United States District Court, D. New Jersey
DARA HECHT, et al. Plaintiff,
EAST BRUNSWICK BOARD OF EDUCATION, et al. Defendant.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on Defendants East Brunswick
Board of Education ("Board"), Michael Gaskell,
Margaret Haas, and Russell Petronko's Motion to Dismiss
Plaintiffs Complaint pursuant Federal Rule of Civil Procedure
12(b)(6) (ECF No. 6).
case involves allegations from a middle school student,
Plaintiff D.H. and her mother, Dara Hecht, that their
constitutional rights were violated when the Board suspended
D.H. for fighting with a classmate on September 16, 2016.
Prior to this suspension, Hecht had lodged several complaints
against Defendant Michael Gaskell, the Principal of the
Hammorskjold Middle School. (Complaint at ¶¶ 7-18).
October and December 2015, Hecht met with Principal Gaskell
to discuss issues regarding D.H.'s grades received in her
computer and social studies classes. (Id. at
¶¶ 7-8). These disputes continued into January
2016, wherein Principal Gaskell instructed all of D.H.'s
teachers to disregard any emails from Hecht. (Id.).
Dissatisfied with Principal Gaskell's handling of her
complaints, Hecht brought the issues before the Board of
Education. (Id. at ¶¶ 8-9). However, her
complaints fell on deaf ears. (Id. at ¶ 9).
event, on March 10, 2016, after a student had fallen and
broken a bone, Hecht again emailed Principal Gaskell to
complain about the lack of supervision in a school stairwell.
(Id. at ¶ 10). The email also expressed
concerns about the manner in which a security guard oversaw
students being dropped off across the street from the school.
(Id.). Principal Gaskell responded that there were
no safety issues with either, and she asked D.H. separately
if she agreed with her mother's concerns, which enraged
Hecht. (Id. at ¶¶ 11-12).
following month, April 2016, Hecht claims that the security
guard scolded her for approaching the student drop-off area
too quickly and for dropping off D.H. in a prohibited area,
despite the fact that other people did the same.
(Id. at ¶ 14). According to the Complaint,
Principal Gaskell contacted the East Brunswick Police
Department to report some harassing behavior between Hecht
and a security guard and, on April 14, 2016, two officers
approached Hecht's home to discuss the matter; however,
she did not answer the door. (Id. at ¶¶
14-15). Thereafter, Hecht spoke with an officer and explained
the growing tension between her, D.H., and the security
guard, and filed a police report against him, based on things
the security guard purportedly said. (Id. at
¶¶ 15-16). A week later, April 21, 2016, Hecht
again emailed Principal Gaskell complaining about the
continuing issues she had with the security guard and
threatened to report the events to the newspaper unless her
concerns were resolved. (Id. at ¶ 17). That
same day, Principal Gaskell filed a police report against
her, presumably based on the ongoing conflicts between her
and the guard. (Id. at¶18).
3, 2016, Hecht emailed Principal Gaskell to notify him that
she intended to file a complaint with the county
superintendent; later that day, Principal Gaskell replied
that he was unaware of these ongoing issues with the security
guard but would initiate an investigation. (Id. at
¶ 19). According to Plaintiffs, these complaints should
have already triggered an investigation for Harassment,
Intimidation, and Bullying (hereinafter "HIB"),
pursuant N.J.S.A. § 18A:37-13, et seq., based
on the guard's continued harassment of Plaintiffs.
(Id. at ¶ 20). When no action was taken, Hecht
wrote to both the County and, later, the Board about
Principal Gaskell's shortcomings, specifically his
failure to initiate an HIB investigation. (Id. at
¶ 21). The Board responded, finding that Principal
Gaskell had done nothing wrong. (Id. at ¶ 20).
event, on September 16, 2016, D.H. was involved in a fight
when a large student that she did not know attempted to punch
her, but missed; D.H. then proceeded to punch and kick him.
(Id. at ¶ 22). Three days later, D.H. was
informed that she would receive a one day in-school
suspension and a note of the incident would be placed in her
permanent file, despite not being found to violate HIB.
(Id. at ¶ 23). Prior to this incident, D.H. was
in good standing, being an honor student with no previous
discipline. (Id.). According to the Complaint, no
one else was present in the hallway during the incident and
D.H. was only acting in self-defense. (Id. at ¶
24). Hecht appealed the suspension immediately, and asked to
review video surveillance of D.H.'s altercation.
(Id. at ¶¶ 25-26). A week later, Hecht
requested copies of D.H.'s school records and, again,
video surveillance of the incident, pursuant the Family
Educational Rights and Privacy Act, 20 U.S.C. § 1232(g).
(hereinafter "FERPA"). (Id. at
¶¶ 29-32). However, Hecht's requests were
ignored. (Id.). In another email, dated September
28, 2016, Hecht continued to protest the Board's
disciplinary decision and noted that in a comparable
circumstance, wherein a student was involved in a fight and
violated HIB, the student received only two lunch detentions.
(Id. at ¶ 32). The Board responded that the
district considered the matter closed and that D.H. would
serve her in-school suspension on October 5, 2016.
(Id. at ¶ 33).
December 6, 2016, a phone conference was held between Hecht,
defense counsel, and an administrative law judge (hereinafter
"ALJ"). (Id. at ¶ 37). During this
hearing, Hecht again requested a copy of the video
surveillance. (Id.). However, Defendants responded
that they did not intend to present any student witnesses and
contended that the video was not relevant to the case.
(Id.). On January 31, 2017, the ALJ directed
Defendants to allow Hecht to review the surveillance footage,
which she did the following month. (Id. at
¶¶ 38-39). On February 22, 2017, after reviewing
the video, the ALJ noted that an adult was present during the
incident and wanted that individual to testify; but, she
never appeared. (Id. at ¶ 40).
six months later, on May 30, 2017, an administrative hearing
was held on Hecht's appeal of the Board's
disciplinary decision. (Id. at ¶ 43). At this
hearing, only Hecht testified on her own behalf. (Motion to
Dismiss, Exhibit D, ALJ Initial Decision, p.7, ECF No.
5-4).She argued that D.H. was only acting in
self-defense and that the punishment imposed on D.H. was made
in retaliation for the complaint she filed against Principal
Gaskell. (Id. at p. 3-4). Hecht also contended that
Defendants infringed on D.H.'s procedural due process
rights, when they refused to show Hecht the video
surveillance. (Id.). Finally, Hecht claimed that
Defendants refused to inform her of any possible witnesses.
(Id.). Defendants responded, stating that they
followed the necessary procedural requirements in issuing
D.H.'s short-term suspension. (Id.). Moreover,
Defendants maintained that the discipline was appropriate,
given the severity of D.H.'s conduct and was consistent
with the suspensions imposed in similar circumstances.
(Id.). Defendants also noted that the discipline
could not be perceived as retaliatory, since Principal
Gaskell did not impose the suspension; rather, Defendant
Russell Petronko, the Assistant Principal, issued the
suspension without consulting Principal Gaskell.
(Id.). After hearing testimony from both parties,
the ALJ determined that, under the circumstances, the
Board's decision to suspend D.H. was reasonable, since
the undisputed facts demonstrated that the male student did
not strike D.H., D.H. struck the male student at least twice,
and D.H. deserved to be punished. (Exhibit D, p. 6).
Hecht appealed the ALJ's decision to the Commissioner of
Education, again contending that D.H.'s punishment was
retaliatory because of the open complaint against Principal
Gaskell. (Motion to Dismiss, Exhibit E, Exceptions to Initial
Decision, p. 3-4, ECF No. 5-4). In her appeal, Hecht also
argued that that Defendants violated their duty to preserve
evidence. (Id. at p. 4-13). The crux of her appeal
focused on inconsistencies in Defendants Petronko and
Gaskell's statements, concerning the number of
individuals present during the altercation, since both
children said there was no one there. (Id.).
Therefore, Hecht alleged that Defendants altered the video to
show students and a staff member present and used this
doctored video to justify their punishment. (Id. at
being said, the Commissioner of Education reviewed the appeal
and affirmed the ALJ's determination that the suspension
was reasonable. (Motion to Dismiss, Commissioner of Education
Decision, Exhibit F, p. 2, ECF No. 5-4). The Commissioner of
Education also found "that the record does not reflect
D.H.'s procedural due process rights were violated",
that "claims that the video was altered are
unsubstantiated," and that "accusations of
retaliation are without merit". (Id.).
Plaintiffs, alleges that Defendants are liable under 42
U.S.C. §1983 because they retaliated against Hecht, who
was exercising her right to free speech, by sending police
officers to harass her at various locations, issuing an
overly severe punishment to her daughter, D.H., and altering
video evidence to justify the harsh discipline. (Id.
at ¶ 52). Further, Plaintiffs assert that the ...