A case pending in federal court in New Jersey, lodged by a student who was disciplined for using a derogatory term for police during class, has reignited a long-simmering debate over the free speech implications of the state’s anti-bullying law.
New Jersey’s Anti-Bullying Bill of Rights Act, often billed as the nation’s toughest, has regularly been criticized as restrictive of free speech.
The suit against the Hackettstown school system and three administrators, claiming the defendants misused the law’s requirements and violated the First Amendment in so doing, is the latest front in that battle.
“There is a tension in the law between students’ First Amendment right to express themselves on matters that may be controversial, insensitive and hurtful on the one hand, and the right of other students to be free from comments that are so hurtful that they may violate New Jersey’s Anti-Bullying Bill of Rights Act,” said David Rubin, a New Jersey lawyer who represents school districts.
“Our courts have not fully resolved that tension, and it remains a very unsettled area of the law,” Rubin added.
The high school student who sued the Hackettstown Public School District, referred to in court documents as K.C., was suspended for violating the state’s anti-bullying law by using the term “pig” to refer to a police officer during a class discussion.
School officials said use of that term was offensive to a classmate whose father is a police officer, although the other student was absent on the day the term was used, according to documents.
K.C.’s suit claims she was brought into the vice principal’s office in March 2017 and questioned about an informal discussion between students about guns and violence, and was asked if she mentioned the organization Black Lives Matter. She replied that she had discussed confrontations between police and African-Americans, according to the suit.
The suit alleges that vice principal Kevin O’Leary told her that “all lives matter” and said that some people are lucky enough to have light enough skin to “pass”—an apparent reference to K.C.’s biracial heritage, she claims. K.C. understood the vice principal’s remarks to mean she could not discuss Black Lives Matter in school, the suit said.
A few days later, K.C.’s English class was reading a play, “Blood Brothers” by Willy Russell, and choosing parts to read aloud, when she volunteered to play the role of the “pig,” referring to a police officer in the play who treats two men differently because of their economic status, the documents said, noting that the teacher reprimanded her for the use of that term.
K.C. was later summoned to O’Leary’s office on accusations of harassment, intimidation and bullying (HIB) for a hearing—as required by the New Jersey anti-bullying law.
There, O’Leary and HIB coordinator Jennifer Spuckes analogized K.C.’s use of the term pig to casual use of racial and sexual orientation epithets, the suit claims, alleging that the administrators used those epithets during the session with K.C. Spuckes also said some students were offended by her conversations with other students about political issues, according to the suit.
K.C. subsequently was issued a one-day, in-school suspension.
The suit brings a hostile education environment claim under Title VI of the Civil Rights Act of 1964, and claims violations of the Law Against Discrimination and Article I of the New Jersey Constitution, as well as the First Amendment. K.C. claims her statements concerning Black Lives Matter and her use of the term pig were protected political speech.
U.S. District Judge Peter Sheridan of the District of New Jersey on Aug. 8 denied a motion to dismiss the suit by Hackettstown and the three school administrators named as defendants. Sheridan rejected Hackettstown’s claim that K.C. lacks standing for failure to exhaust her administrative remedies under the anti-bullying law, noting that her claims don’t arise under that law. He also found there were sufficient facts alleged to support K.C.’s free speech claims, and said the school administrators’ use of what he termed “racially charged slurs” and references to sexual orientation during the hearing “constitute severe conduct that could give rise to a hostile environment.”
K.C.’s suit said using that term to describe a fictional police officer is not vulgar, lewd or disruptive, and use of the harassment, intimidation and bullying statute to prohibit political speech that administrators don’t like is prohibited under U.S. Supreme Court case law on schools and the First Amendment.
John Rue, the Bloomfield attorney representing K.C., pointed out that his client’s suit is a First Amendment and discrimination case, and not an HIB case.
“The case is important because it seeks to curb the use by New Jersey public schools of the HIB mechanism to punish political speech by students,” Rue said in an email. “The suit also seeks to hold to account a school district that used the HIB mechanism to protect administration misconduct performed under the auspices of protecting the school community from pretextual ‘bullying.’”
Alyssa Weinstein of Purcell Mulcahy & Flanagan in Bedminster, who represents the defendants, didn’t return a call about the case.
New Jersey’s Anti-Bullying Bill of Rights Act has regularly seen scrutiny over its free speech implications.
In November 2016, a federal judge in the District of New Jersey threw out a first amendment suit by a teacher at Teaneck High School who was reprimanded for showing students a picture of her relatives wearing blackface while participating in a Dutch holiday custom. That plaintiff, Regina Melnyk, claimed her First Amendment rights were violated by the school’s harassment, intimidation and bullying policy, which was the basis for her reprimand. U.S. District Judge Madeline Cox Arleo of the District of New Jersey said a public employee’s speech is protected if it focuses on a matter of public concern, and the class discussion of the Dutch custom did not fall into that category.
In October 2016, another student’s free speech suit against the Greater Egg Harbor Regional High School District was dismissed by U.S. District Judge Noel Hillman. In that case, high school senior Bryshawn Dunkley was issued a two-day suspension pursuant to the Anti-Bullying Bill of Rights Act for out-of-school postings on Twitter and YouTube that demeaned the athletic capabilities of other students. Hillman dismissed the school district and its administrators on summary judgment, finding that Dunkley’s out-of-school speech reached into the school, constituted harassment, intimidation and bullying, and triggered the school’s obligations under the anti-bullying law.
And earlier in 2016, following intervention by the American Civil Liberties Union of New Jersey, administrators at Fair Lawn High School dropped their bullying case against a student over Twitter posts that criticized Israel and expressed sympathy to Palestinians. The student, Bethany Koval, was questioned about the tweets by school administrators after another student said she felt threatened by the posts, although Koval’s writings did not reference other students. The ACLU said the school engaged in an overly broad application of the anti-bullying law.
In the Hackettstown case, plaintiffs lawyer Rue said the district’s punishment of K.C. for using the term “pig” was not an appropriate use of the bullying law. And the administrator’s questions to K.C. about certain epithets “was not an appropriate use or application of HIB law—it was actionable discriminatory misconduct,” he said.
Sanmathi “Sanu” Dev, who practices school law at Capehart & Scatchard in Mount Laurel, said the harassment, intimidation and bullying statute, “as with any statute,” has “areas of gray that unfortunately lead to litigation.” Nonetheless, she said, ”I think the case law is pretty clear in terms of what is protected under the First Amendment. If the school district has done an investigation and found that conduct or speech is harassment, intimidation or bullying, I think the family of the student will have a difficult time arguing that it was a violation of the First Amendment.”
While it’s “hard to say there are specific things that can be construed as HIB and cannot be construed as HIB, I think when you have a threat of some sort, that’s probably going to fall into HIB if the other prongs of the statute are met,” Dev said.
One of those prongs is that the alleged bullying act must be related to a distinguishing characteristic of the victim, she said. The range of characteristics covered under the bullying statute is broader than is usually seen in an employment law context, Dev noted—encompassing not only race or gender, but also characteristics like height or physical fitness.
David Rubin, a Metuchen lawyer who represents school districts in harassment, intimidation and bullying cases, said “it does appear that the district took a broad interpretation of the HIB statute,” but he is “reluctant” to say Hackettstown misapplied the statute.
He said the school district’s determination that K.C.’s offense was “unintentional” indicates that “the school district thought it was a close call.”
The state Anti-Bullying Task Force, an advisory group created when the statute was enacted, has indicated it considers the statute vague and called for giving more discretion to principals on whether or not to proceed with an investigation. In July a series of new regulations concerning the HIB statute were adopted by the state Department of Education, including one giving greater discretion to principals.
Notwithstanding the new regulations, Rubin said more guidance is needed from courts on the intersection of anti-bullying laws and free speech.