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Dempsey v. Alston

March 5, 2009

TED DEMPSEY, SR., AND PATRICIA DEMPSEY, INDIVIDUALLY AND AS GUARDIANS AD LITEM FOR THEIR MINOR SON, O.D., PLAINTIFFS-APPELLANTS,
v.
CLARENCE ALSTON, INTERIM SUPERINTENDENT OF PLEASANTVILLE PUBLIC SCHOOL DISTRICT, FELICIA M. HYMAN, ASSISTANT PRINCIPAL OF PLEASANTVILLE HIGH SCHOOL, AND PLEASANTVILLE BOARD OF EDUCATION, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. C-121-06.

The opinion of the court was delivered by: Sapp-peterson, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted September 15, 2008

Before Judges Reisner, Sapp-Peterson and Alvarez.

Plaintiffs Ted and Patricia Dempsey, individually and as guardians ad litem for their minor son, O.D., appeal from the denial of their motion for summary judgment and the grant of summary judgment to defendants Clarence Alston (Alston), Felicia

M. Hyman (Hyman), and the Pleasantville Board of Education (Board), dismissing their amended complaint in its entirety. Plaintiffs challenged the constitutionality of N.J.S.A. 18A:11-8 (the Act), which authorizes boards of education to adopt uniform dress codes in public schools and, in particular, the Board's adoption of its dress code policy. We affirm.

The salient facts are not in dispute. The Board adopted its school dress code policy in 2001. It did not, as part of its policy, include a formal opt-out program, but students were provided with opt-out forms that permitted them to opt out for religious and/or medical reasons. On January 3, 2006, O.D. enrolled in Pleasantville Middle School and attended classes without complying with the Board's dress code policy. On January 12, the Board advised O.D.'s father that O.D. was in violation of its dress code policy and that he was expected to comply with the policy. On February 2, plaintiffs submitted a "School Uniform Opt Out Request" form on behalf of their son.

The stated reason for the opt-out request was: "Other: Constitutional Rights, Fundamental Freedom, Individual personal choice and Philosophical Beliefs." This request was denied.

Thereafter, O.D. was progressively disciplined for failure to comply with the dress code policy and, in March, he was suspended from school. In April, the suspension led to his in-home instruction placement, and he voluntarily accepted continued suspension. In June, O.D. graduated from the middle school after completing the required in-home instruction coursework.

On August 7, plaintiffs submitted another "School Uniform Opt Out Request" form based upon the following reasons: "Other: Constitutional Right, Spiritual Separation, Fundamental Freedom, Personal Individual Choice, Civil Rights, Civil Liberty, Philosophical Belief, Psychological Self Esteem, Discriminatory and Etc." The Board denied plaintiffs' request. When O.D. appeared for his first day of school at Pleasantville High School on September 8, school officials assigned him to in-school suspension for failing to comply with the dress code policy and advised him that he would continue to be disciplined if he failed to comply.

On September 26, plaintiffs filed a verified complaint against defendants Alston (interim superintendent of the Pleasantville Public School District), Hyman (assistant high school principal), and the Board, seeking an order compelling defendants to permit O.D. to attend the high school without having to comply with the Board's dress code policy, compensatory damages, and attorney's fees and costs. Defendants filed an answer to the verified complaint and opposed plaintiffs' motion for injunctive relief. On the November 1 return date of the Order to Show Cause, the court denied plaintiffs' request for preliminary injunctive relief.

Plaintiffs filed an amended complaint challenging the constitutionality of N.J.S.A. 18A:11-8 and the Board's dress code policy. On January 22, 2007, the court granted the New Jersey Department of Education's (Department) motion to intervene as amicus curiae. Thereafter, plaintiffs and defendants filed summary judgment motions. Although defendants filed opposition to plaintiffs' motion, plaintiffs did not submit any opposition to defendants' motion.

The court conducted oral argument and, at its conclusion, issued a comprehensive and well-reasoned oral opinion on the record. The court issued an order denying plaintiffs' motion in its entirety and granting defendants' motion dismissing plaintiffs' amended complaint with prejudice.

In reaching his decision, Judge William Todd, III, found that: (1) the Act satisfied the test set forth in United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed. 2d 672, 680 (1968), for a content-neutral regulation on expressive conduct; (2) the Act did not affect a substantial amount of protected speech and was therefore not overbroad; (3) no fundamental right was implicated by adoption of the school dress code policy; (4) the Act was rationally related to a legitimate State interest; and (5) the Board complied with the statutory requirements for adopting a school dress code policy. The present appeal followed.

On appeal, plaintiffs raise the following points for our consideration:

POINT ONE

THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' SUMMARY JUDGMENT [MOTION] AND FORBIDDING THE MINOR PLAINTIFF FROM ATTENDING CLASS AND PARTICIPATING IN SCHOOL ...


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