From A.J. on behalf of J.J. v. Bd. of Ed., decided Apr. 9, 2020 by the N.J. Office of Administrative Law (Administrative Law Judge Jude-Anthony Tiscornia), but just posted on Westlaw a couple of days ago, reversing a student’s suspension (the opinion doesn’t seem to disclose how long the suspension was for, though it does mention that J.J. had earlier gotten a one-day out-of-school suspension and a 14-day in-school suspension “for
saying the “f” word”):
On the morning of February 6, 2019, J.J., a middle-school student within the district, was dropped off in front of his school by his parent. Before entering the school, he greeted a small group of classmates and waited with them for the school bell to ring. The group engaged in light conversation. Another student, the target, was standing with her back to the group and heard what she believed to be the “n” word uttered by someone behind her. Though she did not know the identity of the individual, she became upset and complained to her guidance consular, and an HIB [harassment, intimidation, or bullying] investigation ensued.
{On cross-examination, J.J. testified that there is a difference between the “n” word spoken and written as “nigger” and that spoken and written as “niggah.” He further testified that he never uses the “nigger” form, because he knows it to be disrespectful. He does, sometimes, use the “niggah” form among close friends, but only as a term of familiarity or endearment. He further testified that he used neither term on the morning in question.}
{Mrs. J. [J.J.’s mother] testified that J.J. has had an individualized education program since preschool for attention deficit disorder, attention deficit hyperactivity disorder, and sensory issues…. Mrs. J. then testified that based on her past experiences with the school, she believes her son is routinely targeted by the administration.}
The district acknowledges that the utterance, regardless of who said it, was not directed at the target. The district further admits that the target did not initially know the identity of the bad actor. Yet, armed with this knowledge, the district decided to conduct an HIB investigation anyway, and aided in this investigation by staging a line-up of sorts by having the target flip through photos of students until she fingered a bully.
Upon questioning, J.J. denied having said the “n” word on the morning in question, a position he reiterated under oath at the hearing. The district did not present the target as a witness, nor any other individual that heard the alleged utterance on the date in question. The only witness offered by the district that had any direct involvement in the HIB investigation, Christine Maier [a guidance counselor], testified that, aside from the target, all other students that were interviewed as part of the investigation deny that J.J. uttered any such word. Further, Maier testified that the target’s back was to the group of students when the word was uttered, and affirmed that the target did not actually see any individual utter the word. Based on the foregoing, I FIND that J.J. did not utter the “n” word on the morning in question….
Under the ABRA [Anti-Bullying Bill of Rights Act], “harassment, intimidation or bullying” means any gesture, any written, verbal, or physical act, or any electronic communication that is reasonably perceived as being motivated by any actual or perceived distinguishing characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical, or sensory disability, that takes place on school property. It must also substantially disrupt or interfere with, among other things, the orderly operation of the school. Although the ABRA does not limit “distinguishing characteristic” to those specified in the statute, it has consistently required such a perceived motivation. “Thus, harmful or demeaning conduct motivated only by another reason, for example, a dispute about relationships or personal belongings, or aggressive conduct without identifiable motivation, does not come within the statutory definition of bullying.” …
“Harassment, intimidation or bullying” means any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic, that takes place on school property, at any school-sponsored function, on a school bus, or off school grounds as provided for in section 16 of P.L.2010, c.122 (C.18A:37-15.3), that substantially disrupts or interferes with the orderly operation of the school or the rights of other students and that:
- a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student’s property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;
- has the effect of insulting or demeaning any student or group of students; or
- creates a hostile educational environment for the student by interfering with a student’s education or by severely or pervasively causing physical or emotional harm to the student.
Here, the respondent Board has failed to establish that J.J. even uttered the “n” word on the morning in question. I, therefore, CONCLUDE that any resulting HIB violation and/or code-of-conduct violation must be overturned….
Note that K-12 schools may well have broad authority to punish students for use of “vulgar and offensive terms” (or even for sexually suggestive discussions more broadly), including their use as “term[s] of familiarity or endearment” on the theory that (see Fraser v. Bethel School Dist. No. 403 (1986)):
Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Indeed, the “fundamental values necessary to the maintenance of a democratic political system” disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the “work of the schools.” The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.
And the logic of this may well apply to overheard private conversations as well, though the caselaw there seems quite scant. That’s why the question here focused on what J.J. did or didn’t say (though with a brief digression to the statutory definition of “harassment, intimidation, or bullying”), rather than on whether what he said was constitutionally protected.
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