The New Jersey Supreme Court Holds School District Liable, DD, 3/08

Defense Digest

New Jersey - Civil Rights & Public Entity

The New Jersey Supreme Court Holds School District Liable For Student On Student Harassment Under The New Jersey Law Against Discrimination
By Kara A. Pullman, Esq.*

In L.W. ex rel. L.G. v. Toms River Regional School Board of Education, 189 N.J. 381, 390 (N.J. 2007), the New Jersey Supreme Court held that a school district can be held liable for student sexual orientation harassment under the New Jersey Law Against Discrimination (LAD) when it is aware of the harassment but fails to take reasonable steps to stop it.

The plaintiff L.W.'s mother, L.G., filed a Complaint under the LAD in the Division of Civil Rights in which she alleged that the defendant Board of Education ("The Board") failed to take corrective action in response to the harassment that L.W. suffered due to his perceived sexual orientation. The Division of Civil Rights found that the Board of Education was liable for the peer harassment that L.W. had allegedly endured. The Appellate Division affirmed the decision of the Division on Civil Rights.

According to the Complaint, L.W.'s classmates began teasing him with homosexual slurs in the fourth grade based upon his perceived sexual orientation. The taunting increased "in regularity and severity" as L.W. progressed through school. By the time L.W. reached seventh grade, the alleged harassment occurred daily and had escalated to physical aggression and molestation. When he reached high school, L.W. was subject to two physical attacks within days of beginning school. He ultimately withdrew from his local high school and enrolled elsewhere at the expense of the Board of Education.

The New Jersey Supreme Court found that there was a cause of action against a school district for student-on-student sexual harassment pursuant to the LAD and held that a district would be liable for such harassment when it knew or should have known about it but failed to take any corrective measures.

In the opinion, the Court detailed the harassment that L.W. was subjected to from fourth grade to high school, as well as the subsequent steps taken by school officials. School officials first learned of the taunting when L.W. was in the fifth grade and that took place on a daily basis. L.W. refused to attend school, and his mother complained to the administration. The offending classmates wrote apology letters, and L.W. returned to school. But the problems did not cease.

In seventh grade, L.W. alleged that he was confronted almost daily with taunts from fellow students loudly in the hallways so that everyone could hear. In the middle of his seventh grade year, L.G. reported to school officials that L.W. had been surrounded by fifteen taunting students. L.G. claims that when she attempted to follow up with the Assistant Principal, she was told that something had come up and that she didn't have time to speak to the students involved. The Assistant Principal eventually told L.G. that she had interviewed the main participants and determined that L.W. had provoked the incident. Both students were counseled by the Assistant Principal, but no students were punished or reprimanded as a result of the incident.

L.W. reported the incidents that occurred at play practice, and the offending student apologized. The Assistant Principal confronted a student who had struck L.W. on the head with a playbill and advised him that he would be subject to more significant consequences if he continued. L.W. again informed the Assistant Principal of the taunts, who warned the students of the consequences of further teasing. L.G. also alleges that at this time she sought the help of a guidance counselor who told L.W. to "turn the other cheek." L.W. complained to the Assistant Principal about the guidance counselor's advice.

The harassment peaked in mid-March of L.W.'s seventh grade year when three students approached L.W. in the lunch room where one of them groped L.W. in front of his classmates. The Assistant Principal told the students that their actions were inappropriate and warned of more severe consequences if the attacks continued but sent them back to class. L.W. refused to attend school for several days. School officials met with L.W. and instituted an open door policy.

The harassment continued after the meeting, and first-time offenders were counseled on their behavior. A repeat offender's family was contacted, and he received detention. L.W.'s gym locker was moved closer to the physical education office. L.W. alleged that the harassment continued the rest of the seventh grade school year, although he did not report it. He had a better time in eighth grade, and no physical abuse was reported.

L.W.'s school had a "zero tolerance" non-discrimination policy in effect the entire time that he was in seventh and eighth grade and a general nondiscrimination policy that was maintained by the affirmative action office that prohibited harassment based upon "affectional or sexual orientation." L.W.'s school addressed the policy in an assembly at the beginning of the school year, but there was no subsequent communication on the policy throughout the year.

The slurs began again when L.W. entered high school. L.W. was accosted walking home from school and punched in the face. The student also threatened to "knife" L.W. if he told anyone about the incident. L.W. missed school, and his mother informed high school officials, who L.G. claimed were uninformed about L.W.'s middle school experiences. The final incident occurred in mid-September when L.W. was pushed to the ground by another student who grabbed him by the shirt and rubbed dirt on his face.

L.W. withdrew from the Toms River High School and enrolled in a school in a neighboring town. His attendance and transportation expenses were subsidized by the defendant Board of Education.

The Court then concluded that the LAD permitted a cause of action against a school district based upon peer harassment based upon sexual orientation if the school district's failure to reasonably address the harassment had the effect of denying the student any of the school's accommodations, facilities, or privileges. The Court differentiated L.W.'s situation from "isolated schoolyard insults" or "classroom taunts."

The Court's decision in L.W. and its willingness to expand the bases of an LAD cause of action is significant. It opens up schools and their nondiscrimination policies to a new level of scrutiny. Although the long-term effects of L.W. have yet to be seen, school officials should be mindful of the Court's ruling in L.W. when implementing its policies.

*Kara is an associate in our Cherry Hill, New Jersey, office. She can be reached at kapullman@mdwcg.com or (856) 414-6000.