United States District Court, D. New Jersey
J.G., on behalf of minor K.C. Plaintiff,
HACKETTSTOWN PUBLIC SCHOOL DISTRICT, etal, Defendants.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D. JUDGE
before the Court is Defendants Hackettstown Public School
District, Kevin O'Leary, Kathleen Matlack, and Jennifer
Spuckes' Motion to Dismiss Plaintiff J.G.'s Amended
Complaint Pursuant Federal Rules of Civil Procedure 12(b)(1)
and (6). In her Complaint, Plaintiff asserts claims of: (1)
hostile environment, contrary to Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d; (2) discrimination,
contrary to the New Jersey Law Against Discrimination,
N.J.S.A. § 10:5-1, et. seq.;(3) deprivation of
her freedom of speech, contrary to 42 U.S.C. § 1983; and
(4) violation of her constitutional right to free speech
under Article I of the New Jersey Constitution. For the
reasons discussed herein, Defendants' motion is denied.
case involves allegations by a high school student, who
claims that she was discriminated against and that her
constitutional rights were violated when the Hackettstown
Public School District investigated and ultimately suspended
the student for bullying. Plaintiff J.G. brings this matter on
behalf of her minor daughter, K.C., a 17 year old student at
Hackettstown High School. (Amended Complaint at ¶ 7). On
March 8, 2017, K.C. was summoned to the office of Defendant
Kevin O'Leary, Assistant Principal at Hackettstown High
School. (Id. at ¶¶ 13, 17). Apparently,
K.C. and other students were overheard having a conversation
about guns and violence, which O'Leary wished to address.
(Id.). O'Leary asked K.C. whether the
conversation concerned the Black Lives Movement; when she
told him that she was speaking about confrontations between
police and African Americans, O'Leary responded,
"all lives matter." (Id. at ¶¶
19-21). According to K.C, she understood this to mean that
she was not to discuss the Black Lives Movement while in
school. (Id. at ¶ 25). Apparently, during this
conversation O'Leary also remarked that some individuals
are lucky to have light-colored skin and pass as Caucasian,
which K.C. took as an insult, being that she is bi-racial.
(Id. at ¶¶ 23-24). However, K.C. was not
disciplined for this incident.
event, five days later, March 13, 2017, K.C. again drew the
administrator's attention, this time for uttering a
purportedly offensive slur. During K.C.'s English class,
students were reading the play, "Blood Brothers,"
which has a scene where a corrupt police officer treats two
suspects differently based on their economic status.
(Id. at ¶ 26). As students were picking roles
to play, K.C. volunteered to play the police officer,
referring to the officer as "the pig."
(Id. at ¶ 27). Her English Teacher, Defendant
Matlack, reprimanded her for her choice of word and K.C.
apologized. (Id. at ¶ 28). This being said,
J.G. received a phone call a half hour later from Principal
Matthew Scanlon, who explained to her that K.C. was the
subject of a Harassment, Intimidation, and Bullying
(hereinafter, "HIB") investigation, pursuant
N.J.S.A. § 18A:37-13, et seq.. (Id. at ¶
29). The basis of this investigation was K.C.'s use of
the word "pig," which may have offended a student
in the class whose father is a police officer. (Id.
at ¶¶ 30-31). However, Plaintiff avers that the
student was not present when she made the purportedly
offensive slur. (Id. at ¶ 31).
that day, the school conducted an HIB investigation, which
was attended by K.C., Defendant Jennifer Spuckes, an HIB
Investigation specialist, and Defendant O'Leary.
(Id. at ¶ 36). K.C. apparently recorded this
meeting. In any event, during the meeting, K.C.
expressed to Defendants Spuckes and O'Leary that use of
the word "pig" did not reflect her view of law
enforcement and claimed that the classmate who may have been
offended by the statement was not present when she uttered
the word. (Id. at ¶¶ 39, 41). According to
the Complaint, "Mr. O'Leary and Ms. Spuckes
analogized the use of the term 'pig' to the use of
the term 'nigger' and, later, the term
'fag.'" (Id. at ¶ 42). Apparently,
both of them asked her how she would feel if someone called
her by either name. (Id. at ¶¶ 43-44).
Despite objecting to these slurs, Defendants O'Leary and
Spuckes continued to utter them in front of her.
(Id. at ¶ 45). The two also criticized K.C. for
continuing to discuss the Black Lives Movement, which they
compared to someone overhearing a sexually degrading
conversation between two teachers. (Id. at ¶
the investigation, Defendant O'Leary notified J.G. that
they concluded that K.C. had committed an "unintentional
HIB offense" and would serve a one day in-school
suspension. (Id. at ¶ 52). These findings were
later brought to the Board of Education on March 22, 2017;
however, the Complaint does not state what findings or
actions were taken thereafter. (Id. at ¶ 56).
This being said, the parties do not dispute that Plaintiff
did not appeal the initial HIB violation finding.
Rule 12(b)(1) Subject Matter Jurisdiction
Federal Rules of Civil Procedure 12(b)(1) a claim can be
dismissed for "lack of jurisdiction over the subject
matter." This motion to dismiss may be asserted at any
time in a case. In re Kaiser Group Int 7,
Inc., 399 F.3d 558, 565 (3d Cir. 2005). In a motion
to dismiss based on subject matter jurisdiction, "the
standard ... is much more demanding [than the standard under
12(b)(6)]." 'When subject matter jurisdiction is
challenged under Rule 12(b)(1), the plaintiff must bear the
burden of persuasion.'" Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005) (quoting
Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d
1406, 1409 (3d Cir. 1991)).
defendant's attack is facial, the court may take all
allegations in the complaint as true and "may dismiss
the complaint only if it appears to a certainty that the
plaintiff will not be able to assert a colorable claim of
subject matter jurisdiction." Liu v. Gonzales,
No. 07-1797, 2007 U.S. Dist. LEXIS 74611, at *7 (D.N.J. Oct.
5, 2007). The standard of review differs substantially when
the challenge is factual. Then, there is no presumption of
truthfulness to a plaintiffs claims in the complaint. RLR
Invs., LLC v. Town of Kearny, No. 06-4257, 2007 U.S.
Dist. LEXIS 44703, at *8 (D.N.J. June 20, 2007) (citations
consideration of the motion does not have to be limited;
conflicting evidence may be considered so that the court can
decide factual issues that may bear on its jurisdiction.
Id. Furthermore, "[w]hen resolving a factual
challenge, the court may consult materials outside the
pleadings, and the burden of proving jurisdiction rests with
the plaintiff." Med. Soc'y of N.J. v. Herr,
191 F.Supp.2d 574, 578 (D.N.J. 2002) (citing GouldElecs.
Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000)).
However, "[w]here an attack on jurisdiction implicates
the merits of plaintiff s [f]ederal cause of action, the
district court's role in judging the facts may be more
limited." RLR Invs., LLC, 2007 U.S. Dist. LEXIS
44703, at *9 (internal citations omitted).
Rule 12(b)(6) Failure to State a Claim
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6), the Court is
required to accept as true all allegations in the Complaint
and all reasonable inferences that can be drawn therefrom,
and to view them in the light most favorable to the
non-moving party. See Oshiver v. Levin, Fishbein, Sedran
& Berman,38 F.3d 1380, 1384 (3d Cir. 1994).
"To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal,556 U.S. 662,
678 (2009) (quoting Bell Atl Corp. v. Twombly, 550
U.S. 544, 570 (2007)). While a court will accept well-pleaded
allegations as true for the purposes of the motion, it will
not accept bald assertions, unsupported conclusions,
unwarranted inferences, or sweeping legal conclusions cast in
the form of factual allegations. Iqbal, 556 U.S. at
678-79; see also Morse v. ...