Long-term suspension for Snapchat posting upheld by commissioner of education

On Board Online • April 29, 2019

By Jeffrey Mongelli
Senior Staff Counsel

The commissioner of education recently rejected various challenges to a long-term suspension that was the result of a student's social media posting that was uploaded off school grounds and during non-school hours.

In Appeal of a Student with a Disability (Decision 17,610, 2019), a high school student and several friends participated in an off-campus paintball game to celebrate the student's birthday. On the day of the party, Sept. 2, 2018, the student took a photo of another district student in front of a rack of mounted paintball guns and added the caption: "Don't come to school on Tuesday." The photograph with caption was uploaded by the student using Snapchat, a social media application.

Later that day, a parent of a district high school student notified the high school principal that their child viewed the posting and found it "disturbing."

A short-term suspension was imposed by the principal, and a long-term suspension hearing was held on Sept. 12, 2018.

The hearing officer recommended that the student be found guilty of the charged conduct and that he be suspended through Sept. 30, 2018. The superintendent adopted the recommendations regarding guilt and penalty.

The board of education denied the petitioners' appeal, and both the short-term and long-term suspensions were appealed to the commissioner of education.

Concerning the short-term suspension, the commissioner found that the principal improperly suspended the student prior to the delivery of the written notice and an opportunity for an informal conference with the principal.

The school district asserted that its procedure was proper because the written notice included a finding that the student's continued presence was a continuing danger to persons or property or an ongoing threat of disruption to the academic process. The commissioner, however, noted that the police investigated the posting and determined that the threat was intended as a joke and that the student did not present a threat to the school district.

In addition, the superintendent had sent a letter to the parents of the district stating that the police department determined that the "threat was made as a joke and posed no danger to our students or staff."

The short-term suspension notice also indicated that the student would "be permitted on school property on Saturday, Sept. 8 to take the ACT exam if he so chooses."

This evidence "belies [the district's] assertion that the student constituted a continuing danger to persons or property or an ongoing threat of disruption to the academic process when the principal imposed the short-term suspension," the commissioner said.

Accordingly, she ordered the school district to annul and expunge from the student's record all references to the short-term suspension.

The commissioner also commented on the district's apparent practice of using "boilerplate" language in its short-term suspension notices stating that students constitute a continuing danger to persons or property or an ongoing threat of disruption to the academic process. The commissioner indicated that such "boilerplate" language is improper because the determination of whether a student constitutes a continuing danger or ongoing threat of disruption "must be made on a case-by-case basis."

The petitioners also argued that the student could not be disciplined for the posting because the student uploaded the posting outside of school grounds, during non-school hours. In response, the commissioner noted that students may be disciplined for off-campus conduct that may "endanger the health or safety of pupils within the educational system or adversely affect the educative process."

The commissioner analyzed whether the student's suspension violated the student's rights under the First Amendment since the conduct consisted solely of speech. The commissioner reiterated that a school district may discipline a student for speech where there are facts "that might reasonably have led school officials to forecast substantial disruption or material interference with school activities." This standard applies to off-campus speech where the speech "poses 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."

The commissioner found that it was "reasonably foreseeable that the student's posting would come to the attention of school officials and that school officials could reasonably foresee that it would cause substantial disruption or material interference with the work and discipline of the school."

The commissioner rejected the petitioners' argument that the student could not be disciplined because, prior to the suspension, the police determined that the posting was intended as a joke and the student was not a threat to the school. The commissioner said:

A threatening posting that triggers an investigation by school authorities and the police, a security sweep of the school, and the issuance of an explanatory message from the superintendent to the community clearly involves a material interference with the operation of the school . The fact that the threat later proved not to be real and that the student did not intend to carry it out does not preclude discipline of the student for the posting.

The petitioners' challenges to other aspects of the long-term suspension were denied by the commissioner. For instance, the petitioners argued that the charges did not identify the specific portion of the district's code of conduct that the student allegedly violated. The commissioner, however, noted that there is no requirement that a disciplinary notice cite a specific provision of the district's code of conduct. The commissioner found that the language of the charge provided sufficient information for the petitioners and the student to prepare an effective defense.