Student Suspended for Creating—but Not Sharing—Nudified Deepfakes of Classmates

The N.Y. Commissioner of Education has just reversed the decision.

From Appeal of P.M. & E.M., decided Tuesday by the N.Y. Commissioner of Education (Betty Rosa):

Petitioners challenge a determination of the Board of Education of the Mount Pleasant Central School District ("respondent") imposing discipline on their child (the "student")….

The student attended ninth grade in respondent's high school at the time of the events giving rise to this appeal. On February 14, 2024, the district received reports that certain "male students had used an artificial intelligence application to create nude images of [several] female classmates and … shared them with other students." Respondent's investigation implicated the student….

The student admitted that he created three images but stated that he did not show, or share them with, anyone else. The student also admitted that he told several classmates about a website where such images could be created. The student additionally indicated that he had deleted the three images.

In a notice of charges dated February 16, 2023, respondent informed the student that it would convene a long-term suspension hearing on February 29, 2024. Respondent alleged that the student violated the district's code of conduct by: (1) "contributing to the disruption of the educational environment at the high school"; and (2) "creating and/or distributing artificially generated pornographic images, which convincingly resembled multiple female students, resulting in harassment, bullying, and the creation of a hostile environment for said female students."

At the hearing, the district withdrew the portion of charge two alleging that the student "distribut[ed]" the images in question. Thereafter, the student pled "no contest" to the charges, admitting that he had created three images that he later deleted.

The superintendent eventually suspended the student until the start of the 2024-25 school year, but the Commissioner concluded this was improper, and expunged the suspension from the student's record:

Students may only be disciplined for conduct that occurred outside of school if such conduct endangered the health or safety of pupils within the educational system or adversely affected the educational process. In particular, the Second Circuit has held that a student may be disciplined for off-campus speech where such speech posed a reasonably foreseeable risk that it would come to the attention of school authorities and materially and substantially disrupt the work and discipline of the school….

[R]espondent has failed to establish that the student's conduct "endangered the safety, morals, health or welfare of others." The student created the images at home and deleted them thereafter. There is no evidence that the student distributed the images or intended for their distribution. Indeed, respondent only learned of the student's conduct through its investigation of other students who had, in fact, distributed such images.

Contrary to respondent's argument, the student could not be disciplined solely for "creati[ng]" the images at home. The Commissioner has consistently held that school districts lack authority to punish student misconduct that "would not foreseeably cause any disruption to school operations or activities." For example, in Appeal of N.R., the Commissioner expunged a suspension based upon searches conducted on a student's school-issued laptop because they were "only discovered after [the school district] decided to examine the student's [laptop] for reasons unrelated to student discipline." The Commissioner reasoned that "there [was] no evidence that the student informed anyone of his internet searches or that anyone at the school would have been aware of the student's search history if not for the district's review" thereof.

Similarly, in Appeal of a Student with a Disability, the Commissioner held that a school district could not discipline a student for "affix[ing] a picture of a student's face to a punching bag and … punch[ing] it '50 or 60' times" because "the punching bag was only discovered during the police search of petitioner's home which, in turn, only occurred because of … allegations made by … [other] student[s]." The Commissioner further noted that "[t]here [was] no evidence in the record that the student informed anyone about the punching bag or that anyone at the school knew about its existence."

Finally, in Appeals of A.F. and T.P., the Commissioner held that two students did not commit misconduct when they received an unsolicited video on their cell phones depicting two students having sex. The students did not send the video to anyone else and received it outside of school hours. The Commissioner held that the students had not engaged in misconduct as there was "no evidence linking any conduct by [the students] to the subsequent disruption." The Commissioner further rejected the district's argument that the "viewing and/or retention of the video resulted in 'moral' harm" as there was "no evidence in the record that [the students], for example, viewed the video at school or sent or showed the video to anyone else."

The reasoning of these appeals supports a similar outcome here. Respondent has produced no evidence linking the student's off-campus conduct to the distribution of fake nude images by others. While respondent argues in its memorandum of law that "the nature of the internet makes it unclear what happens to those images and the information [the student] … put into the application in order to generate the image[s] in the first place," the district did not introduce any evidence as to how the images were generated or stored at the hearing. Without it, there is no basis in the record to make the requested inference.

I share respondent's concern that "AI fake nudes have become a massive problem for the wellbeing of students across the country." However, that does not mean that students may be suspended based merely on their proximity to such conduct. Respondent was required to prove the foreseeability that three images, created at home and since deleted, would come to the attention of school authorities—which it did not (compare Wisniewski v Board of Educ. of Weedsport Cent. School Dist. [2d Cir 2007] ["extensive distribution" of threatening message to "15 recipients" made it "at least foreseeable to a reasonable person, if not inevitable" that the message would reach school authorities]).

The Commissioner also held that the disciplinary measures couldn't rest on the student's "informing other students about the website where the images were created," given that "[t]he student was only charged with creating the images and 'contributing to the disruption of the educational environment at the high school'":

"The Commissioner has held that a district must be held to the language of the charges it chooses to pursue against a student" (see, e.g. Appeal of a Student with a Disability [board of education could not find a student guilty of possession of a vape pen where it charged him, at the hearing, with "use of an illegal controlled substance"]). Here, I find that the student could not reasonably have understood either charge to encompass the specific allegation that he informed others about the website or that such action contributed to the disruption of the educational environment….

To the extent the district also charged the student with conduct "resulting in harassment, bullying, and the creation of a hostile environment for said female students," charges "defined solely by consequences … cannot serve as a basis for suspension." …

Stanley J. Silverstone represents the petitioners.