Dunkley v. Bd. of Educ. of the Greater Egg Harbor Reg'l High Sch. Dist.
| Decision Date | 20 October 2016 |
| Docket Number | Civil No. 14–7232 (NLH/KMW) |
| Citation | 216 F.Supp.3d 485 |
| Parties | Bryshawn DUNKLEY, Plaintiff, v. BOARD OF EDUCATION OF THE GREATER EGG HARBOR REGIONAL HIGH SCHOOL DISTRICT, Scott Parker, and Edward Ottepka, Defendants. |
| Court | U.S. District Court — District of New Jersey |
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.
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 policies. Presently before the Court are defendants' motion for summary judgment and plaintiff's cross-motion for summary judgment. 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 student. The school became aware of the existence of the Twitter account through complaints from students and parents. The Twitter account included postings such as:
Defendants Vice–Principal Scott Parker and school resource officer Edward Ottepka investigated the Twitter account, and questioned plaintiff about his involvement. Plaintiff denied he was involved in the Twitter postings. 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 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. § 1367.
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Fed. R. Civ. P. 56(a). If 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 undisputed facts. 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: "Congress shall make no law ... abridging the freedom of speech." It guarantees "both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard , 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). "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." Mitchell v. Horn , 318 F.3d 523, 530 (3d Cir. 2003) (quotations and citations omitted).
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, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (quotations and citations omitted). Under the general rule set forth in Tinker v. Des Moines Independent Community School District , 393 U.S. 503, 513, 89 S.Ct. 733, 21 L.Ed.2d 731 (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 in-school speech, as "schools may punish expressive conduct that occurs outside of school, as if it occurred inside the ‘schoolhouse gate.’ " 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 restriction may pass constitutional muster." Saxe v. State Coll. Area Sch. Dist. , 240 F.3d 200, 212 (3d Cir. 2001). This 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., to "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. N.J.S.A. 18A:37–13.1(f). Each school 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." N.J.S.A. 18A:37–15. "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" to mean:
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