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A federal judge has held that a school district is not entitled to 11th Amendment immunity in a case where a student was suspended for off-campus misconduct involving handguns. Northern District of New York Judge Lawrence E. Kahn refused to dismiss First Amendment and equal protection claims against the New Paltz School District. He also held that while the superintendent is entitled to qualified immunity with respect to alleged First Amendment claims, he is personally accountable for the alleged violation of the student’s equal protection rights. Cohn v. New Paltz, 1:04-CV-1066, arises from fears that a student or students had illegally brought a gun or guns into New Paltz High School. The school was evacuated as authorities searched for the suspected weapons. However, the guns at issue were recovered off school property and there is no evidence they were ever on school property. Student Evan Cohn was alleged to have conspired with two other youths to wrongfully possess and distribute handguns. He was suspended for the remainder of the school year, primarily on the strength of a written statement in which another student said he had given Cohn and others guns belonging to his father. Although most of the conduct culminating in Cohn’s suspension occurred outside of school, some discussion of the plan apparently took place at New Paltz High School. Under New York Education Law, an accused student has a right of cross examination and may not be punished by the school for off-campus conduct unless it is proven that the conduct had a material impact on the educational process. The state education commissioner found that the statement in this case should not have been introduced into evidence in lieu of the student’s live testimony. However, he said Superintendent Alan R. Derry’s admission of the statement was harmless because the hearsay evidence was bolstered by other proof. Cohn’s family challenged the suspension through a state Article 78 proceeding. They prevailed in state court when a judge held that, absent the hearsay evidence, there was “absolutely no evidence whatsoever” to sustain the charges. Consequently, the court found the suspension arbitrary and capricious, and ordered the matter expunged from Cohn’s record. Cohn then filed a federal civil rights lawsuit alleging infringement of his rights under the First and Fourteenth amendments. The school district moved for dismissal, claiming that as an arm of the state it is entitled to 11th Amendment immunity from a federal lawsuit. CONFLICTING SIGNALS Kahn observed that the 2nd U.S. Circuit Court of Appeals has sent seemingly conflicting messages on whether a school district is entitled to immunity. In Fay v. South Colonie School District, 802 F. 2d 21 (1986), the 2nd Circuit found that a school district was not entitled to 11th Amendment protection. However, in an unpublished 2002 opinion ( Scaglione v. Mamaroneck Union Free School District, 47 Fed. Appx. 17) it affirmed a Southern District opinion to the contrary. In Scaglione, the 2nd Circuit said that opinion “may not be cited as precedential authority to this or any other court.” “That leaves us with Fay,” Kahn said. In Fay, the 2nd Circuit held that a school district is not entitled to 11th Amendment immunity because payment of damages would not come from the state treasury and because there is no evidence that school districts are an “alter ego” of the state. Kahn said Fay has been overruled in part, but not on the 11th Amendment question. Kahn turned to McGinty v. New York, 251 F.3d 84 (2001), where the 2nd Circuit set forth a six-part test for determining whether an entity is an arm of the state. That test considers how the entity is identified, how its governing members are selected, how the entity is funded, whether the entity’s function is one of local or state control, whether the state has veto power over the actions of the entity and whether the entity’s financial obligations bind the state. Under that analysis, the court found, a school district is not an arm of the state for 11th Amendment purposes. As for the superintendent, Derry, Kahn found that the school administrator is entitled to qualified immunity for any alleged violation of Cohn’s free speech rights, but not for equal protection violations. Kahn said there is little case law on the issue of disciplining a student for “a combination of on-campus speech and off-campus action.” He said Derry is immune from a First Amendment claim because there was little or no authoritative guidance on which he could have relied. “Given that Defendant Derry considered both Plaintiff’s speech concerning handguns and acts in obtaining possession of a handgun in concluding that Plaintiff’s conduct ‘threatened the health, safety and welfare’ of the school, the Court finds that an objectively reasonable official would not have known that drawing such a conclusion would violate a student’s First Amendment right to free speech,” Kahn wrote. However, on the equal protection issue, Kahn said Derry should have known that treating Cohn differently than other students involved in the incident was improper. Robert N. Isseks of Middletown, N.Y., represents the plaintiff. Mark C. Rushfield of Shaw & Perelson in Highland, N.Y., appeared for the defendants.

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