A New Jersey school’s “anti-bullying specialist” has determined that a student’s statement, “although truthful and on a matter of public concern,” amounted to bullying because it made another student “sad, a little mad, and alone.”
A lawsuit now is challenging the decision, charged the offending student has been injured and hurt himself.
The case was brought by the Rutherford Institute on behalf of a student identified as L.L. against officials and schools in Westmont, N.J.
The comment came after parents at L.L.’s school had been notified that a student had head lice.
Rutherford said that a few days after a note was sent home to the parents of a class of 4th grade students, several students were sitting at a group table completing an assignment together.
“During the discussion, 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 comment prompted a school investigation that concluded L.L.’s words constituted bullying and he should be punished.
The lawsuit charges that on their face, the New Jersey harassment, intimidation or bullying statute and the substantially identical policy of the school board violated equal protection as guaranteed by the Fourteenth Amendment.
Without a compelling basis, the complaint says, the statutes “permit school administrators to subjectively create a class of favored speakers whose speech content is deemed not to ‘hurt feelings’ and another class of disfavored speakers whose speech content is deemed to constitute bullying.”
The case seeks a ruling that the New Jersey “anti-bullying” law is unconstitutional “in light of its chilling effect on students’ free speech rights.”
The latest brief in the case was filed to counter a move by the New Jersey commissioner of education to dismiss the lawsuit.
It alleges that enforcing draconian and fluid anti-bullying rules violates the rights of students under the First and Fourteenth Amendments.
“What school officials conveniently seem to keep forgetting is that students do not shed their constitutional rights at the schoolhouse gate,” said John W. Whitehead, president of the Rutherford Institute and author of “A Government of Wolves: The Emerging American Police State.” “While we all want our schools to be safe, nurturing environments for our children, anti-bullying statutes – well-meaning as they may start out – are Orwellian in nature and inevitably run afoul of the Constitution’s protections for free speech and expression.”
The source of the contention began in 2011 when New Jersey lawmakers amended their bullying law.
“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,” the institute said.
Its attorneys argue that while the purpose of the law is admirable, 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.
Arguing that the statute punishes any speech deemed “hurtful,” even if factually true and non-disruptive, attorneys for the Rutherford Institute filed a First Amendment lawsuit in federal court, asking that the statute be struck down and that students like L.L. not be penalized in accordance with the statute for exercising their constitutional rights.
According to the complaint, the student, L.L., attended a school in the Borough of Tenafly.
A school counselor, Sandra Massaro; Supt. Lynn Trager; and state Education Commissioner Christopher D. Cerf are among the defendants.
Although the incident “clearly did not substantially disrupt or interfere with the orderly operation of the school or the rights of other students, the teacher immediately reported the matter to defendant Massaro because she was the ‘bullying specialist,’” the complaint explains.
The offending student, L.L., was subjected to removal from class, which created embarrassment for him because the teacher was “ordered to re-enforce with her students the need to be kind to each other … in front of all his other classmates.”
The school board also inserted the determination of bullying in L.L.’s permanent school record.
As a result, the school’s actions “stigmatize” L.L. as an individual who has “engaged in a type of conduct that is so harmful that it causes student suicides across the country,” the complaint says.
L.L., consequently, has “sustained non-pecuniary losses in the form of emotional distress including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and such other non-pecuniary losses as may be disclosed in discovery.”
“All of the aforesaid actions of the defendants were performed willfully and intentionally for the purpose of depriving L.L. of his civil rights.”
The ruling stretches to the ludicrous, the complaint insists.
“Under this policy truthful statements of historical facts such as ‘the Germans were involved in the murder of 6 million Jews’ would be subject to punishment where a student of German origin is present,” it says.
The case seeks compensatory and punitive damages as well as the ruling that the bullying policy is unconstitutional.