator to conduct interviews with numerous students to determine the origin of the video and the scope of its dissemination.

Two sophomore brothers, A.F. and K.P., were among those questioned. A.F. admitted to receiving the video through a group text message during the evening hours while at home, and K.P. admitted to receiving the video the following morning while he was also at home. Both students identified the individual who had sent the video to them but denied forwarding it to anyone else. The cellphones of both boys were confiscated until their parents could retrieve them after school. Other students who admitted having the video on their phones also had their devices temporarily confiscated.

Twenty-eight students were suspended. Both A.F. and K.P. were suspended for one school day for "inappropriate use of an electronic device."

A month later, the boys' father used a district procedure to ask the superintendent to expunge the suspensions from the boys' records. When the superintendent declined to do so, their father appealed to the school board and ultimately the commissioner, who ruled in his favor.

The parent argued that the suspensions were arbitrary and capricious and must be expunged from the students' records because the district's code of conduct did not prohibit the form of misconduct specified in the boys' disciplinary records -"inappropriate use of an electronic device." Also, the parent asserted that the students could not be punished for possession of the video because they received it at home outside of the school day.

The district argued that the charges were sufficient and lawful and that even if the students had received the video while at home, they brought their cellphones to school and that the video caused substantial disruption during the school day as well as "impacted the morals of other students, most notably, [the] fellow student who was non-consensually in the video."

The decision notes that the commissioner has upheld the suspensions of students for off-campus conduct, particularly where the alleged conduct is threatening in nature or adversely affects the educational process. However, the commissioner determined that it was improper to suspend the students because they "did not solicit or request the video or engage in any other conduct with respect to the video at school or in any way that endangered the health or safety of students or adversely affected the educative process."

According to the commissioner, "while it is undisputed that school administrators' discovery of the video and the ensuing investigation caused substantial disruption during the school day, [the district] offers no evidence linking any conduct by A.F. and K.P. to the subsequent disruption." The commissioner also rejected the district's argument that the video resulted in "moral" harm because there was no evidence in the record that the A.F. or K.P. viewed the video at school or sent or showed the video to anyone else. Finally, the commissioner found that even though the district's code of conduct does prohibit possession of obscene material, the students were charged only with inappropriate use of an electronic device - a charge that was unsupported by the record in this case.

In another case, Appeal of L.Z. and N.Z. on behalf of their son M.Z., the commissioner supported the suspension of a student who admitted transmitting nude photographs. In that case, school administrators were told that a number of male high school students were sharing photos and videos that included images of middle school and high school girls who were semi or fully nude. The phone of a ninth-grader, M.Z., was accessed by a school administrator who found nude photos of at least six teenage girls, one of whom attended eighth grade in M.Z.'s district. admitted to possessing at least one of the photos and admitted transmitting it to other students. (The transmission of images to other students was a crucial distinction from the facts in the A.F. and K.P. case.)

M.Z. was given a five-day suspension for his misconduct. When his parents appealed, the commissioner of education upheld the suspension.

School administrators and school boards should be aware that their ability to discipline students for off-campus conduct is not automatic when something that happens out of school that turns out to be disruptive in school. In cases involving lewd photos, it appears from recent commissioner's decisions that there is a significant difference between passively receiving disruptive information and actively sharing it. It appears that administrators will be on solid ground if they only discipline students who deliberately have taken some action that disrupted the school learning environment.

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