The Volokh Conspiracy
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Eyewitnesses with Their Backs Turned
An interesting "harassment, intimidate, or bullying" investigation case from New Jersey schools. (Corrected version of a post initially put up yesterday.)
In A.J. on behalf of J.J. v. Bd. of Ed., decided Apr. 9, 2020 by the N.J. Office of Administrative Law, but just posted on Westlaw a couple of days ago, Administrative Law Judge Jude-Anthony Tiscornia reversed 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.
{Maier … testified that she viewed the closed-circuit video surveillance from the schoolyard on the morning in question, and that the events appeared to play out as J.J. described them during his testimony. J.J. is standing in a small group of students and the target is standing a few feet away with her back to them. At some point, the target turns around, sees J.J., and then turns to her friend and says something. The recording did not include sound.}
Based on the foregoing, I FIND that J.J. did not utter the "n" word on the morning in question….
But the Commissioner of Education reversed the decision some months later (and I understand J.J.'s parents did not appeal it further):
Upon review, the Commissioner disagrees with the ALJ's conclusion that J.J. did not say the "n" word. When a local board of education acts within its discretionary authority, its decision is entitled to a presumption of correctness and will not be disturbed unless there is an affirmative showing that the decision was "patently arbitrary, without rational basis or induced by improper motives." Furthermore, "where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration[,]" and the Commissioner will not substitute his judgment for that of the board.
Based on the evidence in the record, the Commissioner finds that petitioner did not meet his burden of demonstrating that the Board's decision was arbitrary, capricious, or unreasonable. The record contains sufficient credible evidence to support the Board's decision that J.J. said the "n" word, including the complainant's statements and the staff's review of corroborating video evidence. While petitioner presented evidence showing that J.J. did not make the statement, including his denials and the denials of his friends who were interviewed, at best this evidence balances the evidence that he did make the statement. While the evidence may leave room for two opinions regarding whether J.J. made the statement, it is insufficient to overturn the Board's decision, because it does not demonstrate that the decision was arbitrary, capricious, or unreasonable.
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. But the controversy here chiefly focused on what J.J. did or didn't say, rather than on whether what he said was constitutionally protected.
NOTE: I originally posted just about the Administrative Law Judge's decision, because that's all I saw on Westlaw. (Westlaw is generally very good at indicating when court decisions have been reversed by higher courts, but it covers only a limited subset of administrative decisions, and the Commissioner's reversal doesn't seem to be on Westlaw.) I then found the online copy of that decision, but just included a link to it, without reviewing the text closely (besides confirming that the online copy included the Westlaw version). It turns out, though, that the online copy also included the reversal, which I didn't focus on. (D'oh!) Many thanks to commenter John F. Carr for noting my error, and thus giving me an opportunity to quickly delete the text of the original post and repost it now with the correct account. My apologies to our readers for the mistake.
