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Back in September, we brought you the story of a New Jersey high school student, Frank Harvey, who was suspended after school officials found a thumb drive containing an anti-gun control video he made for a class presentation.

In follow-up stories Harvey’s mother, Mary Vervan, said she would be exploring legal options against the school board to ensure that nothing about the incident appeared on her son’s permanent record, and apparently she has. Eugene Volokh reported about an administrative law decision on an emergency petition in the case, M.V. v. Bd. of Ed. of the Borough of Manville.

In the decision, administrative law judge ruled that the school board’s actions are what led to her son leaving the school, and that “it could be culpable if its actions were unjustified.” The judge then denied her request for emergency relief, ruling that:

“[a] factual hearing … [is] necessary to determine the justification for the high school’s action to request [Harvey] to submit to a psychiatric assessment.”

A review of the known circumstances of this case demonstrates a disgusting overreach of authority by the school board and use of government resources to retaliate against the boy and his mother for failing to comply with their demands.

On a Monday in late September, Harvey, accidentally left a thumb drive at the school. A teacher found it after hours and turned it into the main office. A main office employee decided to look through the contents of the thumb drive and found the anti-gun control video.

The video cited examples where people have fended off home invaders using guns and argues people should be able to protect themselves. It uses political cartoons to suggest gun free zones won’t work.

After watching the video, the employee turned the flash drive over to a school counselor. Somehow it was determined that the drive belonged to Frank Harvey, and the counselor:

…[C]ertified she knew him to be a loner, occasionally wore a Soviet trench coat and hat, and had a fascination with war and violent video games. She related an incident from the previous year where [Harvey] critically commented on the staff’s inability to perform their jobs.

The counselor considered the video a “red flag” and contacted the Superintendent, who then called the law enforcement and asked them to investigate. Officers interviewed Harvey at his home. Harvey told them he had created the video during the prior school year for a class assignment, and the police cleared him of any wrongdoing.

As NJ.com reports, this is the video that was found.

The teacher was contacted and denied approving the topic. Still, the school district suspended Harvey “for the contents of the thumb drive” and told his mother he would have to undergo a five-hour psychological evaluation before he could return. Instead of subjecting him to this, she withdrew him from school Tuesday afternoon.

On Wednesday, the county Department of Social Services showed up at Harvey’s door, wanting to speak with him. His mother says:

They came to my home trying to talk to my son. I was at work. I told my son they have no right to talk to him. He refused to speak with them and they left. I’m not sure why they came. The school likely sent them out because they didn’t like how things have come out in the media.”

The district bashed Vervan in a statement. Superintendent Anne Facendo said she couldn’t comment on the particulars because of privacy laws and that:

“We believe the student’s family is aware of this, and are taking advantage of those laws to publicize a blatantly false, one-sided account of what occurred. These claims are false, and we are confident that the evidence will support the district’s position. The district is especially disheartened at the unfair personal attacks leveled by the family at our dedicated staff….We have nothing more to say on the matter at this time, but could not let the family’s vicious personal attacks go unanswered.”

Returning to the issue of the video. Is there a prohibition on creating a movie about gun control (or any other constitutional issue) containing a student’s opinion? None of the stories indicate that the school district cited a section of a behavioral code Harvey allegedly violated by creating or possessing the video, or that the consequence of such violation is suspension pending a psychological evaluation.

The most inflammatory thing in the video is that it asks if liberals are insane. We ask that daily – should we be subjected to psychological evaluation?

Some might ask why the mother didn’t simply allow her child to be evaluated by psychologists if she believes there is nothing “wrong” with him. The school district’s actions demonstrate that they consider a differing opinion to be a “red flag,” so why should his mother allow county psychologists, who probably have an agenda, to assess her son and document their findings in a permanent file?

It’s horrifying that a school district feels they have the power to suspend a student for creating an opinion piece on a hotly-debated constitutional issue because his opinion is the unpopular one, then attempt to require a psychological evaluation (implying that his opinion might be indicative of a mental issue), then refer the matter to the county Department of Social Services when the child’s mother has the audacity to stand up for her son’s rights.

In addition to concluding that the school board could be culpable if it could not justify its actions, the administrative law judge wrote “that there was a plausible argument that the board’s actions violated the First Amendment.”

The balancing of [Harvey]’s freedom of speech against the high school’s obligation to protect the safety of all students is an area that requires a close analysis of all the credible factual testimony available to the tribunal. Petitioner has placed forth a factual certification suggesting the high school’s actions may be motivated by pre-judgments inconsistent with the sole safety of the student body.

We will post further updates as they become available.

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