On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1866-04.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Petrella, Yannotti and Bilder.
Defendant Seton Hall University appeals, on leave granted, from an order of the Law Division, which reinstated the complaint of plaintiff Anthony Romeo and vacated an earlier summary judgment order of dismissal for failure to state a claim.
On appeal, Seton Hall argues: (1) its motion to dismiss should have been granted as a matter of law; (2) dismissal of Romeo's claims under the Law Against Discrimination (LAD) is required as a matter of law; (3) the LAD exempts Seton Hall from Romeo's claims; (4) Romeo's waiver argument is without merit and dismissal of the LAD claim is thus required; (5) Seton Hall cannot take any action which would "waive" its rights under the LAD; (6) the plain language of Seton Hall's policy statement is the standard for waiver of rights under New Jersey law and it will be interpreted in accord with the teachings of the Catholic Church; (7) as a matter of law, no unilateral contract could be created; and (8) the motion judge erred in ruling that Woolley v. Hoffman-LaRoche, 99 N.J. 284 (1985) applied to the student handbook.
Anthony Romeo is an openly gay student at Seton Hall University. He claims he elected to attend Seton Hall in part because of its published antidiscrimination policy, which he argues created a "unilateral contract" binding upon it. On November 13, 2003, he applied to the Seton Hall University Department of Student Affairs for provisional recognition of a gay and lesbian student organization to be named "TRUTH," an acronym for the phrase "Trust, Respect and Unity at The Hall." Dr. Laura A. Wankel, Vice President of Student Affairs at Seton Hall, responded to Romeo's application in a December 18, 2003 letter, stating in pertinent part:
The most compelling guidance from the Church directs us to care for the human person whose fundamental identity is as a "child of God" - not as a "heterosexual" or a "homosexual." The Church teaches that an exclusive focus on a person's sexual orientation denies the fullness of human dignity and diminishes persons in a way that is both reductionist and marginalizing. As a result, although SOAC [Student Organization Activities Committee] recommended to me that "TRUTH" be approved, I am informing you that your application for provisional recognition has been denied. No organization based solely upon sexual orientation may receive formal University recognition.
Further, the Division of Student Affairs remains prepared to work with gay and lesbian students to meet their needs. I am committed to working collaboratively with you and other students in fostering a positive, safe and caring community. To that end, I am providing the following plan that outlines how we may move forward.
The plan referenced in her letter was entitled "Memorandum of Understanding," and provided guidelines for gay and lesbian students wishing to operate as a group within the Seton Hall University community. The guidelines in the memorandum offered privileges, including the ability to: (1) sponsor educational events, meetings and programs; (2) sponsor volunteer and community service initiatives; (3) provide a forum for the exchange of views; (4) support gay students through campus educational programs aimed against discrimination; (5) elect officers and have ad hoc committees; and (6) request funds for particular activities and the use of other resources.
This proposal was not satisfactory to the students, and thus, Romeo filed his complaint on March 10, 2004, alleging violations of the LAD and breach of contract. The complaint was dismissed, but on a reconsideration motion the dismissal was vacated and Romeo was granted leave to amend. The appeal is from that order.
Seton Hall first argues that the motion judge erred in denying its motion to dismiss. As our discussion will indicate, it was error not to dismiss the complaint.
Under N.J.S.A. 10:5-12(f) the owner of a place of public accommodation may not discriminate against any person on various grounds stated, including "sexual orientation." This ...