Tuesday, December 13, 2011


I. Undisputed Facts by Attorney Lennox Hinds

Synthesizing the parties’ accounting of the events, the undisputed facts are that on October 19, 2011, Mr. Plias, summoned Sumit to discuss an alleged bullying incident that occurred on October 15, 2011.  During this time Mr. Plias required Sumit to submit a written statement wherein he recounted his recollection of the facts.   It is also undisputed that Mr. Plias directed and/or encouraged Sumit to admit in writing that he knowingly violated the school anti-bullying policy and New Jersey Anti-Bullying law without first consulting his parents or ensuring that one of them was present in the room. It is also uncontested that neither Mr. Plias nor the school designated Anti-Bullying Specialist ever informed Sumit, at the time of completing his statement, how his statement could be used against him in an investigation by the school Anti-Bullying Specialist in future administrative hearings before the Board of Education, and the Superintendent of Springfield Public schools. Sumit was also never provided a charging instrument that indicates the charges to be filed against him, and his available course of remedies at the time of completing his written statement. Surya was also neither provided a list of witnesses, nor their statements indicating the persons who Mr. Plias and the Anti-Bullying Specialist consulted or intended to consult during their investigation of the October 15, 2011 incident. Mr. Plias was not present at the incident in question, and that his understanding of events was supplied by communications by Mike and Joshua and their parents and other witnesses unknown to Sumit or his parents. The parties also do not dispute that Sumit is a minor and that he grew fearful of Mr. Plias during his October 19, 2011 meeting.  Sumit was ultimately required to serve his first after-school detention on October 27, 2011 as punishment for the purported school violation, several days before the BOE reached a decision confirming the findings of the bullying investigation and appropriateness of punishment for the alleged school policy violation.  The subject incident remains on Sumit’s academic record.

II.  Due Process Concerns Arising Under FMG’s Enforcement of New Jersey’s Anti-Bullying Law

It is well settled under New Jersey and US constitutional laws that with respect to the disciplining of students in public educational institutions involving the possible imposition of sanctions such as suspension or expulsion, the requirements of procedural due process under the Fourteenth Amendment of the United States Constitution must be enforced. R.R. v. Board of Ed. Of Shore Regional High School Dist. 109 N.J. Super. 337, 346-347 (1970). Springfield School District’s Anti-Bullying Policy is authorized by New Jersey’s recently enacted “Anti-Bullying Bill of Rights Act” (C.18A:37-13 et seq.).  Students at FMG who are accused of violating the school anti-bullying policy also must be afforded Due Process because the anti-bullying policy invokes suspension and expulsion as punitive sanctions, and because FMG is a public middle school.

The constitutional guarantee of Due Process derives from federal law and is not diminished by the fact that a state may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action. Layton v. Beyer, 953 F.2d 839, 849-850 (3d Cir.1992). Accordingly, due process requires that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for a hearing appropriate to the nature of the case. Armstrong v. Manzo, 380 U.S. 545, 550 (1965). The opportunity to be heard must be granted at a “meaningful time and in a meaningful manner.” Id at 552.

Within public schools, Due Process requires that students at a minimum be provided a fair and adequate notice of chargers concerning violation of school policy that could invoke suspension or expulsion sanctions. Goss v. Lopez, 419 U.S.565, 574-575 (1975).  Notice to the student and his or her parents should contain a specific statement of the specific charges and grounds supporting the charges. The charge of misconduct, shaped by a witnesses’ viewpoint should be substantiated by a balanced and objective collection of facts concerning the charged misconduct. The student alleged of violating the policy should be given the names of the witnesses against him and an oral or written report reflecting the facts to which each witness testifies.  Accused students should also be given the opportunity to present to the Board of Education, or at least to some leading administrative official, his own defense against the charges and to produce either oral testimony or written affidavits of witnesses in his behalf to rebut the charges against him and cross-examine witnesses. Expulsion of E.J.W. from Independent School Dist. No. 500 632 N.W.2d 775 at 781-782 (Minn. Ct. App. 2001).

Most importantly the students, especially minors, should be informed of her/his rights to admit or deny the charges, and see his/her parents, before ever submitting documentation by school administrators wherein the student by force or fear of sanction admits to violating school policies authorized by governing state laws that could invoke severe sanctions upon the students.

III.  Due Process Violations Sumit Gandhi Sustained

The Gandhi family, like many anti-bullying activists, support and commend the New Jersey’s legislature’s initiatives taken to curtail instances of harassment, intimidation and bullying that arise within public schools.  However, as you are aware, the protection of procedural Due Process is a U.S. citizen’s constitutional right.  Thus, New Jersey School Districts’ objective to eliminate instances of bullying must be balanced between the public school officials’ desire to maintain a safe and thriving learning environment with the students’ constitutional rights.

In this case, the undisputed facts show that Sumit was deprived of basic Due Process safeguards deeply embedded in New Jersey and federal law. The circumstances leading to deprivation of his Due Process rights are easily replicable so long as the Springfield School District’s Anti-Bullying Policy remains in its current form.  In Sumit’s case, the most egregious exemplars of Due Process violations are set forth below with no particular order of priority:

§         Mr. Plias’ the Anti-Bullying Specialist and the Principal’s decision on October 19, 2011 to interrogate as well as prematurely and unilaterally conclude that Surya violated the school anti-bullying policy and New Jersey Anti-Bullying Law;

§         Mr. Plias’ forcing of Sumit, a minor, to produce a writing admitting he violated school policy and New Jersey law without his parents present at the inception of when the charges were alleged against him[1];

§         Mr. Plias, the Anti-Bullying Specialist and the Principal’s failure during the course of the investigation, to distinguish with particularity the words and remarks of Joshua, Mike and Sumit on the Factual Findings reported to the Springfield BOE, thus leaving significant ambiguity as to the underlying acts per student that violated the school anti-bullying policy.

§          Mr. Plias, the Anti-Bullying Specialist and the FMG Principal’s failure to supply Surya with a charging instrument at the time he requested Surya to complete a statement.

§         Mr. Plias, the Anti-Bullying Specialist and the FMG Principal’s failure to inform Surya or his Parents at the time of completing his statement, how his statement would be used against him in subsequent investigation and adjudication of the anti-bullying charges against him by the Anti-Bullying Specialist, the FMG Principal, and the Springfield School District Superintendent. [2]

§         Mr. Plias, the Anti-Bullying Specialist and the FMG Principal’s failure to inform or supply Sumit at the time of completing his statement, or sometime soon after, a witnesses list and/or statements of persons questioned about the subject incident which led to Sumit’s incrimination.

§         FMG’s decision to punish Surya on October 27, 2011 before the School BOE convened to review the Findings of the FMG investigation and before Sumit had opportunity to present his side of the case in a meaningful way.

[1] The case record demonstrates in multiple instances that Sumit’s admission served as a compelling factor that incited his disciplinary sanction In fact, the November 8, 2011, Board of Education Meeting Report, Mr. Plias statements at the Dec 5 Board of Education Hearing, and the Anti-Bullying Specialist’s Factual Findings all cite Sumit’s “admission,” as basis to conclude that the acts in question constituted bullying.
[1] Notably, the Springfield Board of Education did not require that Mr. Plias himself produce a written statement during its review of the incident as it was not required under NJ Anti-Bullying Law that the Board’s witnesses prepare a written statement for a parent requested hearing.
§         Springfield BOE’s failure to provide Sumit or his parents, prior to the December 5, 2011 Hearing of any written statements to be introduced or relied upon as evidence at the Hearing.

§         The Springfield BOE’s failure to permit Sumit to question or cross-examine any witness relied upon during the investigation of the subject incident at the December 5, 2011 Hearing.

§         FMG’s failure to provide anti-bullying training to seventh grade students and inform them of the consequences associated with violating the school policy prior to the October 15, 2011 incident.

§         Mr. Plias, interrogation of Sumit, coercion of statements, and racial animus directed at Surya irrespective of Surya’s displays of fear during the October 19, 2011 interrogation[3];

Based on the forgoing, it is evident that FMG and the Springfield BOE significantly deprived Sumit of his constitutional right to Due Process. Surya was forced to produce incriminating evidence, at the outset of a concealed investigation, without provision for presenting his side of the case. His academic record is wrongfully blemished for acts that were not even his own, and remains subject to future harm as a result of these recorded school code of conduct violations on his academic record.

Sumit’s experiences at FMG were not merely caused by an amalgamation of procedural mishaps undertaken by school officials.  Rather, the case reflects salient constitutional defects in the New Jersey Anti-Bullying Law and Springfield School District’s anti-bullying policy.  The source of the problem lies in the fact there are no factors or guidelines contained in the policy and New Jersey Anti-Bullying law governing how investigations should proceed or setting forth the procedural safeguards that must be implemented to ensure the students’ due process rights are protected. Instead, the school anti-bullying policy merely authorizes the Principal of each school, in conjunction with the Anti-Bullying Specialist, "to define the range of ways in which school staff will respond once an incident of harassment, intimidation, or bullying is confirmed" along with other "additional personnel appointed by the principal." Springfield HIB Policy § H.

[1] Evidence of Mr. Plias’ intense interrogation, premature conclusions of law, and fear imposed upon Sumit are conspicuously evident in Sumit’s written statement. Take for example, Sumit’s statement “I didn’t realize that this was bullying so when I did I stopped and just left and went to my other friend.” (Exhibit 5 Sumit Gandhi’s Written Statement Produced Before Mr. Plias). This statement at minimum invites suspicion. To believe that Sumit, a 12 year old child, voluntarily, knowingly and willfully violated the school anti-bulling policy and New Jersey anti-bullying law, by uttering a single remark to his musical band colleague at a high school football, and subsequently within seconds of time to instantly return to his law abiding senses, and fully withdraw from further commitment of unlawful act by “joining his other friends” is a self-incriminating recounting of facts that defies common sense and credibility.

Furthermore, the NJ Department of Education in (Union County Office) December 22, 2011 letter to Mr. Mohan Gandhi, denying Mr. Gandhi's claims that FMG’s investigation of the October 15, 2011 incident was racially biased and that Mr. Plias intimidated Sumit into producing a written statement that is contrary to what occurred on the day in question is also unavailing. It is commonplace in the law that evidence of bias and prejudice, are unveiled by the accused’s right and opportunity to challenge witness statements and cross-examine witnesses, as opposed to concealed internal investigations conducted by similarly situated parties.  However, Sumit was never provided these options.  Accordingly, substantive changes to the Springfield’s anti-bullying policy and New Jersey’s Anti-Bullying Law are necessary to ensure protection of students' constitutional rights.
IV.  Accused Violators of FMG Anti-Bullying Policy Should Be Provided Maximum Due Process Protection

To suggest that Sumit need not have been accorded Due Process protection in this particular case because he was not subjected to suspension or expulsion is of no moment. This argument assumes the implausible stance that a New Jersey public school may fully abrogate a student’s Due Process rights during investigations and adjudication of school code of conduct violations so long as suspension or expulsion, though a contemplated sanction, is not actually imposed. Furthermore, violations of school anti-bullying policies should require heightened procedural safeguards, (more so than conventional code of conduct violations) because the accused is subject to both punitive sanctions by school officials and tort civil lawsuits initiated by the purported victims. Hence, Sumit Gandhi's forced statement made at the direction of Mr. Plias unfairly exposes and prejudices Sumit to severe school sanctions imposed under school administrative proceedings and a court of law.

V.  The Springfield Anti-Bullying Policy Is Subject to Constitutional Challenges On the Grounds of Overbroad & Vague Statutory Language

Federal constitutional law provides that a regulation is unconstitutionally vague, and thus a violation of due process, if it does not give fair notice of the regulation's reach and requires students to guess as to the contours of its proscriptions. Although a school has a certain degree of flexibility in its disciplinary procedures, its regulations may still be found to be unconstitutionally vague or overbroad.  The most common reason for a court to sustain a vague or overbroad challenge of a school policy is when specific terms within the policy are not defined. Specificity of terms is especially important when the policy’s regulations are content-based regulation of speech. 

A plain review of the New Jersey’s anti-bullying law and the Springfield School District’s anti-bullying policy shows that they are susceptible to overbroad and vagueness constitutional challenges. For example, the Policy’s prohibition against harassment, intimidation, and bullying applying to “any gesture, any written, verbal or physical act, or any electronic communication” “that has the effect of insulting or demeaning any pupil or group of pupils” can easily be construed as unconstitutionally vague and overbroad because it seeks to regulate public school students and officials speech and behavior without compass or guidance as to the parameters of the policy. Springfield HIB Policy § B. The constitutional prohibitions against vague and overbroad statutory regulations apply to Sumit’s case and the FMG policy at issue.  However we decline to further fully address this issue at this time but nonetheless raise the issue for your consideration.

VI.  Request For Remedy to NJ Senate President, Assembly Speaker & Governor of New Jersey (Feb. 17, 2012

The Gandhi family and counsel request an opportunity to comment and participate in public hearings designated for review, evaluation, and strengthening of the New Jersey Anti-Bullying Law.  Our research shows that similar civil rights activists groups have identified similar constitutional deficiencies in the statute raised in this letter and are poised to contribute to the dialogue.  The Gandhi family is uniquely situated to testify about the detrimental effects of New Jersey’s Anti-Bullying Bill of Rights that does not adequately protect the constitutional rights of public students and are well positioned to assist your office with proper strengthening and restoration of the Act. 

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