Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Besler v. Board of Education of West Windsor-Plainsboro Regional School District

May 17, 2010

PHILIP A. BESLER AND JENNIFER J. BESLER, PLAINTIFFS-RESPONDENTS, AND CAROLANN S. BESLER, PLAINTIFF,
v.
BOARD OF EDUCATION OF WEST WINDSOR-PLAINSBORO REGIONAL SCHOOL DISTRICT, BODY CORPORATE ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND/OR ITS SERVANTS, AGENTS AND EMPLOYEES, DANIEL HUSSONG, MICHAEL CARR, AND RAY J. BANDLOW, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS-APPELLANTS, AND LORI HUSSONG AND ROBERT BANKS, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; TOWNSHIP OF PLAINSBORO, A MUNICIPAL CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND/OR ITS SERVANTS, AGENTS AND EMPLOYEES, JOHN J. LOMELA AND RICHARD FURDA, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; AND TOWNSHIP OF LONG BEACH, A MUNICIPAL CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND/OR ITS SERVANTS, AGENTS AND EMPLOYEES, AND MATTHEW PETERSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

ALBIN, J., writing for a majority of the Court.

This appeal presents the Court with two primary issues. First, whether plaintiff Philip Besler's right to free speech under the First Amendment was violated during the public comment period of a meeting of the Board of Education of the West Windsor-Plainsboro Regional School District (Board). Second, whether the evidence supported the jury's award of $100,000 for plaintiff's pain-and-suffering.

In the spring of 1996 Philip Besler began attending and speaking at School Board meetings as a concerned parent and citizen. His daughter, Jennifer, then a senior at West Windsor-Plainsboro High School and member of the girls varsity basketball team, claimed that her basketball coach, Daniel Hussong, repeatedly verbally abused her and other team members. Jennifer asserted that Hussong singled her out for particularly harsh treatment, making her the target of profanity-laced tirades and disparaging comments about her weight. The mistreatment took a physical and emotional toll on Jennifer, causing an eating disorder and a condition called amenorrhea, a disruption of her menstrual cycle.

From April 1996 through January 1997, Mr. and Mrs. Besler met with school officials, wrote letters, and attended various Board meetings. During the public comment period of nine Board meetings, the Beslers addressed their concerns about the failure of the District to hold coaches accountable for inappropriate and unsportsmanlike conduct. The focus of this case is the January 28, 1997 Board meeting. At least one hundred people were at this meeting. The public comment period began with a statement by the Board's President, Dr. Lester Bynum. Dr. Bynum stated that the public comment period would last no longer than thirty minutes and that no speaker would have more than five minutes of comment time.

The first member of the public to speak was a District resident who had spoken at length at numerous Board meetings. That evening his comments lasted more than seven-and-one-half minutes. Mr. Besler had his hand raised to speak next. Before calling on him, Dr. Bynum made remarks that appeared specifically tailored for Mr. Besler, including that "the meeting was not intended for personnel discussions of individuals" or for "allegations or insinuations about staff behavior or staff performance." Besler then gave his name and address and, after speaking for no more than thirty seconds, was silenced by four loud bangs of the gavel. Besler was told that he could hand out his written comments, but that the Board was "not going to entertain those comments." After Besler sat down, two other members of the public spoke during the public comment period, one engaging in dialogue with the Board for more than twelve minutes and the other for more than eight minutes.

In January 1998, Mr. and Mrs. Besler, and daughter Jennifer, filed a twelve-count complaint in the Superior Court, Law Division of Mercer County, naming as defendants the Board, the girls high school basketball coach, the District's Superintendent, the high school Principal, and others. Only one of the twelve counts dealt with Mr. Besler's federal civil rights claim pursuant to 42 U.S.C. § 1983, alleging that the Board violated his free-speech rights guaranteed by the First Amendment. The remaining eleven counts addressed Jennifer's claims.

A jury trial was conducted between December 2003 and March 2004 encompassing thirty-two days of testimony from more than fifty-five witnesses. Only a fraction of the testimony concerned Mr. Besler's First Amendment claim. At the conclusion of the trial, on Jennifer's claims, the jury found Hussong liable for reckless infliction of emotional distress and negligence, and the Board of Education and certain officials liable for negligent supervision. The jury awarded Jennifer $3,000,000 but reduced the award by fifty-one percent due to Jennifer's failure to mitigate her damages. The jury entered a verdict against the Board of Education on Mr. Besler's First Amendment claim, awarding Besler $100,000 in damages for pain and suffering. After the jury's verdict, the trial court granted defendants' motion for a directed verdict on Jennifer's claims and dismissed those claims. The court denied the Board of Education's motions for judgment notwithstanding the verdict, a new trial, and a remittitur on Besler's First Amendment claim.

In an unpublished per curiam opinion, the Appellate Division affirmed the trial court's dismissal of Jennifer's claims. The panel also affirmed the trial court's ruling that there was sufficient evidence to present Mr. Besler's First Amendment claim to the jury. The panel found the "critical issue" to be whether the Board's restriction on Besler's speech was content-based or content-neutral. In sustaining the verdict, the panel held that Dr. Bynum's motivation in gaveling down Besler was a question of fact to be decided by the jury. The panel also held that there was sufficient evidence to hold the Board directly liable for a First Amendment violation under Monell v. Department of Social Services, 436 U.S. 658 (1978). The panel did not address the Board's argument that the $100,000 pain-and-suffering damages award was excessive.

The Supreme Court granted the Board of Education's cross-petition for certification.

HELD: For purposes of 42 U.S.C. § 1983, the Board of Education President was acting as a final policymaker while presiding over the public comment period of the Board meeting and therefore the Board could be held liable for a violation of plaintiff's First Amendment rights. In addition, Besler presented sufficient evidence for the jury to determine that the Board silenced him for no reason other than the unpopular viewpoint he expressed, in violation of his free speech rights. However, Besler offered minimal evidence of emotional distress and the damages award is so clearly excessive that it constitutes a miscarriage of justice.

1. In Monell, the United States Supreme Court determined that, under 42 U.S.C. § 1983, a municipality or school board can be held liable for acts committed by one of its employees or agents, pursuant to a government policy or custom, that violate the Constitution. In a § 1983 action, a school board is not vicariously liable for the conduct of one of its agents or employees solely through the doctrine of respondeat superior. Nonetheless, if the "government's authorized decisionmakers" properly embark on a particular course of action, that action may be considered "an act of official government 'policy.'" Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). For § 1983 purposes, a municipality can be held liable for the acts of an official who is "responsible for establishing final government policy respecting [the questioned] activity." Stomel v. City of Camden, 192 N.J. 137, 146 (2007). Determining whether a person is a final policymaker for a public body such as a school board is a question of law for the trial court and is not an issue to be submitted to the jury. Once the trial court has determined that an individual official has "the power to make official policy on a particular issue," it is then for the jury to decide whether that individual's decision "caused the deprivation of [the] right [] at issue." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). (Pp. 16-20)

2. The Appellate Division misapprehended the Monell standard. The issue is not whether "the evidence indicated the Board had a policy permitting free speech for a limited period at each Board meeting," as the Appellate Division perceived. Rather, the issue is whether the Board's practice, custom, or policy, or the action of its final policymaker, is the moving force that causes a violation of a constitutional right. In addition, at least before the jury returned a verdict, both the parties and the court evidently considered Dr. Bynum to be the final policymaker. If Besler was wrongly silenced in violation of his First Amendment rights at the January 28 Board meeting and he suffered an injury, he has established the fundament of a cause of action. The Court concludes, as a matter of law, that Dr. Bynum was the final policymaker for the Board of Education during the public comment period. (Pp. 20-22)

3. The First Amendment gives people the right to express disagreement with government policy, whether on the national, state, or local level. Heightened protection is given to speech in public forums, including the public comment period of a school board meeting. However, the right to free speech is not absolute and is subject to reasonable limitations. A public body may control its proceedings in a content-neutral manner by stopping a speaker who is disruptive or who fails to keep to the subject matter on the agenda. The government or a school board, however, has the burden of showing that its restriction of speech in a public forum was done for a constitutionally permissible purpose. (Pp. 23-28)

4. The evidence viewed in the light most favorable to Besler is that Dr. Bynum gaveled him down at the January 28 meeting because he was attempting to expose the hypocrisy between words and reality, between the Board's strategic plan, which did "not tolerate behavior which diminishes the dignity, self-worth, or safety of any individual," and the Board's condoning foul-mouthed, abusive coaches who belittled and demeaned student-athletes. The jury was free to find that Dr. Bynum's warning comments, evidently directed at Besler, revealed impatience and antagonism toward a viewpoint he did not want to hear. The jury obviously determined that Dr. Bynum's motivation was not content-neutral, rejecting his claim that he silenced Besler because of the sheer repetitiveness of his remarks or for the purpose of conducting an "orderly and efficient" meeting. The Court is satisfied that the jury rendered a verdict that is sustainable on the evidence. Accordingly, the trial court did not err in denying the Board's motion for judgment notwithstanding the verdict. (Pp. 28-33)

5. Under 42 U.S.C. § 1983, a constitutional violation, standing alone, does not entitle a plaintiff to compensatory damages; the plaintiff must prove that he suffered an "actual injury." Emotional distress can constitute an actual injury under § 1983. However, a plaintiff must show a causal connection between the constitutional violation and the emotional distress. Besler offered no testimony on the depth or degree of his emotional distress or suffering. The jury was left with testimony that, supported, at best, transient emotional distress. Compensatory damages for emotional distress, in the amount awarded here, must be based on more than de minimis mental anguish, or fleeting embarrassment, or mere shock and bewilderment. Moreover, finding that an award appears so excessive that it constitutes "a miscarriage of justice," a court has the power of remittitur -- that is, to reduce the damages and to give the plaintiff the opportunity to accept the reduced amount or opt for a new trial on damages. Viewing the record in the light most favorable to Besler, the Court concludes that the $100,000 damages award is so clearly excessive that it constitutes "a miscarriage of justice." The Court notes that Besler's First Amendment claim and Jennifer's multiple tort claims were presented to the same jury. The Court is convinced that the evidential spillover from Jennifer's case infected the jury's consideration of damages. Whereas the jury's finding of a constitutional violation is grounded in evidence in the record, even the most generous consideration of the testimony from Besler's perspective does not support the damages awarded. (Pp. 34-41)

The Court AFFIRMS that part of the Appellate Division's judgment that upheld the jury's finding that the Board violated plaintiff's First Amendment rights, REVERSES the trial court's denial of a remittitur, and REMANDS the matter to the trial court for a remittitur hearing consistent with the opinion of the Court.

JUSTICE RIVERA-SOTO filed a separate opinion, concurring in part and dissenting in part, in which JUSTICE HOENS joins. Justice Rivera-Soto concurs with the majority's conclusion that the Board President was acting as a final policymaker and, in the proper circumstances, liability could flow to the Board. However, Justice Rivera-Soto states that, fairly and impartially viewing all of the record evidence through the required procedural prism applicable here, the conclusion that, as a matter of law, there is sufficient credible evidence in this record to sustain the verdict in plaintiff's favor is simply unsupportable.

The opinion of the court was delivered by: Justice Albin

Argued September 29, 2009

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, and WALLACE join in JUSTICE ALBIN's opinion. JUSTICE RIVERA-SOTO filed a separate opinion, concurring in part and dissenting in part, in which JUSTICE HOENS joins.

CONCURRING/DISSENTING OPINIONS BY Justice Rivera-Soto

During the public comment period of a meeting of the Board of Education of the West Windsor-Plainsboro Regional School District (Board), the Board President denied plaintiff Philip Besler the opportunity to complete a statement critical of both Board policy and a high school coach he believed had verbally abused student-athletes, including his daughter. Besler filed a federal civil rights claim pursuant to 42 U.S.C. § 1983, alleging that he was entitled to express his grievances at the meeting -- a public forum -- and that the Board violated his free-speech rights guaranteed by the First Amendment. A jury found that the Board did not have a "compelling" reason to justify silencing Besler and awarded him monetary damages in the amount of $100,000. The Appellate Division affirmed.

In this appeal, the Board contends that the singular actions of its Board President did not make it liable for any claimed First Amendment violation under 42 U.S.C. § 1983. The Board also argues that the evidence at trial was insufficient to support the jury's verdict. The Board maintains that the evidence supported only one conclusion -- that it was enforcing a content-neutral policy of curtailing repetitive remarks for the purpose of conducting an orderly public meeting. Last, the Board urges that we overturn the damages award as excessive.

First, we find that, for purposes of 42 U.S.C. § 1983, the Board President was acting as a final policymaker while presiding over the public comment period of the Board meeting and therefore the Board could be held liable for a violation of Besler's First Amendment rights. Second, we hold that Besler presented sufficient evidence for the jury to determine that the Board silenced him for no reason other than the unpopular viewpoint he expressed. We thus must respect the jury's finding that the Board violated Besler's free-speech rights.

Finally, Besler offered only minimal evidence of emotional distress -- transient embarrassment and humiliation as a consequence of the abrupt manner in which he was prevented from completing his remarks. We conclude that the damages award is so clearly excessive that it constitutes a miscarriage of justice and therefore remand to the trial court for a remittitur or, alternatively, a new trial on damages.

I.

A.

In January 1998, Philip Besler, his wife Carolann, and daughter Jennifer filed a twelve-count complaint in the Superior Court, Law Division of Mercer County, naming as defendants the Board of Education of West Windsor-Plainsboro Regional School District, the girls high school basketball coach, the District's Superintendent, the high school Principal, and others. Only one of the twelve counts dealt with Mr. Besler's claim that he was denied his First Amendment rights when silenced at the January 28, 1997 Board of Education meeting. In that count, the Board was the only named defendant. The remaining eleven counts addressed various other claims -- that the basketball coach, Daniel Hussong, verbally abused and harassed Jennifer, that the District was blindly indifferent to her plight, and that the police retaliated against the Beslers for the complaints they raised with the District. The complaint specifically alleged violations of the federal and state constitutions, the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, Title IX, 20 U.S.C. §§ 1681 to 1688, as well as common law claims of negligent supervision, intentional infliction of emotional distress, and false imprisonment.

A jury trial was conducted between December 2003 and March 2004 encompassing thirty-two days of testimony from more than fifty-five witnesses.*fn1 Only a fraction of the testimony concerned Mr. Besler's First Amendment claim.

B.

The Board appeals from the trial court's denial of its motion for judgment notwithstanding the jury's verdict. At this procedural stage, we must view the evidence in the light most favorable to Mr. Besler. Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998).

The jury heard that Philip Besler began attending and speaking at School Board meetings in the spring of 1996 as a concerned parent and citizen. His daughter, Jennifer, then a senior at West Windsor-Plainsboro High School and member of the girls varsity basketball team, claimed that her basketball coach, Daniel Hussong, repeatedly verbally abused her and other team members. Jennifer asserted that Hussong singled her out for particularly harsh treatment, making her the target of profanity-laced tirades and disparaging comments about her weight. The mistreatment took a physical and emotional toll on Jennifer, causing an eating disorder and a condition called amenorrhea, a disruption of her menstrual cycle.

Philip Besler considered Hussong's conduct grossly unprofessional and felt that the School District's administrators were indifferent to Hussong's behavior and Jennifer's plight. When Mr. Besler's wife Carolann had approached Hussong to express her concerns, Hussong told her to "get out of my [f***ing] gym. The problem on this [f***ing] team is you [f***ing] parents and I want you to leave my [f***ing] girls alone." From April 1996 through January 1997, Mr. and Mrs. Besler met with the West Windsor-Plainsboro High School Principal, Michael Carr, and the District's Superintendent of Schools, Dr. Ray Bandlow; wrote letters to Carr, Dr. Bandlow, and the President of the Board of Education, Dr. Lester Bynum; and attended various Board meetings. Their purpose was to force the School District not only to take action against Hussong, but also to address the need for civility in coaching. Ultimately, the Beslers believed that the District was unresponsive to the issues they had raised. During the public comment period of nine Board meetings, the Beslers addressed their concerns about the failure of the District to hold coaches accountable for inappropriate and unsportsmanlike conduct.

At the April 23, 1996 meeting of the Board of Education, Mr. Besler asked the Board to "look[] into coaching behavior and distributed an article about problems with 'unsportsmanlike' behavior on the part of some coaches."

At the May 21 Board meeting, Mr. Besler commented on what he perceived was the District's double standard of requiring language-appropriate conduct by students using information technology but not imposing a similar code of conduct on coaches on the playing field. Dr. Bynum and the Assistant School Superintendent responded that the District "[did] not sanction inappropriate language" by coaches and insisted that a code of conduct applied to coaches.

At the May 28 Board meeting, Mr. Besler indicated that, based on his reading of the code of conduct applicable to coaches, Hussong was in violation of the District's policies. He called for an investigation of Hussong's conduct.*fn2

Mr. Besler attended the June 18 Board meeting because "it was rumored" that a vote would be taken on Hussong's contract at the next meeting. Because he would not be available on that date, he asked that the matter be postponed. Mr. Besler was advised that "personnel action would not be subject to public comment at a meeting."

At the June 25 Board meeting, Mr. Besler expressed "his concerns regarding the vulgar and abusive language used by his daughter's high school coach." He stated that he had taken his complaints to the administration but was told that it was "unable" to investigate the coach. He noted that after raising his concerns with the administration his daughter became the target of a police investigation stirred by "an anonymous letter and telephone call."*fn3 He again complained that the rules governing "unacceptable language" for teachers and students in the classroom and on the Internet did not seem to apply to coaches on the playing field. Last, he requested that the Board vote on each coach's reappointment individually. At that same meeting, five members of the public spoke in favor of the District's coaching staff, and Hussong was reappointed.

Five months later, on November 26, Mr. Besler attended his next Board meeting. During the public comment period, he read a statement expressing his belief that the members of the Athletic Review Committee formed to look into the rules of conduct governing coaches did not possess the requisite impartiality to perform their duties. Mr. Besler noted that the Athletic Review Committee consisted of, among others, Hussong's wife, who was an assistant coach on the girls basketball team; another of Hussong's assistant coaches who allegedly watched his "abusive behavior" with indifference; and various student-athletes who would be placed in the untenable position of making recommendations about the coaches for whom they played.

At the December 17 Board meeting, Mrs. Besler read the same statement her husband had delivered at the previous meeting.

On January 21, 1997, during the Board's public comment period, Mr. Besler attempted to ask the School District's Director of Planning a question. At this point, Carr, the Principal, "jump[ed] up" and stated that Mr. Besler should not be allowed to speak. The Board President, Dr. Bynum, directed Carr to sit down and allowed Mr. Besler to pose a question regarding a paragraph in the District Strategic Planning Committee Report that read: "We will not tolerate behavior that diminishes the dignity, self-worth, or safety of any individual." Dr. Bynum then told Mr. Besler that he had raised the issue before, that the Board and administration had responded to his concerns, and that Besler would not receive an answer "again at this time."

Mr. Besler also attended the January 28, 1997 Board meeting, which is the focus of this case. At least one hundred people were at this meeting. The public comment period began with a statement by Dr. Bynum: "This is the time in each regular monthly Board of Education meeting that we invite the thoughts and reactions on items of concern from members of our community who are present." Dr. Bynum stated that the public comment period would last no longer than thirty minutes and that no speaker would have more than five minutes of comment time.

The first member of the public to speak was a District resident who had spoken at length at numerous Board meetings. That evening his comments lasted more than seven-and-one-half minutes and addressed various subjects, such as the effect of "affordable housing" on the School District, the need for equal treatment of women in the high school sports program, and the potential costs if Title IX (gender-discrimination) litigation were instituted against the District.

Mr. Besler had his hand raised to speak next. Before calling on him, Dr. Bynum made remarks that appeared specifically tailored for Mr. Besler:

Before I recognize the next person, let me just make some clarifications on this public comment section of our meeting. This section of the meeting is not intended for personnel discussions of individuals. It's not intended for allegations or insinuations about staff behavior or staff performance.

It's for public comment only. It's not to allow people a stage or a forum to present their own personal views, particular views under litigation, on matters under litigation. So when those kinds of things occur, the chair reserves the right to cut off any discussion of that nature.

Besler then gave his name and address and, after speaking for no more than thirty seconds, was silenced:

Besler: A few months ago, this Board discussed policies for the use of technology in the system; specifically, you said that the use of harassing or abusive language or any obscenities on the Internet is strictly prohibited. Last week at the meeting of this Board, this district's strategic plan was introduced. Within the parameters, it was stated that we will not tolerate behavior which diminishes the dignity, self worth, or safety of any individual. [Four loud bangs of the gavel.]

Bynum: You are out of order. We've heard those comments before several times from you, and the Board will not entertain those comments tonight again for the numerous times.

Besler: May I hand my speech to you?

Bynum: You can hand out, yes, whatever you have to say, but we are not going to entertain those comments. Any other comments from the public?

Had Besler been permitted to complete his prepared written comments, he would have stated:

My questions to this Board are: Do these guidelines apply to students as well as staff persons employed by this district? Secondly, Does the use of profanity including repeated use of the "F" word constitute abusive language? Lastly, Does the use of abusive language repeatedly, diminish the dignity of an individual.

Besler also intended to expand on his prepared remarks if he had not been cut off.

After Besler sat down, two other members of the public spoke during the public comment period, one engaging in dialogue with the Board for more than twelve minutes and the other for more than eight minutes. Both spoke on various topics ranging from the budget to technology issues to courtesy busing.

Dr. Bynum later admitted that he could not recall ever preventing a parent or student from making positive remarks about a faculty member. The immediate past Board President noted that, during his tenure, the public comment period of board meetings was a time when members of the public could speak for three minutes "on any topic that they wish[ed]."

C.

At the conclusion of the trial, on Jennifer's claims, the jury found Hussong liable for reckless infliction of emotional distress and negligence, and the Board of Education and certain officials liable for negligent supervision. The jury awarded Jennifer $3,000,000 but reduced the award by fifty-one percent due to Jennifer's failure to mitigate her damages.

The jury entered a verdict against the Board of Education on Mr. Besler's First Amendment claim, awarding Besler $100,000 in damages for pain and suffering.*fn4

After the jury's verdict, the trial court granted defendants' motion for a directed verdict on Jennifer's claims and dismissed those claims.*fn5 The court denied the Board of Education's motions for judgment notwithstanding the verdict, a new trial, and a remittitur on Besler's First Amendment claim.

Earlier, in denying the Board's motion for a directed verdict against Besler, the court found that a reasonable jury could conclude that "the Board simply did not want to hear what plaintiff had to say" and did not have "a significant or compelling governmental reason" to silence Besler at the Board meeting.

II.

In an unpublished per curiam opinion, the Appellate Division affirmed the trial court's dismissal of Jennifer's claims. The panel also affirmed the trial court's ruling that there was sufficient evidence to present Mr. Besler's First Amendment claim to the jury. The panel determined that the School Board meeting was a public forum and therefore any content-based restrictions had to be both "narrowly drawn to achieve a compelling governmental interest," (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 955, 74 L.Ed. 2d 794, 805 (1983)), and "leave[] open ample alternative channels for communication of the information," (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed. 2d 661, 675 (1989)). The panel found the "critical issue" to be whether the Board's restriction on Besler's speech was content-based or content-neutral. In other words, the jury had to decide whether the Board restricted Besler's speech because of the content of what he had to say or because it was merely conducting an orderly and efficient meeting. In sustaining the verdict, the panel held that Dr. Bynum's motivation in gaveling down Besler was a question of fact to be decided by the jury.

The panel also held there was sufficient evidence to hold the Board directly liable for a First Amendment violation under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed. 2d 611 (1978), because "the evidence indicated the Board had a policy permitting free speech for a limited period at each Board meeting." The panel did not address the Board's argument that the $100,000 pain-and-suffering damages award was excessive.*fn6

We granted the Board's cross-petition for certification. Besler v. Bd. of Educ. of West Windsor-Plainsboro Reg'l Sch. Dist., 198 N.J. 314 (2009).

III.

The Board has raised four issues for our consideration: (1) whether the Appellate Division articulated the proper standard for public-entity liability under Monell; (2) whether, under Monell, liability could "be imputed to [the Board] for the isolated act of one of its Board Members"; (3) whether Besler presented sufficient evidence to support a violation of his right to free speech under the First Amendment; ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.