Suspension case might be bound for high court
Rutherford Institute
files appeal with
U.S. Supreme Court
BY jolene Hart
Staff Writer

SAYREVILLE — The case of a Wilson Elementary School student who was suspended for making threats during a game of cops and robbers may again garner national attention.

The Rutherford Institute, which represents the student and his parents, has announced it will appeal the case to the U.S. Supreme Court to have the suspension cleared from record.

The student and three others were suspended in March 2000 when they were playing during recess at the school. The boys reportedly pointed their fingers at one another, pretending to use guns, and the student now involved in the case allegedly said to another, "I have a bazooka and I’m going to shoot you."

The threat was reported to a teacher, and all four boys were given a three-day suspension by the school administration.

School officials contended that the administration used discretion and acted appropriately in its decision, asserting that the actions warranted punishment, although detailed information on student discipline is not public information.

A lawsuit against the Sayreville Board of Education was initially filed in June 2000 with the U.S. District Court for New Jersey by the Rutherford Institute, a non-profit civil liberties organization, based in Virginia, that specializes in First Amendment and religious freedom cases. The lawsuit was filed on behalf of one student’s parents, Scot and Cassandra Garrick.

Attorneys from the institute charged that the kindergartner’s First, Fifth, Eighth and 14th Amendment rights were violated, in addition to a New Jersey law entitling him to a public education.

The situation attracted national media attention and widespread debate on the issue of "zero tolerance" policies in schools. At the time of the incident, however, no such policy had been officially adopted by the Sayreville School District that would apply to this case.

Earlier this year, the Third Circuit Court of Appeals backed a lower court ruling that the student’s rights of free speech, procedural due process and equal protection of law were not violated.

Institute attorneys have now asked the U.S. Supreme Court to review this decision.

Superintendent of Schools Dennis Fyffe, who at the time of the suspension was the district’s assistant superinten­dent, in the past has said that school of­ficials had to use discretion and treat matters on a case-by-case basis in the absence of a zero-tolerance policy. He said the district took the action it felt was appropriate.

"This case was taken to federal court, and the federal judge agreed with us," Fyffe said this week. "It was taken to federal appeals court, and the federal appeals judge agreed with us. And, in the unlikely case that this is reviewed by the U.S. Supreme Court, I am confident that they will also support our decision."

John W. Whitehead, the institute’s president, said in a statement that his young client was acting within his Con­stitutional rights.

"When public school authorities claim first graders playing ‘cops and robbers’ on the playground are engaged in ‘threatening’ and ‘dangerous’ activity, one wonders whether it is the children or the adults who can’t tell the difference between fantasy and reality," Whitehead said. "The right to freely express oneself is a fundamental right protected by the First Amendment— whether one is 8 or 80."

Representatives of the Rutherford In­stitute could not be reached for comment for this story.