A recent, little-noticed federal court decision posits that New Jersey's anti-bullying statute is vulnerable to First Amendment challenges, based on the U.S. Supreme Court's latest pronouncements.

R.H. v. Sayreville Bd. of Educ. (D.N.J. 2023) involved an eighth-grade student who was disciplined for committing an "HIB" (an act of harassment, intimidation or bullying) after posting an offensive message on social media. In a decision issued on May 12, the court allowed the student's free-speech claims to move forward, relying on the U.S. Supreme Court's 2021 decision in favor of a cheerleader disciplined for posting vulgar messages about her school.   

Anyone who follows school law knows that these types of HIB charges are commonplace—and difficult to challenge. In seeking to combat bullying, the HIB statute (N.J.S.A. 18A:37-13) is exceedingly broad, focusing not on traditional categories of protected traits (race, gender, nationality, etc.) but on any "distinguishing characteristic," of any kind. Peruse the numerous administrative decisions involving HIB, and you will quickly discern how readily school administrators adjudge students to be victims of bullying based on traits as trivial as height, athletic ability or even eating preferences.