What are my options to protect my son from defamation at school due to an altercation?
Full Question:
Answer:
Students have been held by the courts to be citizens with a property right to their education. To deny that right requires, at the least, an informal hearing with notice, witnesses and the like. Suspensions for longer than 5 days might require even more formal procedures. The courts have found that a school's code of conduct must have minimum due process protections. The authorized rules students must obey without a specific verbal command must be in writing. The rules need to be specific, and published, so that the student is aware of the nature of the conduct that is prohibited. NY requires that a student suspended for less than 5 days has the right to request an informal conference. A hearing is not required to be held unless the suspension is more than 5 days.
Slander is a type of defamation, a false statement communicated to another person that damages another’s reputation by exposing them to disrespect or ridicule from other people. In order to constitute defamation, the communication must be false. If the speaker knew or should have known the information was false and repeated it to another, resulting in harm to the person spoken about, it may be defamation.
The basic elements of a claim of slander include;
1. a defamatory statement;
2. published to third parties;
3. which the speaker or publisher knew or should have known was false; and
4. that caused the plaintiff injury as a result of the statement
Unlike libel, unless the slander is defamatory per se (on its face), damages caused by slander must be proven by the plaintiff. Damages for slander may be limited to actual damages unless there is malicious intent. It does not have to be proven that actual harm to your reputation occurred to collect damages for slander if it is defamatory per se, such as:
* The communication affects your business, trade or profession (loss of business, discharge, demotion, etc.),
* Implies you committed a crime,
* Leads on that you have a loathsome disease,
* Or suggests that you are somehow sexually impure.
Defamation is a difficult wrong to prove, as there are various factors that are to be taken into consideration. The court must evaluate the defendant’s investigation, or lack there of, concerning the accuracy of the statement. How thoroughly the investigation was handled will reflect upon the nature and interest of the person who communicated the statement. Generally, defamation damages will not be awarded if the defendant had an honest but yet mistaken belief in the truth of the statement.
The following are NY statutes:
§ 3214 Educ. General procedures for student discipline
1. School delinquent. A minor under seventeen years of age, required by
any of the provisions of part one of this article to attend upon
instruction, who is an habitual truant from such instruction or is
irregular in such attendance or insubordinate or disorderly or disruptive
or violent during such attendance, is a school delinquent.
2. Special day schools. The school authorities of any city or school
district may establish schools or set apart rooms in public school
buildings for the instruction of school delinquents, and fix the number of
days per week and the hours per day of required attendance, which shall not
be less than is required of minors attending the full time day schools.
2-a.
a. Violent pupil. For the purposes of this section, a violent pupil
is an elementary or secondary student under twenty-one years of age who:
(1) Commits an act of violence upon a teacher, administrator or other
school employee;
(2) Commits, while on school district property, an act of violence upon
another student or any other person lawfully upon said property;
(3) Possesses, while on school district property, a gun, knife, explosive
or incendiary bomb, or other dangerous instrument capable of causing
physical injury or death;
(4) Displays, while on school district property, what appears to be a
gun, knife, explosive or incendiary bomb or other dangerous instrument
capable of causing death or physical injury;
(5) Threatens, while on school district property, to use any instrument
that appears capable of causing physical injury or death;
(6) Knowingly and intentionally damages or destroys the personal property
of a teacher, administrator, other school district employee or any person
lawfully upon school district property; or
(7) Knowingly and intentionally damages or destroys school district
property.
b. Disruptive pupil. For the purposes of this section, a disruptive pupil
is an elementary or secondary student under twenty-one years of age who is
substantially disruptive of the educational process or substantially
interferes with the teacher's authority over the classroom.
3. Suspension of a pupil.
a. The board of education, board of trustees or
sole trustee, the superintendent of schools, district superintendent of
schools or principal of a school may suspend the following pupils from
required attendance upon instruction: A pupil who is insubordinate or
disorderly or violent or disruptive, or whose conduct otherwise endangers
the safety, morals, health or welfare of others.
b.
(1) The board of education, board of trustees, or sole trustee,
superintendent of schools, district superintendent of schools and the
principal of the school where the pupil attends shall have the power to
suspend a pupil for a period not to exceed five school days. In the case of
such a suspension, the suspending authority shall provide the pupil with
notice of the charged misconduct. If the pupil denies the misconduct, the
suspending authority shall provide an explanation of the basis for the
suspension. The pupil and the person in parental relation to the pupil
shall, on request, be given an opportunity for an informal conference with
the principal at which the pupil and/or person in parental relation shall
be authorized to present the pupil's version of the event and to ask
questions of the complaining witnesses. The aforesaid notice and
opportunity for an informal conference shall take place prior to suspension
of the pupil unless the pupil's presence in the school poses a continuing
danger to persons or property or an ongoing threat of disruption to the
academic process, in which case the pupil's notice and opportunity for an
informal conference shall take place as soon after the suspension as is
reasonably practicable.
(2) A teacher shall immediately report and refer a violent pupil to the
principal or superintendent for a violation of the code of conduct and a
minimum suspension period pursuant to section twenty-eight hundred one of
this chapter. c.
(1)[fn*] No pupil may be suspended for a period in excess of five
school days unless such pupil and the person in parental relation to such
pupil shall have had an opportunity for a fair hearing, upon reasonable
notice, at which such pupil shall have the right of representation by
counsel, with the right to question witnesses against such pupil and to
present witnesses and other evidence on his or her behalf. Where the pupil
is a student with a disability or a student presumed to have a
disability, the provisions of paragraph g of this subdivision shall also
apply. Where a pupil has been suspended in accordance with this
subparagraph by a superintendent of schools, district superintendent of
schools, or community superintendent, the superintendent shall personally
hear and determine the proceeding or may, in his or her discretion,
designate a hearing officer to conduct the hearing. The hearing officer
shall be authorized to administer oaths and to issue subpoenas in
conjunction with the proceeding before him or her. A record of the
hearing shall be maintained, but no stenographic transcript shall be
required and a tape recording shall be deemed a satisfactory record. The
hearing officer shall make findings of fact and recommendations as to the
appropriate measure of discipline to the superintendent. The report of the
hearing officer shall be advisory only, and the superintendent may accept
all or any part thereof. An appeal will lie from the decision of the
superintendent to the board of education who shall make its decision
solely upon the record before it. The board may adopt in whole or in
part the decision of the superintendent of schools. Where the basis for the
suspension is, in whole or in part, the possession on school grounds or
school property by the student of any firearm, rifle, shotgun, dagger,
dangerous knife, dirk, razor, stiletto or any of the weapons, instruments
or appliances specified in subdivision one of section 265.01 of the penal
law, the hearing officer or superintendent shall not be barred from
considering the admissibility of such weapon, instrument or appliance as
evidence, notwithstanding a determination by a court in a criminal or
juvenile delinquency proceeding that the recovery of such weapon,
instrument or appliance was the result of an unlawful search or seizure.
§ 2801 Educ. Codes of conduct on school property.
1. For purposes of this section, school property means in or within any
building, structure, athletic playing field, playground, parking lot or
land contained within the real property boundary line of a public
elementary or secondary school; or in or on a school bus, as defined in
section one hundred forty-two of the vehicle and traffic law; and a
school function shall mean a school-sponsored or school-authorized
extra-curricular event or activity regardless of where such event or
activity takes place, including any event or activity that may take place
in another state.
2. The board of education or the trustees, as defined in section two of
this chapter, of every school district within the state, however created,
and every board of cooperative educational services and county vocational
extension board, shall adopt and amend, as appropriate, a code of conduct
for the maintenance of order on school property, including a school
function, which shall govern the conduct of students, teachers and other
school personnel as well as visitors and shall provide for the enforcement
thereof. Such policy may be adopted by the school board or trustees only
after at least one public hearing that provides for the participation of
school personnel, parents, students and any other interested parties. Such
code of conduct shall include, at a minimum:
a. provisions regarding conduct, dress and language deemed appropriate
and acceptable on school property, including a school function, and
conduct, dress and language deemed unacceptable and inappropriate on school
property, including a school function, and provisions regarding acceptable
civil and respectful treatment of teachers, school administrators, other
school personnel, students and visitors on school property, including a
school function, including the appropriate range of disciplinary measures
which may be imposed for violation of such code, and the roles of teachers,
administrators, other school personnel, the board of education and parents;
b. standards and procedures to assure security and safety of students and
school personnel;
c. provisions for the removal from the classroom and from school
property, including a school function, of students and other persons who
violate the code;
d. disciplinary measures to be taken in incidents involving the
possession or use of illegal substances or weapons, the use of physical
force, vandalism, violation of another student's civil rights and threats
of violence;
e. provisions for detention, suspension and removal from the classroom of
students, consistent with section thirty-two hundred fourteen of this
chapter and other applicable federal, state and local laws including
provisions for the school authorities to establish policies and procedures
to ensure the provision of continued educational programming and activities
for students removed from the classroom, placed in detention, or suspended
from school;
f. procedures by which violations are reported, determined, discipline
measures imposed and discipline measures carried out;
g. provisions ensuring such code and the enforcement thereof are in
compliance with state and federal laws relating to students with
disabilities;
h. provisions setting forth the procedures by which local law enforcement
agencies shall be notified of code violations which constitute a crime;
i. provisions setting forth the circumstances under and procedures by
which persons in parental relation to the student shall be notified of code
violations;
j. provisions setting forth the circumstances under and procedures by
which a complaint in criminal court, a juvenile delinquency petition or
person in need of supervision petition as defined in articles three and
seven of the family court act will be filed;
k. circumstances under and procedures by which referral to appropriate
human service agencies shall be made;
l. a minimum suspension period, for students who repeatedly are
substantially disruptive of the educational process or substantially
interfere with the teacher's authority over the classroom, provided that
the suspending authority may reduce such period on a case by case basis to
be consistent with any other state and federal law. For purposes of this
section, the definition of "repeatedly are substantially disruptive" shall
be determined in accordance with the regulations of the commissioner; and
m. a minimum suspension period for acts that would qualify the pupil to
be defined as a violent pupil pursuant to paragraph a of subdivision two-a
of section thirty-two hundred fourteen of this chapter, provided that the
suspending authority may reduce such period on a case by case basis to be
consistent with any other state and federal law.
3.[fn*] The district code of conduct shall be developed in collaboration
with student, teacher, administrator, and parent organizations, school
safety personnel and other school personnel and shall be approved by the
board of education, or other governing body, or by the chancellor of the
city school district in the case of the city school district of the city of
New York. In the city school district of the city of New York, each
community district education council shall be authorized to adopt and
implement additional policies, which are consistent with the city
district's district-wide code of conduct, to reflect the individual needs
of each community school district provided that such additional policies
shall require the approval of the chancellor.