It Didn’t Happen In School, But….Can We Discipline?

by Amy Houck Elco, Esquire
This article appeared in the School Leader Magazine, a publication of the New Jersey School Boards Association.

In New Jersey both staff and students can potentially be disciplined for off-campus conduct if certain requirements are met.

Requirements for Disciplining Students for Off-Campus Conduct Schools in the state can impose discipline on students for conduct that occurs away from school grounds (when such discipline is consistent with the school’s code of student conduct) as long as the following two factors are met: (1) the discipline is reasonably necessary for the student’s physical or emotional safety, security, and well-being, or for reasons related to the safety, security, and well-being of other students, staff, or school grounds and; (2) the conduct which is the subject of the proposed consequence materially, and substantially, interferes with the requirements of appropriate discipline in the operation of the school. N.J.A.C. 6A:16-7.5.

In P.G. on behalf of M.G. v. Board of Education of the Borough of Woodcliff Lake, the education commissioner held that the board did not exceed its authority when it suspended M.G. for off-campus conduct related to a weekend traffic stop and subsequent arrest. M.G. was a passenger in a car that was pulled over as part of a traffic stop. At some point after the stop M.G. exited the car. Sometime later, M.G. was found at a different location, with a backpack. A search of M.G.’s backpack led to the discovery of six small bags of marijuana. According to police, the amount and size of the bags signified the potential for an intent to distribute. M.G. was subsequently placed on out-of-school suspension for two days as a result of his off-campus conduct. The Administrative Law Judge initially found that the board could not discipline M.G. and that its actions were arbitrary, capricious, and unreasonable. However, the commissioner of education disagreed and found that, based upon the suggested intent to distribute marijuana, it was not arbitrary or capricious for the board to consider M.G.’s conduct a potential threat to the physical or emotional safety and well-being of M.G. and his fellow students and allowed the discipline.

Two federal court cases out of the Third Circuit, Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011); and J.S. v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011), involved students who created “parody pages” of high school principals. In Layshock and J.S. the students referred to the principals in derogatory terms on My Space pages they created off-campus. The court determined that those two cases involved free speech that could not be restricted because there was no evidence that the pages substantially disrupted the school environment other than to insult the principals. The court opined that “under this standard, two students can be punished for using a vulgar remark to speak about their teacher at a private party, if another student overhears the remark, reports it to the school authorities and the school authorities find the remark ‘offensive.”

In addition, under anti-bullying laws, school administrators must also investigate and can discipline for off-campus harassment, intimidation and bullying which is brought to the school’s attention.

Read entire article here.