By Sara-Megan Walsh

Two parents are suing the Kings Park Central School District over a 2015 sexting incident, claiming handling of the matter humiliated their sons and violated their freedom of speech.

Andrew J. Fenton, of Fort Salonga, and Thomas Phelan, of Kings Park, filed a lawsuit after their sons were among more than 25 students suspended for having received a sexual video via text message.

The lawsuit, filed Sept. 19, 2017, in U.S. District Court for the Eastern District of New York, alleges the “suspension of [the students] for receiving a video, unsolicited, which they did not show or send to anyone else, and which bore no nexus to an ensuing school disruption was arbitrary and capricious.” Both Fenton and Phelan seek damages for “humiliation and anguish” of their sons and their records expunged of the suspension.

On Nov. 4, 2015, dozens of Kings Park High School students received a video on their cellphones of two 14-year-olds having sex while at home, according to court documents.

When an assistant principal saw a ninth-grader playing the video in the high school’s cafeteria Nov. 6, school officials began an extensive investigation. The phones of all students who still had the video were temporarily confiscated, according to court documents. School district officials allege both Fenton’s and Phelon’s sons still had the video.

Under Kings Park’s Guidelines for Implementation of School Discipline Policy, “inappropriate texting and use of social media” and “selling, using, transmitting or possessing obscene material” are considered Level IV infractions punishable by up to five days suspension and parental contact.

On Nov. 9 and 10, Kings Park High School Principal Lino Bracco sent certified mail to Fenton and Phelan notifying them that their sons, sophomores at the time, would be suspended for one day for “inappropriate use of an electronic device.” The letter warned that the students were “prohibited from entering upon school grounds for any reason and should remain home under supervision.”

Fenton said he did not receive the Nov. 9 letter in time, and his son was escorted out of the high school on Nov. 10 by two uniformed police officers, according to court documents.

By letter dated Nov. 18, Superintendent Timothy Eagen made an offer to parents that they could submit a request for their child’s disciplinary record to be reviewed, and barring any similar incidents, the suspension would be expunged.

Both parents retained Middletown-based attorneys, partners Robert Isseks and Andrew Smith, who sent letters dated Dec. 9, 2015, requesting the suspensions be immediately removed from the students’ records alleging “they never possessed the message in school or on school property.”

Both parents said Kings Park school district’s cellphone policy also infringed on their sons’ right to free speech. “The only way that [he] or any other student could possibly make sure that he did not find himself in an ‘incident similar in nature’ during the coming year is if he stopped receiving text messages all together,” reads the Dec. 9 letter.

An appeal was made to New York State Department of Education, whose Commissioner Mary Ellen Elia ruled Nov. 10, 2016, that the district’s “suspension of [the students] for receiving a video, unsolicited, which they did not show or send to anyone else, and which bore no nexus to an ensuring school disruption, was arbitrary and capricious.” Elia ordered Kings Park school district to annul and expunge the suspension.

Eagen said that as at press time, Kings Park school district had yet to be served with the lawsuit.

“Parents will sometimes address a particular issue through a media solution rather than an administrative or due process solution,” Eagen said. “However, in choosing this path, sometimes parents will share certain personal and/or confidential information that then becomes a part of public record.”

The superintendent said the district’s policy and practice is to not comment on specific student disciplinary matters and/or pending lawsuits.

Attorney Smith could not be reached for comment by press time. Principal Bracco did not return phone calls requesting an interview or comment.