The courts have struck down New Jersey schools conduct policy as ultra vires, raising the question of whether any policy that regulates out of school or after hours conduct will survive judicial scrutiny. The decision is significant given that at least 54 schools are currently using these policies.
In the most recent case, M.W. v. Bd. of Ed. of the Borough of Haddonfield, an administrative law judge concluded that Haddonfield High School’s policy exceeded the school’s disciplinary authority. As we previously discussed on this New Jersey Government and Law Blog, the Appellate Division recently struck down another 24/7 conduct policy on similar grounds.
Both policies were found to exceed the authority to discipline students under N.J.A.C. 6A:16-7.6. It allows a board to revoke a student’s ability to participate in extracurricular activities for conduct off school grounds only when the conduct relates to students’ or staff members’ “physical or emotional safety, security or well-being” or when it “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.”
Even though Haddonfield’s policy was limited to the use of tobacco, drugs and alcohol, it still did not pass muster. Administrative Law Judge Elia Pelios held that “by refusing to measure the conduct against the requirements of N.J.A.C. 6A:16-7.6, [the policy] still fails to ensure that before [it] is triggered there will be the required nexus between the student’s conduct and the orderly administration of the school…To the contrary the policy claims jurisdiction over any and all such activity regardless of context.”
This case highlights that even less broad policies may still exceed the authority of schools to discipline students for conduct outside the school. As the court emphasized, schools must be able to clearly show that punishable off campus activities have a direct impact on school safety or discipline. This seems to be an uphill battle in light of the recent decisions.
For additional information about drafting school conduct policies, please contact a member of Scarinci Hollenbeck’s Public Law Group.