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Decision No. 14,477

Appeal of A.R. and S.R., on behalf of their son, J.R., from action of the Board of Education of the Ardsley Union Free School District regarding student discipline.

Decision No. 14,477

(October 19, 2000)

Bernard R. Bacharach, Esq., attorney for petitioners

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Ardsley Union Free School District ("respondent") to suspend their son, J.R., from school until January 22, 2001. The appeal must be dismissed.

On October 31, 1999, J.R. and another student sent an e-mail, from the other student's home computer, to 13 Ardsley High School ("Ardsley") students, using the e-mail address and password of another Ardsley student. The "subject" portion of the e-mail stated "read my profile kikes." The text of the e-mail included an image - a caricature of Adolph Hitler holding a swastika flag - together with a scrawled message stating "Kill Jews." The e-mail further stated "fuck the jews SKIN HEADS UNITE....START THE OVENS." The "profile" referred to in the e-mail contained the following information:

Member Name: Adolph Hitler, Jr.

Location: Germany

Birth Date: Born same day as my father

Marital Status: Im <sic> not married to a Jew

for sure

Hobbies: Jew bashing and yamaka <sic>


Computers: Trench Coat Moffia <sic> is

comign <sic> to your school Monday morning

Occupation: Buring <sic> Torahs and

heating up the ovens for Hitler

Personal Quote: If I can not live in a world

with out <sic> Jews, Id <sic> rather no <sic> live at all ...hail Hitler hes <sic> our father

A school board member contacted respondent"s superintendent on the afternoon of October 31, a Sunday, advising the superintendent that she had received a telephone call about an incident of anti-Semitic and threatening e-mail. The caller had expressed extreme concern about the offensive language and threatening nature of the e-mail. During the evening and early morning hours, the superintendent contacted other board members, who also advised him of communications they were having with the parents of other students. Many of the board members and parents referred to recent incidents of school violence, specifically mentioning the incident at Columbine High School in Littleton, Colorado in April 1999, in which the killers had referred to themselves as the "Trench Coat Mafia." Several parents stated to board members that they intended to keep their children home from school on Monday and perhaps even beyond, to ensure their safety.

At the superintendent's direction, the high school principal contacted the Ardsley Police Department on Sunday night. The police agreed that the high school building should be searched prior to admitting any students on Monday morning, and that the school should only be opened after uniformed police officers, wearing bulletproof vests, were stationed at the entrance. Two such police officers were stationed at the high school throughout the school day on that Monday. Several school district staff members accompanied the police during the school building search on Monday morning. Nothing was found, and the building was opened to students.

Respondent reports that, in addition to the building search and police presence, there was significant discussion on Sunday night and early Monday morning regarding the possibility of closing the high school and/or entire district in response to the threat. However, in light of the police presence and search, the school opened on time Monday morning. News of the e-mail's threats and comments had spread throughout the school community, and everyone was on "high alert" through the school day.

District officials continued investigating the incident on November 1, and quickly identified J.R. as having been involved in the incident. Although both students initially denied their participation, J.R. admitted to district officials and the police on November 1, 1999 that he had participated in authoring the e-mail. He was immediately suspended, pending a superintendent's disciplinary hearing.

A hearing was held on November 8, 1999, with the superintendent acting as hearing officer. J.R. was charged with 1) endangering the health, safety and welfare of students and staff; 2) aggravated harassment; and 3) unauthorized use of another student's e-mail and password. J.R. admitted his participation to the superintendent at the hearing. Based on J.R.'s testimony, the superintendent found him guilty of all three charges in a decision dated November 9, 1999. He imposed a penalty of suspension from Ardsley until January 22, 2001, with daily tutoring at home or a mutually agreeable site off school grounds. J.R. was also prohibited from being on school district property without his parents present or obtaining prior written approval of school administrators. The superintendent provided an opportunity for J.R. to request earlier readmission after June 30, 2000, upon certain criteria set forth in the decision.

Petitioners appealed this decision to respondent on November 23, 1999. By decision dated December 13, 1999, respondent upheld the suspension imposed by the superintendent. This appeal ensued. A request for interim relief was denied on January 21, 2000.

Petitioners contend that the disciplinary proceeding and respondent's determination violated J.R.'s First Amendment right to freedom of speech. Petitioners further contend that there is no nexus between J.R."s conduct and the school district, so Education Law "3214 does not authorize a suspension or superintendent's hearing; that the length of the suspension is unduly harsh; and that respondent violated its own policy which establishes a 5-day suspension for conduct which constitutes harassment. Petitioners request that I reverse respondent's determination of guilt and penalty of suspension, and order respondent to return J.R. to school immediately.

Respondent denies petitioners' claims, and asserts that its actions fully comply with all applicable requirements of law. Respondent also contends that the Commissioner lacks jurisdiction to consider the novel issue of constitutional law raised in petitioners' First Amendment claim; that J.R.'s admission that he participated in the incident requires denial of petitioners' request to reverse the determination of guilt; and that petitioners have failed to establish that they are entitled to the relief they seek.

Petitioners first argue that J.R.'s participation in authoring the e-mail was protected activity under the First Amendment to the United States Constitution, and the disciplinary proceeding was a violation of his right to freedom of speech. It has long been recognized, however, that threats are generally not protected by the First Amendment (Watts v. United States, 394 U.S. 705 [1969]; seePeople v. Dietze, 75 NY2d 47 [1989]). Upon a review of the entire record, I find that the disciplinary action against J.R. was initiated on the basis of the direct threat that the "Trench Coat Moffia <sic> is comign <sic> to your school Monday morning" and the community, administrative and police perception of and response to that threat. Likewise, the violent and anti-Semitic content of the e-mail, in my view, underscores the apparently serious nature of the threat.

Petitioners' citation to Thomas v. Board of Education, 607 F.2d 1043 (2d Cir. 1979), is unavailing. In Thomas, the Second Circuit overturned a school's disciplinary action against students based on the content of a student publication that was created and distributed off-campus. The publication was self-described as "uncensored, vulgar and immoral" (id. at 1045), but there was no threat of violence, harm or disruption of school operations contained in or incited by the publication. The Second Circuit found that the content was entitled to First Amendment protection under the circumstances of the case.

The instant appeal can be distinguished from Thomas, because the e-mail in question contained a threatening message that is not entitled to First Amendment protection. The Ninth Circuit Court of Appeals, in a student discipline case, established an objective test for determining whether a particular threat is a "true threat" that falls outside the protection of the First Amendment: whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault (Lovell v. Poway Unified School Dist., 90 F.3d 367, 372 [9th Cir. 1996]). The court noted that, in light of "the violence prevalent in schools today, school officials are justified in taking very seriously student threats against faculty or other students" (id. at 372).

Applying the Lovell test in the instant appeal, I find that the recipients of the e-mail, school officials, community members and the police reasonably regarded the threat as a true and serious threat of violence, and that this reaction was reasonably foreseeable by the students sending the e-mail. The e-mail expressly drew the reader to the "profile," which contained a very explicit threat that the "Trench Coat Mafia," the group responsible for the extreme violence at Columbine High School just six months earlier, would be coming to Ardsley the following morning. This statement is therefore not protected by the First Amendment, and the disciplinary proceeding did not violate J.R.'s right to freedom of speech.

Petitioners next contend that, in order for a student's conduct to be disciplined under "3214, the conduct must be in some manner related to school activity, citing Board of Education v. Commissioner, 91 NY2d 133 (1997). Petitioners allege that, since the e-mail was sent from the other student's home computer directly to the 13 students' home computers, with no use of school computers or facilities, the e-mail was not related to school activity and therefore cannot serve as the basis for disciplinary action. To review this contention, I must first address whether off-campus actions with a nexus to the school can support disciplinary action under "3214, and second, whether the e-mail incident in fact has a nexus to school operations.

In Board of Education, addressing non-school-sponsored on-campus speech contained in a student publication that advocated destruction of school property and insubordination, the Court of Appeals stated that such speech was punishable if it reasonably led school officials to forecast or it actually caused a substantial disruption of or material interference with the requirements of appropriate discipline in the operation of the school (id. at 140, citing Tinker v. Des Moines School Dist., 393 U.S. 503 [1969] and Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 [1988]). The Court did not specifically discuss off-campus actions that may have a direct impact on school operations, and is thus not directly on point with the facts of the instant appeal.

Recent case law has recognized that students may be disciplined for conduct that occurred outside of the school (Matter of Coghlan v. Board of Education, 262 AD2d 949 [4th Dept 1999], citing Pollnow v. Glennon, 594 F.Supp. 220, 224 [S.D.N.Y. 1984], aff'd, 757 F.2d 496 [2d Cir. 1985]). The Fourth Department's holding in Coghlan is in accord with the longstanding determination by the Commissioner of Education that students can 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 (Appeal of Orman, 39 Ed Dept Rep ___, Decision No. 14,389; Appeal of Mangaroo, 33 id. 286, Decision No. 13,050; Appeal of Pollnow, 22 id. 547, Decision No. 11,069; Appeal of Rodriguez, 8 id. 214, Decision No. 8015).

Petitioners do not provide any legal authority expressly stating that off-campus actions, with a clear nexus to a disruption in normal school operations, can never serve as the basis for student disciplinary action. Although petitioners did not cite to Thomas v. Board of Education, supra, in support of this contention, the decision in Thomas is instructive. As noted above, in Thomas, the Second Circuit found that the student publication did not result in any threat or forecast of material and substantial disruption within the schools or possible interference with the operation of school (607 F.2d at 1052, fn. 17). The court went on to say, however, "[w]e can, of course, envision a case in which a group of students incites substantial disruption within the school from some remote locale. We need not, however, address this scenario" (id.; seealso fn. 13 at 1058, in the concurring opinion ["school authority may be exercised for off-campus student activity, consistent with the First Amendment, whenever publication or other speech-related activity satisfies the Tinker test of creating a reasonable basis for forecasting interference or disruption of school activities"]).

I further find that the students' e-mail had a direct impact on school operations on October 31 and November 1, 1999. On October 31, although not a school day, the superintendent, principal and school board members were deeply involved in investigation of the incident, fielding calls from anxious parents and community members, and discussing with police and school officials strategies to be employed Monday morning or whether school should even open that day. The following morning, school officials joined the police in a search of the entire school building; two police officers dressed in bulletproof vests were stationed at the school for the entire school day; the principal was investigating the incident and questioning alleged participants throughout the day; some parents had determined not to send their children to school that Monday to avoid any danger; and the entire school population was on "high alert" for the day. I conclude that respondent reasonably determined that there was a nexus between the e-mail and a disruption of normal school and administrative operations, and that disciplinary action was authorized by "3214.

Petitioners further contend that the length of the suspension violated respondent's own discipline policies, which allegedly prescribed a 5-day suspension for harassment. Petitioners did not raise this argument to respondent in their administrative appeal, nor was this specific issue addressed in respondent's decision. This appeal seeks review of respondent's decision, and issues not raised before respondent and presented for its consideration and decision may not be raised for the first time in an appeal to the Commissioner under Education Law "310.

In any event, petitioners have failed to present respondent"s entire discipline policy, but instead submit only three selected pages from that policy listing various infractions and possible penalties. The record contains no information as to how respondent uses the possible penalties listed on the three selected pages, whether the listed penalties are strictly applied or only used to provide guidance to the hearing officer, whether the overall policy includes a provision that the particular facts of an incident will determine the appropriate penalty irrespective of any listed penalties, or whether there are other infractions listed on other pages which might be more applicable to the three specific charges against petitioners' son. In an appeal to the Commissioner, a petitioner bears the burden of establishing all the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Alexander, 39 Ed Dept Rep 265, Decision No. 14,232; Appeal of Trombley, 39 id. 115, Decision No. 14,189) and demonstrating a clear legal right to the relief requested (Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120). Upon the incomplete information provided to me in this appeal, petitioners have not sustained this burden as to their claim that respondent violated its own policies in suspending their son.

The final claim is that the suspension was unduly harsh. Petitioners' son was suspended for approximately 15 months, until January 21, 2001. In cases of suspension, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Guevara, 39 Ed Dept Rep 494, Decision No. 14,291; Appeal of Esther F., 39 id. 357, Decision No. 14,258; Appeal of Alexander, 36 id. 160, Decision No. 13,689). The test to be applied in reviewing the penalty is whether the penalty imposed was so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of Guevara, supra; Appeal of Esther F., supra). Upon the record before me, I find that the imposition of a 15-month suspension upon a student as the penalty for a widespread, violent and anti-Semitic threat that the "Trench Coat Mafia" was coming to a specific school on a specified day - just six months after the terrible violence that occurred at Columbine High School - is entirely within the proper discretion of a board of education (see, e.g., Appeal of Leahy, 39 Ed Dept Rep 375, Decision No. 14,264 [1-year suspension for e-mailing a bomb threat not unreasonable]; Appeal of Joseph F., 39 id. 242, Decision No. 14,226 [15-month suspension for telephoning a bomb threat is upheld]). I therefore refuse to set aside respondent's determination in this matter.



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