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Decision No. 13,327

Appeal of the BOARD OF EDUCATION OF THE WAPPINGERS CENTRAL SCHOOL DISTRICT from the determination of a hearing panel convened pursuant to Education Law '3020-a concerning disciplinary charges brought against W.H.D., a tenured teacher.

Decision No. 13,327

(December 30, 1994)

Raymond G. Kruse, Esq., attorney for petitioner

Bernard F. Ashe, Esq., attorney for respondent, Kevin H. Harren, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a, which dismissed disciplinary charges filed against respondent W.H.D., a tenured teacher. The appeal must be dismissed.

W.H.D. is a tenured teacher who has taught at petitioner's school for approximately 24 years. On or about June 28, 1993, petitioner found probable cause to prefer three charges against respondent. The charges involve a cartoon that appeared in the school's student newspaper depicting certain board members and an administrator in an unfavorable light. The charges state that respondent was insubordinate, incompetent and inefficient as faculty advisor to the student newspaper because he failed to reject inappropriate material submitted for publication, neglected to bring such material to the attention of the principal, did not discuss the material with the principal and failed to properly supervise students working on the newspaper. The record indicates that participation on the student newspaper is a voluntary extracurricular activity, not part of the regular school curriculum.

A hearing was conducted on November 30, 1993 and June 2, 1994. In a decision dated August 11, 1994, the panel found "that the federal constitutional caselaw and certain Commissioner of Education decisions regarding the publication of student newspapers and the legal standing of a faculty advisory to such newspapers renders the charges unconstitutional." Based on its finding, the panel dismissed all charges.

In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Lemley, 33 Ed Dept Rep 706; Appeal of Almedina, 33 id. 383; Appeal of Cauley, 33 id. 359). In this appeal, petitioner contends in a conclusory manner that the hearing panel's decision is "erroneously based upon a misapplication of the law." Petitioner offers no legal basis to support its assertion that the hearing panel misapplied the law to the facts of this case.

In reviewing the pertinent case law on this matter, the panel correctly noted that the Courts have distinguished activities that are part of a school's curriculum from activities that are not part of the curriculum, but are voluntary extracurricular endeavors. A board of education has greater authority to regulate the content of a student newspaper that is produced as part of a class for which students receive grades and academic credit (Hazelwood School District v. Kuhlmeir, 484 US 108). However, a board's authority is more restricted when it seeks to regulate voluntary extracurricular activity (see Bowman v. Bethel-Tate Bd. of Educ., 610 F. Supp. 577). As noted in Appeal of Beil and Scariati, 26 Ed Dept Rep 109, school newspapers which are extracurricular activities should reflect the policy and judgment of the student editors. While student newspapers should observe the normal rules of responsible journalism, students are free to editorialize. As stated in Matter of Brociner, et al., 11 Ed Dept Rep 204, 207:

The student press can be a valuable learning device and an important educational resource. Its effectiveness, however, would be substantially impaired if student editors were forced to function under imminent fear of discipline for errors in judgment.

In addition, the Court of Appeals has determined that school authorities may not suppress student free expression unless it can be shown that suppression is necessary to avoid material and substantial interference with the requirements of order and discipline in the operation of the school (Matter of Panarella, et al. v. Birenbaum, et al., 32 NY2d 108). As found by the hearing panel, petitioner has failed to show that suppression by respondent of the editorial cartoon in question was necessary either to avoid substantial disruption or material interference with school activities or to maintain order and discipline in the operation of its schools. My review of the record confirms the panel's findings on this issue.

The panel also correctly found that federal case law provides that the constitutional privileges afforded a student newspaper and its student editors likewise protects the faculty advisor of the newspaper (see Romano v. Harrington, 664 F. Supp. 675 and Romano v. Harrington, 725 F. Supp. 687). Based on the foregoing, I find that the hearing panel has not misapplied the law and there is no basis to overturn its decision.

THE APPEAL IS DISMISSED.

END OF FILE