By Sarah Berent



Drunk students, drunk teachers, nude photos, oh my! No, we’re not eavesdropping on the writers room of the CW’s Gossip Girl, but reading the legal complaint of Herbert Nass and Jodi Nass, who recently sued the exclusive Horace Mann prep school and some of its administrators for refusing to expunge their son’s suspension from his record for two million dollars(!) plus a refund of the school’s hefty tuition, $35,670. (Due to privacy concerns, his first name and the names of all other students involved in the incident leading to the suspension were omitted in the complaint). The Nasses’ 16-year-old son, we’ll call him Nass Jr., was disciplined for possessing nude pictures of a fellow female classmate on his computer. The pictures were discovered on an overnight field trip by other students while Nass Jr. was napping in another room.

The Nasses’ decision to sue Horace Mann was not an easy one, as both have a long and close relationship with the school. Both parents are alumni, both held positions on the Alumni Council for the 2009-2010 school year, and Mr. Nash has stated that he had planned to leave the school a five-figure bequest. They were proud to be associated with the school that counts ACLU co-founder Morris Leopold Ernst and former New York Times publisher Arthur Hays Sulzberger among its graduates.

The New York City private school community is famously tight-lipped and seldom generate negative publicity, making the Nasses’ lawsuit and their decision to sue and talk about it with The New York Times all the more surprising. But Horace Mann has been involved in controversy about its student’s online activities before. In 2008, a New York Magazine article exposed Horace Mann’s frustrated attempts to censor student-made Facebook pages that cruelly mocked their teachers.

The Nasses claim their suit is about “fairness” while Horace Mann calls the legal action “an attempt to sanitize their child’s school record.” Although the Times neatly laid out the two sides of the dispute, the article failed to discuss the actual legal theory behind the lawsuit. Can the law really force a private school to expunge a student’s record or is this just a rich family’s attempt to bully the school with bad publicity? And what about those nude pictures? Can Nass Jr. be in trouble for possessing child pornography?

Before we dive into our legal analysis, here’s the story of what happened on this now infamous field trip (according to the Nasses’ complaint):

Last February, sixty Horace Mann students and three faculty chaperones embarked on what was supposed to be a three-day trip to Washington, D.C. for a JSA conference. Their return was delayed because of a snowstorm and the Horace Mann group was confined to their hotel. With a 20:1 ratio of adolescents to adult supervisors while snowed-in, this was a recipe for a disaster. While students and allegedly, one of the chaperones, were drinking at the hotel bar, Nass Jr., in his room with friends, felt ill and went to take a nap. He left his laptop behind, and three of his friends, who knew it contained nude pictures of a fellow female student, yielded to temptation, searched Nash Jr.’s computer, and OMG! found what they were looking for.

News of their find made its way back to school administrators who suspended Nass Jr. for his conduct and told his parents that the incident would be reportable during the college application processes. And then Nasses headed straight to Westchester County Supreme Court.

The Nasses are suing under contract law, alleging that their relationship with Horace Mann is contractual and that the school breached an implied covenant of good faith and fair dealing by suspending their son based on a “coerced” confession and without a school hearing.

New York courts have recognized contract law as the guiding force behind student-private school relationships and under similar circumstances, have looked to schools’ student handbooks for the rules applicable in these cases.

In 1980, a student who repeatedly disrupted her Latin class and harassed her professor was suspended and forced to withdraw from Wagner College. The student sued the school for its failure to follow its official guidelines, which required that it hold a hearing in front of the Student-Faculty Hearing Board before suspending a student. The lower courts ruled in favor of Wagner College but the New York Court of Appeals reversed, ruling that “an institution is bound by its own rules” and that the procedure governing a suspension must be “substantially observed.” The court ordered the college to either reinstate the student or hold the required hearing and warned that a private school is not allowed “to void its own rules whenever its administrative officials in their wisdom see fit” and school guidelines are not to be reduced to a “meaningless mouthing of words.”

The Nasses’ complaint cites Horace Mann’s Family Handbook as evidence that procedures exist, including a Disciplinary Council, to deal with school-related disputes. But the Handbook includes a “catch-all” clause that permits the school to alter its procedures “to suit unusual or changed circumstances” for behavior viewed as “inappropriate, anti-social, or contrary…to core values.” The Nasses assert that Horace Mann “coerced” their son to fess up to the dirty pictures, and then in bad faith, used this provision to bypass the Disciplinary Council. The complaint speculates that school officials wanted to avoid a hearing because it lacked direct proof; school administrators never saw the pictures and did not have anyone officially testify. Of course, the school probably wished to avoid word getting out about the entire incident.

If that was indeed its intention in bypassing the Disciplinary Council, the school has failed spectacularly. The school now has negative publicity and a lawsuit to contend with. And if the Nasses can prove that the private school denied Nass Jr. of a hearing for improper reasons, the court may rule that Horace Mann acted in bad faith and breached its contractual duty.

Because the case apparently involves nude photographs of a minor, there is also the matter of child pornography, which has not been discussed by the parents or the school. Herbert Nass impliedly dismissed any criminal liability by calling the girl a “consensual participant” when speaking to The New York Times.

Not so fast, Mr. Nass. According to state and federal law, your son’s situation has a pretty good chance of falling under the child pornography umbrella by virtue of his possession.

Under New York’s Penal Law § 263, if the subject of the photographs was under seventeen when they were taken, Nass Jr. could be charged with Using a Child in a Sexual Performance, if proved he “induced” his classmate into taking the pictures. If the girl was under sixteen, he could also be liable under two other offenses- Promoting a Sexual Performance by a Child and Possessing a Sexual Performance by a Child. Digital images come within the definition of “performance” and all of these offenses are considered felonies.

The Federal government has stricter child pornography laws that consider anyone under the age of eighteen a “child,” and possession alone is enough to withstand a conviction. For federal law to kick in, the illegal images must be transported across state lines, which includes sending digital pictures via e-mail to someone in a different state or sending the pictures to someone in the same state if each of their computer servers are located in different states. The government deems the latter scenario as “almost always the case” so its highly likely Nass Jr.’s possession of the photogaphs is a federal crime.

For the record: The Nasses’ complaint states that “[f]or the purposes of this lawsuit, [Nass Jr.] neither admits or denies that the computer ever contained sexually explicit material.”