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.

In Dunkley v. Greater Egg Harbor Regional School District, 216 F. Supp. 3d 485 (D.N.J. 2015), a student was suspended for two days for off-campus conduct, for his out-of-school YouTube account which contained a video criticizing a football teammate, and then suspended for nine days for being a co-creator of an anonymous twitter account called “Cedar Creek Raw” which contained inappropriate demeaning and derogatory comments about fellow students. The student contended that he was inappropriately disciplined because the postings took place out of school and they were not disruptive to the school. In addition, the student attempted to compare his case to Layshock and J.S. The court did not agree with his analysis, and instead differentiated the cited cases by noting that in the two prior cases the students created “parody” pages against a staff member, whereas in this case the student created social media pages against other students. The court opined that the student’s off-campus speech reached into the school in violation of the Anti-Bullying Act and thus the administration did not violate the student’s First Amendment rights by suspending him for his comments on YouTube and Twitter about fellow students.

Goodbye 24/7 Behavior Contracts Additionally, in the 2012 case, G.D.M. and T.A.M. on behalf of B.M.M. v Ramapo Indian Hills Regional High School District, 427 N.J. Super. 246 (App. Div. 2012), the Appellate Division invalidated the Ramapo Indian Hills Regional High School District’s extracurricular sports and activities good behavior code of conduct policy for on and off-campus behavior, also known as “24/7 Rule.” The “24/7 Rule” enabled the district to temporarily “suspend” student participation in extracurricular activities for code of conduct violations on and off-campus. Specifically, the board’s regulation for “Extracurricular Activities” set forth good behavior expectations on and off-campus. In addition to general behavioral expectations, the conduct code requirements related to the use of alcohol and drugs, compliance with the New Jersey Code of Criminal Justice, and/or applicable municipal codes or ordinance violations.

The disciplinary consequences for violations of the policy included the following: a seven school day suspension of the student’s right to participate in extracurricular activities, and/or up to and including the next scheduled competitive game, and/or event up to and including a 90 or 180 school day suspension of the student’s right to participate in extracurricular activities.

At the beginning of the 2009-2010 school year, students were given a student handbook and a consent form which acknowledged the handbook and the fact that students will be held accountable for their behavior and subject to the discipline in the handbook. G.D.M., T.A.M. and B.M.M. refused to sign the consent form. G.D.M. and T.A.M. received a notice that if they failed to sign the consent form, the matter would be turned over to administration and that it would be likely that their parental access to Genesis would be blocked. Genesis was the district’s online service for parents that allowed access to real time information about a student’s grades, assignments, attendance, etc. After receiving the letter, the students’ parents sent a letter to the principal saying that they would not sign the consent form as they believed that it was unlawful. The parents ultimately filed a lawsuit.

Ramapo Indian Hills was not the only district utilizing these good behavior contracts with students, however, the Appellate Division ultimately invalidated the 24/7 contracts. In its decision to invalidate 24/7 contracts, the Appellate Division noted that although extracurricular activities are a privilege, a district that wants to revoke a student’s participation in the same must follow the New Jersey Department of Education’s regulations regarding off-campus student conduct as described in N.J.A.C. 6A:16-7.5.

In the 2015 case, T.H. on behalf of K.H. vs. Board of Education of Upper Freehold Regional School, a parent challenged the board’s 30 day suspension from participation in extracurricular activities, imposed upon student athlete K.H. for off-campus behavior. Student athletes at Allentown High School were required to sign an Athletic Participation/Permission Form, and expressly agree to adhere to the student code of conduct. K.H. posted two pictures on Instagram that appeared to show K.H. and another student, who was wearing an Allentown high school sweatshirt, drinking alcohol. The students used the hashtag “sophomore sensation” on the pictures. The board issued the discipline as the students violated the student code of conduct for off-campus conduct that had a nexus into the school.

Upper Freehold Regional School Board argued that the case was different than the Ramapo Indian Hills Regional High School District case, because in that case any conduct could be penalized as opposed to the Upper Freehold Regional policy which penalized off-campus conduct that had a nexus to the school. The board maintained that because the students were pictured together appearing to drink, one student was wearing a school sweatshirt, and the pictures were tagged with the line “sophomore sensation” the school was implicated to inappropriate and illegal conduct, which prompted the board to issue the 30 day suspension from extracurricular activities. However, the commissioner of education and the administrative law judge both agreed that the board’s decision to suspend K.H. was arbitrary, capricious and unreasonable as the off-campus conduct did not “materially and substantially” interfere with the orderly operation of the school as required by N.J.A.C. 6A:16-7.5.

Specifically, the commissioner found that it was reasonable for the board to determine that imposing discipline on a student for posting pictures on Instagram, which could be considered to glorify underage drinking by student athletes, was necessary for the student’s well-being and the well-being of other students. The commissioner also found that the board’s concern that published evidence of apparent alcohol consumption by a prominent student athlete could influence other students to engage in such behavior is consistent with N.J.A.C. 6A: 16-7.5 (a)1. However, there was no evidence indicating that the Instagram post caused any disruption to the school environment or impacted the orderly administration of the school. Furthermore, it was found that in order to meet the material and substantial impact requirement under N.J.A.C. 6A:16-7.5 (a)2, there must be evidence of more than a mere a risk or fear of an impact on the school environment. Interestingly enough, there was no relief available to K.H. in this matter as she already served the 30 day suspension in 2014 and the board never put anything about the suspension in K.H.’s record so nothing had to be removed.

Disciplining Staff Members for Off-Campus Conduct The commissioner of education continues to uphold discipline of school staff members for off-campus conduct. Most recently in the Tenure Hearing of Jennifer O’Brien, the commissioner upheld the dismissal of a teacher who taught in a school located in impoverished neighborhood, allegedly fraught with crime, whose students were almost entirely minorities as a result of her Facebook posts. The Facebook posts stated, “I’m not a teacher- I’m a warden of future criminals!” and “They had a scared straight program in school-why couldn’t I bring my 1st graders?” Even though the teacher had an unblemished record and claimed that her comments were not intended to be racist, but instead were the results of her frustrations with her students’ behavior, the commissioner determined that Facebook is a questionable site to begin an earnest conversation about an important school issue such as classroom discipline. Ms. O’Brien appealed the commissioner’s decision and in 2013 the Appellate Division upheld the dismissal.

In the Tenure Hearing of Dawn Lewis, the commissioner upheld the dismissal of a tenured teacher who was driving while intoxicated and was found to be in possession of cocaine at the time of her arrest. The teacher entered PTI and asserted that the offense was off-campus, therefore she should not be dismissed. The opinion noted that adolescents are especially vulnerable to the influences of their teachers who serve as role models and help shape students.

Although schools can discipline both students and staff for off-campus discipline, the cases are fact sensitive. It is important to remind all staff and students that their actions outside of the school can have an impact inside of school. Boards are also reminded to consult with their board attorney about specific off-campus situations involving students and staff which may trigger the imposition of disciplinary consequences.

Amy Houck Elco is a partner in the education law practice group of Cooper Levenson.