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Free Speech

Contract Lawsuit Can Proceed, Over Private School Disciplining Student for Alleged Racial Epithet Use

The plaintiff alleged that the Wardlaw-Hartridge School had failed to comply with its own procedural rules in the Student-Parent Handbook.


From Wysocki v. Wardlaw-Hartridge School, decided yesterday by Judge William Martini (D.N.J.):

In January of 2021, Plaintiff … was a senior high school student at The Wardlaw-Hartridge School when a video clip circulated of her using a racial epithet. The school disciplined Wysocki, and she was not permitted to attend in-person classes or activities for the remainder of the academic year, nor walk in the graduation ceremony. Wagner College, where Wysocki had signed a National Letter of Intent to play for the college's soccer program, likewise rescinded its offer of admission and scholarship….

The following version of events is derived from Plaintiffs' Amended Complaint and the exhibits referenced therein and attached thereto. For the purposes of resolving the instant motions, the Court is bound to accept Plaintiffs' factual allegations as true and view them in the light most favorable to Plaintiffs….

The Complaint omits any restatement or complete description of the video's contents or of Wysocki's exact remarks, but the allegations and exhibits suggest the video is a two-second clip, recorded approximately two years prior to it being circulated, of Wysocki using the n-word. Wardlaw student … Valcourt emailed the video clip to Wagner's Director of Admissions and the head coach of its soccer program on January 3, 2021.

Three days later, the video clip was posted on an Instagram account called "Wardlaw Uncensored" and then deleted after a few hours. Wardlaw student … Forsythe … participated in creating the account or posting the clip. Another student had overheard Forsythe months prior saying that he was going to sabotage Wysocki with the video. On or about January 7, Wysocki and her parents filed an Incident Report with the Edison Police Department stating that Wardlaw students were harassing Wysocki by circulating the video….

Wardlaw, through its administrators, … met with or spoke to Wysocki and her parents several times about the video clip over the next three months. On one occasion, Wardlaw questioned Wysocki over Zoom and recorded it but did not notify her parents. On another occasion, Wardlaw required Wysocki to appear before a "Judging board" comprised of teachers and students but did not allow her parents or her lawyer to attend the hearing. Wardlaw did not investigate or hold a similar hearing for Forsythe, Valcourt, or any other students suspected to be involved with circulating the clip, despite Plaintiffs' complaints to administrators that Forsythe and other students were bullying and harassing Wysocki. Wardlaw also did not investigate the video clip's authenticity, despite Plaintiffs expressing to administrators that the clip appeared to have been doctored or fabricated.

Wardlaw's investigation culminated on March 7, 2021, when it sent Wysocki a formal letter detailing its findings and explaining its decision to discipline her. A portion of the letter states:

Two years ago, you should have known better than to use that profanity and racial epithet in the AP room (or anywhere else for that matter). Now, as a senior, you should have known once it was posted that you needed to immediately come forward to an advisor, counselor, or administrator to acknowledge that the video was real, that your words were hurtful and unacceptable. You should have expressed deep contrition, and a desire to apologize meaningfully and repair the harm it caused.

Finding that she did not do so, that she "fail[ed] to be truthful with the Judiciary Board," and that she had "belatedly taken responsibility and expressed the desire to learn and make amends," Wardlaw imposed certain disciplinary sanctions on Wysocki, but did not expel her. Wardlaw prohibited Wysocki from attending her classes, school events of any kind, and her graduation ceremony; gave her assignments to complete from home with an altered set of academic requirements; and required her to see a therapist. If she satisfied these conditions, Wardlaw would issue her diploma at the end of the school year. Wardlaw and its administrators penalized Wysocki in other ways throughout the rest of the school year by withholding her honors and awards and delaying the release of her transcript and letters of recommendation for college applications.

On March 12, 2021, several days after Wardlaw issued its disciplinary letter, Plaintiffs videoconferenced with a Wagner administrator and the head of Wagner's soccer program to discuss the video. Wagner emailed Wysocki on March 19 and again on March 22, notifying her it was rescinding her Athletics Award Agreement and voiding the NLI "due to her engaging in serious misconduct." Specifically, "[d]uring the course of [their] meeting on Friday, March 12th, [Wysocki] admitted to using a racial epithet and that it was her in the video." According to Plaintiffs, Wagner reached its decision without "an in-depth investigation of the facts" or "a proper investigation on the reliability of the information provided by the Wardlaw connected sources, the motives of the sources, their bias, interest, and corruption." …

Wysocki and her parents sued, and the court allowed the breach of contract claim to go forward:

[Plaintiffs allege] that Wardlaw breached its enrollment contract with Plaintiffs by violating the terms of its Student-Parent Handbook …. [T]he gravamen of the claim and of the Complaint as a whole is that Wardlaw failed to follow its own disciplinary policies and procedures. In considering such a claim, the Court is guided by two decisions from the New Jersey Superior Court, Appellate Division: Hernandez v. Don Bosco Preparatory High (N.J. Super. Ct. App. Div. 1999) and B.S. v. Noor-Ul-Iman Sch. (N.J. Super. Ct. App. Div. 2016). In Hernandez, the Appellate Division considered what procedural protections a private high school must afford its students upon disciplinary expulsion. The court held that a private high school, when expelling a student for misconduct, must: (1) "adhere to its own established procedures for dismissal"; and (2) in carrying out the dismissal, "follow a procedure that is fundamentally fair." The Appellate Division, albeit in an unpublished decision, later extended the application of this two-pronged analysis to discipline by a private school that stopped short of expulsion, such as where the student is removed from school and made to complete assignments from home without in-home instruction while the school undertakes a lengthy investigation lasting the rest of the school year. Noor-Ul-Iman Sch.. There, the court held that to state a claim against a private school for improperly exercising a disciplinary policy, a plaintiff must allege facts that, if true, satisfy the Hernandez standard.. "[A] plaintiff must allege the school either failed to 'adhere to its own established [disciplinary] procedures' or, in carrying out the discipline, failed to 'follow a procedure that is fundamentally fair.'"

Under this standard, the Court finds that the Amended Complaint, though not a model of clarity, includes enough factual allegations which, if assumed to be true and viewed in the light most favorable to Plaintiffs, suggest that Wardlaw failed to adhere to its established policies and acted in an unfair manner when disciplining Wysocki. A brief look at some of the Handbook's provisions is useful here. One of the Handbook's sections addresses "Behavioral Expectations" and "provides the academic and behavioral rules and guidelines by which the school expects its students to abide." The section iterates that Wardlaw "will not tolerate verbal, physical, texting or other online conduct" that bullies or harasses any member of the school community. The section further states, in relevant part:

In most instances[,] complaints of harassment or bullying by a member of our community will be dealt with directly by the administration. If deemed necessary, a special committee of faculty and staff will be appointed by the Head of School for thorough and prompt investigation.

The administration or the committee will consider all related information in determining whether the alleged improper conduct occurred and whether that conduct constitutes harassment or bullying.

When disciplinary action is warranted, Wardlaw's policy is that the "internal punishment should be commensurate to the violation." Plaintiffs allege that Wardlaw failed to adhere to these policies and engaged in a fundamentally unfair process by questioning Wysocki and recording the questioning without first notifying her parents; by failing to investigate the instances of bullying and harassment that Plaintiffs reported to Wardlaw in relation to the circulation of the video clip; by failing to consider the context of the video clip or Plaintiffs' contentions that the clip was doctored or fabricated; and by excessively disciplining Wysocki in prohibiting her from classes, school activities, and graduation, and withholding her honors, awards, transcript, and letters of recommendation for college applications. While discovery will ultimately determine whether Plaintiffs can substantiate their version of the events, the Court finds they have satisfied their burden at this early stage and have pleaded enough to state a claim against Wardlaw under Count I for breach of the Handbook's policies and procedures. Count I therefore survives the Wardlaw Defendants' motion and may proceed….

But the court dismissed some other claims, including a fraud claim:

[Plaintiffs allege] that Wardlaw Defendants are liable for fraud because the Handbook's policies on discipline, harassment, bullying, awards and recognition, and the exercise of free speech were misrepresentations used to induce Plaintiffs to enroll Wysocki into Wardlaw. The Wardlaw Defendants argue that Plaintiffs have not sufficiently pleaded that the Wardlaw Defendants misrepresented its policies or that Plaintiffs reasonably relied on those policies when enrolling Wysocki in the school….

"[A] party is fraudulently induced to enter into an agreement when 'a knowing misstatement has been made, on the basis of which the defrauded party signs the instrument.'" … Here, Plaintiffs allege that the Wardlaw Defendants represented, through the policies outlined in the Handbook, that they would discipline students in a manner commensurate to the violation; that they would not tolerate bullying, cyberbullying, harassment, or discrimination; and that they would promote free speech and thinking among students. Plaintiffs further allege that "[t]hese representations were made and continued to be made to [P]laintiffs with knowledge of their falsity" because Wardlaw, among other acts, "permitted the creation of a race-based group of black students" and disciplined Wysocki in the manner that it did without also disciplining the students who circulated the video clip and harassed her. Plaintiffs explain in their brief in opposition that "[t]he falsity of [the] representations became apparent when on opportunity to apply them the school did not seek to apply them to the reverse racist perpetrator that doctored the clip."

Plaintiffs' allegations posit nothing more than that the Wardlaw Defendants allegedly did not adhere to their own policies—conduct which Plaintiffs already seek to recover for under a breach of contract theory. {"Fraud is a far narrower theory than breach of contract; it does not cover an ordinary breach of promise about future events."} That the Wardlaw Defendants breached some future promise to Plaintiffs is not the equivalent of the Wardlaw Defendants knowingly misstating the Handbook provisions at the time Plaintiffs enrolled Wysocki in school in order to induce them into enrolling…. The Amended Complaint fails to include coherent factual allegations tending to show the latter scenario. For these reasons, Plaintiffs have not stated a plausible claim against the Wardlaw Defendants for fraudulent inducement and Count VIII is dismissed….

And the court dismissed plaintiffs' claim against the college:

Plaintiffs allege that the NLI between themselves and Wagner constituted a binding contract which the college breached by voiding the NLI and withdrawing the Athletics Award Agreement without first making "any valid serious inquiry about the truth" in regard to the video clip….

Assuming the NLI and Athletics Award Agreement constitute a binding contract between the parties, the Amended Complaint lacks any factual allegations tending to show breach. Plaintiffs do not identify, and the Court cannot discern, any specific terms or provisions in either of the documents that obligate Wagner to undertake any type of investigation. That Wagner's efforts to investigate the video resulted in a decision unfavorable to Wysocki is not the equivalent of showing Wagner breached some alleged obligation to her. Plaintiffs must identify the specific contractual terms or provisions that give rise to the obligation, and as they have not done so here, the Court cannot draw a reasonable inference of liability for breach of contract….

{To be clear, the Amended Complaint appears to assert alternative theories concerning the video clip—that it was doctored or fabricated, but that Wysocki's use of the racial epithet was nonetheless an exercise of free speech. Plaintiffs specifically allege that they advised the Wardlaw Defendants that the clip appeared to be doctored or fabricated, but they do not allege that they raised this concern with Wagner.} …