Anti-Bullying and Free Speech Separated By Unclear Line

A Hackettstown student used a derogatory comment for a police officer during a class discussion and under the State's Harassment, Intimidation and Bullying (HIB) policy, was suspended for one day after a hearing. The student then sued the school for violating her right to free speech. Additionally, in the suit, the practices of the school administration were called into question as, when discussing the matter with the student, school officials allegedly likened the student's comments to epithets regarding race and sexual orientation. The comments by the student were made during a discussion in school relating to police interactions with minorities. The HIB statues are broadly construed to include characteristics such as height, physical fitness and other characteristics not typically encompassed in workplaces and other settings where similar statutes are applied. The remark was made about a fictional officer and did not pertain to anyone present. One student present is the child of a police officer and found the comment offensive. The question at hand is whether a student may express their views when other students may find those views hurtful or insensitive to the degree that they would violate the HIB statutes. Although an argument could be made that HIB statutes may be misused to punish political speech by students, such an argument could be made only after the speech, political or otherwise, was found offensive by another student or the administration. The within matter, a hostile education environment claim under Title VI of the Council Rights Act of 1964, claiming violations of the First Amendment and ther Law Against Discrimination remains pending in federal court. This is not the first time that New Jersey's Anti-Bullying Bill of Rights Act has conflicted with freedom of speech rights. Courts have found mixed results in these cases including throwing out a suit by a teacher who was reprimanded for a violation and upholding the schools right to suspend a student who posted on social media about school related matters. In denying a motion to dismiss, filed by Hackettstown School District, U.S. District Court Judge found merit in the student's claims of infringement of her rights and claims against the administration for creating a hostile environment. Others find the statute to be much more clear and believe that if the harassment, intimidation and bullying statutes apply, then the First Amendment protections claimed by the student must yield to the statute. A significant prong in the analysis is whether the behavior in question actually touches the school. Due to claims of vagueness, new regulations relating to the HIB statute were adopted by the NJ State Department of Education which afforded greater discretion to principals but some believe greater clarification is required regarding the intersection of anti-bullying laws and the First Amendment. If your child has been bullied and it is not being taken seriously or your child is accused of violating anti-bullying statutes, visit DarlingFirm.com or contact us for assistance.