A Capehart Scatchard Blog

First Amendment Does Not Protect Student Speech That Amounts to HIB

By on November 1, 2016 in Students with 0 Comments

What is the connection between the First Amendment right to free speech and the New Jersey Anti-Bullying Bill of Rights Act? On October 20, 2016, the U.S. District Court for the District of New Jersey in Dunkley v. Greater Egg Harbor Regional School District, 2016 U.S. Dist. LEXIS 145389 (2016) answered this precise question: a student’s First Amendment right to free speech is not protected when that speech amounts to harassment, intimidation, or bullying (“HIB”).

In December 2013, high school senior Bryshawn Dunkley was suspended for two days for his out-of-school conduct in which he posted a video on YouTube that criticized a football teammate. Approximately two months later in February 2014, Dunkley was suspended for nine days after the school learned that he and another student operated an anonymous Twitter account in which they criticized, ridiculed, and targeted several students. Initially, Dunkley denied his involvement in the Twitter postings. However, after the other student admitted to the conduct and confirmed Dunkley was a co-owner of the account, Dunkley finally admitted to his participation.

The school also conducted a formal HIB investigation pursuant to the New Jersey Anti-Bullying Bill of Rights Act and determined that Dunkley’s conduct constituted HIB in violation of the state’s statute and the school’s policies. In addition, the school filed a juvenile complaint with the local police department.

Dunkley and his parents sued the school district alleging that his First Amendment right to free speech was violated when the school disciplined him for the YouTube and Twitter postings. The District Court found in favor of the school district and reasoned that Dunkley’s free speech rights could not have been violated because his speech – one that harasses, intimidates, or bullies other students – is the exact type of speech that school districts are required to restrict. Specifically, the Anti-Bullying Bill of Rights Act triggered the school district’s obligation to investigate the origination of the Twitter account as a potential HIB. Once the school district determined Dunkley’s conduct amounted to HIB, it was within its discretion to impose a nine-day suspension.

While recognizing that students do not lose their constitutional rights to free speech when they enter the school building, the District Court could not find in favor of Dunkley. School districts may restrict student speech if such speech materially and substantially disrupts the operations of the school. The District Court found that school operations were materially disrupted when numerous parents and students contacted the school to initially report the Twitter postings. Those reports triggered the school’s investigation which led them to Dunkley, who initially lied about his involvement and further compounded the school district’s investigation.

In the age of social media, smartphones, and wireless internet access, a school district’s obligation to investigate conduct as HIB and potentially restrict student speech is not limited to brick-and-mortar boundaries of the school walls. A student’s out-of-school conduct may seriously affect other students and the operations of the school.


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About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.


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