Advil-Toting Student May Sue School

(CN) - A school district must face claims that a student who was falsely accused of taking steroids was suspended and kicked off National Honor Society for taking Advil, a federal judge ruled.

William Valichka gave Advil to his son, A.V., for back pain during baseball practice at Pennsgrove High School in New Jersey in March 2012, according to the complaint.

Another student told a teacher that A.V. was taking steroids, and the teacher informed a school district administrator, Glen Asch, Valichka claims.

Though A.V. told Asch he had taken Advil, not steroids, the official called A.V.'s parents to the school and told them that A.V. could not return until he took a drug test, the family said.

A.V.'s parents say the physician who examined their son and tested his urine confirmed that A.V. had not taken steroids.

A few days after A.V. returned to school, however, his father complained to Asch that A.V. should not have had to take "an actual drug test" or be evaluated, as no school official had any reason to believe A.V. had taken drugs,.

Asch responded by informing the Valichkas that "if they did not pursue these issues any further ... the school would not discipline A.V. for taking the Advil," according to the 9-page memorandum and opinion.

The Valichkas say they nonetheless had their attorney speak with the school, and "within a couple of days," A.V. was suspended for a day for taking Advil in violation of school policy.

A.V.'s parents sued the Pennsgrove/Carneys Point Regional School District and Asch, claiming their son was excluded from National Honor Society based on his suspension.

They sought damages for illegal search and seizure, retaliation for their attorney's actions, negligent training and supervision of Asch and violation of due process and the school district's own policies and procedures.

The defendants moved for judgment on the pleadings, but U.S. District Judge Joseph Rodriguez denied the motion on March 27.

The judge tossed the district's claim that it may randomly drug test extracurricular activity participants without probable cause or individualized suspicion.

"The court understands defendants' argument, but a finding of reasonableness does not follow from defendants' logic," Rodriguez wrote. "At this stage of the litigation, the allegations of the complaint are sufficient to survive a motion for judgment on the pleadings; it is plausible that the search at issue was unreasonable in its inception or scope or both."

The court also rejected the argument that A.V.'s drug test is not of public concern, so his "speech" via his attorney was not constitutionally protected.

"Again, the allegations of plaintiff's complaint state sufficient facts to show that the retaliation was not simply possible, but plausible," Rodriguez wrote.

The defendants are not immune from the Valichkas' state-law claims for negligence and drug-testing A.V. based on a student's - not a teacher's - suspicion, the ruling states.

"The court appreciates that the New Jersey Legislature enacted the reporting legislation in an effort to prevent and eliminate drug and alcohol abuse in its schools," Rodriguez wrote. "In this case, however, the court cannot find as a matter of law, at this stage of the litigation, that defendants are entitled to statutory immunity. More facts are needed to ensure that defendants exercised the requisite skill and care in handling plaintiff's situation, specifically because the report of his drug use came from another student, allegedly antagonistic to plaintiff, rather than an educator or administrator. Therefore, the motion for judgment on the pleadings will be denied."

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