The Volokh Conspiracy

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Anti-gun-control presentation on high school student's flash drive leads to psychological exam, litigation


From M.V. v. Bd. of Ed. of the Borough of Manville, 2016 WL 7433235, a New Jersey administrative decision that stems from an incident that hit the news in September:

A teacher found a flash drive after school hours in a classroom, which she turned into the main office. A staff person in the main office reviewed the flash drive. It revealed satirical cartoon materials entitled Gun Control for Dummies. It depicts alleged absurdities of gun control bans, specifically, various nationwide school incidents involving school attacks, with the perpetrators considering that the locations of the incidents had gun bans, providing the perpetrators with a degree of security that, "No one here can shoot back." The other cartoons had similar messages….

The staff person turned the material over to Ilana Kurtin, one of the school's guidance counselors. The staff at the main office or Ms. Kurtin, discovered that the flash drive belonged to [Frank Harvey]. She had previous experience with [Harvey]. She certified she knew him to be a loner, occasionally wore a Soviet trench coat and hat, and had a fascination with war and violent video games. She related an incident from the previous year where [Harvey] critically commented on the staff's inability to perform their jobs.

Ms. Kurtin perceived the material as being a "red flag," and … contacted Anne Facendo, the Superintendent of Schools. Ms. Facendo contacted the Manville Police. The police requested permission to contact petitioner to assess the circumstances.

Upon meeting at [Harvey]'s residence, the police reported that [Harvey] maintained that the materials were in connection with a high school project. The school attempted to confirm this claim. The teacher reviewed the submission but represented that [Harvey]'s submission referred to a different election issue, immigration.

[The Board] again contacted the police to have [Harvey] contact Psychiatric Emergency Screening Services (PESS) of Somerset County that evening to prevent [Harvey] from missing school the following day. A telephone call instituted by the police officer ensued between Dr. Brunn, the High School Principal and [Mary Vervan, Harvey's mother]. [Vervan] advised the police officer she refused the request to attend the psychiatric testing due to the time requirements.

[Vervan] advised the police officer that she would withdraw [Harvey] from the school. [Harvey] withdrew from the school. [The Board] claims there is no record on [Harvey]'s school record regarding this incident.

The administrative law judge concluded that the board's actions led to Vervan withdrawing Harvey, and that the board could therefore be culpable if its actions were unjustified. And the judge concluded that there was a plausible argument that the board's actions violated the First Amendment:

The balancing of [Harvey]'s freedom of speech against the high school's obligation to protect the safety of all students is an area that requires a close analysis of all the credible factual testimony available to the tribunal. Petitioner has placed forth a factual certification suggesting the high school's actions may be motivated by pre-judgments inconsistent with the sole safety of the student body.

But because this "close analysis" was yet to be done, the administrative judge denied Vervan's request for emergency relief and left the matter for "[a] factual hearing … necessary to determine the justification for the high school's action to request [Harvey] to submit to a psychiatric assessment." If I hear more about the outcome of the hearing (which would presumably happen in the coming months), I'll post more.