NEWJERSEY — A former Colts Neck High School student whose genitalswere partially visible in a 2001 yearbook photo is asking the New Jersey SupremeCourt to find that his privacy was invaded and that he was subjected toemotional distress.
The appeal, filed this week, follows the June 23decision of a New JerseySuperior Court appellate panel, which agreed with a district court decision,ruling that Tyler Bennett’s claims were “without sufficient merit towarrant discussion in a written opinion.”
Bennett, 22, was ajunior and on the basketball team at Colts Neck when the photo of him playingbasketball without wearing an athletic supporter, which resulted in therevealing of his genitalia, was published as part of a basketball spread in theyearbook. Once they were made aware of the photo, school administratorsconfiscated the yearbooks and reissued them with the pictureremoved.
The school maintains that neither the student editors norschool officials realized what the photo depicted before it waspublished.
According to the Superior Court’s decision, Bennettdid not prove he suffered sufficient injury as he received no psychologicalcounseling and did not prove that administrators acted with actual malice infailing to prevent the distribution of the yearbooks.
Steven Kessel,Bennett’s attorney, called the idea that having one’s private partsrevealed to classmates without permission does not constitute emotional distress “absurd.”
“I’m bothered that the lowercourts have taken this case so lightly,” Kessel said. “It’s aserious matter and they gave it cursory treatment, I hope the Supreme Courtrecognizes that.”
He said Bennett was teased by students andfaculty members alike. Bennett could not be reached for comment Tuesday, buttold the New York Post of hisexperience.
“I was shocked, embarrassed and upset,”Bennett told the Post. “Iremember a student taunting me and asking, ‘How’s ithanging?’”
The lawsuit names many defendants, includingthe yearbook publishing company Jostens, all nine members of the FreeholdRegional High School District board of education and the superintendent, as wellas Colts Neck’s principal, vice-principal, yearbook adviser and severalstudents on the yearbook staff.
Nathanya Simon, general counsel forFreehold Regional High School District, which is one of many defendants in thelawsuit, said none of the defendants had been dropped and called the decision tosue the students “an almost mean way of handling thecase.”
“The students cannot be covered by board’sliability insurance, so each student had to hire their own attorney,” Simon said.
One such student was Adam Rybarczyk.
Rybarczyk could not be reached for comment, but his attorney, FrankCofone, Jr., said he was only a yearbook staff member who was caught up in thelawsuit due to an ill-timed decision to stick his head in the yearbook editorsphoto.
Cofone said it was unreasonable to expect students or anyoneelse to assess whether or not yearbook photographs will be deemedembarrassing.
Among the questions Kessel is asking the Supreme Courtto weigh in on is: “Do publishers and high school editors have a duty toinspect the contents of a publication to determine if it includes inappropriatematerials?”
Kessel said administrators could have reduced theimpact of the photo by pulling the yearbook immediately upon hearing of itscontents. He claims they dragged their feet, exposing the photo to more studentsthan necessary.
Simon said the district already has appropriatemeasures in place to inspect the yearbook for such materials. She said theyearbook adviser checks content to make sure it is appropriate and thatprincipals also have oversight.
Simon said the publication of thephoto was unintentional.
“It was a very, very small photoamong many other photos on an action shoot,” Simon said. “I think wedid have and continue to exercise reasonable supervision.”
Shesaid there have been no additional restrictions placed on the yearbook as aresult of the incident and that there have been no similar complaintssince.
Simon said the New Jersey Supreme Court takes on relativelyfew cases and said often it chooses cases of particularimportance.
“I don’t think this case is of suchmagnitude, but that’s their call,” Simonsaid.