NJ Court Addresses Rights of Students and Parents vs. Local School District

The United States District Court for the District of New Jersey recently addressed an interesting legal issue involving the rights of students and/or their parents to advocate and/or protest against their local school district. While both our New Jersey Constitution and United States Constitution guarantee every citizen, including every student, parent and/or their legal guardian of said student the right to exercise free speech, certain privacy rights, the right to petition, etc., in the case of D.V. by and through B.V. v. Pennsauken School District, 247 F. Supp. 3d 464 (2017), alleged that the uncle of a 9-year-old special needs student was retaliated against by the Pennsauken School District (hereinafter “District”) because of the exercise of these acknowledged constitutional rights. Specifically, the uncle of the special needs student, who had been advocating on behalf of his nephew against the District, alleged that the District had retaliated against him by contacting child protection services after an Individualized Education Program (IEP) meeting he had attended on behalf of his nephew. At the IEP meeting, during a discussion regarding the student’s hygiene issues, the uncle had disclosed that to help the student with his inadequate self-grooming habits, he had entered into the shower three times with the student and showed him how to wash. The uncle also attempted to clarify his testimony by indicating that he really went into the bathroom, rather than the actual shower stall/tub, while the boy showered; the uncle insisted that he stayed out of the shower stall/tub.

The Court gave the uncle and the concerned student the benefit of all reasonable inferences from the evidence. After initially being told by the phone screener on behalf of child protective services that no further action would be taken because the information that was relayed was not abuse, representatives of the District called again and contacted child support services a second time and, this time, advised child support services that the classified student’s Child Study Team (CST) was unhappy with child protective services’ initial decision to take no further action. After this, child protective services changed its position and investigated the matter. This investigation concluded that no abuse and/or neglect had occurred.

The Retaliation Act and the Americans with Disabilities Act (ADA)

In considering whether retaliation had occurred after the uncle appealed, the Court appropriately considered the elements of a retaliation claim under 42 U.S.C. Section 1983 (First Amendment), The Retaliation Act and the Americans with Disabilities Act (ADA). The Court entered Summary Judgment in favor of the District and the Director of Special Education on the retaliation claim because it found no causal connection between the alleged protected activity, i.e., the uncle’s educational advocacy on behalf of the concerned student, and the alleged retaliatory act, i.e., the District’s calls to child protective services complaining about the uncle. The Court held that there was no fact question regarding District representatives having a legitimate concern about an adult getting into the shower with a 9-year-old mentally challenged child three times and showing him how to wash, including his private parts. The Court accordingly concluded that no jury could reasonably find there was a causal connection between the plaintiff’s educational advocacy and the calls to child protective services, especially since New Jersey law requires that any person having reasonable cause to believe that a child has been subjected to acts of child abuse and/or neglect shall report same immediately.

NJ Court Addresses Claims of Sexual Orientation Bullying at School

The Court also addressed whether claims of sexual orientation bullying on behalf of the student were actionable. Four general bullying complaints were made to the District on behalf of the student, one of which was related to the student’s sexual orientation. The student, through his uncle, had claimed that the District had not appropriately responded to “sexual orientation” bullying directed at the student. The uncle and student also complained that the student was called “gay” in class, alleging that students circled him and called him “gay” while the teacher was out of the room. An HIB investigation, conducted by the District, did not corroborate that the incident occurred.

At a May 16, 2012 meeting directed at efforts to get the student to return to school after his uncle had removed him from school due to safety concerns, a school psychologist allegedly made comments “that students commonly call each other gay, they act like typical 5th and 6th graders when they use this language…”, and the concerned student “…should not be upset by the language used…” Although the Court felt that the statements made by the school psychiatrist may have been insensitive, it could not infer that her attitude pervaded the District, and further, the Court concluded that there was no evidence that the psychiatrist had supervisory responsibilities or disciplined school personnel such as to subject the District to liability. The Court determined that the sexual orientation bullying of D.V. was isolated (only on one or possibly two occasions) and was not so severe or pervasive to be actionable.

The Court relied on the testimony of D.V. that the bullying no longer bothered him, as well as D.V.’s psychiatric report which indicated that D.V. had no anxiety or depression. The Court, citing L.W. ex rel. L.G. v. Toms River Regional Schools Bd. Of Educ., 189 N.J. 381, (2007), held that isolated insults or classroom taunts are not actionable and that to be actionable in the educational context, “an aggrieved student must allege discriminatory conduct that would not have occurred ‘but for’ the student’s protected characteristic, that a reasonable student of the same age, maturity level, and protected characteristic would consider sufficiently severe or pervasive enough to create an intimidating, hostile, or offensive school environment, and that the school district failed to reasonably address such conduct.” Id. at 402-403.

Results of the Investigation

The Court also determined that a jury could not help but find that the District reasonably addressed the one reported sexual orientation bullying incident. The Court found that the existing record would not permit a jury to reasonably conclude that the District had acted unreasonably in responding to the sexual orientation harassment directed toward D.V. The Court determined that soon after the complaint was brought to the District’s attention, it interviewed the students and teacher who were allegedly involved, conducted an HIB investigation, and responded promptly to the complaints. The Court noted further that the effectiveness of the District’s actions could be evidenced by the fact that no other sexual orientation bullying of the student was reported after the one incident.

For the same reasons, the Court entered summary judgment for the District on the plaintiff’s Title IX claim. The Court held that the evidence did not support a finding that the sexual orientation insults were severe or pervasive; or that, as is required under Title IX, the District was “deliberately indifferent” to the concerned student’s complaints.