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Doe v. Banos

United States District Court, D. New Jersey

August 20, 2013

JOHN DOE, individually and on behalf of JANE DOE, a minor child, all fictitious names, Plaintiffs,
v.
LEFTERIS BANOS, MICHAEL WILSON, ALAN FEGLEY, HADDONFIELD BOARD OF EDUCATION, JOHN DOES (1-10) (FICTITIOUS DEFENDANTS), Defendants

Decided August 19, 2013.

Page 478

Appearances: MATTHEW S. WOLF, MELISSA A. SCHROEDER, MATTHEW S. WOLF, ESQ., LLC, CHERRY HILL, NJ, On behalf of plaintiffs.

JOSEPH F. BETLEY, KELLY ESTEVAM ADLER, CAPEHART & SCATCHARD, P.A., MOUNT LAUREL, NJ, On behalf of defendants.

OPINION

Page 479

NOEL L. HILLMAN, United States District Judge.

Beginning in November 2006, and continuing at least through November 2009, in order for a student to participate in extracurricular activities, such as a school-sponsored sports team, the Haddonfield Board of Education (" HBOE" ) required the student's parent to provide unqualified consent to a school policy that precludes the child from any involvement with drugs and alcohol, on or off school grounds. The constitutionality of this policy, known as the 24/7 Policy, has been challenged in other proceedings before this Court and in the state court system. [1] This case does not challenge the legality of the Policy itself, but instead concerns a parent's claim that the HBOE and other Haddonfield officials [2] violated his First Amendment rights, and committed negligence, when his expression of his disagreement with the Policy led to his daughter being precluded from playing lacrosse.

At the start of this case, which was filed in March 2010, the Court considered the application of the parent, plaintiff, John Doe, individually and on behalf of his then fifteen-year old daughter, Jane Doe, for

Page 480

preliminary restraints, which sought to compel defendants to allow Jane Doe to play on the school's lacrosse team. The Court denied plaintiff's motion, finding that plaintiff did not meet the elements of Federal Rule of Civil Procedure 65, which empowers district courts to grant preliminary injunctions, particularly with regard to plaintiff's success on the merits of his First Amendment violation claim. The Court concluded that plaintiff failed to demonstrate that defendants' conduct suppressed, impeded, or compelled any constitutionally protected speech. [3] (Docket No. 20 at 17-18.)

Since that time, the parties engaged in the discovery process. Defendants have now moved for summary judgment in their favor on plaintiff's First Amendment and negligence claims. They argue that no genuine disputed facts exist to send to a jury to consider whether plaintiff's rights were violated, and that plaintiff's claims fail for substantively the same reasons as they did at the preliminary injunction stage of the case. Plaintiff has opposed defendants' motion, contending that material disputed facts abound, and that a jury must resolve his First Amendment claim. [4] Plaintiff has also cross-moved to strike defendants' affirmative defenses in their answer to plaintiff's complaint.

For the reasons expressed below, defendants' motion will be granted, and plaintiff's motion will be denied as moot.

I. JURISDICTION

Plaintiff has brought a federal constitutional claim pursuant to 42 U.S.C. § 1983, as well a negligence claim under New Jersey law. This Court has jurisdiction over plaintiff's federal claim under 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over plaintiff's state law claim under 28 U.S.C. § 1367.

II. BACKGROUND

The following background facts were set forth in the Court's April 26, 2010 Opinion resolving plaintiff's motion for temporary restraints. Any facts supplemented by the discovery process will be discussed in the analysis of plaintiff's First Amendment claim.

In November 2006, the HBOE adopted a policy addressing the use of drugs and alcohol by middle and high school students outside of school and unrelated to any school-sponsored activities. The Policy, referred to as the " 24/7 Policy," prohibits students from consuming, possessing, or distributing drugs or alcohol, or attending any gatherings or activities where the presence of drugs or alcohol is reasonably likely to occur. For those students who violate it, the Policy mandates punishments, depending on the number of offenses, which may include suspension from extracurricular activities or the imposition of counseling or community service.

To effectuate the Policy, parents and students are required to sign a " Student Activities Permission Form" (" permission form" or " form" ). [5] Only by the parent and

Page 481

the student signing the form may the student then participate in an extracurricular activity. Relevant for purposes of this case, when a student signs the form, he or she affirms:

I understand conduct regulations prohibit the use of tobacco in any form, drinking, possessing or providing alcoholic beverages and/or use, possession, or providing illegal drugs including anabolic steroids, at any time. The violation of these regulations will be dealt according to the Haddonfield Board of Education Drug and Alcohol Policies (consequences of 24/7 Drug and Alcohol Policy Concerning Student Conduct at Non-School Related Events enclosed).

When a parent signs the form, he or she affirms: " I have received and read all the information regarding student participation in the interscholastic/co-curricular activities. I have also reviewed the HSD Alcohol & Drug Regulations." ...


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