NEWARK, N.J. — Attorneys for The Rutherford Institute have asked a federal court to hold a New Jersey school superintendent and “Bullying Specialist” accountable for unreasonably enforcing the state’s anti-bullying law as an unconstitutional restraint on students’ free speech rights. The Rutherford Institute’s brief comes in response to a federal judge’s question as to whether the individual defendants should be dismissed from the lawsuit.
Institute attorneys argue that the “Bullying Specialist” and Superintendent’s discretionary enforcement of the state’s anti-bullying act represents a violation of the student’s due process and equal protection rights under the Fourteenth Amendment to the U.S. Constitution, and a violation of his free speech rights under New Jersey’s state constitution, and that school officials should be held accountable for their actions in enforcing the district policy. Institute attorneys filed the free speech lawsuit in December 2013 on behalf of a 4th grade boy who was punished under state’s anti-bullying law for truthfully stating that a fellow student had head lice.
“School administrators who engage in a pattern of overreach, effectively criminalizing student speech, must be held accountable,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “While administrators face a difficult task in providing a safe learning environment for our children, they must not enforce rules at the cost of running afoul of the Constitution’s protections for free speech and expression.”
In 2011, New Jersey amended its bullying law with sweeping reforms that significantly impacted student speech rights. Under the new law, the state created new “Anti-Bullying Specialist” positions in each district, who were responsible for identifying and reporting “harassment, intimidation or bullying” violations by students. Rutherford Institute attorneys argue that the law’s scope is unconstitutionally broad and the language is too vague to give parents or students adequate notice about what statements will or will not be prohibited.
For example, Institute attorneys pointed to an incident that took place in September 2011, when a 4th grade boy was punished under the act for correctly stating that a fellow student had head lice, despite the fact that a few days earlier, school officials had sent a note home to parents warning them that one of the students had head lice. In a subsequent conversation among several students, one student asked a female student why she had dyed her hair. After she failed to respond to the question, one young boy, L.L., correctly replied that she had done so because she was the student who had head lice. The female student complained to the teacher who in turn instructed L.L. to apologize. The teacher then reported the incident to the school’s “Anti-Bullying Specialist,” who filled out a bullying report and reported to the Superintendent. The student was subsequently forced to undergo a special sensitivity assignment, and the entire class was reminded about the need to be kind to each other, which further embarrassed the fourth grader.
L.L.’s parents appealed the bullying determination first with the local school board, and then with the state Board of Education, both of which affirmed the decision. Arguing that the statute punishes any speech deemed “hurtful,” even if factually true and non-disruptive, attorneys for The Rutherford Institute filed a free speech lawsuit in federal court, asking that the statute be struck down, and that students like L.L. not be penalized for exercising their constitutional rights. Affiliate attorney Mike Daily is assisting in the case.