B.D. et al v. EGG HARBOR CITY et al
OPINION. Signed by Judge Noel L. Hillman on 10/20/2016. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil No. 14-7232 (NLH/KMW)
BOARD OF EDUCATION OF THE
GREATER EGG HARBOR REGIONAL
HIGH SCHOOL DISTRICT, SCOTT
PARKER, and EDWARD OTTEPKA,
WILLIAM A. RIBACK
WILLIAM RIBACK, LLC
132 HADDON AVENUE
HADDONFIELD, NJ 08033
On behalf of plaintiff
TIMOTHY R. BIEG
MICHAEL PAUL MADDEN
MADDEN & MADDEN
108 KINGS HIGHWAY EAST, SUITE 200
P.O. BOX 210
HADDONFIELD, NJ 08033-0389
On behalf of defendants
HILLMAN, District Judge
This case involves a high school student’s allegations that
his First Amendment and other rights were violated when the
Greater Egg Harbor Regional High School District suspended him
for out-of-school YouTube video and Twitter postings regarding
other students that the school determined to be in violation of
the state’s anti-bullying statute and the school’s anti-bullying
Presently before the Court are defendants’ motion for
summary judgment and plaintiff’s cross-motion for summary
For the reasons expressed below, defendants’ motion
will be granted, and plaintiff’s motion will be denied.
In December 2013, plaintiff, Bryshawn Dunkley, 1 was a senior
at Cedar Creek High School, which is part of the Greater Egg
Harbor Regional High School District, when he was suspended for
two days for his out-of-school YouTube account, which contained
a video criticizing a football teammate.
In February 2014, plaintiff was suspended for nine days for
content on an out-of-school, anonymous Twitter account – called
Cedar Creek Raw - of which plaintiff shared control with another
The school became aware of the existence of the
Twitter account through complaints from students and parents.
The Twitter account included postings such as:
THOT list (Those Hoes Over There)
Quads [a nickname used to refer to certain family members
who were students at Cedar Creek]
Brittney E[***] 2
When his complaint was filed, Bryshawn was a minor, and his
father, Brian Dunkley, lodged claims on Bryshawn’s behalf in
addition to his own claims. Bryshawn has since turned 18, and
is advancing his own claims. Brian Dunkley’s claims have been
either resolved or dismissed.
For purposes of this Opinion, the Court will redact certain
full names and twitter “hashtags” which the parties have
submitted to the Court in full. The full names and other
identifiers need not be repeated for purposes of this Opinion.
"I wonder if @m[************] owns a can opener because if
not, her teeth can DEFINITELY get the job done"
L[**********#twins #buglookingnigga #bigeyes
@L[***********@L[****_M[******]. You should get married and
have kids, I'll show you what it would look like
#bigeyedbanana (pic attached on twitter)
There is nothing funnier than a senior who doesn't start so
@a[*************] cracks me up
Usually girls get better looking when they get their braces
off but that not the case with @K[***********]
(Docket No. 33-7 at 10.)
Defendants Vice-Principal Scott Parker and school resource
officer Edward Ottepka investigated the Twitter account, and
questioned plaintiff about his involvement.
was involved in the Twitter postings.
Plaintiff denied he
After Parker and Ottepka
met with the Twitter account’s co-owner, who admitted that he
and plaintiff created and posted on the account, plaintiff
admitted his involvement.
Plaintiff only admitted to postings
that criticized another student’s athletic ability, but based on
the representations of the account’s co-owner, the school
administrators determined that plaintiff was responsible for
posting more than he acknowledged, and determined that
plaintiff’s actions violated the school’s policy against
harassment, bullying, and intimidation.
In addition to his nine-day suspension, on February 21,
2014, the school filed a formal juvenile complaint with the
Atlantic County Prosecutor’s Office through the Egg Harbor
Township Police Department against plaintiff for “purposely
committing acts of harassment by opening an electronic Twitter
account and then knowingly using said account to make repeated
and anonymous offensive communications against others in a
manner that caused annoyance and alarm,” in violation of
N.J.S.A. 2C:33-4a. 3
(Docket No. 33-4 at 6.)
Following the Court’s decision on defendants’ motion to
dismiss (Docket No. 22), the following claims remained pending
regarding plaintiff’s discipline for the YouTube and Twitter
postings: 1) plaintiff’s claims against school resource officer
Edward Ottepka and Vice-Principal Scott Parker for violations of
the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2
(“NJCRA”), New Jersey Constitution, Article 1, Paragraph 6, and
the First Amendment to the U.S. Constitution pursuant to § 1983;
and (2) plaintiff’s claims against the Board of Education for
violations of the First Amendment to the U.S. Constitution
pursuant to § 1983.
Defendants have moved for summary judgment on plaintiff’s
claims against them, and plaintiff has cross-moved for summary
judgment in his favor.
Plaintiff testified that he pleaded guilty to the harassment
charge but then also related that the charges were dropped.
(Docket No. 33-2 at 90). The transcript of the hearing shows
the plaintiff pleaded guilty (Docket No. 37-14 at 22), but then
the hearing officer ultimately dismissed the charge (id. at 27).
Subject matter jurisdiction
Plaintiff has brought his claims for violations of the
federal and New Jersey constitutions, as well as under New
Jersey state law.
This Court has jurisdiction over plaintiff’s
federal claims under 28 U.S.C. § 1331, and supplemental
jurisdiction over plaintiff’s state law claims under 28 U.S.C. §
Standard for Summary Judgment
Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.
Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
the review of cross-motions for summary judgment reveals no
genuine issue of material fact, then judgment may be entered in
favor of the party deserving of judgment in light of the law and
See Iberia Foods Corp. v. Romeo Jr., 150 F.3d
298, 302 (3d Cir. 1998) (citation omitted).
Plaintiff contends that he was inappropriately disciplined
– and his civil rights violated - for his out-of-school postings
on YouTube and Twitter because they were innocuous and not
disruptive to the school.
Defendants’ position is that they
properly regulated plaintiff’s out-of-school speech because
plaintiff’s internet postings disparaged and otherwise harassed,
intimidated and bullied fellow students, which, along with
plaintiff’s initial denial of his involvement, caused a
substantial disruption at Cedar Creek High School, and
implicated defendants’ duty to respond to the complaints of
harassment, intimidation and bullying (“HIB”) under the New
Jersey Anti-Bullying Bill of Rights Act.
In relevant part, the First Amendment proclaims:
shall make no law . . . abridging the freedom of speech.”
guarantees “both the right to speak freely and the right to
refrain from speaking at all.”
Wooley v. Maynard, 430 U.S. 705,
“Government actions, which standing alone do not
violate the Constitution, may nonetheless be constitutional
torts if motivated in substantial part by a desire to punish an
individual for exercise of a constitutional right.”
Horn, 318 F.3d 523, 530 (3d Cir. 2003) (quotations and citations
The authority for a school to discipline a student for his
out-of-school speech derives from Supreme Court precedent and
New Jersey state law.
“[S]tudents do not shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate,” but the First Amendment has to be “applied in
light of the special characteristics of the school environment.”
Morse v. Frederick, 551 U.S. 393, 396-97 (2007) (quotations and
Under the general rule set forth in Tinker
v. Des Moines Independent Community School District, 393 U.S.
503, 513 (1969), school speech may be restricted if it can be
“justified by a showing that the students’ [speech] would
materially and substantially disrupt the work and discipline of
the school.” 4
The authority of the school to do so is not limited to inschool speech, as “schools may punish expressive conduct that
occurs outside of school, as if it occurred inside the
Layshock ex rel. Layshock v. Hermitage
Sch. Dist., 650 F.3d 205, 219 (3d Cir. 2011).
“[I]f a school
can point to a well-founded expectation of disruption . . . the
The Supreme Court has identified three “narrow” circumstances
in which the government may restrict student speech even when
there is no risk of substantial disruption or invasion of
others’ rights: (1) vulgar, lewd, profane, or plainly offensive
speech in schools, even if it would not be obscene outside of
school, (2) speech that “a reasonable observer would interpret
as advocating illegal drug use” and that cannot “plausibly be
interpreted as commenting on any political or social issue,” and
(3) restrictions on school-sponsored speech that are “reasonably
related to legitimate pedagogical concerns.” B.H. ex rel. Hawk
v. Easton Area Sch. Dist., 725 F.3d 293, 303–04 (3d Cir. 2013)
(some quotations and citations omitted).
restriction may pass constitutional muster.”
Saxe v. State
Coll. Area Sch. Dist., 240 F.3d 200, 212 (3d Cir. 2001).
burden cannot be met, however, if school officials are driven by
“a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint.”
J.S. ex rel. Snyder
v. Blue Mountain Sch. Dist., 650 F.3d 915, 926 (3d Cir. 2011).
With regard to speech that constitutes harassment,
intimidation or bullying, the New Jersey Legislature enacted the
Anti-Bullying Bill of Rights Act, N.J.S.A. 18A:37-13.2, et seq.,
“strengthen the standards and procedures for preventing,
reporting, investigating, and responding to incidents of
harassment, intimidation, and bullying” occurring both on and
off of school grounds.
district in New Jersey is required to “adopt a policy
prohibiting harassment, intimidation or bullying on school
property,” which includes notification of the “consequences and
appropriate remedial action for a person who commits an act of
harassment, intimidation or bullying,” “a procedure for
reporting an act of harassment, intimidation or bullying,
including a provision that permits a person to report an act of
harassment, intimidation or bullying anonymously,” and “a
procedure for prompt investigation of reports of violations.”
“The policy adopted by each school district
. . . shall include provisions for appropriate responses to
harassment, intimidation, or bullying . . . that occurs off
school grounds, in cases in which a school employee is made
aware of such actions.” N.J.S.A. 18A:37-15.3.
The statute defines “harassment, intimidation or bullying”
[A]ny gesture, any written, verbal or physical act, or any
electronic communication, whether it be a single incident
or a series of incidents, that is reasonably perceived as
being motivated either by any actual or perceived
characteristic, such as race, color, religion, ancestry,
national origin, gender, sexual orientation, gender
identity and expression, or a mental, physical or sensory
disability, or by any other distinguishing characteristic,
that takes place on school property, at any schoolsponsored function, on a school bus, or off school grounds
as provided for in section 16 of P.L.2010, c. 122
(C.18A:37-15.3), that substantially disrupts or interferes
with the orderly operation of the school or the rights of
other students and that:
a. a reasonable person should know, under the
circumstances, will have the effect of physically or
emotionally harming a student or damaging the student's
property, or placing a student in reasonable fear of
physical or emotional harm to his person or damage to his
b. has the effect of insulting or demeaning any student or
group of students; or
c. creates a hostile educational environment for the
student by interfering with a student's education or by
severely or pervasively causing physical or emotional harm
to the student.
Within the foregoing parameters of a school’s ability to
restrict a student’s speech, in order to prove a First Amendment
violation claim a plaintiff must show: (1) constitutionally
protected conduct, (2) retaliatory action sufficient to deter a
person of ordinary firmness from exercising his constitutional
rights, and (3) a causal link between the constitutionally
protected conduct and the retaliatory action.
F.3d at 530.
“[T]he key question in determining whether a
cognizable First Amendment claim has been stated is whether ‘the
alleged retaliatory conduct was sufficient to deter a person of
ordinary firmness from exercising his First Amendment rights.’”
Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing
McKee v. Hart, 436 F.3d 165, 170 (3d Cir.2006) (quoting Suppan
v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). 5
In this case, even drawing all favorable inferences in
plaintiff’s favor, the Court cannot find that defendants
violated plaintiff’s rights under the New Jersey or federal
constitutions to free speech because plaintiff’s speech was of
the type the school was permitted to – and indeed required to –
In order to support his First Amendment violation claim against
the School Board, plaintiff must show that it “acted pursuant to
a formal government policy or a standard operating procedure
long accepted within the government entity,” or “when the
decision-maker has policy making authority rendering his or her
behavior an act of official government policy,” or “an official
with authority has ratified the unconstitutional actions of a
subordinate, rendering such behavior official for liability
purposes.” McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005)
(discussing Monell v. Dep't. of Soc. Serv., 436 U.S. 658, 694
(1978)). Plaintiff has failed to provide any evidence to
support any of these theories of municipal liability.
First, with regard to the December 2013 YouTube video, even
accepting plaintiff’s position that his video criticizing
another player’s prowess at football does not qualify as HIB
speech, the two-day suspension did not chill plaintiff’s
exercise of his First Amendment rights.
Just a few weeks after
being disciplined for the YouTube video, plaintiff made postings
on the Twitter account regarding the same individual’s athletic
A First Amendment violation claim cannot be
sustained when the plaintiff’s cannot establish a key element of
Next, with regard to the Twitter account, the content of
the messages that were posted on the account co-owned and
operated by plaintiff clearly fall into the definition of
“harassment, intimidation or bullying” detailed in N.J.S.A.
The “tweets” were insulting and demeaning to
plaintiff’s classmates, and were motivated by race, gender, or
other distinguishing characteristics of those students.
Although plaintiff denies posting any comments other than those
directed to disparaging a certain student’s athletic abilities,
such comments still fall into the definition of HIB.
plaintiff does not dispute that he was a co-participant in the
operation of the Twitter account, which unarguably contained
disparaging comments directed to students’ race, gender and
other physical and mental characteristics.
appears from the record that the school officials were able to
capture several screen shots of the Twitter account before it
was deactivated, but the postings captured and listed by
defendants are not the entirety of the posts on the Cedar Creek
It is of no moment that one of the targets of plaintiff’s
taunts is, according to plaintiff, still his friend.
entirety of Cedar Creek Raw, for which plaintiff was coresponsible, contained HIB speech, about which students and
parents complained, and those complaints were not limited to
The administrators were required by state
law to investigate the complaints about plaintiff’s Twitter
account, which took them away from other school duties.
disruption was compounded by plaintiff initially lying about his
involvement, causing the school administrators to continue their
Complaints from parents and students about the
HIB-speech content of the Twitter account, and an investigation
into those complaints, which was stymied by plaintiff’s
intentional decision to lie about his involvement, constitute
the “material and substantial disruption” to the “work and
discipline of the school” requirement necessary to permit the
school to discipline plaintiff for his out-of-school speech.
To rebut this conclusion, plaintiff makes several
unavailing arguments in addition to those referenced above.
First, plaintiff argues that only inadmissible hearsay – in the
form of undocumented parent and student complaints - supports
the school’s awareness of the Twitter account that triggered its
investigation, and the existence of the “tweets” attributable to
Without admissible evidence, plaintiff argues that
defendants cannot support their burden of showing that their
investigation was required under the Anti-Bullying Act and that
it resulted in disruption to the school.
In other words, it
seems that plaintiff is arguing that because no admissible proof
supports the existence of parent and student complaints,
defendants’ investigation was motivated not by their obligations
under the Anti-Bullying Act but rather by a desire to restrict
unconstitutionally plaintiff’s out-of-school freedom of
This argument is meritless.
Without parents or students
reporting the existence of the Twitter account to the school
administrators, which may be done anonymously under the Act,
N.J.S.A. 18A:37-15, how would the school administrators learn
about the Twitter account?
They would need to “hear” about it
in some fashion in order to view it.
Putting that aside,
plaintiff himself ultimately admitted to his involvement in the
The existence of the Twitter account, its
contents, and the resulting investigation are supported by
plaintiff’s own statements, which clearly are not hearsay.
Second, plaintiff argues that the colloquy at the court
hearing for the harassment charge shows that Ottepka admitted
that plaintiff only made two jokes on Twitter about another
student’s basketball abilities, which therefore does not support
the discipline plaintiff received for exercising his right to
The transcript of the hearing does not support this
Plaintiff pleaded guilty to the harassment charge,
and briefly described the situation to the hearing officer by
stating that he and his friend created a Twitter account to
anonymously make fun of other students and used it to tweet
about a basketball player.
(Docket No. 37-14 at 22-23.)
hearing officer asked Ottepka if that was what happened, Ottepka
replied, “pretty much.”
The hearing officer asked if Ottepka
had anything more to add, and he said no.
(Id. at 23.)
statements do not support plaintiff’s attempt to discredit the
school’s determination that plaintiff made HIB speech on
Plaintiff argues that his case is analogous to cases that
involved two out-of-school MySpace “parody pages” of high school
principals created by students.
Those types of pages were held
to be free speech that could not be restricted because there was
no evidence that these webpages substantially disrupted the
school environment other than to insult the principal.
Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205,
217 (3d Cir. 2011); J.S. ex rel. Snyder v. Blue Mountain Sch.
Dist., 650 F.3d 915, 920 (3d Cir. 2011).
The Court does not
This case is more akin to an out-of-school MySpace
webpage titled “Students Against Shay's Herpes,” which was
created by a high school student in reference to another high
school student, Shay N., who was the main subject of discussion
on the webpage.
See Kowalski v. Berkeley Cty. Sch., 652 F.3d
565, 568–69 (4th Cir. 2011).
In Kowalski, the Fourth Circuit found that the school did
not violate the website creator’s First Amendment rights when
she was suspended for nine days for creating a “hate website” in
violation of the school policy against “harassment, bullying,
and intimidation,” because the website met the Tinker test for
being disruptive to the school environment.
Kowalski, 652 F.3d
The court explained:
While Kowalski does not seriously dispute the harassing
character of the speech on the “S.A.S.H.” webpage, she
argues mainly that her conduct took place at home after
school and that the forum she created was therefore subject
to the full protection of the First Amendment. This
argument, however, raises the metaphysical question of
where her speech occurred when she used the Internet as the
medium. Kowalski indeed pushed her computer's keys in her
home, but she knew that the electronic response would be,
as it in fact was, published beyond her home and could
reasonably be expected to reach the school or impact the
school environment. She also knew that the dialogue would
and did take place among Musselman High School students
whom she invited to join the “S.A.S.H.” group and that the
fallout from her conduct and the speech within the group
would be felt in the school itself. Indeed, the group's
name was “Students Against Sluts Herpes” and a vast
majority of its members were Musselman students. As one
commentator on the web-page observed, “wait til [Shay N.]
sees the page lol.” Moreover, as Kowalski could
anticipate, Shay N. and her parents took the attack as
having been made in the school context, as they went to the
high school to lodge their complaint.
There is surely a limit to the scope of a high
school's interest in the order, safety, and well-being of
its students when the speech at issue originates outside
the schoolhouse gate. But . . . [g]iven the targeted,
defamatory nature of Kowalski's speech, aimed at a fellow
classmate, it created “actual or nascent” substantial
disorder and disruption in the school. First, the creation
of the “S.A.S.H.” group forced Shay N. to miss school in
order to avoid further abuse. Moreover, had the school not
intervened, the potential for continuing and more serious
harassment of Shay N. as well as other students was real.
Experience suggests that unpunished misbehavior can have a
snowballing effect, in some cases resulting in “copycat”
efforts by other students or in retaliation for the initial
Kowalski, 652 F.3d at 573 (citing Tinker, 393 U.S. at 508, 513;
Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243, 257
(3d Cir. 2002) (indicating that administrators may regulate
student speech any time they have a “particular and concrete
basis” for forecasting future substantial disruption)).
Here, plaintiff admittedly co-managed a Twitter account
which posted demeaning and derogatory comments about fellow
The page was directed at his fellow high school
students – calling it Cedar Creek Raw – and it garnered 50-100
followers during its existence.
Plaintiff clearly intended the
subjects of the tweets contained on that page to read them or
hear about them, as well as the 50-100 other students who
followed the page.
Parents and students complained to the
school about plaintiff’s Twitter page, and the school defendants
were required by state law to investigate the complaints.
Plaintiff initially lied to school administrators during their
investigation about his involvement, which extended their need
to interrupt their other professional obligations to continue
investigating the source of the Twitter account.
observed by the court in Kowalski, if plaintiff’s Twitter page
had been left unaddressed, it could have multiplied the
harassment and bullying of other students and further increased
the impact on the school operations.
The difference between this case and Kowalski, and
Layshock and Blue Mountain, is that plaintiff’s Twitter account
and Kowalski’s MySpace page implicated anti-bullying policies
and procedures set in place to manage harassment, intimidation
and bullying against other students, whether that harassment,
intimidation and bullying occurs on-site or off-site.
pointed out in Kowalski, if plaintiff’s Twitter account had been
created using a school-provided computer and Internet
connection, the “case would be more clear-cut, as the question
of where speech that was transmitted by the Internet ‘occurred’
would not come into play. . . .
In that case, because it was
determined to be in-school speech, its regulation would be
permissible not only under Tinker but also, as vulgar and lewd
in-school speech, under Fraser.
Kowalski, 652 F.3d at 573; see
also Layshock, 650 F.3d at 220–21 (Jordan, J. concurring) (en
banc) (noting that the “heavy focus in the concurrence on an
‘off-campus versus on-campus’ distinction is artificial and
untenable in the world we live in today.
For better or worse,
wireless internet access, smart phones, tablet computers, social
networking services like Facebook, and stream-of-consciousness
communications via Twitter give an omnipresence to speech that
makes any effort to trace First Amendment boundaries along the
physical boundaries of a school campus a recipe for serious
problems in our public schools.
Tinker teaches that schools are
not helpless to enforce the reasonable order necessary to
accomplish their mission”).
Consequently, because plaintiff’s out-of-school speech
reached into the school, constituted harassment, intimidation
and bullying, and triggered the school’s obligations under the
Anti-Bullying Act, the Court cannot find that defendants
violated plaintiff’s First Amendment rights. 6
Because the Court has determined that defendants did not
violate plaintiff’s constitutional rights, the Court does not
need to undertake the second part of the qualified immunity
analysis. McKee v. Hart, 436 F.3d 165, 169 (3d Cir. 2006)
(citations and quotations omitted) (“Qualified immunity
insulates government officials performing discretionary
functions from suit insofar as their actions could reasonably
have been thought consistent with the rights they are alleged to
The Court must pause before concluding to address several
issues raised by plaintiff in his briefing.
to argue that commingled with his claim that defendants violated
N.J.A.C. 6A:16–7.5(b), his procedural and substantive due
process rights were violated regarding defendants’ purported
failures in conducting its investigation of HIB complaints
against plaintiff, and defendants’ alleged failures in informing
plaintiff of his rights to challenge his suspension.
process claims are not a part of plaintiffs’ case, as evidenced
by the Court’s Opinion resolving plaintiff’s motion for leave to
file an amended complaint and defendants’ motion to dismiss.
Nonetheless, the Court wishes to address several arguments made
by plaintiff to the extent that these issues inform the analysis
of plaintiff’s free speech claims.
Plaintiff argues that defendants violated N.J.A.C. 6A:16–
7.5(b), which provides, “School authorities shall respond to
harassment, intimidation, or bullying that occurs off school
grounds, pursuant to N.J.S.A. 18A:37-14 and 15.3 and N.J.A.C.
6A:16-1.3, 7.1, and 7.7.”
Plaintiff argues that this provision
have violated. To determine whether an official has lost his or
her qualified immunity, we must first decide whether a
constitutional right would have been violated on the facts
alleged. If the answer to that question is ‘yes,’ we must then
consider whether the right was clearly established. If we also
answer ‘yes’ to the second question, we must conclude that the
official does not have qualified immunity.”).
was violated because:
(1) Plaintiff was not provided with the procedural
protections of N.J.S.A. 18A:37-14, which is the provision quoted
above with regard to the definition of “harassment, intimidation
Plaintiff argues that his speech, even if he were held
accountable for the entirety of the Twitter account postings,
does not qualify as HIB speech because it was not disruptive to
He also argues that the comment “nigga bug eyes” is
not directed at a student’s race, and therefore does not
constitute restrictable speech, because plaintiff is black and
the target of that tweet is white.
The Court has already found that the tweets plaintiff
admitted to, along with the remainder of the postings for which
he is responsible as co-owner of the account, caused, and could
have continued to cause, disruption to the school if the school
had not intervened.
Plaintiff’s second argument is not only
misguided, it is factually inaccurate as the content of the
Twitter account was not limited to race-related comments.
(2) Defendants did not advise plaintiff’s parents of their
procedural rights under N.J.S.A. 18A:37-15(b)(11) because the
school did not post the appeal procedures on its website or mail
the procedures to them;
(3) defendants precluded plaintiff’s right of review and
appeal up to the Commission of Higher Education pursuant to
N.J.S.A. 18A:37-15(b)(11) and (b)(6)(a)-(e);
(4) the Anti-Bullying specialist did not conduct the
These three arguments are without merit.
On February 24,
2014, Vice-Principal Parker mailed a letter to plaintiff’s
parents explaining that plaintiff violated the harassment,
intimidation and bullying policy, he was being suspended and
criminal charges were being filed, they could contact the
homebound coordinator for homebound instruction during the
suspension period, an administrative review conference was
scheduled for March 6, 2014 in the principal’s office, and their
attendance was required.
(Docket No. 33-2 at 43.)
has not submitted any evidence to support how defendants
thereafter violated the hearing and appeal procedures set forth
in the Anti-Bullying Act.
With regard to the Anti-Bullying Specialist argument, the
school’s Anti-Bullying Specialist, Erin Byrnes, participated in
(Docket No. 33-5 at 4.)
Moreover, the Anti-
Bullying Act does not require the Anti-Bullying Specialist to be
the only school official who may conduct the investigation.
N.J.S.A. 18A:37-15(6)(a) (“[T]he investigation shall be
initiated by the principal or the principal's designee within
one school day of the report of the incident and shall be
conducted by a school anti-bullying specialist.
may appoint additional personnel who are not school antibullying specialists to assist in the investigation.”).
(5) Vice-Principal Parker made findings of fact and imposed
final discipline contrary to N.J.S.A. 18:A:37-15(b)(6)(a) and
Plaintiff argues that the discipline for his infraction was
required to be “varied and graded according to the nature of the
behavior, the developmental age of the student, and the
student’s history of problem behaviors and performance,”
according to N.J.A.C. 6A:16-7.1, and defendants failed to do so.
Other than stating that defendants failed to perform the
analysis required by N.J.A.C. 6A:16-7.1, plaintiff has not
provided any evidence to support that argument.
Finally, the Anti-Bullying Act “shall not be interpreted to
prevent a victim from seeking redress under any other available
law, either civil or criminal, and does not create or alter any
N.J.S.A. 18A:37-37, and therefore cannot
support an independent cause of action.
The NJCRA also does not
provide for a procedural due process claim.
Major Tours, Inc.
v. Colorel, 799 F. Supp. 2d 376, 405 (D.N.J. 2011) (“[A]
procedural due process claim cannot be brought under the
In sum, plaintiff’s attempts to include due process claims
within his claim for violations of N.J.A.C. 6A:16–7.6 fail.
for his direct claim that defendants violated N.J.A.C. 6A:16–
7.6, the New Jersey Appellate Division has explained, “A plain
reading of N.J.A.C. 6A:16–7.6 reveals that the authority granted
to a local board to regulate student conduct is conditioned upon
the board demonstrating: (1) that the regulation is reasonably
necessary to protect the physical and emotional safety of a
student; and (2) that the conduct subject to disciplinary
consequences materially and substantially interferes with the
orderly operation of the school.”
G.D.M. v. Board of Education
of the Ramapo Indian Hills Regional High School Dist., 48 A.3d
378, 386 (N.J. Super. Ct. App. Div. 2012).
The Court’s analysis
of plaintiff’s First Amendment violation claim demonstrates that
plaintiff cannot support his claim for a violation of N.J.A.C.
The Court is mindful of the significant importance of the
First Amendment and how students “do not shed their
constitutional rights to freedom of speech or expression at the
Morse, 551 U.S. at 396.
The New Jersey
It is also questionable whether an independent cause of action
exists for a school’s alleged violation of this New Jersey
regulation. See Castro v. NYT Television, 851 A.2d 88, 93 (N.J.
Super. App. Div. 2004) (“New Jersey courts have been reluctant
to infer a statutory private right of action where the
Legislature has not expressly provided for such action.”).
Legislature has made it clear, however, that the First Amendment
does not protect student speech that amounts to harassment,
intimidation, or bullying of other students.
In enacting the
Anti-Bullying Bill of Rights Act:
The Legislature finds and declares that: a safe and civil
environment in school is necessary for students to learn
and achieve high academic standards; harassment,
intimidation or bullying, like other disruptive or violent
behaviors, is conduct that disrupts both a student's
ability to learn and a school's ability to educate its
students in a safe environment; and since students learn by
example, school administrators, faculty, staff, and
volunteers should be commended for demonstrating
appropriate behavior, treating others with civility and
respect, and refusing to tolerate harassment, intimidation
The Legislature further noted that in 2008 “32% of students
aged 12 through 18 were bullied in the previous school year,”
“25% of the responding public schools indicated that bullying
was a daily or weekly problem,” and that by 2010, “the chronic
persistence of school bullying has led to student suicides
across the country, including in New Jersey.”
The Legislature’s intent in enacting the Anti-Bullying
Act was to “strengthen the standards and procedures for
preventing, reporting, investigating, and responding to
incidents of harassment, intimidation, and bullying of students
that occur in school and off school premises.”
To that end, although schools are required to provide
students with some level of due process, “maintaining security
and order in the schools requires a certain degree of
flexibility in school disciplinary procedures, and we have
respected the value of preserving the informality of the
Fraser, 478 U.S. at 686
In this case, plaintiff may not feel that his YouTube video
and Twitter posts were harassing, intimidating, or bullying to
other students, and that the discipline imposed for his conduct
But under the law governing speech by students
in and out of school, in conjunction with the purpose and goals
of the Anti-Bullying Act, the Court finds that plaintiff’s First
Amendment rights, and the attendant procedural rights under
N.J.A.C. 6A:16–7.6 and the Anti-Bullying Act, were not violated
by his vice-principal, the school resource officer, or the
Consequently, defendants are entitled to summary
judgment in their favor on all of plaintiff’s claims, and
plaintiff’s cross-motion for summary judgment in his favor must
An appropriate Order will be entered.
Date: October 20, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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