G.D.M. v. Board of Education of the Ramapo Indian Hills Regional High School District, A-0953-10T1; Appellate Division; opinion by Fuentes, P.J.A.D.; decided and approved for publication July 24, 2012. Before Judges Fuentes, Koblitz and Haas. On appeal from the Department of Education, No. 225-9/09. DDS No. 16-2-7121 [31 pp.]

This appeal presents a facial challenge to the validity of a regulation promulgated by the Board of Education of the Ramapo Indian Hills Regional High School District that seeks to control student conduct not only at school or during school-related functions and activities, but at all other times and places. Regulation 6145 asserts this control by conditioning student participation in extracurricular activities on compliance with a specifically enumerated code of student conduct, without requiring a nexus between the alleged violation of law and school order or safety.

Petitioners brought this action on behalf of themselves and their minor daughter, arguing that Regulation 6145 violates State Department of Education regulations and constitutes an unconstitutional infringement of their right to privacy, as well as their daughter’s right against self-incrimination and to a thorough and efficient education under the New Jersey Constitution.

The then-acting commissioner of the Department of Education found that Regulation 6145 exceeded the authority conferred on local school boards to regulate student conduct under N.J.A.C. 6A:16-7.1 and N.J.A.C. 6A:16-7.6. The commissioner invalidated Regulation 6145 and directed the board to revise its student disciplinary policy.

On appeal, the board argues that the commissioner misconstrued State Board of Education regulations because the only sanction imposed for a violation of Regulation 6145 is the loss of a privilege, which enjoys no special protection under the law. Petitioners cross-appeal, arguing that the commissioner should have considered their constitutional claims.

Held: A regulation that seeks to control student conduct not only at school or during school-related functions and activities, but at all other times and places, is invalidated because it exceeded the authority conferred on local school boards to regulate student conduct.

The appellate panel finds that Regulation 6145 violates both N.J.A.C. 6A:16-7.6 and N.J.A.C. 6A:16-7.1 because it authorizes the school district to discipline a student for conduct that occurs off school grounds, is unrelated to a school activity and has no impact on the orderly administration of the school.

A plain reading of N.J.A.C. 6A:16-7.6 reveals that the authority granted to a local board to regulate student conduct is conditioned on the board demonstrating (1) that the regulation is reasonably necessary to protect the physical and emotional safety of a student; and (2) that the conduct subject to disciplinary consequences materially and substantially interferes with the orderly operation of the school. The regulation failed to meet these requirements.

N.J.A.C. 6A:16-7.1(e) generally informs local boards that they may impose restrictions on extracurricular activities as disciplinary sanctions. Although N.J.A.C. 6A:16-7.1(a) authorizes local boards to establish standards for conduct away from school grounds, the regulation qualifies this grant of authority by limiting it to situations where it is “appropriate” and in accordance with procedures set forth for suspensions and expulsions, or for harassing behavior.

The regulations governing codes of student conduct are intended to give effect to the disciplinary powers granted to local boards of education by N.J.S.A. 18A:25-2 and N.J.S.A. 18A:37-2. N.J.S.A. 18A:25-2 allows a teacher or other person in authority to hold a pupil accountable for disorderly conduct in school and during recess and on the playgrounds of the school and on the way to and from school. N.J.S.A. 18A:37-2 provides for the punishment and suspension or expulsion from school of any pupil who is guilty of any of a nonexclusive list of offenses against school staff, fellow students or school property. In each of the offenses, there is a close nexus between the misconduct and the school. Nothing in these statutes allows school authorities to punish students for conduct occurring away from school grounds that poses no threat to the school’s staff, students or property.

School districts have been granted broad power to intervene whenever a student shows signs of substance abuse, and may adopt policies, consistent with the state and federal constitutions, for random drug testing of students who participate in extracurricular activities. Nothing in the statutes abrogates the requirement that there be a nexus between the student’s conduct and the orderly administration of the school. More important, Regulation 6145 does not impose a drug-testing requirement nor does it limit the conduct that would trigger administrative action to alcohol or drug-related activity. Although the board also cites the Anti-Bullying Bill of Rights Act as evidence of the Legislature’s intent to allow school districts to address student misconduct that occurs away from school, the act clearly reaffirms the requirement of a nexus between the alleged violation and school order or safety.

The board’s attempt to characterize participation in extracurricular activities as a “privilege” is unavailing. The board’s clear intent in adopting Regulation 6145 was to use the control it has over students’ participation in extracurricular activities as a form of discipline to enforce its code of conduct.

Because petitioners prevailed in their legal challenge on these grounds, the panel declines to consider the alternative constitutional bases for invalidating Regulation 6145 advanced by petitioners in their cross-appeal.

For appellant/cross-respondent — Stephen R. Fogarty (Fogarty & Hara; Fogarty and Cameron R. Morgan on the briefs). For respondents/cross-appellants — Gregory D. Meese (Price, Meese, Shulman & D’Arminio). For respondent acting commissioner of the Department of Education — Jeffrey S. Chiesa, Attorney General (Christopher Huber, Deputy Attorney General, on the statement in lieu of brief). For amici curiae: Haddonfield Board of Education — Joseph F. Betley (Capehart & Scatchard; Betley and Kelly M. Estevam on the brief); American Civil Liberties Union of New Jersey — Edward J. Sholinsky (Schnader Harrison Segal & Lewis); New Jersey Association of School Administrators — Beth L. Finkelstein; New Jersey School Boards Association — Cynthia J. Jahn, General Counsel (Jahn and Donna M. Kaye, Senior Associate Counsel, on the brief).