A high school student with “oppositional defiant disorder” who was banned from the prom, senior trip and commencement for tweeting a vulgar comment about the principal claims disability discrimination as well as a First Amendment violation in a federal suit.
The Sterling High School student claims her calling the principal a “pussy ass bitch” was a consequence of her psychological disorder, which causes her to have “dramatic mood swings” and “difficulty with authority,” and that punishing her violated the New Jersey Law Against Discrimination.
The student, known as H.W. in court papers, also claims the remark, while offensive, is entitled to First Amendment protection because it was made off campus and outside school hours and did not disrupt school activities.
She further claims another of her tweets— an invitation to classmates to “smoke with me before school tomorrow”—was likewise protected speech and outside of the school’s authority.
Officials at the Somerdale school interpreted the smoking to refer to marijuana and ordered H.W. to submit to a drug test, which her suit seeks to enjoin.
H.W. also wants an injunction against the school barring her from school activities, an expungement of documents related to the episode, a revision of school policies that she says permitted intrusion on her rights, and damages, legal fees and costs. She also wants an apology.
H.W. tweeted the remark about the principal on Jan. 7 after she was given a two-day suspension for breaking school rules by using her cell phone during the school day. The smoking tweet was sent the same evening.
Her mother tried to have the suspension lifted, and H.W. came to school the next day, only to be told it was still in effect. That apparently prompted school officials to review H.W.’s tweets.
Upon her return to school on Jan. 13 after the suspension, she was called into a meeting with the principal, Mark Napoleon, and the superintendent, Jack McCulley, to discuss the cell phone issue. At the meeting, McCulley confronted H.W. about her tweet about the principal, according to the suit.
The suit, H.W. v. Sterling High School District, names McCulley and Napoleon as defendants.
The LAD count alleges school officials discriminated by failing to regard H.W.’s behavior as a consequence of her psychological condition. Her lawyer, Jerry Tanenbaum, says officials had an overly punitive response to the Twitter incident in retaliation for prior behavior by H.W. that they consider disrespectful.
The suit also claims the officials exceeded their authority by disciplining H.W. for out-of-school conduct that did not interfere with school operations, in violation of N.J.A.C. 6A:16-7.6.
The suit alleges violations of the First Amendment and the New Jersey Constitution’s free-speech guarantee.
Tanenbaum, of Mattleman, Weinroth & Miller in Cherry Hill, cites two rulings by the U.S. Court of Appeals for the Third Circuit that upheld high school students’ free-speech rights concerning online postings about school principals.
In J.S. v. Blue Mountain School District, 650 F.3d 915 (2011), where a student wrote that her principal was a “fagass” and a sex addict with a “small dick,” the judges said, “Neither the Supreme Court nor this Court has ever allowed schools to punish students for off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at school.”
In Laycock v. Hermitage School District, 650 F.3d 205 (2011), where a student wrote on MySpace that the principal was an abuser of marijuana, pills and alcohol, the court said, “It would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates school sponsored activities.”
Both McCulley and the lawyer for Sterling and the other defendants, Brett Gorman of Parker McCay in Mount Laurel, declined to comment on the case.