2010-225 Appeal of Keelin B. (New Hampshire State Board of Education)

Daniel B. and Lisa B., petitioners, by brief, and Mr. B., orally, pro se

(New Hampshire State Board of Education)

No. 2010-225

Board of Education

to come forward voluntarily. A Sunapee school teacher also received an email the police and discover the identity of the sender, and encouraging the sender message. The principal replied, informing the sender that he intended to notify authored by a particular student, which contained a sexually suggestive received an email at his Sunapee School District email account, purportedly The following facts are drawn from the record. Principal Sean Moynihan

Sunapee School District. We affirm in part, vacate in part and remand. school suspension imposed on their daughter, Keelin B., by respondent the New Hampshire State Board of Education upholding a thirty-four day LYNN, J. The petitioners, Daniel B. and Lisa B., appeal the decision of

Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C.

THE SUPREME COURT OF NEW HAMPSHIRE for respondent Sunapee School District. F. Loughman and Maureen L. Pomeroy on the brief, and Ms. Loughman orally),

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Behavior Code and Harassment (Anti-Harassment) Policy.

conduct violated the District’s Acceptable (Computer) Use Policy,

impose a long term suspension under RSA 193:13. Keelin’s the reasonable rules of the school, for which the School Board may These facts show that Keelin neglected or refused to conform to

in whose name they were sent, and the recipients.

and profane, causing embarrassment and distress to the student,

addresses. The emails were offensive, abusive, harassing, vulgar one to the principal and one to a teacher, . . . at their school email student and using that account participated in sending two emails, Keelin created an email account under the name of another

Ultimately, the school board decided: and Discipline Code,” and the “Harassment (Anti-Harassment) Policy.” school district’s computer information system, several sections of the “Behavior misconduct, including the “Unacceptable Use” policy relating to use of the several rules in the student handbook that were violated by the student’s bringing the total suspension period to thirty-four school days. It identified 2 suspension through January 23, 2009, pursuant to RSA 193:13 (2008), The school board conducted a hearing and voted to continue Keelin B.’s

board and requested that it dismiss the request for a long-term suspension. Her parents appealed the superintendent’s suspension decision to the school that she now realized “how horrible that was to do to you and everyone else.” B. apologized to the teacher for the “rude and inap[p]ropriate” email, stating suspension under RSA 193:13, II (2008). By email dated November 19, Keelin recommend to the Sunapee School Board that it impose a long-term November 19 through December 5, and informed her parents that he would of a different student. He imposed a ten-day school suspension, from parents, and determined that Keelin B. had sent both emails under the name Sunapee School District, Brendan Minnihan, met with Keelin B. and her one to Mr. Moynihan, and one to [the teacher].” The superintendent for the [another student]. This only happened one day, and only two emails were sent; my house,” and stating “I made up a Gmail account under the name of police acknowledging that she had “logged on to my dad’s black computer at in Keelin B.’s home. In November 2008, Keelin B. provided a statement to the investigation, the police determined that the emails originated from a computer

emails, he contacted the Sunapee Police Department, and after an home computers. Because Principal Moynihan could not identify who sent the identified. Both recipients opened their respective email messages on their forwarded the message to the principal, asking whether the sender could be student, which contained vulgar and sexually explicit language. The teacher at her school district email account, purportedly authored by the same construction in interpreting both. See p. 3 regulations relating to school discipline, and we apply the same principles of

Resolution of this appeal requires us to construe statutes and

school and school policies. We disagree. in excess of ten days for neglect or refusal to conform to reasonable rules of the of statutory authority and in violation of Rule 317.04 by imposing a suspension upholding the school board’s decision because the school board acted in excess The petitioners first argue that the state board of education erred in

implement.” Id. (quotation omitted). add to, detract from, or modify the statute which they are intended to in the details to effectuate the purpose of the [enabling] statute,” and “may not interpreting administrative rules, we are mindful that such rules may only “fill Anderson, 147 N.H. 181, 183 (2001) (quotation omitted). Therefore, when officials do not possess the power to contravene a statute.” Appeal of Real Estate Inv. Trust, 159 N.H. 539, 542 (2009). Further, “administrative words which the lawmakers did not see fit to include. Appeal of Garrison Place 783. Courts can neither ignore the plain language of the legislation nor add Appeal of Union Tel. Co., 160 N.H. 309, 317 (2010); Vector Mktg., 156 N.H. at possible, we ascribe the plain and ordinary meanings to words used. See administrative regulations, we first examine the language used, and, where board upheld its decision. This appeal followed. Revenue Admin., 156 N.H. 781, 783 (2008). When construing statutes and officer’s recommendation, and after granting the petitioners a rehearing, the Vector Mktg. Corp. v. N.H. Dep’t of of the local school board.” The state board of education adopted the hearing the young Student, careful examination yields no basis to overturn the decision Superintendent and the Sunapee School Board harsh considering the future of Ultimately, she determined, “Though I may find the actions of the substantially in harmony with NH RSA 193:13 and Rule ED 317:04.” reasonable rules of the school,” and that the school district’s policies “are the misconduct qualified as “an act of neglect or refusal to conform to the infractions here go well beyond the misuse of a computer.” She concluded that conduct and discipline policies in the student handbook, stating: “The violated the “Acceptable Use Policy” regarding computers and other student officer conducted a hearing. The officer determined that Keelin B.’s conduct The petitioners appealed to the state board of education, and a hearing

Hampshire Department of Education Regulations, ED 317.04 (e) and (f).” to appeal to the state board of education “[p]ursuant to RSA 193:13 and New with her course work. The school board informed the petitioners of their right to perform community service, and also made provisions for her to keep up In addition to continuing the suspension, the school board required Keelin B. violence committed in a safe school zone. See p. 4 RSA chapter 193-D specifically relates to acts of theft, destruction, or

specifically states, however: “Nothing in this chapter shall prohibit local school assuring due process,” RSA 193-D:2, I(a), (b). The Safe School Zone legislation suspension and expulsion of pupils, both of which must include “procedures other things, disciplinary proceedings and standards and procedures for adopt rules relative to safe school zones under RSA chapter 541-A for, among theft, destruction, or violence). The state board of education is required to persons who knowingly fail to comply with reporting requirement for acts of 193-D:4, I(a) (2008); see also RSA 193-D:6 (2008) (setting forth a penalty for information to be provided to the local law enforcement authority. See RSA [to] report such act in writing immediately to a supervisor,” and requires the “from the victim of an act of theft, destruction, or violence in a safe school zone public or private school employees who have witnessed or have information to include homicide, assault, sexual assault, criminal mischief). It compels local school authorities to suspend and expel students. See buses”); RSA 193-D:1, I (2008) (defining acts of “theft, destruction, or violence” Under RSA chapter 193 governing “Pupils,” the legislature authorized “[s]afe school zone” as “an area inclusive of any school property or school

D:2 (2008); RSA 194:3-d (2008). and discipline. See, e.g., RSA 21-N:9, II(x) (2000); RSA 193:13, IV; RSA 193authority to create rules and policies, respectively, regarding student conduct The state board of education and local school authorities have statutory 193-D:1 without written authorization from the superintendent or designee”). who brings or possesses a firearm . . . in a safe school zone as defined in RSA (requiring the expulsion for a period of not less than 12 months of “[a]ny pupil or BB gun, rifle, or paint ball gun.” RSA 193:13, I, II; see also RSA 193:13, III destruction, or violence as defined in RSA 193-D:1, or for possession of a pellet conform to the reasonable rules of the school, or for an act of theft, board to expel any pupil “for gross misconduct, or for neglect or refusal to period in excess of 10 school days” following a hearing; and (3) the school or a designated representative “to continue the suspension of a pupil for a refusal to conform to the reasonable rules of the school”; (2) the school board period not to exceed 10 school days for gross misconduct or for neglect or administering officer, or a representative “to suspend pupils from school for a Specifically, RSA 193:13 authorizes: (1) the superintendent or chief

regulations relevant to this appeal. administrative rule). With this framework in mind, we turn to the statutes and statute); Appeal of Murdock, 156 N.H. 732, 735 (2008) (interpreting rules de novo. See Appeal of Gamas, 158 N.H. 646, 648 (2009) (interpreting N.H. at 317. We review the interpretation of both statutes and administrative in the words of a statute considered as a whole. Appeal of Union Tel. Co., 160 This court is the final arbiter of the intent of the legislature as expressed than 12 months under RSA 193:13, III. p. 5 (4) An expulsion by the local school board for a period of not less

in writing by the board under RSA 193:13, II; and (3) An expulsion by the local school board for a period determined

(d)(2) below;

above, and that designee provides a due process hearing under

person who suspended the pupil for 10 school days under (1)

period in excess of 10 school days, provided the designee is not the

designee in order to continue the short term suspension for a term suspension and shall be administered by the school board or or BB gun or rifle under RSA 193:13, II shall be considered a longdefined in RSA 193-D, or for possession of a pellet paint ball gun (2) A suspension for an act of theft, destruction, or violence as

exceed 10 school days; 5 administered by a superintendent or designee for a period not to

shall be considered a short-term suspension and shall be conform to the reasonable rules of the school under RSA 193:13, I (1) A suspension for gross misconduct or for neglect or refusal to

Assuring Due Process.” N.H. Admin. Rules and expulsion of pupils in a safe school zone: and Procedures for Suspension and Expulsion of Pupils including Procedures The state board of education promulgated rules governing “Standards

school officials enforcing RSA 193:13 relative to the suspension (a) There shall be the following levels of discipline available to

case, Rule 317.04, sets forth “Disciplinary Procedures” and provides in part: D:2, II.” N.H. Admin. Rules, Ed 317.01. The specific regulation at issue in this policy relative to pupil conduct and disciplinary procedures under RSA 193- “standard that local school boards shall use in adopting and implementing a to disciplinary action of a pupil in a safe school zone” and providing a and statewide uniformity in the enforcement of RSA 193:13 and 193-D relative 317 includes “provid[ing] the minimum requirements to assure due process

networks including, but not limited to, the Internet”). the inappropriate and illegal use, of the school district computer systems and policy which outlines the intended appropriate and acceptable use, as well as “[e]very school district which has computer systems or networks [to] adopt a disciplinary procedures.” RSA 193-D:2, II; see also RSA 194:3-d (requiring boards from adopting and implementing policies relative to pupil conduct and limits long-term suspensions to twenty school days. Cf p. 6 because the Sunapee School Board failed to comply with its own policy that The petitioners next argue that Keelin B.’s suspension was improper

II,” it directly conflicts with RSA 193:13, which expressly authorizes for possession of a pellet paint ball gun or BB gun or rifle under RSA 193:13, Co. not involve “an act of theft, destruction, or violence as defined in RSA 193-D, or, 160 N.H. at 317 (“an administrative agency must follow its own rules and imposing long-term suspensions in excess of ten days for misconduct that does. Appeal of Union Tel. Insofar as Rule 317.04(a) purports to preclude local school boards from

reasonable rules of the school. suspension in excess of ten school days for neglect or refusal to conform to statutory authority and in violation of Rule 317.04 when it imposed a reject the petitioners’ argument that the school board acted in excess of or modify the statute which they are intended to implement”). Accordingly, we Anderson, 147 N.H. at 183 (administrative rules may not “add to, detract from, set forth above, we conclude that the regulation is invalid. See Appeal of statutorily prescribed authority granted to local school boards in the manner D:2; RSA 21-N:9, II(x). However, to the extent Rule 317.04(a) limits the Rules, Ed 317.01; see also RSA 21-N:1, II(a) (2000), :9, II(b) (2000); RSA 193and procedures, rather than to establish absolute standards. See N.H. Admin. regulatory direction for local school authorities to develop discipline policies the school. We recognize that Part 317 may well have been intended to provide gross misconduct or for neglect or refusal to conform to the reasonable rules of boards to impose suspensions in excess of ten days, or even expulsion, for

RSA 193-D:2, II. implement policies relative to pupil conduct and discipline procedures. See legislature preserved the authority granted to local school boards to adopt and state board of education to promulgate rules relative to safe school zones, the reasonable rules of the school.” RSA 193:13, II. Further, when requiring the but also for “gross misconduct, or for neglect or refusal to conform to the violence as defined in RSA 193-D:1 or possession of, for example, a pellet gun, local school boards to expel students, not only for acts of theft, destruction or 10 school days.” RSA 193:13, I(a), (b). Moreover, the legislature authorized to the reasonable rules of the school,” to a long-term suspension “in excess of suspension imposed for “gross misconduct or for neglect or refusal to conform authorizes the school board, following a hearing, to “continue” a short-term local school boards to impose long-term suspensions. Specifically, the statute references RSA 193:13, I, and this statutory provision expressly authorizes statutes. For instance, Rule 317.04(a)(1), regarding short-term suspensions, under RSA 193:13, II.” However, this rule is not consistent with the governing [chapter] 193-D, or for possession of a pellet paint ball gun or BB gun or rifle that involves “an act of theft, destruction, or violence as defined in RSA The above rule appears to permit long-term suspension only for conduct board from circumscribing its own p. 7 conflicts with RSA 193:13, nothing in that statute prohibits a local school to impose limits on local school boards’ disciplinary authority in a manner that 317.04(a), which can be viewed as an attempt by the state board of education would lead to absurd and unlawful results. We disagree. Unlike Rule contrary to its statutory authority under RSA 193:13 and RSA 193-D:2, II, and to prohibit a long-term suspension in excess of twenty school days would be The school district contends, however, that interpreting the district rules

thirty-four school days. school board exceeded the district rules when it imposed a suspension of limit long-term suspensions to twenty days by their plain terms. Therefore, the procedures in the district rules and the regulations are the same, the former disciplinary procedures as provided under Rule 317.04. Even assuming some Respondent school district argues that its rules afford students the same

definitions for “gross misconduct,” “neglect,” and “refusal.” to conform to announced, posted, or printed school rules,” and also contain school for a specific period of time for gross misconduct or for neglect or refusal define “suspension” to mean “the temporary denial of a student’s attendance at is subject to the varying levels of discipline. For example, the district rules discipline, and prescribe to some degree the nature of student misconduct that specify procedural protections afforded to students for the different levels of long-term suspension “between 11 and 20 days,” and expulsion. They also 7 expulsion of pupils,” including short-term suspension “not to exceed 10 days,” enforcing RSA 193:13 and/or RSA 193-D relative to the suspension and The district rules provide “levels of discipline available to school officials the rules in effect when the suspension at issue was imposed. Cf. Appeal of excess of twenty days pursuant to RSA 193:13, I(b), it is bound by the terms of II to “adopt policies relative to pupil conduct and disciplinary procedures.” the authority to create a policy or rule permitting long-term suspensions in and implementing the authority of school boards reserved under RSA 193-D:2, legislature. Consequently, although the Sunapee School Board may well have school safe zone[s] . . . and RSA 193:13 relative to suspension and expulsion,” board to exercise the full measure of disciplinary authority granted to it by the statewide uniformity in the enforcement of RSA [chapter] 193-D relative to . . . the law allows. In other words, RSA 193:13 does not require a local school Part 317. The stated purpose of the rules includes providing “due process and conduct, discipline and due process” (district rules), purportedly adapted from disciplinary authority more narrowly than

The Sunapee School District established “rules relative to student

regulations”). We agree. erroneous as a matter of law when it fails to embrace the plain meaning of its regulations, and . . . an agency’s interpretation of its own regulations is p. 8 Keelin B. violated not only the Acceptable Use Policy, but also numerous other The state board of education upheld the school board’s finding that

computer system for ninety days. We disagree. Use Policy” in the student handbook is suspension from the school district’s in this case because the maximum punishment available under the “Acceptable Next, the petitioners argue that suspension was not a permitted sanction

the associated procedural safeguards. See not pursue the more severe discipline of expulsion and provide Keelin B. with may have given notice that expulsion was a possibility, the school board did 8 and her parents that the conduct at issue was subject to discipline, and even Although the district policies and the student handbook alerted Keelin B.

twenty school days in accordance with the district rules. a suspension of thirty-four school days. The suspension must be reduced to by law, we hold that the school board erred as a matter of law when it imposed argument that Keelin B.’s suspension in excess of ten days was not authorized term suspension in excess of twenty school days. We are not persuaded. in the school district policy. Accordingly, while we reject the petitioners’ code, and that notice of possible expulsion necessarily includes notice of longschool district impose a suspension that exceeded a cap expressly enunciated expulsion. It contends that school rules need not be as detailed as a criminal in student handbook), aff’d at issue was prohibited and that possible sanctions included suspension and, 868 F.2d 90 (3d Cir. 1989). In neither case did the extracurricular activities even though such sanction was not expressly set forth district policies provided notice to Keelin B. and her parents that the conduct (upholding additional school discipline of suspending student from The school district also argues that the student handbook and other handbook); Palmer v. Merluzzi, 689 F. Supp. 400, 410-12 (D.N.J. 1988) sanctions, notwithstanding lack of specific penalty enunciated in school provided adequate notice to student that such conduct would subject him to disciplinary rule proscribing conduct, as well as admonition by teacher, Dist. No. 403 v. Fraser, 478 U.S. 675, 678, 686 (1986) (holding that school school policy gave notice that the conduct was prohibited. See Bethel School the school district upholding challenged student discipline when the governing the district policy. Furthermore, we do not find applicable the cases cited by exceed the twenty-day limitation for long-term suspensions established under That the school board might have sought expulsion does not authorize it to

(brackets omitted)). mere expedient of interpreting a rule that is clear and unambiguous on its face” (“we will not permit an agency to add or delete requirements . . . through the rules and regulations); Doe v. N.H. Dep’t of Safety, 160 N.H. 474, 477 (2010) Union Tel. Co., 160 N.H. at 317 (administrative agency must follow its own p. 9 Affirmed in part; vacated in

not address them. See included in the notice of appeal. Therefore, they are deemed waived and we do DALIANIS, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred. The remainder of the petitioners’ arguments in their brief were not 9

exceeded twenty school days, and remand. suspension of Keelin B., vacate that decision only insofar as the suspension falls squarely within the purview of RSA 193:13. See In sum, we affirm the state board of education’s decision upholding the “safe school zone” under RSA 193-D:1, II, we have no doubt that this conduct system, accessed remotely from home computers, falls within the ambit of a lacks merit. Whether or not Keelin B.’s improper use of the school email the recipients used their home computers to access their school email accounts school authorities since her home computer was used to send the emails and system. Their claim that their daughter’s conduct was beyond the reach of acknowledge that the emails were transmitted using the school district email part; remanded. school email addresses. The petitioners do not dispute this finding, and participated in sending the emails to the principal and the teacher at their in a safe school zone. The school board found, however, that Keelin B. communications that were transmitted and received off school campus and not excess of its statutory authority by imposing a suspension for electronic Finally, the petitioners argue that the Sunapee School District acted in 269 (2010); Sup. Ct. R. 16(3)(b).

those systems and networks). outlines the appropriate and acceptable, and inappropriate and illegal use, of school district with computer systems or networks shall adopt a policy which

infraction in this case. guidelines for computer use,” which the school board also identified as an section, suspension is identified as a possible sanction for “[f]ailure to follow misconduct. Furthermore, under the handbook’s “Behavior and Discipline” student handbook gives notice that suspension is a possible sanction for such bullying, and use of vulgar, profane, obscene or defamatory language. The provisions in the student handbook, including prohibitions on harassment,